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, ET AL.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

Brief for the Mortgage Bankers Association,

American Bankers Association, America’s

Credit Unions, Consumer Data Industry

Association, and Independent Community

Bankers of America as Amici Curiae

Supporting Petitioner

WRENNE BARTLETT

GOODWIN PROCTER LLP

620 8th Ave.

New York, N.Y. 10018

March 12, 2025

WILLIAM M. JAY

Counsel of Record

KEITH LEVENBERG

MATTHEW S. SHELDON

ALEXIS DESAUTEL

GOODWIN PROCTER LLP

1900 N St., N.W.

Washington, D.C. 20036

wjay@goodwinlaw.com

(202) 346-4000

i

TABLE OF CONTENTS

INTEREST OF THE AMICI ........................................ 1

SUMMARY OF ARGUMENT ...................................... 3

ARGUMENT ................................................................ 4

I. Article III, the Rules Enabling Act, and Rule 23

forbid certifying classes containing people who

have not been injured ............................................. 5

II. The standard followed by the Ninth Circuit is not

just wrong, but harmful .......................................... 7

A. Ignoring the Article III problem until final

judgment is unworkable .................................... 9

B. Ignoring the Article III problem until final

judgment is unfair and abusive ...................... 17

CONCLUSION ........................................................... 24

ii

TABLE OF AUTHORITIES

Page(s)

Cases:

AstraZeneca AB v. UFCW (In re Nexium

Antitrust Litig.),

777 F.3d 9 (1st Cir. 2015)........................ 4, 11, 13,

14, 16, 17, 23

Baehr v. Creig Northrop Team, P.C.,

953 F.3d 244 (4th Cir. 2020) ................. 17, 21, 22

Castano v. Am. Tobacco Co.,

84 F.3d 734 (5th Cir. 1996) ......................... 11 n.5

Comcast Corp. v. Behrend,

569 U.S. 27 (2013) ............................................. 11

Coopers & Lybrand v. Livesay,

437 U.S. 463 (1978) ....................................... 8 n.2

Cordoba v. DIRECTV, LLC,

942 F.3d 1259 (11th Cir. 2019) ......................... 16

In re EpiPen (Epinephrine Injection, USP)

Mktg., Sales Pracs. & Antitrust Litig.,

No. 17-2785, 2020 WL 1873989 (D. Kan.

Feb. 27, 2020) ..................................................... 21

FDA v. All. for Hippocratic Med.,

602 U.S. 367 (2024) ............................................. 6

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

573 U.S. 258 (2014) ........................................... 16

iii

Indergit v. Rite Aid Corp.,

No. 08-9361, 2015 WL 7736533

(S.D.N.Y. Nov. 30, 2015) ............................. 10 n.4

Kang v. Credit Bureau Connection, Inc.,

No. 18-1359, 2022 WL 16748698 (E.D.

Cal. Nov. 4, 2022) .............................................. 10

Kohen v. Pac. Inv. Mgmt. Co. LLC,

571 F.3d 672 (7th Cir. 2009) ............................... 8

In re Lamictal Direct Purchaser Antitrust Litig.,

957 F.3d 184 (3d Cir. 2020) .......................... 22 n.7

Lujan v. Defs. of Wildlife,

504 U.S. 555 (1992) ............................................. 5

McCarthy v. Paine Webber Grp., Inc.,

164 F.R.D. 309 (D. Conn. 1995) ........................ 10

Messner v. Northshore Univ. HealthSystem,

669 F.3d 802 (7th Cir. 2012) ................... 8, 10, 17

Olean Wholesale Grocery Coop., Inc. v.

Bumble Bee Foods LLC,

31 F.4th 651 (9th Cir. 2022) (en banc) ... 6, 10, 11,

11 n.5, 13, 16, 17, 22

On the House Syndication, Inc. v. Fed.

Express Corp.,

203 F.R.D. 452 (S.D. Cal. 2001) ............... 9, 10, 12

Ortiz v. Fibreboard Corp.,

527 U.S. 815 (1999) ........................................... 16

Parker v. Time Warner Ent. Co.,

331 F.3d 13 (2d Cir. 2003) ................................ 19

iv

In re Prograf Antitrust Litig.,

No. 11-2242, 2014 WL 4745954 (D.

Mass. June 10, 2014) .................................. 20–21

Ramirez v. TransUnion LLC,

951 F.3d 1008 (9th Cir. 2020) ................. 7, 12–13

Spokeo, Inc. v. Robins,

578 U.S. 330 (2016) ....................................... 5, 18

Stillmock v. Weis Mkts., Inc.,

385 F. App’x 267 (4th Cir. 2010)................. 18–20

Transamerican Refin. Corp. v. Dravo Corp.,

139 F.R.D. 619 (S.D. Tex. 1991) ......................... 9

TransUnion LLC v. Ramirez,

594 U.S. 413 (2021) ............. 5, 7, 9 n.3, 13, 19–20

United Food & Com. Workers Unions & Emps.

