Amicus Curiae Brief — Laboratory Corporation of America Holdings, dba Labcorp, Petitioner v. Luke Davis, et al.

No. 24-304

IN THE

Supreme Court of the United States

LABORATORY CORPORATION OF AMERICA HOLDINGS,

D/B/A LABCORP,

Petitioner,

v.

LUKE DAVIS, JULIAN VARGAS, AND

AMERICAN COUNCIL OF THE BLIND, INDIVIDUALLY AND

ON BEHALF OF ALL OTHERS SIMILARLY SITUATED,

Respondents.

On Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

BRIEF OF TECHNET AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

PRERAK SHAH

GIBSON, DUNN & CRUTCHER LLP

811 Main Street, Suite 3000

Houston, TX 77002

DREW HUDSON

TECHNET

1420 New York Avenue, N.W.

Suite 825

Washington, DC 20005

THEODORE J. BOUTROUS, JR.

Counsel of Record

THEANE D. EVANGELIS

BRADLEY J. HAMBURGER

PATRICK J. FUSTER

MATT AIDAN GETZ

GIBSON, DUNN & CRUTCHER LLP

333 South Grand Avenue

Los Angeles, CA 90071

(213) 229-7000

tboutrous@gibsondunn.com

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE............................. 1

SUMMARY OF ARGUMENT ..................................... 1

ARGUMENT ............................................................... 5

I. Certifying classes with uninjured members

creates immense settlement pressure and

threatens innovation in the tech industry ............ 5

A. Tech companies are all-too tempting

targets for oversized class actions.................... 5

B. The Ninth Circuit’s rule has greenlit

inflated class actions against tech

companies........................................................ 10

II. The Ninth Circuit’s rule undermines

bedrock standing requirements ........................... 12

A. The named plaintiff must define the

class within Article III’s limits....................... 13

B. The named plaintiff must establish an

ability to prove every class member’s

standing without individualized issues

predominating................................................. 16

CONCLUSION .......................................................... 20

ii

TABLE OF AUTHORITIES

Cases

Page(s)

Amchem Products, Inc. v. Windsor,

521 U.S. 591 (1997) .............................................. 19

Apple Inc. v. Pepper,

587 U.S. 273 (2019) .............................................. 10

In re Apple iPhone Antitrust Litigation,

No. 4:11-cv-6714 (N.D. Cal. Feb. 2, 2024) ........... 11

Arizona Christian School Tuition

Organization v. Winn,

563 U.S. 125 (2011) .............................................. 15

In re Asacol Antitrust Litigation,

907 F.3d 42 (1st Cir. 2018) .................................. 18

AT&T Mobility LLC v. Concepcion,

563 U.S. 333 (2011) ................................................ 8

Chicago & Grand Trunk Railway Co. v.

Wellman,

143 U.S. 339 (1892) .............................................. 16

Comcast Corp. v. Behrend,

569 U.S. 27 (2013) ...................................... 4, 17, 20

Coopers & Lybrand v. Livesay,

437 U.S. 463 (1978) .......................................... 5, 16

DaimlerChrysler Corp. v. Cuno,

547 U.S. 332 (2006) .......................................... 3, 15

iii

Cases (continued)

Page(s)

Denney v. Deutsche Bank AG,

443 F.3d 253 (2d Cir. 2006) ............................. 3, 15

Devlin v. Scardelletti,

536 U.S. 1 (2002) .................................................. 14

Erica P. John Fund, Inc. v. Halliburton Co.,

563 U.S. 804 (2011) .............................................. 17

Halvorson v. Auto-Owners Insurance Co.,

718 F.3d 773 (8th Cir. 2013) ................................ 15

Lewis v. Casey,

518 U.S. 343 (1996) .............................................. 15

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992) .................................... 3, 13, 17

Microsoft Corp. v. Baker,

582 U.S. 23 (2017) .......................................... 1, 5, 8

Olean Wholesale Grocery Cooperative, Inc. v.

Bumble Bee Foods LLC,

31 F.4th 651 (9th Cir. 2022) ................. 2, 4, 10, 11,

12, 16, 17, 18, 19

Ortiz v. Fibreboard Corp.,

527 U.S. 815 (1999) .............................................. 19

In re Qualcomm Antitrust Litigation,

328 F.R.D. 280 (N.D. Cal. 2018) .......................... 12

In re Rail Freight Fuel Surcharge

Antitrust Litigation,

934 F.3d 619 (D.C. Cir. 2019) .......................... 4, 18

iv

Cases (continued)

Page(s)

Rodriguez v. Google LLC,

2024 WL 38302 (N.D. Cal. Jan. 3, 2024) ............. 11

Shady Grove Orthopedic Associates, P.A. v.

Allstate Insurance Co.,

559 U.S. 393 (2010) .............................................. 14

Sprint Communications Co. v. APCC

Services, Inc.,

554 U.S. 269 (2008) .......................................... 3, 14

Steel Co. v. Citizens for a Better Environment,

523 U.S. 83 (1998) ............................................ 4, 14

Stoneridge Investment Partners, LLC v.

