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

Supreme Court briefMar 12, 2025

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No. 24-304

IN THE

Supreme Court of the United States

————

LABORATORY CORPORATION OF AMERICA HOLDINGS,

D/B/A LABCORP,

Petitioner,

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 NATIONAL FEDERATION OF

INDEPENDENT BUSINESS SMALL BUSINESS

LEGAL CENTER, INC. AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

————

ARAM A. GAVOOR

Counsel of Record

THE GEORGE WASHINGTON

UNIVERSITY LAW SCHOOL

ADMINISTRATIVE LAW, ISSUES,

AND APPEALS CLINIC

2000 H Street, NW

Washington, DC 20052

202-994-2505

agavoor@law.gwu.edu

Counsel for Amicus Curiae

March 12, 2025

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................................

INTEREST OF AMICUS ....................................

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

ARGUMENT ........................................................

I. Rule 23 Should Be Interpreted

Consistent with the Constraints Imposed

by Article III and the Rules Enabling

Act..............................................................

A. The Ninth Circuit’s Interpretation

Expands Federal Court Jurisdiction

Beyond Article III, Violating the

Rules Enabling Act and Due Process .

B. Unanticipated Seventh Amendment

Implications Further Reinforce the

Need to Interpret Rule 23 in

Accordance with the Rules Enabling

Act ........................................................

C. Judicial Economy Cannot Justify

Overriding Constitutional Limits .......

II. Inclusion of Uninjured Individuals in a

Class Destroys the Typicality Required

by Rule 23..................................................

III. Lax Class Action Certification Imposes

Significant Harms on Small Businesses ..

CONCLUSION .................................................

(i)

TABLE OF AUTHORITIES

CASES

Page(s)

Amchem Prods., Inc. v. Windsor,

521 U.S. 591 (1997) ............................. 4, 5, 7, 14

Ariz. Christian Sch. Tuition Org. v. Winn,

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

Beacon Theatres, Inc. v. Westover,

359 U.S. 500 (1959) ................................... 11, 12

Black Lives Matter Los Angeles v.

City of Los Angeles,

113 F.4th 1249 (9th Cir. 2024) .................

Byrd v. Blue Ridge Rural Elec. Coop., Inc.,

356 U.S. 525 (1958) ................................... 10-11

CE Design Ltd. v. King Architectural

Metals, Inc.,

637 F.3d 721 (7th Cir. 2011).....................

Chavez v. Plan Benefit Servs., Inc.,

957 F.3d 542 (5th Cir. 2020).....................

City of Monterey v. Del Monte Dunes at

Monterey, Ltd.,

526 U.S. 687 (1999) ...................................

Clark v. Suarez Martinez,

543 U.S. 371 (2005) ...................................

Cordoba v. DIRECTV, LLC,

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

6-7

Dimick v. Schiedt,

293 U.S. 474 (1935) ................................... 10, 12

Duran v. U.S. Bank Nat’l Ass’n,

325 P.3d 916 (Cal. 2014) ...........................

iii

TABLE OF AUTHORITIES—Continued

Page(s)

E. Tex. Motor Freight Sys., Inc. v. Rodriguez,

431 U.S. 395 (1977) ...................................

Edward J. DeBartolo Corp. v. Fla. Gulf

Coast Bldg. & Const. Trades Council,

485 U.S. 568 (1988) ...................................

Gasperini v. Ctr. for Humanities, Inc.,

518 U.S. 415 (1996) ...................................

Gen. Tel. Co. of the Sw. v. Falcon,

457 U.S. 147 (1982) ................................... 17-19

Gladstone Realtors v. Vill. of Bellwood,

441 U.S. 91 (1979) .....................................

Gunnels v. Healthplan Servs., Inc.,

348 F.3d 417 (4th Cir. 2003).....................

In re Asacol Antitrust Litig.

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

In re Deepwater Horizon,

732 F.3d 326 (5th Cir. 2013).....................

In re Nexium Antitrust Litig.,

777 F.3d 9 (1st Cir. 2015) .........................

In re Rail Freight Fuel Surcharge

Antitrust Litig.,

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

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

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

Linda R.S. v. Richard D.,

410 U.S. 614 (1973) ...................................

7-8

Lindsey v. Normet,

405 U.S. 56 (1972) .....................................

TABLE OF AUTHORITIES—Continued

Page(s)

Lujan v. Defs. of Wildlife,

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

Markman v. Westview Instruments, Inc.,

517 U.S. 370 (1996) ...................................

Matter of Rhone-Poulenc Rorer, Inc.,

51 F.3d 1293 (7th Cir. 1995).....................

Newton v. Merrill Lynch, Pierce, Fenner &

Smith, Inc.,

259 F.3d 154 (3d Cir. 2001) ......................

NLRB v. Cath. Bishop of Chi.,

440 U.S. 490 (1979) ...................................

Olean Wholesale Grocery Coop., Inc. v.

Bumble Bee Foods LLC,

31 F.4th 651 (9th Cir. 2022) .....................

Ortiz v. Fibreboard Corp.,

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

Parsons v. Bedford,

28 U.S. (3 Pet.) 433 (1830) ........................

Raines v. Byrd,

521 U.S. 811 (1997) ...................................

5, 6

Reid v. Covert,

354 U.S. 1 (1957) .......................................

Schaffner v. Chem. Bank,

339 F. Supp. 329 (S.D.N.Y. 1972).............

Scott v. Neely,

140 U.S. 106 (1891) ...................................

TABLE OF AUTHORITIES—Continued

Page(s)

SEC v. Jarkesy,

603 U.S. 109 (2024) ............................. 10, 12, 15

Small v. Allianz Life Ins. Co. of N. Am.,

122 F.4th 1182 (9th Cir. 2024) ................. 18, 19

TransUnion LLC v. Ramirez,

594 U.S. 413 (2021) ................................. 5, 6, 11

Tyson Foods, Inc. v. Bouaphakeo,

577 U.S. 442 (2016) ............................. 15, 16, 18

Wal-Mart Stores, Inc. v. Dukes,

564 U.S. 338 (2011) ................................... 4, 15

CONSTITUTION

U.S. Const. art. III.................... 1-11,14, 17, 24, 25

U.S. Const. art. III, § 2, cl. 1 ........................