Midwest Health Benefits Fund v. Warner

Chilcott Ltd. (In re Asacol Antitrust Litig).,

907 F.3d 42 (1st Cir. 2018) ............. 14–15, 16–17

Wal-Mart Stores, Inc. v. Dukes,

564 U.S. 338 (2011) ......................................... 6, 9

Waldrup v. Countrywide Fin. Corp.,

No. 13-8833 et al., 2019 WL 6317767

(C.D. Cal. July 12, 2019 ................................ 9–10

Wilson v. Eagle Nat’l Bank,

No. 20-1344, 2023 WL 2478933 (D. Md.

Mar. 13, 2023) ................................................... 22

v

Statutes and Rule:

15 U.S.C. § 1681c.................................................... 19

15 U.S.C. § 1681n ................................................... 19

28 U.S.C. § 2072 ....................................................... 6

Fed. R. Civ. P. 23 advisory committee’s note

to 1998 amendment ................................ 8 n.2, 20

Other Authorities:

Joseph M. McLaughlin, McLaughlin on

Class Actions (21st ed. 2024) ............................ 14

Richard A. Nagareda, Class Certification in

the Age of Aggregate Proof, 84 N.Y.U. L.

REV. 97 (2009) ................................................... 17

INTEREST OF THE AMICI1

The Mortgage Bankers Association is the national

association representing the real-estate finance

industry, an industry that employs more than

275,000 people in virtually every community in the

country. Headquartered in Washington, D.C., the

association works to ensure the continued strength of

the nation’s residential and commercial real estate

markets, to expand homeownership, and to extend

access to affordable housing to all Americans. MBA

promotes fair and ethical lending practices and

fosters professional excellence among real-estate

finance employees through a wide range of

educational programs and a variety of publications.

Its membership of more than 2,000 companies

includes all elements of real-estate finance:

independent mortgage banks, mortgage brokers,

commercial banks, thrifts, REITs, Wall Street

conduits, life-insurance companies, credit unions,

and others in the mortgage-lending field. For

additional information, visit MBA’s website:

www.mba.org.

The American Bankers Association is the voice of

the nation’s $24.1 trillion banking industry, which is

composed of small, regional, and large banks that

together employ approximately 2.1 million people,

safeguard $19.2 trillion in deposits and extend $12.7

trillion in loans. ABA members—located in each of

the fifty states and the District of Columbia—include

1 No counsel for any party authored any portion of this brief,

and no one other than the amici curiae, their members, and

their counsel provided any monetary contribution intended to

fund its preparation or submission.

2

financial institutions of all sizes and types. ABA

advocates for banks before Congress, regulatory

agencies, and the courts to drive pro-growth policies

that help customers, clients, and communities thrive.

America’s Credit Unions represents our nation’s

nearly 5,000 federally and state-chartered credit

unions that collectively serve over 142 million

consumers with personal and small-business

financial-service products. America’s Credit Unions

delivers strong advocacy, resources, and services to

protect, empower, and advance credit unions and the

people they serve. The organization advocates for

responsible legislative policies and regulations so

credit unions can efficiently meet the needs of their

members and communities.

The Consumer Data Industry Association is a

national trade association representing consumerreporting agencies including the nationwide credit

bureaus, regional and specialized credit bureaus,

background-check companies, and others. Founded

in 1906, CDIA promotes the responsible use of

consumer data to help consumers achieve their

financial goals, and to help businesses, governments,

and volunteer organizations avoid fraud and manage

risk. Through data and analytics, CDIA members

empower economic opportunity, helping ensure fair

and safe transactions for consumers, facilitating

competition, and expanding consumers’ access to

financial and other products suited to their unique

needs.

The Independent Community Bankers of America

has one mission: to create and promote an

environment where community banks flourish. ICBA

is a national trade association that powers the

potential of the nation’s community banks through

3

effective advocacy, education, and innovation. As

local and trusted sources of credit, America’s

community banks leverage their relationship-based

business models and innovative offerings to channel

deposits into the neighborhoods they serve, creating

jobs, fostering economic prosperity, and fueling their

customers’ financial goals and dreams.

Amici’s members are affected by the issues in this

case—not just the legal rules themselves, but the

practical significance of a rule like the one the Ninth

Circuit currently follows. Under that rule, federal

courts may certify a class that includes many

unnamed plaintiffs who could not sue in their own

right because they lack standing, and who may not

recover damages in federal court even as unnamed

class members. Courts following this approach

essentially kick the can down the road, saying that

they will revisit the standing of individual unnamed

class members sometime before a final judgment

would award them damages—which would be

unconstitutional. But as experience demonstrates,

courts often simply do not keep that promise after

certifying a class. This error is self-reinforcing:

certifying a class containing uninjured plaintiffs

pads the class, boosts the potential recovery and the

in terrorem effect of the certification, and increases

the likelihood that the case will settle without the

standing defect ever being addressed.

SUMMARY OF ARGUMENT

1. The answer to the question presented in this

case is straightforward. This Court’s precedents

make clear that uninjured plaintiffs are not allowed

through the courthouse door. Because the Rules

Enabling Act prohibits the Federal Rules of Civil

Procedure from abridging, enlarging, or modifying

4

any substantive right, people who would not be

allowed through the courthouse door as individuals

are not allowed through the courthouse door as

members of a plaintiff class, either.

