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

No. 24-304

LABORATORY CORPORATION OF AMERICA HOLDINGS,

D/B/A LABCORP,

Petitioner,

v.

LUKE DAVIS, JULIAN VARGAS, AND AMERICAN COUNCIL

OF THE BLIND, INDIVIDUALLY AND ON BEHALF OF ALL

OTHERS SIMILARLY SITUATED,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF OF THE PRODUCT LIABILITY

ADVISORY COUNCIL AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

ANDREW J. PINCUS

Counsel of Record

ARCHIS A. PARASHARAMI

DANIEL E. JONES

CARMEN N. LONGORIA-GREEN

Mayer Brown LLP

1999 K Street, NW

Washington, DC 20006

(202) 263-3000

apincus@mayerbrown.com

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

Page

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

INTRODUCTION AND SUMMARY OF

ARGUMENT ........................................................ 2

ARGUMENT .............................................................. 6

I. Rule 23(b)(3) Prohibits Certification If A

Putative Damages Class Contains Uninjured Members Who Cannot Easily Be

Identified And Excluded From The Class. .......... 6

A. Rule 23(b)(3) requires rigorous analysis before certifying a damages class. ........... 8

B. A court’s Rule 23(b)(3) analysis must

recognize the defendant’s right to identify and exclude uninjured absent class

members. ...................................................... 10

C. The Rule 23(b)(3) determination must

take account of the defendant’s right to

resolution by the district court of challenges to absent class members’ injury

claims. .......................................................... 12

D. Proper application of the predominance and superiority requirements

will make it difficult to certify classes

that include uninjured individuals. ............ 16

E. Courts of appeals have recognized that

Rule 23(b)(3) precludes certification of

proposed damages classes containing

uninjured members who cannot easily

be identified and excluded. ......................... 18

ii

II. The Damages Class In This Case Should

Never Have Been Certified Because It

Contains Uninjured Members And There

Is No Easy Way For A Court To Identify

And Exclude Them ............................................. 21

III. An Impermissibly Lax Approach To The

Issue Of Uninjured Class Members At

Class Certification Harms Businesses And

The Judicial System. ......................................... 24

CONCLUSION ......................................................... 27

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Amchem Prods., Inc. v. Windsor,

521 U.S. 591 (1997) .......................................... 9, 11

In re Asacol Antitrust Litig.,

907 F.3d 42 (1st Cir. 2018) ...................... 10, 14, 20

AT&T Mobility LLC v. Concepcion,

563 U.S. 333 (2011) .............................................. 25

Barr v. American Ass’n of Pol.

Consultants,

591 U.S. 610 (2020) .............................................. 24

Comcast Corp. v. Behrend,

569 U.S. 27 (2013) .................................... 7, 8, 9, 23

Coopers & Lybrand v. Livesay,

437 U.S. 463 (1978) .............................................. 25

Cordoba v. DIRECTV,

942 F.3d 1259 (11th Cir. 2019) .............. 2, 9, 18, 19

Crutchfield v. Sewerage & Water Bd.,

829 F.3d 370 (5th Cir. 2016) ................................ 18

Deposit Guar. Nat’l Bank v. Roper,

445 U.S. 326 (1980) .............................................. 10

Devlin v. Scardelletti,

536 U.S. 1 (2002) .................................................... 7

iv

TABLE OF AUTHORITIES—continued

Page(s)