Scientific-Atlanta, Inc.,

552 U.S. 148 (2008) ................................................ 8

Stromberg v. Qualcomm Inc.,

14 F.4th 1059 (9th Cir. 2021) .............................. 12

Taylor v. Sturgell,

553 U.S. 880 (2008) .............................................. 15

Town of Chester v. Laroe Estates, Inc.,

581 U.S. 433 (2017) .............................. 3, 13, 14, 16

TransUnion LLC v. Ramirez,

594 U.S. 413 (2021) ................................. 3, 4, 8, 11,

13, 15, 17, 19, 20

v

Cases (continued)

Page(s)

Valley Forge Christian College v.

Americans United for Separation of

Church & State, Inc.,

454 U.S. 464 (1982) .............................................. 16

Wal-Mart Stores, Inc. v. Dukes,

564 U.S. 338 (2011) .............................................. 14

Constitutional Provisions

U.S. Const. Art. III, § 2 ......................................... 3, 13

Rules

Fed. R. Civ. P. 23(b)............................................... 4, 17

Fed. R. Civ. P. 23(f )

advisory committee’s note to 1998

amendment............................................................. 8

Fed. R. Civ. P. 82 ....................................................... 19

Other Authorities

Ang, Global Digital Economy Will Hit

US$16.5 Trillion by 2028,

Business Times (Aug. 19, 2024) ............................ 7

Colback, The Rise of the Platform Economy,

Financial Times (Mar. 13, 2023) ........................... 6

How Many Companies Use Cloud Computing

in 2024?, Edge Delta (May 17, 2024) ...................... 6

vi

Other Authorities (continued)

Page(s)

Kenney & Zysman, The Rise of the Platform

Economy, Issues in Science & Technology

(Spring 2016) .......................................................... 5

Minevich, 20 Leading Social Impact

Platforms Making a Difference with

Digital Potential, Forbes (Aug. 3, 2021) ................ 6

Mobile Fact Sheet,

Pew Research Center (Nov. 13, 2024)..................... 6

Most Popular Social Networks Worldwide as

of April 2024, Statista ............................................. 6

Perez, App Downloads Decline 2.3% in

2024, but Consumer Spending Grows to

$127B, TechCrunch (Dec. 18, 2024) ...................... 7

Persistence Market Research,

Digital Experience Platform Market to Hit

USD 19.3 Billion by 2030 Due to Digital

Transformation Initiatives and

E-commerce Growth, Yahoo! Finance

(Jan. 11, 2024) ........................................................ 6

INTEREST OF AMICUS CURIAE*

TechNet is a national, bipartisan network of technology CEOs and senior executives that promotes the

growth of the innovation economy by advocating a targeted policy agenda at the federal and 50-state level.

TechNet’s diverse membership includes dynamic

American companies ranging from startups to the most

iconic companies on the planet. Those companies represent more than 4.5 million employees and countless

customers in the fields of information technology,

e-commerce, the sharing and gig economies, advanced

energy, cybersecurity, venture capital, and finance.

TechNet’s members have first-hand experience with

the harmful effects of aggregating claims of uninjured

people through class actions that violate Article III

and Rule 23.

SUMMARY OF ARGUMENT

I. The certification of classes with uninjured members presents an enormous problem for all companies,

but especially those in the innovation economy.

A. Class-certification orders create immense pressure on defendants to settle, even when the order is erroneous and the plaintiffs’ claims are weak. Microsoft

Corp. v. Baker, 582 U.S. 23, 29 (2017). Those pressures reach unacceptable levels when plaintiffs are allowed to include members who suffered no Article III

injury in their proposed classes. Particularly where

plaintiffs seek statutory penalties or punitive damages, the potential monetary exposure in overinflated

multi-million-member classes will all too often force

* Under this Court’s Rule 37.6, no counsel for a party authored

this brief in whole or in part, and no person or entity other than

amici or their counsel made a monetary contribution intended to

fund the preparation or submission of this brief.

2

defendants to give up the game early—no matter how

weak the aggregated claims—rather than face the

long, expensive slog of class litigation, high-stakes trials, and complex appeals.

For tech companies at the forefront of innovation

and growth, these problems are especially acute. The

digital economy has thrived by bringing massive numbers of people together on platforms featuring all

manner of commerce and speech. But the size of those

platforms provides an alluring target for class-action

plaintiffs, who often rely on general allegations about

the tech companies to lump millions of differently situated users into massive classes. And given the complexity of the platforms, courts too often are tempted

to skip the difficult task of separating injured from uninjured users, or at least to defer that essential work

until after classes are certified. But class certification

typically forces an in terrorem settlement—so in practice, waiting until after certification to decide whether

a class sweeps in people who lack any actual injury

means there will never be an adjudication of whether

class members have Article III standing.