2. The rule followed in the Ninth Circuit

encouraging courts to certify classes that contain

uninjured members is not just legally wrong: it has

proven unworkable in practice and unfair to

litigants. Even those courts that follow this rule

acknowledge that after certifying a class with

uninjured members, they are still obliged to winnow

those members out of the class later on. But later on

usually never comes. Courts struggle to devise a

mechanism to identify uninjured class members that

is administratively feasible and that preserves

defendants’ right to litigate individual standing

defenses. And the mechanism seldom, if ever,

proceeds from theory to reality. Defendants can even

find themselves going to trial with no way to

challenge uninjured class members’ lack of standing.

And the in terrorem value of class actions regularly

forces

defendants

into

multimillion

dollar

settlements of cases they would have won if the

standing problem had been addressed at the classcertification stage. Simply “kick[ing] the can down

the road” is unworkable. AstraZeneca AB v. UFCW

(In re Nexium Antitrust Litig.), 777 F.3d 9, 33 (1st

Cir. 2015) (Kayatta, J., dissenting).

ARGUMENT

Nobody can come to federal court asking for an

award of damages if he has no actual injury. A

concrete injury is a basic requirement for getting in

the courthouse door. But in several circuits, people

with no actual injury (in the case at bar, vast

numbers of them) are allowed to come into court to

5

seek a monetary recovery by following along behind a

named plaintiff who seeks damages for an actual

injury. Because Article III does not let anyone who

lacks an injury sue for damages in an individual

federal action, the Rules Enabling Act does not and

could not allow such an uninjured person to pursue

damages through certification of a class action. Nor

would the proper operation of Rule 23 permit

certification before the court and the parties exclude

from any defined class those who have no injury.

The contrary rule followed by the Ninth Circuit

here, and by some other courts, is not just wrong—it

is harmful. Certifying a class with uninjured

members does not resolve their standing problem—it

just saves it for later, because this Court has made

clear (most recently in TransUnion) that uninjured

class members cannot recover damages in a class

action. But certifying a class while deferring the

standing analysis necessarily means certifying

classes that are unlawfully large—and requiring

defendants to litigate against those classes, with the

attendant pressure to settle that class size creates.

Punting the hunt for the uninjured has proven both

unworkable and unfair in practice.

I. Article III, the Rules Enabling Act, and Rule

23 forbid certifying classes containing

people who have not been injured.

This Court has repeatedly affirmed that a

concrete injury is among the “irreducible

constitutional minimum” requirements to sue in

federal court. Spokeo, Inc. v. Robins, 578 U.S. 330,

338 (2016); Lujan v. Defs. of Wildlife, 504 U.S. 555,

560 (1992). Or as the Court put it most recently: “No

concrete harm, no standing.” TransUnion LLC v.

Ramirez, 594 U.S. 413, 417 (2021). And without

6

standing, a plaintiff cannot “get in the federal

courthouse door.” FDA v. All. for Hippocratic Med.,

602 U.S. 367, 379 (2024).

The question presented here is whether people

without standing may get in the federal courthouse

door as class members when they could not enter as

individuals. The Ninth Circuit says that despite the

limits on federal-court authority, courts may

nonetheless “permits ‘certification of a class that

potentially includes more than a de minimis number

of uninjured class members.’” Pet. App. 5a n.1

(quoting Olean Wholesale Grocery Coop., Inc. v.

Bumble Bee Foods LLC, 31 F.4th 651, 669 (9th Cir.

2022) (en banc)). As petitioner persuasively explains,

that is wrong under a straightforward application of

Article III and the Rules Enabling Act. The Federal

Rules of Civil Procedure cannot “abridge, enlarge or

modify any substantive right.” 28 U.S.C. § 2072(b).

Allowing Rule 23 to be used to let people in the

courthouse door as class members when they could

not get in as individuals would “enlarge” their

substantive rights.

Sieving out injured members from a class that

embraces the injured and uninjured alike often

requires individual inquiries. Courts have an

obligation at the class-certification stage to perform a

“rigorous analysis” into whether these individual

inquiries will predominate over common ones. WalMart Stores, Inc. v. Dukes, 564 U.S. 338, 350–51

(2011). But they do not discharge this obligation

when they put off that analysis to a later stage of

proceedings. And they do not discharge this

obligation when they perform that analysis on a class

of people defined differently from the class of people

who can eventually recover. Courts should not be

7

allowed to certify first and ask the predominance

question later.

II. The standard followed by the Ninth Circuit

is not just wrong, but harmful.

Even in transgressing Article III, courts like the

Ninth Circuit tend to recognize the Article III

problem. They acknowledge that a classwide

judgment cannot award money damages to uninjured

plaintiffs—and that a certified class containing

uninjured plaintiffs will produce exactly that result if

something is not done about it (if the class wins on

the merits). See, e.g., Ramirez v. TransUnion LLC,

951 F.3d 1008 (9th Cir. 2020), rev’d, 594 U.S. 413

(2021). So these courts say they will do something

about it later, even while certifying the class now. In

other words, even though they know that uninjured

class members must be ejected from the courthouse

at some point, they do not consider that an obstacle.