Flecha v. Medicredit, Inc.,

946 F.3d 762 (5th Cir. 2020) .............................. 6, 7

Gene & Gene LLC v. BioPay LLC,

541 F.3d 318 (5th Cir. 2008) .................................. 9

Green-Cooper v. Brinker Int’l, Inc.,

73 F.4th 883 (11th Cir. 2023) .............................. 19

Huber v. Simon’s Agency, Inc.,

84 F.4th 132 (3d Cir. 2023) .................................. 19

La Buy v. Howes Leather Co.,

352 U.S. 249 (1957) ........................................ 13, 14

Lindsey v. Normet,

405 U.S. 56 (1972) .......................................... 10, 12

Mr. Dee’s Inc. v. Inmar, Inc.,

127 F.4th 925 (4th Cir. 2025) .............................. 20

Ortiz v. Fibreboard Corp.,

527 U.S. 815 (1999) .............................................. 11

Parker v. Time Warner Ent. Co.,

331 F.3d 13 (2d Cir. 2003) ................................... 26

In re Rail Freight Fuel Surcharge

Antitrust Litig.,

934 F.3d 619 (D.C. Cir. 2019) .................. 14, 20, 21

v

TABLE OF AUTHORITIES—continued

Page(s)

Sacred Heart Health Sys. v. Humana

Military Healthcare Servs., Inc.,

601 F.3d 1159 (11th Cir. 2010) ............................ 18

Shady Grove Orthopedic Assocs., P.A. v.

Allstate Ins.,

559 U.S. 393 (2010) .................................. 10, 11, 25

Spokeo, Inc. v. Robins,

578 U.S. 330 (2016) .............................................. 23

Stillmock v. Weis Markets, Inc.,

385 F. App’x 267 (4th Cir. 2010).......................... 24

TransUnion LLC v. Ramirez,

594 U.S. 413 (2021) .................... 2, 6, 16, 19, 22, 23

Tyson Foods, Inc. v. Bouaphakeo,

577 U.S. 442 (2016) .......................................... 6, 11

United States v. Armour & Co.,

402 U.S. 673 (1971) .............................................. 10

Wal-Mart Stores, Inc. v. Dukes,

564 U.S. 338 (2011) .............. 8, 9, 11, 12, 13, 14, 23

Constitution and Statutes

U.S. Const., Amend. VII ................ 2, 10, 12, 13, 14, 18

Rules Enabling Act,

28 U.S.C. § 2072(b) ............ 2, 4, 7, 8, 10, 11, 13, 14

vi

TABLE OF AUTHORITIES—continued

Page(s)

Other Authorities

2024 Carlton Fields Class Action Survey

(2024) .................................................................... 25

Diana Novak Jones, Scammers flood US

class action settlements with

fraudulent claims, Reuters

(May 7, 2024) ........................................................ 15

Fed. R. Civ. P. 23(b)(3) .............. 2, 3, 4, 5, 6, 7, 8, 9, 10

12, 15, 16, 17, 18, 19, 20, 26

Fed. R. Civ. P. 23(b)(3)(D) ..................................... 9, 17

Henry J. Friendly, Federal Jurisdiction:

A General View 120 (1973) .................................. 25

2 Joseph M. McLaughlin, McLaughlin

on Class Actions § 8:6 (13th ed. 2016) ................. 13

Mike Scarcella, Law firm says fake

claims were submitted in $5.6 bln

credit card settlement, Reuters

(May 28, 2024) ...................................................... 15

Sheila B. Scheuerman, Due Process

Forgotten: The Problem of Statutory

Damages and Class Actions, 74 Mo.

L. Rev. 103, 114 (2009) ........................................ 26

Western Alliance Bank, 2024 Digital

Payments Report .................................................. 15

INTEREST OF THE AMICUS CURIAE1

The Product Liability Advisory Council (PLAC) is

a non-profit association of corporate members that

constitute a broad cross-section of product manufacturers.2 These companies seek to contribute to the improvement and reform of law in the United States and

elsewhere, with emphasis on the law governing the liability of manufacturers of products and those in the

supply chain.

PLAC’s perspective is derived from the experiences of a corporate membership that spans a diverse

group of industries in various facets of the manufacturing sector. In addition, several hundred of the leading product litigation defense attorneys are sustaining (non-voting) members of PLAC. Since 1983, PLAC

has filed more than 1,200 briefs as amicus curiae in

both state and federal courts, including this Court, on

behalf of its members, presenting the broad perspective of product manufacturers seeking fairness and

balance in the application and development of the law

as it affects product risk management.