B. The Ninth Circuit has looked the other way

when it comes to uninjured class members, approving

certification so long as the number of uninjured members is not too “‘great.’” Olean Wholesale Grocery Cooperative, Inc. v. Bumble Bee Foods LLC, 31 F.4th 651,

669 n.14 (9th Cir. 2022) (en banc) (citation omitted).

In recent years, the Ninth Circuit has seen the certification of staggeringly broad class actions against

tech companies that seek billions of dollars on behalf

of millions of class members whose claims the district

court may have no jurisdiction to adjudicate. The

track record under the Ninth Circuit’s rule shows the

3

mischief invited by a permissive approach to Article III at class certification.

II. The Ninth Circuit’s permissive approach and

the decisions it has produced are an affront to Article III and Rule 23(b)(3) alike.

A. The Constitution limits the “judicial Power” to

“Cases” and “Controversies,” Art. III, § 2, requiring all

plaintiffs in federal court to show an injury in fact

that’s traceable to the defendant’s conduct and likely

to be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). That

mandate isn’t limited to the end of the case; the plaintiff must comply at each “successive stag[e] of the litigation.” Ibid. And when a party seeking relief joins a

case that’s already underway, he “must establish [his]

own Article III standing.” Town of Chester v. Laroe

Estates, Inc., 581 U.S. 433, 442 (2017).

Nothing about those constitutional requirements

changes when it comes to a class action, which is

simply a procedural device for aggregating and resolving the claims of absent class members all at once.

Sprint Communications Co. v. APCC Services, Inc.,

554 U.S. 269, 291 (2008). This Court has already held

that “Article III does not give federal courts the power

to order relief to any uninjured plaintiff, class action

or not.” TransUnion LLC v. Ramirez, 594 U.S. 413,

431 (2021) (citation omitted). It should now clarify that

“no class may be certified that contains members lacking Article III standing.” E.g., Denney v. Deutsche Bank

AG, 443 F.3d 253, 264 (2d Cir. 2006). Because standing “is not dispensed in gross,” plaintiffs must show

an Article III basis for “each claim” in the case, DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352-353 (2006)

(citation omitted)—including claims of absent class

members brought into the action through a certification

4

order. Any other view would allow a procedural rule

to subvert Article III and permit federal courts to exercise purely “‘hypothetical jurisdiction’” over the

claims of people who suffered no injury in fact. Steel

Co. v. Citizens for a Better Environment, 523 U.S. 83,

101 (1998).

B. It’s not enough to ensure, at class certification,

that the class is defined to include only injured members. To recover, the named plaintiff ultimately will

have to be able to prove, by final judgment, that each

member of a Rule 23(b)(3) class in fact has Article III

standing. TransUnion, 594 U.S. at 431. And that in

turn raises serious questions, at class certification,

about whether the plaintiff can show that “questions

of law or fact common to class members predominate

over any questions affecting only individual members.” Fed. R. Civ. P. 23(b)(3). That especially “demanding” predominance requirement is often what

precludes certification. Comcast Corp. v. Behrend,

569 U.S. 27, 34 (2013).

The Ninth Circuit’s approach sidesteps those issues. In its view, everything comes down to numbers:

It’s no bother if a class includes more than a “de minimis” number of uninjured members, so long as that

number doesn’t become “great” (whatever that means).

Olean, 31 F.4th at 669 & n.14 (citation omitted). But

what matters for Rule 23(b)(3) isn’t the number of uninjured class members, but whether it is possible to

“‘segregate the uninjured from the truly injured’”—

and if that’s going to require “full-blown, individual

trials,” then no class proceeding should go forward. In

re Rail Freight Fuel Surcharge Antitrust Litigation,

934 F.3d 619, 625 (D.C. Cir. 2019) (citation omitted).

Unless plaintiffs offer a compelling plan to resolve the

question of Article III standing on a classwide basis,

5

they should not be permitted to invoke the exception

of class litigation, with all the pressures and constitutional concerns it raises.

ARGUMENT

I.

Certifying classes with uninjured members

creates immense settlement pressure and

threatens innovation in the tech industry.

This Court has long recognized that “certification

of a large class may so increase the defendant’s potential damages liability and litigation costs that he may

find it economically prudent to settle and to abandon

a meritorious defense.” Microsoft Corp. v. Baker, 582

U.S. 23, 29 (2017) (brackets omitted) (quoting Coopers

& Lybrand v. Livesay, 437 U.S. 463, 476 (1978)). Permitting plaintiffs to swell the ranks of their proposed

classes with members who suffered no injury, and to

seek statutory penalties and punitive damages on behalf of such uninjured people, ratchets up that settlement pressure to crushing levels. Nowhere are those

effects more gravely felt than in the tech industry,

where digital platforms have led to stunning growth—

but where, given the expanse of the platforms and the

volume of e-commerce, defendants’ potential exposure

quickly becomes astronomical.