Instead, the courts order these people to become

members of a case of which they cannot legally be a

part, give them class notice and a false choice

between opting out or seeking a recovery, and then

keep them around through discovery, dispositive

motion practice, and trial. In the class-certification

context, the acknowledgment that the uninjured will

eventually need to be found and excluded is the

tribute vice pays to virtue.

But it is insufficient, because later usually never

comes, and the individual harm assessments usually

never happen. This is true for several reasons. First,

experience teaches that courts presiding over class

actions usually refuse to allow defendants access to

the discovery and other mechanisms necessary to

find and eject the uninjured class members.

8

Second, the certification of an inflated class itself

reduces the likelihood that anyone will ever assess

the individual class members’ standing. Every circuit

acknowledges the “in terrorem character of a class

action.” E.g., Kohen v. Pac. Inv. Mgmt. Co. LLC, 571

F.3d 672, 678 (7th Cir. 2009). “Even if a class’s claim

is weak, the sheer number of class members and the

potential payout that could be required if all

members prove liability might force a defendant to

settle a meritless claim in order to avoid breaking

the company.” Messner v. Northshore Univ.

HealthSystem, 669 F.3d 802, 825 (7th Cir. 2012)

(citing Kohen).2 This concern is especially salient

when a class contains “members who were not

harmed”: the “effect can be magnified unfairly if it

results from a class defined so broadly as to include

many members who could not bring a valid claim

even under the best of circumstances.” Id. That is

why, as petitioner correctly observed at the certiorari

stage, “With class actions, certification is often the

ballgame. Once a class has been certified, the typical

next step is settlement, not trial.” Pet. 4.

For both reasons, waiting until later in the

litigation to deal with class members who never

should have been allowed through the courthouse

door in the first place is itself both harmful and

wasteful. This Court should reject any reading of

Article III, the Rules Enabling Act, and Rule 23 that

2 See also, e.g., Coopers & Lybrand v. Livesay, 437 U.S. 463,

476 (1978) (recognizing that class certification incentivizes

defendants “to settle and to abandon a meritorious defense”);

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

amendment (justifying Rule 23(f)’s expansion of appellate

rights on the ground that “granting certification … may force a

defendant to settle rather than incur the costs of defending a

class action and run the risk of potentially ruinous liability”).

9

is premised on keeping uninjured members in the

class “for now,” because the promised winnowing

often never comes.

A. Ignoring the Article III problem until

final judgment is unworkable.

This Court ruled, in one of its seminal decisions

on the class-certification standard, that “a class

cannot be certified on the premise that [the

defendant] will not be entitled to litigate its

statutory defenses to individual claims.” Wal-Mart,

564 U.S. at 367. It follows that a class cannot be

certified on the premise that a defendant will not be

entitled to litigate its Article III standing defenses to

individual claims, either. But that is, quite often,

exactly what happens when courts certify a class on

the premise that uninjured class members can be

handled at some later date.

The problem is that litigating defenses to

individual claims requires discovery into individual

claims.3 But courts almost never let defendants take

discovery from thousands (much less millions) of

absent class members. See, e.g., On the House

Syndication, Inc. v. Fed. Express Corp., 203 F.R.D.

452, 455 (S.D. Cal. 2001) (“discovery of absent class

members is ordinarily not permitted”). Defendants

are lucky to be allowed a handful of them. See, e.g.,

Transamerican Refin. Corp. v. Dravo Corp., 139

F.R.D. 619, 622 (S.D. Tex. 1991) (granting leave to

serve interrogatories on 50 absent class members out

of 6,000); Waldrup v. Countrywide Fin. Corp., No. 13See, e.g., TransUnion, 594 U.S. at 439 (suggesting that

“[t]he plaintiffs’ attorneys … presumably could have sought the

names and addresses of [over six thousand] individuals, and

they could have contacted them” to “show that some or all of

the[m] … were injured”).

3

10

8833 et al., 2019 WL 6317767, at *3 (C.D. Cal. July

12, 2019) (allowing depositions of five absent class

members out of 2.4 million).

But usually, courts just declare discovery into

absent class members “unduly burdensome” and

deny it. E.g., Kang v. Credit Bureau Connection, Inc.,

No. 18-1359, 2022 WL 16748698, at *5 (E.D. Cal.

Nov. 4, 2022).4 And they are probably right to do so.

Discovery from any meaningful portion of a class will

always be burdensome, for both sides. This negates

the perceived value in class treatment and is

precisely why no class should be certified in any case

likely to need such broad discovery. See, e.g., On the

House, 203 F.R.D. at 456 (“allowing defendants to

subject absent class members to discovery may

defeat the purpose of certifying the class in the first

place”); McCarthy v. Paine Webber Grp., Inc., 164

F.R.D. 309, 313 (D. Conn. 1995) (“to permit extensive

discovery would defeat the purpose of class actions

which is to prevent massive joinder of small claims”).