U.S. Const. amend. VII ............. 2, 6, 10-13, 15, 16

STATUTES

Rules Enabling Act (REA) of 1934, 28

U.S.C. §§ 2071–2077 .................. 2, 4-6, 9, 14, 24

§ 2072(a) ....................................................

§ 2072(b) .................................................... 4, 5, 7

Cal. Civ. Code. § 51(f) ...................................

Cal. Civ. Code § 52(a) ...................................

D.C. Code § 2-1403.16 ..................................

Haw. Rev. Stat. Ann. § 489-7.5 ....................

775 Ill. Comp. Stat. Ann. 60/20....................

TABLE OF AUTHORITIES—Continued

RULES

Page(s)

Fed. Equity R. 27 (1912) ..............................

Fed. Equity R. 38 (1912) ..............................

Fed. Equity R. 94 (1882) ..............................

Fed. R. Civ. P. 1 ............................................

Fed. R. Civ. P. 23 ............... 1-5, 7, 9, 12, 14, 15, 17

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

Fed. R. Civ. P. 23(a)(3) ................................. 17, 19

Fed. R. Civ. P. 23(b)............................ 5, 15, 23, 24

Fed. R. Civ. P. 23(b)(3) ......................... 4, 8, 10, 14

Fed. R. Civ. P. 23, Notes of Advisory

Committee on Rules–1937 ........................

Fed. R. Civ. P. 23 Advisory Committee

Notes on Rules–1998 Amendment ........... 19, 20

Fed. R. Civ. P. 82 .......................................... 5, 14

COURT FILINGS

Brief of Chamber of Commerce of the

United States of America, et. al. as

Amicus Curiae in Support of Petitioner,

Tyson Foods, Inc. v. Bouaphakeo, 577

U.S. 442 (2016) (No. 14-1146)...................

vii

TABLE OF AUTHORITIES—Continued

OTHER AUTHORITIES

Page(s)

Antonin Scalia, The Doctrine of Standing as

an Essential Element of the Separation of

Powers, 17 Suffolk U. L. Rev. 881 (1983) .

Henry J. Friendly, Federal Jurisdiction: A

General View (1973) .................................

James Wm. Moore & Marcus Cohn, Federal

Class Actions, 32 Ill. L. Rev. 307 (1937) ..

Richard A. Nagareda, Class Certification in

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

Rev. 97 (2009)............................................

Robert G. Bone & David S. Evans, Class

Certification and the Substantive Merits, 51

Duke L.J. 1251 (2002)............................... 20, 22

Theane Evangelis and Bradley J.

Hamburger, Article III Standing and

Absent Class Members, 64 Emory L.J.

383 (2014) ..................................................

U.S. Small Business Administration Office

of Advocacy, 2020 Small Business Profile

(2020), https://tinyurl.com/448dk4k8 ........

U.S. Small Business Administration Office

of Advocacy, 2023 Small Business Profile:

California (2023), https://tinyurl.com/54

anud2a .......................................................

INTEREST OF AMICUS 1

The National Federation of Independent Business

Small Business Legal Center, Inc. (NFIB Legal Center)

is a nonprofit, public interest law firm established to

provide legal resources and be the voice for small

businesses in the nation’s courts through representation on issues of public interest affecting small

businesses. It is an affiliate of the National Federation

of Independent Business, Inc. (NFIB), which is the

nation’s leading small business association. NFIB’s

mission is to promote and protect the right of its

members to own, operate, and grow their businesses.

NFIB represents, in Washington, D.C., and all 50 state

capitals, the interests of its members.

SUMMARY OF ARGUMENT

This case presents an uncomplex question: Are

individuals in a class action required to demonstrate

the same threshold requirements at class certification

that every other individual plaintiff who seeks redress

in an Article III court must show at the outset of

litigation? Contrary to the special exemption that

the Ninth Circuit read into Federal Rule of Civil

Procedure 23 (Rule 23), this Court should make clear

that individuals seeking class action certification are

held to the same rigid demands imposed on any

normal litigant—no more, no less.

No part of this brief was written by counsel for any party. No

party, or any other person or entity other than amicus or their

counsel, monetarily contributed to the preparation or submission

of this brief.

The George Washington University takes no position on this

case.

In addition to those arguments made by Petitioner,

this Court should answer the question in the

affirmative for three main reasons.

First, the Ninth Circuit’s reading of Rule 23 is

inconsistent with the Rules Enabling Act (REA) of

1934, 28 U.S.C. §§ 2071–2077. The REA provides an

underlying grant of authority to this Court to create

rules of civil procedure governing the federal courts. In

doing so, no rule created can abridge, enlarge, or

modify any substantive right. But that is exactly what

the Ninth Circuit’s interpretation does—it gives

individuals who suffered no injury the substantive

right to access an Article III court where they

otherwise could not. Not only does this violate the

REA, but it conflicts with Article III standing and due

process. When a court certifies a class action with

uninjured members, it exceeds the jurisdictional limits

of Article III’s “case” or “controversy” requirement and

expands a defendant’s potential liability beyond the

adverse parties that Article III contemplates.

The inclusion of uninjured individuals also creates

downstream Seventh Amendment concerns. When

courts certify a class with uninjured members, deferring

the question of standing until post-trial, they remove

from the civil jury the crucial determination of

whether the defendant is liable in fact to each plaintiff.

Even though the class action mechanism is designed

to create efficiency and prevent inconsistent verdicts

in similar actions, the Seventh Amendment’s right to

a civil jury must be strictly guarded. Thus, the

convenience or expediency of a certify-first, removelater process cannot be maintained given the impact it

poses on a defendant’s Seventh Amendment rights.