A. Tech companies are all-too tempting

targets for oversized class actions.

The American story can be told through the lens of

technological innovation. And over the last decade, a

revolutionary advance in “online structures that enable a wide range of human activities” has produced

“radical changes in how we work, socialize, create value

in the economy, and compete for the resulting profits.”

Kenney & Zysman, The Rise of the Platform Economy,

Issues in Science & Technology (Spring 2016),

6

https://tinyurl.com/mr3ss3mz. Tech companies increasingly offer online platforms where millions of people communicate and do business. As those platforms

have grown, so too have their usefulness: “They benefit

from the network effect, so providing greater value” the

more users take part. Colback, The Rise of the Platform Economy, Financial Times (Mar. 13, 2023),

https://tinyurl.com/5xryrkna.

“Digital transformation is now affecting every

business sector,” “every industry,” and “every aspect

of our life.” Minevich, 20 Leading Social Impact Platforms Making a Difference with Digital Potential,

Forbes (Aug. 3, 2021), https://tinyurl.com/mvxuapjh.

The companies offering digital platforms for people to

meet, trade, and work range from tiny startups to some

of the world’s largest companies. And the platforms,

through their network effects, offer new opportunities

for innovation each year. E.g., Persistence Market Research, Digital Experience Platform Market to Hit USD

19.3 Billion by 2030 Due to Digital Transformation Initiatives and E-commerce Growth, Yahoo! Finance

(Jan. 11, 2024), https://tinyurl.com/mv9xun3h.

The sheer reach of these digital platforms is unprecedented. For instance, Facebook, YouTube, Instagram, and WhatsApp each have more than 2 billion active users each month. Most Popular Social Networks

Worldwide as of April 2024, Statista, https://tinyurl.com/2s3jmdzy (visited Mar. 10, 2025). Over 90%

of Americans now own a smartphone and thus take advantage of an array of mobile apps and platforms. Mobile Fact Sheet, Pew Research Center (Nov. 13, 2024),

https://tinyurl.com/3b4p5x55. Nearly 95% of companies worldwide now rely on cloud computing. How

Many Companies Use Cloud Computing in 2024?, Edge

Delta (May 17, 2024), https://tinyurl.com/5chzmzu8.

7

And so on. The more people and businesses turn to

digital platforms, the more value they generate; by

2028, the digital economy is slated to reach $16.5 trillion. Ang, Global Digital Economy Will Hit US$16.5

Trillion by 2028, Business Times (Aug. 19, 2024),

https://tinyurl.com/237earzc.

Digital platforms are also a great equalizer, offering even small startups the chance to put their digital

products or services in front of millions of potential

customers in a span of weeks. Most of the digital economy is driven not by a few massive companies, but by

smaller apps and websites. For example, while Instagram may have more than 2 billion active users each

month, Instagram’s nearly 640 million app downloads

in 2024 is dwarfed by the nearly 110 billion downloads

across all consumer mobile apps that year, with more

than 85% of consumer mobile app revenue coming

from mobile apps outside the largest ten. Perez, App

Downloads Decline 2.3% in 2024, but Consumer

Spending Grows to $127B, TechCrunch (Dec. 18,

2024), https://tinyurl.com/4bup4nr3.

For plaintiffs interested in bringing Rule 23(b)(3)

damages class actions, the size of even nascent digital

platforms and the potential for easy recovery via an

inflated class offer an irresistible opportunity. Often

with little more than vague allegations about a tech

company’s practices or a platform’s policies, plaintiffs

can quickly arrive at proposed classes numbering well

into the millions. The exposure associated with those

proposed classes can be staggering, too. As uninjured

members increase the estimated class size, so increases the money being demanded and the starting

point for any settlement negotiations—especially

where the plaintiffs argue that every member of an

enormous class, even those who weren’t actually in-

8

jured by the challenged practice, should be entitled to

statutory penalties and punitive damages. See, e.g.,

TransUnion LLC v. Ramirez, 594 U.S. 413, 421-422

(2021) (involving verdict that stacked statutory and

punitive damages for uninjured class members). Plus,

given the complexity and scale of digital platforms, it

can often be difficult to determine which particular

users, if any, were affected by a challenged practice.

So plaintiffs have every incentive to load up their classes with everyone who may have encountered the

platform or viewed products or services online, and to

ask the court to disregard the problem of uninjured

members—or at least kick the injury can down the

road to some later stage of the proceedings.

These sorts of overinflated class actions have serious, harmful consequences. Even an erroneous classcertification order “may force a defendant to settle rather than run the risk of potentially ruinous liability.”