Even when discovery is allowed from some small

portion of the absent class, and even when it

succeeds in revealing absent class members who lack

a concrete injury, lead plaintiffs can still

triumphantly declare that those shown uninjured are

just a handful of people, not the “great number” of

uninjured members necessary to mandate the denial

or revocation of class certification under the

standard (erroneously) followed by the Seventh and

Ninth Circuits. Olean, 31 F.4th at 669 n.14 (quoting

Messner, 669 F.3d at 824). And that may in fact be

4 See also, e.g., Indergit v. Rite Aid Corp., No. 08-9361, 2015

WL 7736533, at *1 (S.D.N.Y. Nov. 30, 2015) (“particularly

heavy” burden to justify depositions of absent class members).

11

true of the defendant’s showing, if only because

discovery was limited and the true number could

never be explored. But since the plaintiff has the

burden of proof under Rule 23, it should never be the

defendant’s burden to prove the uninjured are a

“great number”—it should, at the very minimum, be

the plaintiff’s burden to show that they are not.

Judges

determined

to

certify

a

class

notwithstanding this problem tend to rely on the

principle animating the dissent (not the majority) in

Comcast Corp. v. Behrend, 569 U.S. 27 (2013), to the

effect that “individual damages calculations”—and

therefore individual inquiries into the fact of injury—

“do not preclude class certification under Rule

23(b)(3).” Id. at 42 (Ginsburg, J., dissenting); see, e.g.,

Nexium, 777 F.3d at 21; Olean, 31 F.4th at 668–69;

id. at 690 (Lee, J., dissenting) (“The majority

seemingly waves away this [issue] by relying on our

oft-quoted language that the ‘need for individualized

findings as to amount of damages does not defeat

class certification.’ I believe our court has

misconstrued that often-quoted language to create a

sweeping rule that gives a free pass to the

intractable problem of highly individualized damages

analyses.”) (citations omitted).5 But it is easy to say,

It is not quite accurate to say that individual damages

inquiries “do not” bar class certification. The most that can be

said is that they do not necessarily bar certification. But every

circuit agrees that that they can and do preclude certification

when those inquiries would predominate over common issues.

See Olean, 31 F.4th at 668; see also, e.g., Castano v. Am.

Tobacco Co., 84 F.3d 734, 745 n.21 (5th Cir. 1996) (holding that

a case “must satisfy the predominance requirement” “as a

whole,” and rejecting argument that a court can certify a class

just for liability determinations and make class members

litigate damages individually, because “allowing a court to

5

12

at the certification stage, that individual damages

hearings can solve the problem at some indefinite

point in the future. It is much more difficult actually

to hold them.

Since the entire point of the class-action device is

to avoid the need for individualized discovery and

factfinding (see On the House, 203 F.R.D. at 456), in

most cases, the individualized damages inquiries

never happen. As Judge McKeown related in

dissenting from the Ninth Circuit decision this Court

reversed in TransUnion, the aspirational principle

that “each member of a class certified under Rule 23

must satisfy the bare minimum of Article III

standing at the final-judgment stage … does not

square with what happened at trial”:

“[T]he trial … opened with class counsel

telling jurors that they would learn ‘the story

of Mr. Ramirez.’ And indeed they did. Jurors

learned that a car dealership refused to grant

Ramirez financing … and that he was

frightened, humiliated, and confused.…

“The story of the absent class members, in

contrast, went largely untold.… There was no

evidence that absent class members were

denied credit, or expended any time or energy

attempting to clear their name. It’s possible

that other class members—perhaps many

others—had these experiences. But the

hallmark of the trial was the absence of

evidence about absent class members, or any

evidence that they were in the same boat as

sever issues until the remaining common issue predominates

over the remaining individual issues would eviscerate the

predominance requirement”).

13

Ramirez. The jury was left to assume that the

absent class members suffered the same

injury.” 951 F.3d at 1039 (McKeown, J.,

concurring in part, dissenting in part).

The result was a $60 million jury verdict for a mostly

uninjured class—more than $7,000 per class

member. See Ramirez, 951 F.3d at 1017. TransUnion

never got individualized hearings into who was in

the “same boat” as Ramirez.

TransUnion nonetheless managed to develop a

record that permitted precise identification of the

portion of the class lacking an Article III injury,

leading to this Court’s reversing class certification on

the ground that those 6,332 people could not belong

to the class. 594 U.S. at 442. But TransUnion was an

unusual case, in that it was unusually easy to

identify the uninjured (and it reached this Court at

an unusual posture). The only cognizable injury

arose from disseminating a credit report, and it was

feasible for the credit bureau to identify which class

members’ reports were disseminated.

Far more often, questions of injury turn on more

complicated facts that can’t be deduced from a single

binary variable in the defendant’s computer systems.

Sometimes they require extensive discovery and

expert analysis. E.g., Olean, 31 F.4th at 680

(competing expert models). Other times, they require

testimony from many—or even every—class member.

E.g., Nexium, 777 F.3d at 19–20 (“distinguishing the

injured from the uninjured class members” required

“testimony by the consumer that, given the choice, he

or she would have purchased the generic” drug).