Second, construing Rule 23 as the Ninth Circuit does

creates significant typicality problems. Rule 23’s typicality

requirement means that the class representative must

share the same interest as members of the proposed

class. However, that is not the case when the

representative has an Article III injury while others

within the class do not.

Third, a lenient reading of Rule 23 will significantly

harm defendants such as small businesses. As many

commentators and courts have recognized, certification of

a class is often the ballgame in a class action suit,

creating pressure for defendants to settle in the face of

enormous litigation and liability costs. When courts

allow uninjured individuals to permeate the class at

certification, this artificially inflates liability for those

defendants, like small businesses, who especially lack

the resources to litigate against large classes or face

significant liability judgments.

Moreover, some states, such as California, impose

minimum liability damage amounts for violations of

the Americans with Disabilities Act or state antidiscrimination laws. In these states, a certify-first,

remove-later process artificially inflates the liability

faced by small businesses, further deepening the asymmetrical bargaining power in settlement negotiations.

In these states where each violation, and thus each

class member, may automatically increase the liability

of a small business regardless of the merits of the

underlying claim, the inclusion of uninjured individuals

within a class could be the difference between a small

business surviving or shuttering its doors.

The Court should reverse the judgment below.

ARGUMENT

I. Rule 23 Should Be Interpreted Consistent

with the Constraints Imposed by Article

III and the Rules Enabling Act

The Rules Enabling Act (REA) authorizes the

Supreme Court to prescribe general rules of procedure

for cases in the United States district courts, but

“[s]uch rules shall not abridge, enlarge or modify any

substantive right.” 28 U.S.C. § 2072(a)–(b). Consequently,

§ 2072(b) ensures that procedural rules do not

override congressional intent or extend liability

beyond statutory limits. Rule 23 is intended to aid in

the “just, speedy, and inexpensive determination of

every action and proceeding,” Fed. R. Civ. P. 1,

specifically by imposing procedural requirements for

class certification. Fed. R. Civ. P. 23.

Interpreting Rule 23(b)(3) to require an Article III

“injury-in-fact” for each putative member at the class

certification stage is consistent with the REA’s mandate

that procedural rules align with constitutional

principles. First set forth in Amchem Products, Inc. v.

Windsor, this Court has repeatedly affirmed the

requirement. 521 U.S. 591, 613 (1997) (“Rule 23’s

requirements must be interpreted in keeping with

Article III constraints, and with the Rules Enabling

Act, which instructs that rules of procedure ‘shall

not abridge, enlarge or modify any substantive right.’”

(citing 28 U.S.C. § 2072(b))); see, e.g., Ortiz v.

Fibreboard Corp., 527 U.S. 815, 845 (1999) (“The Rules

Enabling Act underscores the need for caution. As we

said in Amchem, no reading of the Rule can ignore the

Act’s mandate that ‘rules of procedure “shall not

abridge, enlarge or modify any substantive right[.]”’”

(quoting Amchem, 521 U.S. at 613)); Wal-Mart Stores,

Inc. v. Dukes, 564 U.S. 338, 367 (2011) (“[T]he Rules

Enabling Act forbids interpreting Rule 23 to ‘abridge,

enlarge or modify any substantive right[.]’” (quoting 28

U.S.C. § 2072(b))); see also Amchem, 521 U.S. at 613

(quoting Fed. R. Civ. P. 82’s mandate that “rules shall

not be construed to extend . . . the [subject-matter]

jurisdiction of the United States district courts.”

(alterations in original)).

Thus, a court cannot use Rule 23 to create substantive rights where none exist—including conferring

Article III standing on plaintiffs who lack a sufficient

injury. Yet that is exactly what the Ninth Circuit’s

interpretation of Rule 23 purports to do. Certifying

a class that includes uninjured members not only

expands defendants’ substantive liability but also

alters plaintiffs’ fundamental substantive rights in

violation of the REA. See Theane Evangelis and

Bradley J. Hamburger, Article III Standing and Absent

Class Members, 64 Emory L.J. 383, 392–93 (2014).

Article III confines federal court jurisdiction to

“cases” and “controversies.” U.S. Const. art. III, § 2, cl.

1. A case or controversy exists only when the plaintiff

has “a ‘personal stake’ in the case.” TransUnion LLC v.

Ramirez, 594 U.S. 413, 423 (2021) (citing Raines v.

Byrd, 521 U.S. 811, 819 (1997)). 2 This “personal stake”

requirement, or Article III standing, is necessary to

uphold the Constitution’s separation of powers.

While this Court in TransUnion addressed Article III

standing for members of a class action post-certification, it

naturally follows from the rationale of that decision that courts

should require Article III standing at the certification stage. See

TransUnion, 594 U.S. at 421, 442 (noting that the district court

had certified the class and a trial was held, but remanding with

instructions for the “Ninth Circuit [to] consider in the first

instance whether class certification is appropriate in light of our

conclusion about standing.”).

Raines, 521 U.S. at 819–20. See generally Antonin

Scalia, The Doctrine of Standing as an Essential

Element of the Separation of Powers, 17 Suffolk U. L.

Rev. 881 (1983). Consequently, the REA instructs

courts to verify that every claimant in a class has a

legitimate, colorable claim, such that every class

member can plausibly argue they have standing. See

In re Deepwater Horizon, 732 F.3d 326, 341 (5th Cir.

2013) (“By including claimants in the class definition

that lack colorable claims, a court disregards [the

REA’s] warning. It ignores the standing requirement

of Article III and creates a substantive right where

none existed before.”).

Despite clear directives about Article III standing,

the Ninth Circuit’s interpretation of Rule 23(b)(3)

impermissibly expands substantive rights in violation

of the REA and leads to due process and Seventh

Amendment violations. Moreover, an interest in judicial

economy cannot justify such an improper encroachment

on the substantive rights of class-action defendants.

A. The Ninth Circuit’s Interpretation

Expands Federal Court Jurisdiction

Beyond Article III, Violating the Rules

Enabling Act and Due Process

The right to pursue private claims in federal court

is limited only to “those plaintiffs who have been

concretely harmed by a defendant’s statutory violation[.]”