Baker, 582 U.S. at 41-42 (ellipsis omitted) (quoting

Fed. R. Civ. P. 23(f ) advisory committee’s note to 1998

amendment). That’s in part because the prospect of

winning at trial or reversing class certification in an

eventual appeal doesn’t erase the “extensive discovery

and the potential for uncertainty and disruption” that

force class-action defendants to settle in the first

place. Stoneridge Investment Partners, LLC v. Scientific-Atlanta, Inc., 552 U.S. 148, 163 (2008). Such “‘in

terrorem’ settlements” are an open secret by now.

AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 350

(2011); see Pet. Br. 32-33. The unprecedented expanse

of class actions against tech companies makes those

pressures all but unbearable.

If left unchecked, these sorts of sweeping class actions will harm innovation. The digital economy has

been so successful, and so beneficial to consumers,

9

precisely because tech companies have engineered

ways to reduce barriers to entry and to facilitate communication and e-commerce on a massive scale. But

if plaintiffs are permitted to bring class actions, secure

class certification, and make demands based on every

user of those platforms—no matter whether the users

were actually injured by the challenged conduct—

then companies will be pressured to restrict usage of

the platforms or else face potentially ruinous liability.

That would have untold consequences for the economy, for society, for speech, and more.

Those consequences wouldn’t be confined to massive companies with the coffers to ward them off. In

fact, the harmful effects of an overly permissive approach to classes with uninjured members could be

felt most acutely among the highly innovative small

and midsize businesses and startups that have limited resources, but that nonetheless are pioneering

technological breakthroughs that will define tomorrow’s tech industry. Those companies may be able,

thanks to low barriers to entry in the modern digital

economy, to reach millions of consumers at once. But

they wouldn’t have the resources to face down an extortionate class action loaded with people who suffered no injury. For those companies, the only choice

would be to settle early or close up shop. In either

case, looking the other way while plaintiffs flout Article III and funnel the claims of uninjured people into

federal court leaves those companies less likely to

bring their innovations to market, threatening the

progress and prosperity that the digital economy

promises.

10

B. The Ninth Circuit’s rule has greenlit

inflated class actions against tech

companies.

The Ninth Circuit has disregarded the coercive effects of overinflated classes and instead adopted a permissive approach to assessing Article III standing at

class certification. It holds that district courts can

overlook “the possible presence of uninjured class

members,” so long as the number is not too “‘great.’”

Olean Wholesale Grocery Cooperative, Inc. v. Bumble

Bee Foods LLC, 31 F.4th 651, 669 n.14 (9th Cir. 2022)

(en banc) (citation omitted). In Olean, for example,

the Ninth Circuit held that the district court could defer resolving all issues of class member standing until

trial even though expert evidence suggested that 28%

of class members suffered no injury. Id. at 680-681;

id. at 686 (Lee, J., dissenting).

The Ninth Circuit’s hands-off approach to Article III standing at class certification has unleashed

oversized class actions—especially against tech companies. The facts of this case illustrate the concerns

with allowing named plaintiffs to shoot for the moon

in their class definitions. Pet. Br. 43-44. But other

cases shine an even harsher light on the inconsistency

of the Ninth Circuit’s rule with Article III’s limit on

the cases and controversies fit for federal court.

A prime example is what happened after this

Court’s decision in Apple Inc. v. Pepper, 587 U.S. 273

(2019). There, this Court held that antitrust claims

could go forward on the theory that the plaintiffs

“pa[id] [an] alleged overcharge directly to Apple”

when they bought apps in the App Store. Id. at 281.

The plaintiffs on remand sought to certify a class of

anyone in the United States who paid Apple more than

$10 for an app or in-app purchase, which amounted to

11

around 125 million App Store accounts. In re Apple

iPhone Antitrust Litigation, No. 4:11-cv-6714, Dkt. 789

at 2 (N.D. Cal. Feb. 2, 2024). The plaintiffs’ own expert

estimated that almost 8% of the proposed class (more

than 10 million accounts) would not have paid any

overcharge—the critical element from this Court’s decision. Id. at 25. The district court even professed its

“concer[n]” about the number of “uninjured accounts”—but using the 28% figure from Olean as a

benchmark, it accepted the plaintiffs’ “surmise” that

they’d later be able to identify uninjured class members by refining their model and certified the class anyway. Id. at 25-26. That certify-first, analyze-standinglater approach resulted in a massively oversized class

action in which the district court took jurisdiction over

the claims of millions of class members who were concededly uninjured.

There was more of the same in Rodriguez v. Google

LLC, 2024 WL 38302 (N.D. Cal. Jan. 3, 2024). The

plaintiffs claimed that Google improperly collected

data from users who had opted out of certain settings.

Id. at *1. In response, Google argued that “the ‘vast

majority’ of class members’ data” was collected only for

routine record-keeping—not to be monetized for ad revenues. Id. at *6 (citation omitted). The class members

couldn’t prove an injury from mere data collection

without something more like monetization, ibid., just

as the class members in TransUnion couldn’t rely on

mere inaccuracies in the defendant’s records for standing absent disclosure to a third party, 594 U.S. at 437.