In Nexium, the First Circuit decided that this

“distinguishing” exercise could occur at any time

14

“prior to judgment” and did not preclude

certification. Id. at 19. The “mechanism” the court

deemed satisfactory was “testimony in the form of an

affidavit or declaration” from every class member. Id.

at 20. In dissent, Judge Kayatta criticized the

majority for “kick[ing] the can down the road by

noting that the court preserved the Defendants’ right

to challenge individual damage claims at trial,”

without the requisite “rigorous[] analy[sis]” into

whether that mechanism was “feasible.” Id. at 33

(cleaned up). But multiple courts and commentators

have remarked on the infeasibility of the mechanism

proposed in Nexium. See, e.g., 2 Joseph M.

McLaughlin, McLaughlin on Class Actions § 8.6 (21st

ed. 2024) (“Courts have rejected proposals to employ

class member affidavits and sworn questionnaires as

substitutes for traditional individualized proofs

which are, most importantly, not subject to crossexamination.”). And the dissent identified several

more problems besides:

“How exactly will defendants exercise their

acknowledged right to ‘challenge individual

damage claims at trial’? Will the defendants

seek to depose everyone who has returned an

affidavit, effectively challenging plaintiffs’

counsel to a discovery game of chicken? … [I]f

the district court does not identify a culling

method to ensure that the class, by judgment,

includes only members who were actually

injured, this court has no business simply

hoping that one will work.” Nexium, 777 F.3d

at 33–35) (Kayatta, J., dissenting).

The district court’s hope never got tested, because

the defendants won the case “and, having won, …

chose not to challenge the inclusion of any class

15

members, by that point presumably enjoying the

breadth of their win.” United Food & Com. Workers

Unions & Emps. Midwest Health Benefits Fund v.

Warner Chilcott Ltd. (In re Asacol Antitrust Litig.),

907 F.3d 42, 52 (1st Cir. 2018).

Asacol put the First Circuit on a better path,

reversing class certification due to “the presence of

uninjured class members” in the defined class with

no mechanism for finding them that comported both

with Rule 23’s predominance requirement and with

the defendants’ due-process rights. Id. at 46, 53–54.

The Asacol court summed up the problem nicely:

“The aim of the predominance inquiry is to

test whether any dissimilarity among the

claims of class members can be dealt with in a

manner that is not ‘inefficient or unfair.’

Inefficiency can be pictured as a line of

thousands of class members waiting their turn

to offer testimony and evidence on individual

issues. Unfairness is equally well pictured as

an attempt to eliminate inefficiency by

presuming to do away with the rights a party

would customarily have to raise plausible

individual challenges on those issues.” Id. at

51–52 (citation omitted).

That is the customary scenario faced by district

courts at the certification stage when a defendant

challenges Article III standing within the class.

Unlike in TransUnion, the court has a record

sufficient to establish that some portion of the class

will be proven uninjured, but seldom sufficient to

determine precisely who they are. See id. at 46–47

(citing expert market-data analysis indicating

“approximately ten percent of class members had not

been injured”). The choice the court faces at this

16

stage is not simply whether the uninjured people

must be removed from the class—TransUnion

answered that question affirmatively—but whether

there is any method for removing them from the class

that comports with Rule 23. That is, by its nature, a

question to resolve as part of the class-certification

analysis, not later.

Even Olean recognizes this. See 31 F.4th at 668

(“When individualized questions relate to the injury

status of class members, Rule 23(b)(3) requires that

the court determine whether individualized inquiries

about such matters would predominate over common

questions.”) (citing Cordoba v. DIRECTV, LLC, 942

F.3d 1259, 1277 (11th Cir. 2019)). Cordoba ruled—

correctly—that the “individualized inquiry” needed

“to sort out those plaintiffs who were actually injured

from those who were not” must be analyzed for

compliance with Rule 23 “before granting class

certification,” not delayed “until a later stage in the

proceedings.” 942 F.3d at 1264, 1276–77. That is

well-aligned with this Court’s precedents. E.g.,

Halliburton Co. v. Erica P. John Fund, Inc., 573 U.S.

258, 276 (2014) (burden of satisfying Rule 23

predominance must be met “before class certification”); Ortiz v. Fibreboard Corp., 527 U.S. 815, 831

(1999) (“[A]ny [] Article III court must be sure of its

own jurisdiction before getting to the merits.”).

But to ask the predominance question is often to

answer it. In “a case in which any class member may

be uninjured,” “[t]he need to identify those

individuals will predominate and render an

adjudication unmanageable absent evidence such as

the unrebutted affidavits assumed in Nexium, or

some other mechanism that can manageably remove

uninjured persons from the class in a manner that

17

protects the parties’ rights.” Asacol, 907 F.3d at 53–

54. This is unsurprising. Individual claims of Article

III standing often require a fully developed

summary-judgment record to resolve, as seen in

cases where the named plaintiffs were shown to have

no standing based on facts unique to them. E.g.,

Baehr v. Creig Northrop Team, P.C., 953 F.3d 244,

255–56 (4th Cir. 2020). Any case where the

representative plaintiffs need individualized evidence to establish their own standing is likely to

require individualized evidence to establish everyone

else’s standing, too. That courts struggle so futilely to

imagine feasible ways of resolving such issues—and

never manage to reach the spot in the road to where

they’ve “kicked the can” (Nexium, 777 F.3d at 33

(Kayatta, J., dissenting))—suggests the predominance requirement is not so easily surmounted.