TransUnion LLC, 594 U.S. at 427 (emphasis in

original). The Ninth Circuit’s decision 3 improperly

Like the Ninth Circuit, other circuits have failed to enforce

Article III’s standing requirement at the class certification stage.

See, e.g., Kohen v. Pac. Inv. Mgmt. Co., 571 F.3d 672, 677 (7th Cir.

2009) (finding that Rule 23(b)(3) only limits the number of

uninjured class members to a “great many”); Cordoba v.

grants uninjured plaintiffs an exemption to this rule,

which would otherwise strictly apply if they pursued

their claims individually. In essence, the Ninth Circuit

has installed a back door entrance into federal court.

Where an individual plaintiff must enter through the

front door and pass through the Article III standing

security checkpoint, the Ninth Circuit treats those in

class actions as VIPs, handing them the keys to sneak

into federal court through the unguarded back door. In

doing so, it ignored this Court’s directive that Rule 23

must conform to Article III’s limits and must not

“abridge, enlarge or modify any substantive right.”

Amchem, 521 U.S. at 613 (citing 28 U.S.C. § 2072(b)).

This overly permissive class certification standard

violates due process by expanding defendants’ liability

beyond Article III’s limits and denying them the

opportunity to challenge claims by plaintiffs who

lacked standing to sue in federal court. See Lindsey v.

Normet, 405 U.S. 56, 66 (1972) (“Due process requires

that there be an opportunity to present every available

defense.” (citation omitted)).

Because Article III standing is an “irreducible

constitutional minimum,” Lujan v. Defs. of Wildlife,

504 U.S. 555, 560 (1992), lack of standing is a defense

that defendants are entitled to challenge at all stages

of litigation. Simply put, standing is a “threshold”

requirement that cannot be waived or ignored. Linda

DIRECTV, LLC, 942 F.3d 1259, 1273–77 (11th Cir. 2019)

(recognizing that standing of uninjured members is “exceedingly

relevant to the class certification analysis,” but finding that a

class fails predominance only where a “large portion” of members

lack injury). Because the Ninth Circuit is not alone in failing to

uphold the demand of Article III standing in the face of class

action certification, this Court should provide the utmost clarity

in its ultimate holding.

R.S. v. Richard D., 410 U.S. 614, 616 (1973); see

also Ariz. Christian Sch. Tuition Org. v. Winn, 563 U.S.

125, 146 (2011) (“In an era of frequent . . . class

actions, . . . courts must be more careful to insist on

the formal rules of standing, not less so.”); id. at 146–

47 (Scalia, J. concurring) (advocating for a stricter

application of Article III standing); Gladstone Realtors

v. Vill. of Bellwood, 441 U.S. 91, 100 (1979) (“A plaintiff

must always have suffered a distinct and palpable

injury to himself that is likely to be redressed if the

requested relief is granted.” (cleaned up)).

In this case, the California Damages Subclass

includes any legally blind person who “visited a

Labcorp patient service center in California.” J. App.

370. Due to the Ninth Circuit’s overly lenient

interpretation of Rule 23(b)(3), these individuals were

permitted to join the class—even if they did not use,

had no intention to use, nor were aware of the

Labcorp kiosk. Id. at 359–63. This lenient interpretation tramples due process principles by permitting

uninjured class members to access federal court

through Rule 23(b)(3)’s class action mechanism. The

uninjured Labcorp customers circumnavigated Article

III standing, while Labcorp was unjustly barred from

raising the individualized defenses it was entitled to.

See, e.g., Duran v. U.S. Bank Nat’l Ass’n, 325 P.3d 916,

920, 934 (Cal. 2014) (invoking due process concerns

because the trial court “improperly extrapolated

liability findings from a small, skewed sample group,”

thus preventing the defendant “from showing that

some class members were exempt and entitled to no

recovery”); see also id. at 935 (“[A] class cannot be

certified on the premise that [the defendant] will not

be entitled to litigate its statutory defenses to

individual claims.” (alteration in original)); cf. WalMart Stores, 564 U.S. at 367 (explaining that where

individual injuries in a proposed class overwhelm

common questions, defendants are entitled to address

and defend against each claim on the merits).

There is no reason to conclude that the drafters of

Rule 23 intended to expand the substantive right to

bring a claim in federal court for uninjured class

members who would otherwise lack standing. The

original Rule 23 was meant to be a substantial

restatement of previous rules, including Equity Rule

38 (“Representatives of Class”), Equity Rule 27, and

Equity Rule 94. See Fed. R. Civ. P. 23 notes of advisory

committee on 1937 rules. Much like the modern Rule,

the original Rule 23 required “[t]he representative [to]

have an interest, which is co-extensive and wholly

compatible with the interests of those whom he would

represent.” James Wm. Moore & Marcus Cohn, Federal

Class Actions, 32 Ill. L. Rev. 307, 312 (1937); cf. id.

(“Thus, . . . [o]ne who is not a shareholder at the time

suit is instituted may not prosecute a derivative

action.”). Although the 1966 Amendments modified the

rule in significant ways, the core principle that

representatives and class members must share the

same interests, and consequently the same injury,

survived.

By ignoring Article III’s limits and allowing

uninjured members to join the class, courts improperly

confer a substantive right for litigants to seek relief in

federal court without a concrete injury—a result that

directly violates the REA. A proper exercise of Rule

23’s gatekeeping function, which would prevent

uninjured putative members from infiltrating the

class at the certification stage, conforms with Article

III and the REA.

B. Unanticipated

Seventh

Amendment

Implications Further Reinforce the Need

to Interpret Rule 23 in Accordance with

the Rules Enabling Act

The Seventh Amendment guarantees the right to a

jury trial in civil cases. U.S. Const. amend. VII. This

guarantee is “of such importance . . . that any seeming

curtailment of the right” must be “scrutinized with the

utmost care.” SEC v. Jarkesy, 603 U.S. 109, 121 (2024)

(quoting Dimick v. Schiedt, 293 U.S. 474, 486 (1935)).