PLAC has a significant interest in the issue presented in this case because its members routinely face

putative class-action lawsuits filed by purchasers of a

product that they allege contains a defect that could

cause the product to malfunction, and who argue that

Pursuant to Rule 37.6, PLAC affirms that no counsel for a

party authored this brief in whole or in part and that no person

other than PLAC, its members, and its counsel made a monetary

contribution to its preparation or submission.

1

PLAC’s corporate members are identified on its website. See

https://plac.com/PLAC/PLAC/Membership/Corporate_Membership.aspx.

2

2

individual issues of injury and damages do not preclude class certification.

The Ninth Circuit’s approach to Rule 23(b)(3)’s

predominance and superiority requirements would

permit a court to certify a damages class even though

the named plaintiffs propose no practical method of

determining which class members have been injured

and which have not that preserves the defendant’s

due process and Seventh Amendment rights—an inquiry required by the Rules Enabling Act.

PLAC therefore has a strong interest in this case

and in reversal of the decision below.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Article III limits the power of a federal court to

adjudicate a claim, requiring that a plaintiff prove

that he or she suffered concrete harm. The Federal

Rules of Civil Procedure, including Rule 23, cannot be

used to circumvent that constitutional limit. As this

Court held in TransUnion LLC v. Ramirez, each member of a Rule 23(b)(3) damages class must establish

Article III standing (including by demonstrating concrete harm) to be eligible to recover damages. 594 U.S.

413, 423 (2021).

Because TransUnion reached the Court after a

rare class-wide trial and final judgment, the Court expressly reserved the question of how courts should address putative class members’ standing at the class

certification stage. 594 U.S. at 431 n.4 (citing Cordoba

v. DIRECTV, 942 F.3d 1259, 1277 (11th Cir. 2019)).

This case now presents that question. The Court

should reject the Ninth Circuit’s impermissible ap-

3

proach to certification of damages classes—an approach that all but guarantees that uninjured class

members will be able to recover money damages in actions in federal courts because trials under that rubric

will fail to eliminate uninjured class members, a dynamic that also will lead to coerced class settlements.

When the named plaintiff cannot prove concrete

injury on a class-wide basis, courts almost always

should deny certification of damages classes containing uninjured class members. That is true regardless

of whether the issue is characterized as one of standing or one of predominance and superiority. And the

same problem arises in contexts where ascertaining

the amount of damages to be recovered by each class

member requires individualized determinations. The

nature of the individualized proof required, and the

corresponding burdens on the parties and the court,

means that in most cases the putative class cannot

satisfy Rule 23(b)(3)’s predominance and superiority

requirements—as the facts here demonstrate.

After Labcorp introduced the option of checking in

for appointments at its centers via a self-service kiosk

(in addition to the pre-existing front-desk and online

options), a group of plaintiffs who are legally blind

brought a putative class action. The plaintiffs asserted that Labcorp’s offer of those kiosks discriminated against them in violation of the Americans with

Disabilities Act (ADA), and, as relevant here, sought

certification of a California damages class for a claim

under California’s Unruh Act, which provides for statutory damages of $4,000 per ADA violation.

The putative damages class, however, was not

limited to patients who suffered a concrete, real-world

harm caused by the inability to use those kiosks. Rather, plaintiffs sought to represent a class of all blind

4

patients who visited a Labcorp patient service center

with such a kiosk, regardless of whether the patient

knew about the kiosk or wished to use it. For the California damages class, that definition encompassed

over 100,000 patients each year, which, when combined with the Unruh Act’s minimum statutory damages of $4,000 per violation, adds up to nearly half a

billion dollars in statutory damages for each year that

the kiosks were in place.