B. Ignoring the Article III problem until

final judgment is unfair and abusive.

Even if defendants can develop the record to

challenge Article III injury at the final-judgment

stage, most don’t. TransUnion was the rare

defendant to have taken a high-stakes class action to

trial. Most settle. See Messner, 669 F.3d at 825;

Olean, 31 F.4th at 685–86 (Lee, J., dissenting) (“The

district court acknowledged the dueling experts’

differing opinions on this crucial [standing] question

but held that it would leave that issue for another

day—at trial—because it involves a merits issue that

a jury should decide. But as a practical matter, that

day will likely never come to pass….”) (citation

omitted); Richard A. Nagareda, Class Certification in

the Age of Aggregate Proof, 84 N.Y.U. L. REV. 97, 99

(2009) (“With vanishingly rare exception, class

certification sets the litigation on a path toward

18

resolution by way of settlement, not full-fledged

testing of the plaintiffs’ case by trial.”).

The undersigned amici represent just some of the

many businesses that operate in highly regulated

industries, where an array of statutory schemes

invite class actions that threaten ruinous liability

over technical violations that cause little to no harm.

Thus, while a “bare procedural violation, divorced

from any concrete harm,” does not satisfy Article III

on an individual basis, Spokeo, 578 U.S. at 341, such

a claim can still threaten ruinous liability on a

classwide basis and regularly coerces defendants into

costly settlements in cases they would have won if

the Article III problem were addressed at the

certification stage.

This is exacerbated when the main driver of

liability is not compensatory damages—there often

being no real harm to remedy—but statutory

penalties never intended to have the in terrorem

effect they have in the class context. Especially

where statutory damages are set with an individual

plaintiff in mind, classwide statutory damages reach

astronomical sums.

Judge Wilkinson’s concerns on this front are

pertinent:

“I worry that the exponential expansion of

statutory damages through the aggressive use

of the class action device is a real jobs killer

that Congress has not sanctioned. To certify in

cases where no plaintiff has suffered any

actual harm … and where innocent employees

may suffer the catastrophic fallout could not

have been Congress’s intent. Indeed, the

relatively modest range of statutory damages

19

chosen by Congress suggests that bankrupting

entire businesses over somewhat technical

violations was not among Congress’s

objectives.” Stillmock v. Weis Mkts., Inc., 385

F. App’x 267, 276 (4th Cir. 2010) (Wilkinson,

J., concurring) (citing Parker v. Time Warner

Ent. Co., 331 F.3d 13, 26–27 (2d Cir. 2003)

(Newman, J., concurring) (“I do not believe

that in specifying a $1,000 minimum payment

for [] violations, Congress intended to expose

[a defendant] to liability for billions of

dollars.”)).

But this unintended consequence is a regular

occurrence. And it is an especially abusive occurrence

when the exposure results from a class swelled by

uninjured members.

Stillmock is illustrative. The case involved the

Fair and Accurate Credit Transaction Act’s

imposition of $100 to $1,000 penalties for printing

credit-card numbers on receipts. 15 U.S.C.

§§ 1681c(g)(1), 1681n(a)(1)(A). The Fourth Circuit

authorized certification of a class encompassing

almost 15 million receipts printed by the defendant’s

grocery chain over a year-and-a-half period—i.e., a

$15 billion litigation risk for a regional business in

an industry with notoriously thin profit margins.6

The “violations” perhaps presented some speculative

risk of identity theft for some unknown (and

unknowable) minority of consumers who failed to

avail themselves of a secure-enough trash receptacle.

But as is now clear thanks to TransUnion, a “mere

risk” of harm is not an Article III injury, 594 U.S. at

See Food Indus. Ass’n, Grocery Store Chains Net Profit,

https://www.fmi.org/our-research/food-industry-facts/grocerystore-chains-net-profit (data on 1.6% profit margin).

6

20

436–37, and there was no evidence the class

experienced identity theft (or any other injury).

Nonetheless, the Fourth Circuit’s ruling forced the

defendant into a $2.5 million settlement. See

Stillmock v. Weis Mkts., Inc., No. 07-1342, ECF No.

120-1, at 3 (D. Md. Mar. 31, 2011). It was a textbook

abusive settlement that benefited nobody except

attorneys, with the affected consumers receiving a

$7.50 grocery voucher, the plaintiff’s attorneys

collecting half a million dollars in fees, and the

defendant forced to incur more than four years of

legal expenses defending itself. Id.

It would have been even more costly to the parties

and wasteful of judicial resources had Stillmock not

reached the Fourth Circuit on a Rule 23(f) appeal but

instead as a regular-course appeal from final

judgment—the only path available under a rule that

punts Article III issues to the final-judgment stage.

But defendants forced to follow that path often have

no appellate path at all. The Rule 23(f) opportunity

to petition for appellate review of a class-certification

decision presupposes that all the analysis relevant to

class treatment is in fact done at the certification

stage, not put off for later. Putting it off for later

thus makes the appellate right illusory. The

defendant may be “force[d] … to settle” rather than

“run the risk” of litigating through final judgment.