The framers deliberately enshrined this right in the

Bill of Rights to shield it from “the passing demands of

expediency or convenience[,]” mandating that “every

encroachment upon it [be] watched with great

jealousy.” Jarkesy, 603 U.S. at 122 (first quoting Reid v.

Covert, 354 U.S. 1, 10 (1957); and then quoting Parsons

v. Bedford, 28 U.S. (3 Pet.) 433, 446 (1830)).

By giving slack to the Court’s standing doctrine, the

Ninth Circuit opens the door for uninjured plaintiffs to

evade the most essential fact-finding body in the

federal court system: the jury. Interpreting Rule 23(b)(3)

to allow class certification when some members of the

proposed class lack an Article III injury poses

significant and unintended consequences for the

Seventh Amendment’s guarantee of a trial by jury.

While courts must decide the legal question of

whether Article III standing exists, questions of

fact are the jury’s province. Gasperini v. Ctr. for

Humanities, Inc., 518 U.S. 415, 432 (1996) (“An

essential characteristic of [the federal court] system is

the manner in which, in civil common-law actions, it

distributes trial functions between judge and jury and,

under the influence—if not the command—of the

Seventh Amendment, assigns the decisions of disputed

questions of fact to the jury.” (quoting Byrd v. Blue

Ridge Rural Elec. Coop., Inc., 356 U.S. 525, 537

(1958))). Under this rubric, the judge decides whether

a plaintiff has suffered an injury sufficient to satisfy

Article III standing, whereas the jury must determine

whether the defendant is actually liable to the

individual plaintiffs.

When injury requirements are postponed until after

class certification and liability determinations, the

court is often left to decide which plaintiffs were

actually injured. In such instances, liability is

determined collectively by the jury, but the question of

injury is ultimately determined by the judge—a

process that conflicts with the Seventh Amendment.

For example, in TransUnion LLC, the class of 8,185

members was awarded over $60M in damages, yet,

post-trial, nearly one third of the class was determined

to lack a concrete injury, thus lacking Article III

standing and unable to recover. 594 U.S. at 442. This

shift of fact-finding responsibility from the hands of

the jury to the bench of an Article III judge presents

grave issues for the sanctity of the Seventh Amendment. See Beacon Theatres, Inc. v. Westover, 359 U.S.

500, 510 (1959) (“[T]he right to trial by jury as declared

by the Seventh Amendment to the Constitution . . .

shall be preserved inviolate.” (citation omitted)).

Any argument that this shift in fact-finding power is

inherent to the class action mechanism is unavailing.

This is so because a class consisting of solely injured

members presents no Seventh Amendment problem.

When every class member has Article III standing,

factual disputes regarding injury and damages are

presented to the jury as common questions. However,

when uninjured members are included, the factual

issue of whether a defendant is liable to each

individual plaintiff is removed from the jury’s purview.

Postponing the exclusion of uninjured members until

after the jury abstractly determines a class action

defendant’s liability undermines their Seventh

Amendment right to have a jury resolve factual issues

in civil cases.

The Seventh Amendment’s guarantee was designed

to guard against precisely the type of expediency and

convenience that underlies such a lenient interpretation of Rule 23. Jarkesy, 603 U.S. at 122 (“The

Framers . . . ‘embedded’ the [Seventh Amendment

right to trial by jury in civil cases] in the Constitution,

securing it ‘against the passing demands of expediency

or convenience.’” (citation omitted)). But see Gunnels v.

Healthplan Servs., Inc., 348 F.3d 417, 424 (4th Cir.

2003) (noting that courts should “give Rule 23 a

liberal . . . construction, adopting a standard of

flexibility” to help “promote judicial efficiency”

(citation omitted)). Moreover, because the jury’s role

under the Seventh Amendment is to serve as the factfinding body in civil cases, “any seeming curtailment

of the right . . . should be scrutinized with the utmost

care.” Jarkesy, 603 U.S. at 121 (quoting Dimick, 293

U.S. at 486) (internal quotations removed); see also

City of Monterey v. Del Monte Dunes at Monterey, Ltd.,

526 U.S. 687, 718 (1999) (“In actions at law, issues that

are proper for the jury must be submitted to it ‘to

preserve the right to a jury’s resolution of the ultimate

dispute,’ as guaranteed by the Seventh Amendment.”

(quoting Markman v. Westview Instruments, Inc., 517

U.S. 370, 377 (1996))); Beacon Theatres, 359 U.S. at 510

(“In the Federal courts this (jury) right cannot be

dispensed with, except by the assent of the parties

entitled to it[.]” (quoting Scott v. Neely, 140 U.S. 106,

109–110 (1891)) (alteration in original)).

Courts of appeals have recognized the Seventh

Amendment concerns with lenient standing inquiries

at certification.

For example, in In re Asacol Antitrust Litigation, the

First Circuit reversed a class certification in part

because determining injury for each class member

would require individualized inquiries. 907 F.3d 42,

53–54 (1st Cir. 2018). In Asacol, the district court

certified a class with uninjured class members, deciding

that removal of such members in a later proceeding by

a claims administrator would be sufficient. Id. at 45.

The First Circuit rejected this proposed solution,

concluding that the district court’s specific certify-first,

remove-later process failed to be “protective of

defendants’ Seventh Amendment and due process

rights.” Id. at 53 (citing In re Nexium Antitrust Litig.,

777 F.3d 9, 19 (1st Cir. 2015)). Similar to this case,

Asacol included a situation where “apparently

thousands [of class members] suffered no injury.” Id.

Likewise, the D.C. Circuit invoked Seventh Amendment

concerns to uphold the lower court’s denial of class

certification in In re Rail Freight Fuel Surcharge

Antitrust Litigation, 934 F.3d 619 (D.C. Cir. 2019). The

court underscored potential Seventh Amendment and

due process ramifications created by including

uninjured class members, stating that “any winnowing

mechanism must be truncated enough to ensure that

the common issues predominate, yet robust enough to

preserve the defendants’ Seventh Amendment and due

process rights to contest every element of liability and

to present every colorable defense.” Id. at 625 (citing

Asacol, 907 F.3d at 51–54).