Yet the district court in Rodriguez chose to defer addressing that issue until later in the case and certified

a class of “‘100 million privacy plaintiffs’” seeking more

than half a billion dollars. 2024 WL 38302, at *6; see

id. at *11. If a district court has permitted a massively

inflated class to burst through the class-certification

12

gate, the opportunity to knock out the vast majority of

the class under Article III at an eventual class trial is

cold comfort even when the defendant has ample resources, let alone when a startup faces potential betthe-company liability.

Even before Olean, district courts in the Ninth

Circuit had often turned a blind eye to uninjured class

members at certification. The plaintiffs in one case,

for instance, sought to certify a class of 250 million

people seeking around $5 billion in damages against

Qualcomm. In re Qualcomm Antitrust Litigation, 328

F.R.D. 280, 294, 304 (N.D. Cal. 2018). Qualcomm argued that the class “include[d] a large number of

members” who could not have suffered any injury and

pointed out that the plaintiffs had carved out buyers

of iPhones from their expert report on the purported

overcharge. Id. at 310-311. But the district court effectively flipped the burden, certifying the class on the

theory that Qualcomm had not “definitively” established that those class members lacked an injury sufficient to give them standing. Id. at 311. Although

the Ninth Circuit ultimately vacated class certification on other grounds, Stromberg v. Qualcomm Inc.,

14 F.4th 1059, 1067 (9th Cir. 2021), the district court’s

order illustrates how a lenient approach to standing

at class certification permits extreme aggregation of

damages claims—especially against tech companies,

for which scale of platform, depth of pocket, and value

created by cutting-edge innovation provide an all-tooenticing target.

II. The Ninth Circuit’s rule undermines

bedrock standing requirements.

Article III establishes the foundations of, and imposes the limits on, federal judicial power. And at

every stage, “[t]he party invoking federal jurisdiction

13

bears the burden of establishing” standing under the

burdens applicable to “successive stages of the litigation.” Lujan v. Defenders of Wildlife, 504 U.S. 555,

561 (1992). That ironclad rule has consequences for

class certification: The named plaintiff must make a

threshold showing before certification that the district

court can exercise jurisdiction over the claims of all

absent class members. And even then, the plaintiff

also must demonstrate his ultimate ability to prove

standing for all the claims without having individualized issues overwhelm a potential class trial. The

Ninth Circuit wrongly rejects the first requirement

and dilutes the second.

A. The named plaintiff must define the class

within Article III’s limits.

The Constitution limits the “judicial Power” to

“Cases” and “Controversies.” Art. III, § 2. The “irreducible constitutional minimum” for any case or controversy comprises the three elements of standing,

each of which the plaintiff must establish: (1) an injury in fact that is (2) fairly traceable to the defendant’s conduct and (3) likely to be redressed by the exercise of federal judicial power. Defenders of Wildlife,

504 U.S. at 560-561. Together, the elements of standing confine federal courts to resolving “real controvers[ies] with real impact on real persons.”

TransUnion, 594 U.S. at 424 (citation omitted). And

no one can seek relief in federal court unless he can

“sufficiently answer the question: ‘What’s it to you?’”

Id. at 423 (citation omitted).

Article III’s most vital requirement isn’t limited to

the end of the case. Quite the opposite: Any plaintiff

seeking any form of relief must demonstrate Article III standing when entering the case. In Town of

Chester v. Laroe Estates, Inc., 581 U.S. 433 (2017), for

14

example, the Second Circuit sidestepped the “threshold issue” of Article III standing when allowing an intervenor to enter the case. Id. at 435. This Court vacated, stressing that the requirements of Article III

apply “whether [a] litigant joins the lawsuit as a plaintiff, a coplaintiff, or an intervenor of right.” Id. at 439.

When a person seeks damages, he “must establish

[his] own Article III standing in order to intervene.”

Id. at 442 (emphasis added). That rule has deep roots

in Article III: A court that allowed intervention while

promising to address standing down the road would

be assuming a form of “‘hypothetical jurisdiction’”

that has always exceeded federal courts’ proper role

under the Constitution. Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 101 (1998).

Those principles don’t fall by the wayside in class

actions. True, a class action is “an exception” of

sorts—not to Article III, but “to the usual rule that litigation is conducted by and on behalf of the individual

named parties only.” Wal-Mart Stores, Inc. v. Dukes,

564 U.S. 338, 348 (2011) (citation omitted). The named

plaintiff in a class action instead conducts the litigation on behalf of himself and the absent class members. See id. at 348-349. This claim-aggregating procedure functions as a sort of “traditional joinder” that

“enables a federal court to adjudicate claims of multiple parties at once,” Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co., 559 U.S. 393, 408

(2010) (plurality opinion); see Sprint Communications

Co. v. APCC Services, Inc., 554 U.S. 269, 291 (2008),

even though the absent class members are not fullfledged parties in the same way a named plaintiff or

intervenor would be, see Devlin v. Scardelletti, 536

U.S. 1, 9-10 (2002).