The district court certified that broad damages

class under Rule 23(b)(3), and the Ninth Circuit affirmed. Yet neither court meaningfully addressed how

class members would prove that they suffered concrete injury, treating the presence of uninjured class

members as largely irrelevant to class certification.

That disregard for Article III standing was error.

As Labcorp persuasively explains (Br. 15-36), Article

III prohibits federal courts from certifying proposed

classes containing uninjured individuals.

PLAC writes separately to address Rule 23(b)(3)’s

related, but separate, limitation on certifying classes

when concrete injury cannot be determined on a classwide basis.

When that inquiry is individualized, a putative

damages class should not be certified unless the uninjured class members can easily be identified and excluded from the class in a manner consistent with the

Rules Enabling Act and a defendant’s due process

rights. This rarely will be the case, particularly when

highly individualized and fact-dependent inquiries

are multiplied across a large class. Absent a simple

test for identifying and excluding the uninjured class

members, common issues do not predominate and

5

class treatment is not superior to other methods for

fairly and efficiently adjudicating the controversy.

Plaintiffs here made no showing that uninjured

class members could be easily identified and excluded

from the class. Nor could they. It is undisputed that

the damages class contains a significant number of

uninjured persons. And because of the nature of the

claims and the asserted injuries, there is no easy way

to separate the injured from the uninjured without

the proceedings devolving into tens of thousands of individual district court trials regarding each class

member’s own experiences at a particular Labcorp

service center, including whether they wanted or tried

to use a kiosk.

The decision below rests on the Ninth Circuit’s impermissibly loose approach to Rule 23(b)(3)’s predominance and superiority requirements—one that will

result in the routine certification of improperly-constituted damages classes. But certification is the main

event in damages class actions. And the hydraulic settlement pressure that class actions place on defendants will encourage enterprising lawyers to propose

inflated classes full of uninjured members—maximizing the potential award of statutory damages and corresponding settlement leverage—regardless of how

many class members suffered real-world harm and

would be eligible to recover damages at final judgment. The Court should make clear that Rule 23 bars

that manipulation of the class action device.

6

ARGUMENT

I.

Rule 23(b)(3) Prohibits Certification If A Putative Damages Class Contains Uninjured

Members Who Cannot Easily Be Identified

And Excluded From The Class.

This Court’s decision in TransUnion makes clear

that each member of a certified damages class “must

have Article III standing in order to recover individual

damages.” 594 U.S. at 431. That is because “‘Article

III does not give federal courts the power to order relief to any uninjured plaintiff, class action or

not.’” Ibid. (emphasis added) (quoting Tyson Foods,

Inc. v. Bouaphakeo, 577 U.S. 442, 466 (2016) (Roberts,

C.J., concurring)).

When a named plaintiff has Article III standing

and injury for all class members can be determined on

a class-wide basis, Article III and Rule 23 concerns do

not necessarily present an obstacle to class certification.

But in many cases invoking Rule 23(b)(3), it is apparent at the class-certification stage—based on the

nature of the claims, the proposed class definition,

and the undisputed class-certification evidence—that

the putative class includes uninjured members who

could not pursue their claims in federal court on an

individual basis.

Labcorp’s brief (at 15-36) explains that allowing

uninjured class members to pursue their claims on the

merits in federal court raises serious constitutional

concerns. Before certifying a class, and thereby exercising jurisdiction over the merits of the claims of absent class members, the district court must ensure

that it has a basis to do so. After all, “[c]lass certification is the thing that gives an Article III court the

7

power to ‘render dispositive judgments’ affecting unnamed class members.” Flecha v. Medicredit, Inc., 946

F.3d 762, 770 (5th Cir. 2020) (Oldham, J., concurring)

(quoting Plaut v. Spendthrift Farm, Inc., 514 U.S. 211,

219 (1995)). It turns absent class members into parties who can invoke and are subject to the court’s judicial power. Cf. Devlin v. Scardelletti, 536 U.S. 1, 1011 (2002) (holding that absent class members are considered parties for purposes of appeal because they

are bound by the judgment). Individuals who could

not pursue their claims in federal court on an individual basis should not be permitted to assert their

claims through the expedient of the class device.