Certifying classes that include uninjured members

often shifts the jury’s core decision-making function

to a judge, threatening to undermine the jury’s

constitutionally reserved role. Under the Ninth

Circuit’s interpretation, all an uninjured putative

member must do is survive class certification—after

that, any and all opportunities for class action

defendants to put forth individualized defenses are off

the table. Despite the well-established function of the

jury to decide factual issues, a jury in cases like this

will never be presented with the question of whether

the class defendant is actually liable to that uninjured

individual included in the class.

Therefore, to avoid the usurpation of the jury’s core

function, Rule 23(b)(3) should be interpreted in a way

that requires each putative member to have an Article

III injury at class certification.

C. Judicial Economy Cannot Justify

Overriding Constitutional Limits

The Federal Rules of Civil Procedure “do not extend

or limit the jurisdiction of the district courts or the

venue of actions in those courts.” Fed. R. Civ. P. 82. As

such, Rule 82 establishes that procedural rules, such

as Rule 23, cannot be used to expand federal court

authority beyond the constitutional limits of Article III

(in addition to the REA). Nonetheless, the Ninth

Circuit’s interpretation of Rule 23 expands defendants’

liability beyond congressional intent and effectively

enlarges plaintiffs’ ability to access federal court.

Rule 23 aimed to increase judicial efficiency and

efficacy in adjudicating large numbers of claims of the

same nature. See Amchem, 521 U.S. at 617 (“The policy

at the very core of the class action mechanism is to

overcome the problem that small recoveries do not

provide the incentive for any individual to bring a solo

action prosecuting his or her rights. A class action

solves this problem by aggregating the relatively

paltry potential recoveries into something worth

someone’s (usually an attorney’s) labor.” (citation

omitted)); Schaffner v. Chem. Bank, 339 F. Supp. 329,

334 (S.D.N.Y. 1972) (“The class action is a sophisticated joinder device which Rule 23 states is justified

under certain circumstances to avoid multiplicity of

litigation, to avoid the risk of separate litigations

producing inconsistent results for or against persons

having the same relationship to their adversary, and

to provide a mechanism for the efficient litigation of

related claims.”).

However, judicial economy and the desire for swift

action do not justify overriding constitutional limits.

See Jarkesy, 603 U.S. at 122 (“The Framers . . .

‘embedded’ the [Seventh Amendment] right in the

Constitution, securing it ‘against the passing demands

of expediency or convenience.’” (citation omitted)). In

order to justify a departure from the rule that “litigation

is conducted by and on behalf of the individual named

parties only[,] . . . a class representative must be part

of the class and possess the same interest and suffer

the same injury as the class members.” Wal-Mart

Stores, 564 U.S. at 348–49 (cleaned up).

This is especially true in cases where the damages

sought include statutory damages for each alleged

violation. It is important at the class certification stage

for each putative member to be eligible for damages

such that they fall within the ambit of the statute—

i.e., each member must have a viable injury.

Furthermore, including uninjured plaintiffs within a

class could undermine judicial economy entirely.

Judges may face insurmountable challenges in

ensuring that only those who have suffered injuries

are awarded damages. This situation was evident in

Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442 (2016).

Although this Court affirmed the class certification, in

his concurrence, Chief Justice Roberts expressed

concern about the difficulty of ensuring only those who

were actually injured received damages, raising

questions about whether the district court could

manage this task. Id. at 462 (Roberts, C.J., concurring)

(“I write separately . . . to express my concern that the

District Court may not be able to fashion a method for

awarding damages only to those class members who

suffered an actual injury.”).

Lest there be any doubt about the proper interpretation of Rule 23(b), the canon of constitutional avoidance

proves helpful. This Court has long recognized that

“when deciding which of two plausible statutory

constructions to adopt, . . . [i]f one of them would raise

a multitude of constitutional problems, the other

should prevail[.]” Clark v. Suarez Martinez, 543 U.S.

371, 380–81 (2005). Here, where Rule 23 can be

interpreted to mean either (A) uninjured members

should not be included in a class at the certification

stage or (B) uninjured members can be included in the

class at the certification stage, the former interpretation should prevail because interpreting Rule 23 to

include only injured members in the class at

certification avoids due process or Seventh Amendment

constitutional implications. Cf. Edward J. DeBartolo

Corp. v. Fla. Gulf Coast Bldg. & Const. Trades Council,

485 U.S. 568, 575 (1988) (“[W]here an otherwise

acceptable construction of a statute would raise

serious constitutional problems, the Court will

construe the statute to avoid such problems unless

such construction is plainly contrary to the intent of

Congress.” (citing NLRB v. Cath. Bishop of Chi., 440

U.S. 490, 499–501, 504 (1979))).

While Rule 23 is not a statute, “[t]he need to avoid

serious constitutional problems is doubly strong where

a Rule of Civil Procedure is at issue.” Brief of Chamber

of Commerce of the United States of America, et. al. as

Amicus Curiae in Support of Petitioner at 8, Tyson

Foods, Inc. v. Bouaphakeo, 577 U.S. 442 (2016) (No. 141146). And, as always, “where Congress does seek to

push constitutional boundaries, it should be expected

to express its intent clearly and unmistakably.” Id.

(internal quotations omitted).

For these reasons, this Court should interpret Rule

23 to balance the need to empower individuals to sue

with the need to protect the rights of defendants. That

balance is best struck by requiring class members to

show the same injury-in-fact at class certification that

is required of any other plaintiff in litigation.

II. Inclusion of Uninjured Individuals in a

Class Destroys the Typicality Required by

Rule 23

Even if the Court finds Article III standing at the

certification stage, there remains the issue of typicality.

Rule 23(a) lays out four threshold requirements applicable

to all class actions: (1) numerosity; (2) commonality;

(3) typicality; and (4) adequacy of representation. See

Amchem, 521 U.S. at 613; see also Fed. R. Civ. P. 23(a).