15

Because a class action is simply a device for aggregating claims of unnamed parties, it cannot be used to

circumvent constitutional constraints. That a case is

brought as a class action “adds nothing to the question

of standing.” Lewis v. Casey, 518 U.S. 343, 357 (1996)

(citation omitted). In fact, this Court has warned that,

in this “era” of “class actions,” “courts must be more

careful to insist on the formal rules of standing, not

less so.” Arizona Christian School Tuition Organization v. Winn, 563 U.S. 125, 146 (2011). TransUnion

left no doubt on that score: “Article III does not give

federal courts the power to order relief to any uninjured plaintiff, class action or not.” 594 U.S. at 431

(citation omitted). The upshot is that the named

plaintiff must establish standing for “each claim” that

he seeks to aggregate. DaimlerChrysler Corp. v. Cuno,

547 U.S. 332, 352 (2006). After all, “standing is not

dispensed in gross,” meaning that a constitutional basis must undergird a federal court’s exercise of judicial

power over each claim in the class. TransUnion, 594

U.S. at 431.

This Court therefore should hold that, under

Rule 23(b)(3), “no class may be certified that contains

members lacking Article III standing.” Denney v.

Deutsche Bank AG, 443 F.3d 253, 264 (2d Cir. 2006);

see, e.g., Halvorson v. Auto-Owners Insurance Co., 718

F.3d 773, 778 (8th Cir. 2013) (“In order for a class to

be certified, each member must have standing and

show an injury in fact that is traceable to the defendant and likely to be redressed in a favorable decision.”); see also Pet. Br. 25. Here, as with other constitutionally grounded procedures, “‘crisp rules with

sharp corners’ are preferable to a round-about doctrine of opaque standards.” Taylor v. Sturgell, 553

U.S. 880, 901 (2008) (citation omitted).

16

Certifying classes containing uninjured members

on the promise to weed them out later defies the principle that the exercise of judicial power “is legitimate

only in the last resort, and as a necessity in the determination of real, earnest and vital controversy.” Valley Forge Christian College v. Americans United for

Separation of Church & State, Inc., 454 U.S. 464, 471

(1982) (quoting Chicago & Grand Trunk Railway Co.

v. Wellman, 143 U.S. 339, 345 (1892)); see Pet. Br. 30.

Yet the Ninth Circuit has allowed district courts to

cast their jurisdiction far and wide as a first resort before resolving the “threshold issue” of standing. Town

of Chester, 581 U.S. at 435; see pp. 10-12, supra.

Kicking the Article III can down the road also has

intolerable consequences for defendants. Pet. Br. 3234. Any settlement discussions will be framed by the

“potential damages liability” for the entire certified

class. Coopers & Lybrand, 437 U.S. at 476; see p. 8,

supra. The certification of “grossly oversized classes”

thus allows plaintiffs “to extract a settlement, even if

the merits of their claims are questionable.” Olean,

31 F.4th at 692 (Lee, J., dissenting). For defendants

facing the Hobson’s choice to settle or risk ruinous liability, the abstract prospect of late-stage analysis of

each class member’s standing is “a phantom solution.”

Id. at 691. The federal judiciary should be the last to

sign off on mass violations of Article III that will predictably coerce excessive settlements.

B. The named plaintiff must establish an

ability to prove every class member’s

standing without individualized issues

predominating.

Limiting the class definition to injured class members is necessary but not sufficient to keep a case

within the bounds of Article III. The named plaintiff

17

also must ultimately prove, by final judgment, that

each member of a damages class has standing.

TransUnion, 594 U.S. at 431. That showing has the

potential to lead to endless mini-trials over absent

class members’ standing—and that concern cannot be

swept under the rug when deciding whether to certify

a class.

Rule 23(b)(3) makes clear that district courts cannot ignore individualized standing questions at class

certification. Any attempt to certify a damages class

triggers an additional “safeguar[d]”: the “demanding”

predominance requirement. Comcast Corp. v. Behrend, 569 U.S. 27, 34 (2013). Class certification is improper unless “the questions of law or fact common to

class members predominate over any questions affecting only individual members.” Fed. R. Civ. P. 23(b)(3).

This inquiry “begins, of course, with the elements of

the underlying cause of action.” Erica P. John Fund,

Inc. v. Halliburton Co., 563 U.S. 804, 809-810 (2011).

And standing is “an indispensable part of the plaintiff ’s case” that, again, “must be supported in the

same way as any other matter on which the plaintiff

bears the burden of proof ”—that is, “with the manner

and degree of evidence required at the successive

stages of the litigation.” Defenders of Wildlife, 504

U.S. at 561.