Separately, Rule 23(b)(3) by itself significantly

limits a court’s ability to certify a damages class when

injury cannot be determined on a class-wide basis and

the proposed class includes uninjured individuals.

Under those circumstances, a putative damages

class should not be certified unless the uninjured class

members can easily be identified and excluded from

the class in a manner consistent with the Rules Enabling Act and a defendant’s due process rights. The

size of the class and the nature of the individualized

inquiry necessary to establish each class member’s injury must be taken into account in determining

whether the proposed class satisfies the requirements

that common issues “predominate” and class treatment is “superior” to other methods for “fairly and efficiently” adjudicating the controversy. In many cases,

those standards will not be satisfied and certification

must be denied.

Although the issue is not presented here, the very

same problems arise in contexts where determining

the amount of damages for class members is individualized: “Questions of individual damage calculations

8

will inevitably overwhelm questions common to the

class.” Comcast Corp. v. Behrend, 569 U.S. 27, 34

(2013).

These conclusions rest on three basic principles.

First, courts must rigorously assess whether a plaintiff has satisfied Rule 23(b)(3)’s predominance and superiority requirements before certifying a damages

class. Second, a class cannot be certified in violation

of the defendant’s due process rights and the Rules

Enabling Act. And third, for that reason, the process

of weeding out uninjured members of a putative damages class cannot be outsourced to claims administrators or other non-Article III entities; like any other determination in the case, those issues must be resolved

by the court.

Courts applying the predominance and superiority tests therefore must take into account the nature

and extent of the judicial processes necessary to identify and exclude uninjured class members in determining whether class certification is permissible.

A. Rule 23(b)(3) requires rigorous analysis

before certifying a damages class.

Class actions are an “‘exception to the usual rule’”

that cases are litigated individually; it therefore is essential that courts apply a “rigorous analysis” to the

requirements governing class certification before a

lawsuit is approved for class treatment. Wal-Mart

Stores, Inc. v. Dukes, 564 U.S. 338, 348, 351 (2011)

(quoting Califano v. Yamasaki, 442 U.S. 682, 700-01

(1979)). Moreover, this Court has repeatedly recognized that Rule 23 should be interpreted to guard

against the potential for abuse of the class-action device. E.g., Comcast, 569 U.S. at 33; Dukes, 564 U.S. at

9

367; Amchem Prods., Inc. v. Windsor, 521 U.S. 591,

629 (1997).

The proponent of a damages class—in addition to

satisfying the four requirements of Rule 23(a)—must

satisfy Rule 23(b)(3). Rule 23(b)(3)’s predominance requirement mandates that “questions of law or fact

common to class members predominate over any questions affecting only individual members.” Fed. R. Civ.

P. 23(b)(3). The superiority inquiry, in turn, asks

whether “a class action is superior to other available

methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). District courts assessing compliance with Rule 23(b)(3) must consider,

among other factors, “the likely difficulties in managing a class action.” Fed. R. Civ. P. 23(b)(3)(D).

Because Rule 23(b)(3) is an “adventuresome invocation” that is “designed for situations in which classaction treatment is not as clearly called for,” courts

have a “duty to take a close look at whether common

questions predominate over individual ones.” Comcast, 569 U.S. at 34 (quotation marks and citations

omitted).

These Rule 23(b)(3) inquiries cannot be satisfied

by a mechanical tallying up of common and individualized issues. Rather, they require “more of a qualitative than quantitative analysis.” Cordoba, 942 F.3d at

1274 (quotation marks omitted). And they require

courts to “consider how a trial on the alleged causes of

action would be tried,” to ensure that the case will not

“degenerat[e] into a series of individual trials” that

are incompatible with class treatment. Gene & Gene

LLC v. BioPay LLC, 541 F.3d 318, 326 (5th Cir. 2008)

(quotation marks omitted). As the First Circuit put it,

the “aim of the predominance inquiry is to test

whether any dissimilarity among the claims of class

10

members can be dealt with in a manner that is not

inefficient or unfair”—which requires that “adjudication” of the individualized issues must be “both administratively feasible and protective of defendants’

Seventh Amendment and due process rights.” In re

Asacol Antitrust Litig., 907 F.3d 42, 51-52 (1st Cir.