Typicality requires that “the claims or defenses of the

representative parties are typical of the claims or

defenses of the class.” Fed. R. Civ. P. 23(a)(3) (emphasis

added). The typicality requirement aims to ensure that

the interest of the named class representative aligns

with the interests of the entire class, see Gen. Tel. Co.

of the Sw. v. Falcon, 457 U.S. 147, 157 n.13 (1982), and

its analysis asks how much variance between the class

representatives’ cases and those of the rest of the class

members is permissible.

Courts have allowed class certification where all

legal issues and relevant evidence are identical, apart

from some minor variations. See Tyson Foods, 577 U.S.

442 (class certification allowed where exact damages

owed to injured class members varied but where all

members were injured in a similar way). However,

where there are clear, significant differences between

the class representatives and other members—

especially in the ways they were allegedly harmed—

typicality cannot be satisfied. For example, in Falcon,

a Mexican-American employee alleged discrimination

by his employer for continuously overlooking him for

promotion. 457 U.S. at 149–50. He filed a class action

for all Mexican-Americans who were victims of

discriminatory practices in both hiring and promotion

scenarios. Id. at 150–51.

The district court granted certification, and the

circuit court affirmed, but this Court reversed, holding

that to be a class representative, Falcon needed to

possess the same interest and suffer the same injury

as the class members. Id. at 160–61. Thus, he could not

represent both the prospective employees and the

current ones who were not promoted. Id. at 155–157,

160; see also, e.g., Small v. Allianz Life Ins. Co. of N.

Am., 122 F.4th 1182, 1203 (9th Cir. 2024) (holding that,

because the class representative alleged her insurance

policy lapsed inadvertently, she “does not have typical

questions of members whose policies lapsed intentionally because they do not ‘have the same or similar

injury,’ the action is ‘based on conduct which is [ ]

unique to the named plaintiff [ ],’ and ‘other class

members have [not] been injured by the same course

of conduct.’” (alterations in original)).

Precedent dictates that a class representative must

“possess the same interest and suffer the same injury”

as class members. See Falcon, 457 U.S. at 156 (quoting

E. Tex. Motor Freight Sys., Inc. v. Rodriguez, 431 U.S.

395, 403 (1977)). Rule 23(a)(3) requires the court to

examine the specific claims, defenses, and evidence

of the class representatives to ensure there is an

alignment of interests such that pursuing their own

claims will also advance the interests of all. See Small,

122 F.4th at 1201–02 (“Typicality focuses on the class

representative’s claim . . . and ensures that the

interest of the class representative aligns with the

interests of the class.” (citation omitted)). At the very

least, there must be a congruence between the

evidence to be proffered by the class representatives

and the expected evidence on behalf of absent class

members. But where uninjured class members are

allowed to gain entry into a proposed class, typicality

cannot survive as the class representative’s evidence

will most certainly differ from those of plaintiffs who

lack any colorable injury. As such, the class

representative no longer serves the best interests of

the entire class, and the class should not be certified.

III. Lax Class Action Certification Imposes

Significant Harms on Small Businesses

Beyond the legal issues presented, certification of

a class that includes uninjured members imposes

significant real-world consequences for small businesses.

Certification can be the ballgame in class action

lawsuits. Once a class is certified, it is often financially

unfeasible to proceed to the merits, effectively eliminating the possibility of going to trial. This reality was

emphasized in the 1998 Amendment committee notes

to the Federal Rules of Civil Procedure. The committee

acknowledged that courts of appeals are granted

greater leverage in class certification interlocutory

appeals, recognizing that certification is arguably the

most important step in class actions and often

dispositive of the litigation’s outcome. Fed. R. Civ. P. 23

committee notes on 1998 Amendment (“An order

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.”);

see also 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 resolution by way

of settlement . . . . [C]lass settlements can be quite

significant, potentially involving dollar sums in the

hundreds of millions or requiring substantial restricting

of the defendant’s operations.”); Robert G. Bone &

David S. Evans, Class Certification and the Substantive

Merits, 51 Duke L.J. 1251, 1292 (2002) (“[A]lmost all

class actions settle, and the class obtains substantial

settlement leverage from a favorable certification

decision.”).

Given the potentially coercive effect that certification

can have on a defendant, it is unsurprising that several

courts of appeals have acknowledged this phenomenon.

See, e.g., Chavez v. Plan Benefit Servs., Inc., 957 F.3d

542, 547 (5th Cir. 2020) (“It is no secret that

certification ‘can coerce a defendant into settling on

highly disadvantageous terms regardless of the merits

of the suit.’” (quoting CE Design Ltd. v. King

Architectural Metals, Inc., 637 F.3d 721, 723 (7th Cir.

2011))); Newton v. Merrill Lynch, Pierce, Fenner &

Smith, Inc., 259 F.3d 154, 167 (3d Cir. 2001)

(“Irrespective of the merits, certification decisions may

have a decisive effect on litigation.”); Matter of

Rhone-Poulenc Rorer, Inc., 51 F.3d 1293, 1298 (7th Cir.

1995) (“Judge Friendly . . . called settlements induced

by a small probability of an immense judgement in a

class action ‘blackmail settlements.’” (quoting Henry J.

Friendly, Federal Jurisdiction: A General View 120

(1973))).

Even judges in the Ninth Circuit have noted the

conclusive nature of certification and the significant

pressure defendants feel to settle when faced with

class action lawsuits. See, e.g., Black Lives Matter Los

Angeles v. City of Los Angeles, 113 F.4th 1249, 1258

(9th Cir. 2024) (“[Class actions] are also onerous and

costly for defendants, who may feel ‘pressured into

settling questionable claims’ to avoid even a ‘small

chance of a devastating loss.’ This cost only increases

once the class is certified, as the price the defendant

will pay to avoid the ‘risk of a catastrophic judgment’

at trial skyrockets, even if the claims themselves may

not be meritorious.” (internal citations omitted)); see

also Olean Wholesale Grocery Coop., Inc. v. Bumble Bee

Foods LLC, 31 F.4th 651, 685 (9th Cir. 2022) (en banc)

(Lee & Kleinfeld, JJ., dissenting) (“[S]ettlement sums

are staggering because class action cases rarely go to

trial. If trials these days are rare, class action trials

are almost extinct. And it is no wonder why class

actions settle so often: If a court certifies a class, the

potential liability at trial becomes enormous, maybe

even catastrophic, forcing companies to settle even if

they have meritorious defenses.” (internal footnote

omitted)).