Putting two and two together: The plaintiff must

show that common questions will predominate over

any Article III standing issues “affecting only individual members.” Fed. R. Civ. P. 23(b)(3). To its credit,

the Ninth Circuit has recognized that the predominance requirement applies to standing. Olean, 31

F.4th at 668 n.12. But the Ninth Circuit pays lip service to this constraint. In its view, a certification order survives its version of predominance unless the

18

class is “defined so broadly as to include a great number of members” who were uninjured. Id. at 669 n.14

(emphasis added; citation omitted). That rule could

almost have been reverse-engineered in a lab to certify class actions despite serious standing issues.

The Ninth Circuit has sought to justify its “great

number” standard by portraying its competitor as the

“de minimis” test. Olean, 31 F.4th at 669. The insinuation is that courts must adopt an arbitrary numerical or percentage cutoff for uninjured class members,

and the debate is simply over which threshold suffices. But that’s a false choice. The “de minimis” cases

rest less on the absolute number or percentage of uninjured class members than on the plaintiff ’s anticipated ability to “ ‘segregate the uninjured from the

truly injured’ ” without “full-blown, individual trials.”

In re Rail Freight Fuel Surcharge Antitrust Litigation,

934 F.3d 619, 625 (D.C. Cir. 2019) (citation omitted);

see In re Asacol Antitrust Litigation, 907 F.3d 42, 5354 (1st Cir. 2018).

The Ninth Circuit’s focus on whether a great or

small number of class members likely suffered an injury thus misses the point. Uninjured class members

aren’t supposed to be participating in the case, via the

class-action mechanism or otherwise, at all. So if the

defendant or the court would be forced to go to great

lengths to weed them out one by one, that’s a sign that

things have already taken a wrong turn at class certification. And even when the number or percentage of

uninjured class members may be small, the process of

locating them can overwhelm the case with individualized inquiries. The task of finding all the needles in

the haystack doesn’t get easier when there are fewer

needles. Instead, it gets easier when there’s less hay

to sift through, or when a person steps forward with a

19

manageable plan for accurately finding every last needle. Yet the Ninth Circuit errs in favor of both larger

classes and weaker predominance review, turning a

check on individualized issues into a permission slip

to stuff the class full of uninjured members who

shouldn’t be in federal court in the first place.

Were there any doubt, principles of constitutional

avoidance would foreclose the Ninth Circuit’s lax

treatment of standing concerns under the predominance test. This Court has long explained that “serious constitutional concerns” “counsel against adventurous application[s]” of Rule 23. Ortiz v. Fibreboard

Corp., 527 U.S. 815, 845 (1999). The Court also has

been “mindful that [the Rule’s] requirements must be

interpreted in keeping with Article III constraints.”

Id. at 831 (brackets in original) (quoting Amchem

Products, Inc. v. Windsor, 521 U.S. 591, 612-613

(1997)); see Fed. R. Civ. P. 82 (“These rules do not extend * * * the jurisdiction of the district courts.”); see

also Pet. Br. 21. Unless the plaintiff can demonstrate

a concrete plan to prove every absent class member’s

standing in a manageable class proceeding, courts

should deny class certification—even if the standing

concerns raised by the defendant do not affect a “great

number” of class members. Olean, 31 F.4th at 669

n.14. Article III shouldn’t be an afterthought—it’s an

indispensable feature of our “separation of powers.”

TransUnion, 594 U.S. at 422 (citation omitted).

The predominance requirement thus should foreclose class certification in cases, like this one, in which

the plaintiffs allege that a legal violation occurred

when class members were “exposed” to a device that

allegedly violated some law. Pet. App. 35a. Because

“an injury in law is not an injury in fact,” the plaintiff

must establish that each class member suffered some

20

real-world harm beyond proximity to the defendant’s

device. TransUnion, 594 U.S. at 427. But often the

only way to know whether a bare legal violation

caused some harm is to put on individualized testimony—here, for example, whether class members

tried or even wanted to use the allegedly non-ADAcompliant kiosks. See Pet. Br. 22-23. Because respondents haven’t identified any common evidence

that could prove such an injury in fact on a classwide

basis, the Ninth Circuit erred in holding that they satisfied the predominance requirement. See Comcast,

569 U.S. at 34.

CONCLUSION

The judgment should be reversed for either or

both of the reasons that the class definition sweeps in

uninjured class members and individualized standing

questions will predominate over common issues.

Respectfully submitted.

PRERAK SHAH

GIBSON, DUNN & CRUTCHER LLP

811 Main Street #3000

Houston, TX 77002

DREW HUDSON

TECHNET

1420 New York Avenue, N.W.

Suite 825

Washington, DC 20005

THEODORE J. BOUTROUS, JR.

Counsel of Record

THEANE D. EVANGELIS

BRADLEY J. HAMBURGER

PATRICK J. FUSTER

MATT AIDAN GETZ

GIBSON, DUNN & CRUTCHER LLP

333 South Grand Avenue

Los Angeles, CA 90071

(213) 229-7000

tboutrous@gibsondunn.com

Counsel for Amicus Curiae

March 12, 2025