Fed. R. Civ. P. 23 advisory committee’s note.

And indeed defendants regularly find themselves

making settlement payments to uninjured class

members who could never have sued individually,

and who would not have been part of the class if the

Article III problem had been addressed at the

certification stage. See, e.g., In re Prograf Antitrust

Litig., No. 11-2242, 2014 WL 4745954, at *3 n.5, &

21

ECF No. 690-2 at 8 (D. Mass. June 10, 2014)

(certifying class despite recognizing “that significant

numbers of class members may not have been

harmed,” followed by a $13.25 million class

settlement); In re EpiPen (Epinephrine Injection,

USP) Mktg., Sales Pracs. & Antitrust Litig., No. 172785, 2020 WL 1873989, at *35, & ECF 2613 at 8 (D.

Kan. Feb. 27, 2020) (certifying class despite

recognizing that “the factual record eventually

may … show that the number of uninjured class

members is [] ‘significant,’” followed by a $264

million class settlement).

Of course, not every defendant’s standing

challenges would necessarily have prevailed, but the

prospect of their prevailing is not wholly speculative.

This is amply demonstrated by cases where

individual plaintiffs are ejected from the courthouse

for lack of standing on the same legal theories other

plaintiffs use as the basis for class claims,

notwithstanding evidence that numerous class

members have the same standing defect. For

example:

(i) In Baehr, supra, the Fourth Circuit granted

summary

judgment

against

putative

class

representatives who accused their real-estate agents

of referring them to title companies in violation of

the Real Estate Settlement Procedures Act. 953 F.3d

at 247–48. The Fourth Circuit ruled that the

plaintiffs had no Article III injury because the

alleged RESPA violation caused them no harm: the

fees they paid were “reasonable,” they “were

admittedly satisfied with the settlement services

that they received,” and they had no desire to shop

around for other providers. Id. at 255–56.

(ii) Presently pending in the District of Maryland

22

is a certified class action based on the same theory.

See Wilson v. Eagle Nat’l Bank, No. 20-1344, 2023

WL 2478933 (D. Md. Mar. 13, 2023). The

representative plaintiffs pled around Baehr by

alleging they were injured by being “overcharged.”

Id. at *6. The defendants argued in opposition to

class certification that “the court may not infer that

other class members paid increased settlement costs

just because the named Plaintiffs did,” citing

TransUnion and producing evidence in the form of

52 class member HUD-1 settlement statements

“demonstrat[ing] an absence of overcharge.” Id. at

*9, 18. The court found TransUnion “procedurally

distinct” because it “addressed Article III standing in

the context of a case that proceed[ed] to trial,” and

ruled that here, “the named Plaintiffs are only

required to satisfy the pleading-stage burden at the

class certification stage.” Id. at *9. The court

recognized it was the plaintiff’s burden to show that

“the inclusion of uninjured individuals” does not

present “differences between class members as to

standing” that “run[] afoul of Rule 23,” but did no

analysis of how this was likely to play out.7 See id. at

*18. Instead, the district court just encouraged the

defendants to “continue to raise arguments

regarding Article III standing as the case

progresses.” Id.

In this case, the Ninth Circuit did not even do

that much. It just declared, based on Olean, that

Rule 23 permits certification of a class containing

7 Most circuits have cases recognizing that “a district court

must formulate some prediction as to how specific issues will

play out in order to determine whether common or individual

issues predominate.” E.g., In re Lamictal Direct Purchaser

Antitrust Litig., 957 F.3d 184, 190 (3d Cir. 2020).

23

uninjured members. App. 397 n.1. The closest it

came to acknowledging that they will need to be

removed later was its aside that the uninjured do not

defeat certification “at this time.” Id. It did not

address whether there was any process for dealing

with them that would satisfy Rule 23 predominance,

and did not say at what time it might address it.

The correct time is the certification stage. With

this case, the Court should reaffirm its classcertification precedents and clarify that the

principles it set forth in TransUnion are not limited

to cases that have gone to trial. The classcertification stage is not just “the ballgame.” It is the

stage at which courts decide whether the class, as

defined, gets through the courthouse door. Letting a

class with members lacking standing through the

courthouse door does not comport with Article III or

the Rules Enabling Act, and proves unworkable and

unfair in practice. This Court should thus put an end

to the practice of “kick[ing] the can.” Nexium, 777

F.3d at 33 (Kayatta, J., dissenting).

24

CONCLUSION

The judgment of the court of appeals should be

reversed.

Respectfully submitted.

WRENNE BARTLETT

GOODWIN PROCTER LLP

620 8th Ave.

New York, N.Y. 10018

WILLIAM M. JAY

Counsel of Record

KEITH LEVENBERG

MATTHEW S. SHELDON

ALEXIS DESAUTEL

GOODWIN PROCTER LLP

1900 N St., N.W.

Washington, D.C. 20036

wjay@goodwinlaw.com

(202) 346-4000

Counsel for Amici Curiae

March 12, 2025