The coercive and settlement-forcing effect of certification is especially problematic for small businesses.

Small businesses rely on the ability to put forth

individualized defenses in order to challenge meritless

claims in court and have little money to spare for

litigation costs. Because certification is often the

ballgame in class actions, lenient certification standards

allowing uninjured members to permeate a class are

inherently unfair to small businesses. The inclusion of

uninjured members removes a small business’ ability

to put forth individualized defenses and creates

enormous financial pressure to settle, even in the face

of questionable claims.

According to data collected by the Small Business

Administration, in 2018 the median income for selfemployed people at their own incorporated business

was $51,816 and $26,084 for self-employed individuals

at their own unincorporated firms. U.S. Small Business

Administration Office of Advocacy, 2020 Small

Business Profile 2 (2020), https://tinyurl.com/448dk4k8.

However, as scholars have noted, “[e]ven in relatively

routine cases, class attorneys earn hundreds of

thousands, and frequently millions, of dollars in fees.”

Bone & Evans, supra, at 1262. When attorneys’ fees

reach these levels, the overall cost of fully litigating

even frivolous class action lawsuits becomes a nearimpossible financial undertaking for most small

business owners.

Because certification often determines the outcome

of the litigation, allowing uninjured plaintiffs to join a

class prevents most small businesses from invoking

individualized defenses and, therefore, “weeding out”

uninjured members further down the line because

these businesses are often financially unable to sustain

long-term litigation. The situation is exacerbated in

circumstances like in this case where a class action

lawsuit is coupled with a state-specific statute that can

manifest in a minimum damages amount.

California’s Unruh Civil Rights Act (Unruh Act)

states that any violation under the federal Americans

with Disabilities Act (ADA) constitutes a per se

violation of the state’s statute. Cal. Civ. Code. § 51(f).

This creates a high risk of significant costs for a

defendant as each individual violation of the ADA

(and, in turn, the Unruh Act) may result in damages

of at least $4,000. Cal. Civ. Code § 52(a). This does

not include attorney’s fees, which may also be added.

Id. The potential liability attached to any singular ADA

violation under California’s Unruh Act is sizable in an

individual case, but in the class action context, a singular

class action lawsuit can bankrupt a small business.

Suppose a class consisting of 100 members sue a

small business in California for an alleged ADA

violation. Assuming an amount of $4,000 per violation,

the small business may be liable for $400,000 in Unruh

Act damages. Even assuming $4,000 in damages per

violation, this is a conservative estimate because the

statute explicitly allows “up to a maximum of three

times the amount of actual damage.” Cal. Civ. Code

§ 52(a). In this hypothetical, $400,000 in Unruh Act

damages could be a best-case-scenario for a small

business under this statutory scheme, especially as

this amount does not reflect the attorney’s fees a

business may pay in addition to class damages. In this

situation, if 50 members of the class suffered no injury

but were included in certification under the Ninth

Circuit’s lenient Rule 23(b)(3) interpretation, that is a

difference of a minimum $400,000 liability versus a

$200,000 liability. While $200,000 is still significant

for a small business, weeding out these uninjured

members could be the deciding factor between

surviving or shuttering their doors. Not only do small

businesses generally lack adequate funding to cover

such massive damage awards—which is worsened by

inflated classes—but they also lack the legal resources

to fully litigate frivolous claims, making an already

unfair situation much worse.

While small businesses in states with similar

statutes to the Unruh Act face the same potential class

action challenges, these problems are perhaps

especially magnified in California. As of 2023, California

had 4.1 million small businesses, comprising 99.8% of

all California businesses. U.S. Small Business

Administration Office of Advocacy, 2023 Small

Business Profile: California 1 (2023), https://tinyurl.

com/54anud2a. Additionally, these businesses employ

7.5 million people, which is 47.6% of California

employees. Id. California has more small businesses

and small business employees than any other state in

the country. Thus, small businesses in California will

be especially harmed if the Ninth Circuit’s lenient

interpretation of Rule 23(b)(3) is affirmed.

In California and across the Nation, small businesses

play a vital economic role. As discussed above,

certification is often the ballgame in class action

lawsuits. Because of this, a strict interpretation of

Rule 23 to exclude uninjured members at the

certification stage is imperative. Not only does a strict

interpretation of Rule 23 conform to Article III

standing, the Rules Enabling Act, and avoid

constitutional questions, but the future of many small

businesses may depend on it.

See, e.g., 775 Ill. Comp. Stat. Ann. 60/20 (stating that

“[w]hoever injures another by a violation of [the Illinois Human

Rights Act] is liable for each and every offense for all remedies

available at law,” including damages of no less than $4,000); see

also D.C. Code § 2-1403.16; Haw. Rev. Stat. Ann. § 489-7.5 (both

providing a right of action and award of some sum of civil

penalties under civil rights provisions similar to the Unruh Act).

CONCLUSION

This Court should reverse the judgment below and

require all unnamed plaintiffs in a class action suit to

have Article III standing at certification.

Respectfully submitted,

ARAM A. GAVOOR

Counsel of Record

THE GEORGE WASHINGTON

UNIVERSITY LAW SCHOOL

ADMINISTRATIVE LAW, ISSUES,

AND APPEALS CLINIC

2000 H Street, NW

Washington, DC 20052

202-994-2505

agavoor@law.gwu.edu

March 12, 2025

Counsel for Amicus Curiae

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.