2018) (quotation marks omitted).

B. A court’s Rule 23(b)(3) analysis must recognize the defendant’s right to identify

and exclude uninjured absent class members.

The Rules Enabling Act and due process principles—and, where applicable, the Seventh Amendment—require courts to recognize that a defendant in

a class action has the right to a judicial determination

of whether absent class members have experienced

real-world harm caused by the defendant’s conduct.

Due process does not just require that a plaintiff

in federal court prove both Article III standing and

every element of his claim to recover damages, but

also that a defendant be given “‘an opportunity to present every available defense.’” Lindsey v. Normet, 405

U.S. 56, 66 (1972) (quoting American Sur. Co. v. Baldwin, 287 U.S. 156, 168 (1932)); see also, e.g., United

States v. Armour & Co., 402 U.S. 673, 682 (1971) (recognizing that the “right to litigate the issues raised”

in a case is “guaranteed * * * by the Due Process

Clause”).

These due process rights do not change when a

lawsuit is brought as a class action. The class action

is merely a procedural device, “ancillary to the litigation of substantive claims.” Deposit Guar. Nat’l Bank

v. Roper, 445 U.S. 326, 332 (1980); see also Shady

Grove Orthopedic Assocs., P.A. v. Allstate Ins., 559

11

U.S. 393, 408 (2010) (plurality opinion) (a class action

“leaves the parties’ legal rights and duties intact and

the rules of decision unchanged”).

Because due process precludes use of the class action mechanism to alter the substantive rights of the

parties to the litigation, Rule 23’s requirements must

be interpreted to honor that principle. As this Court

put it, “a class cannot be certified on the premise that

[the defendant] will not be entitled to litigate its * * *

defenses to individual claims.” Dukes, 564 U.S. at 367.

A contrary approach to class certification would

also violate the Rules Enabling Act, which embodies

the due process principle that procedural rules cannot

“abridge, enlarge or modify any substantive right.” 28

U.S.C. § 2072(b); see Dukes, 564 U.S. at 367. The

Rules Enabling Act’s “pellucid instruction that use of

the class device cannot abridge any substantive right”

bars courts from “giving plaintiffs and defendants different rights in a class proceeding than they could

have asserted in an individual action.” Tyson Foods,

577 U.S. at 455, 458 (quotation marks and alterations

omitted); see also Ortiz v. Fibreboard Corp., 527 U.S.

815, 845 (1999) (“[N]o reading of [Rule 23] can ignore

the Act’s mandate that rules of procedure shall not

abridge, enlarge or modify any substantive right.”)

(quotation marks omitted); Amchem, 521 U.S. at 613

(“Rule 23’s requirements must be interpreted in keeping with * * * the Rules Enabling Act.”).

In short, because the Rules Enabling Act “forbids

interpreting Rule 23 to ‘abridge, enlarge or modify any

substantive right,’” Dukes, 564 U.S. at 367 (quoting 28

U.S.C. § 2072(b)), any proposal by the proponent of a

damages class must establish that uninjured class

members can be weeded out prior to final judgment in

a manner consistent with the defendant’s due process

12

and Seventh Amendment rights and Rule 23(b)(3)’s

standards. If the proponent of a damages class cannot

make that showing, then the class should not be certified.3

Moreover, allowing a class to be certified without

considering the need to prove absent class members’

real-world injury will—in nearly all cases—mean that

disputed issues of injury are never resolved at all.

That is because, after a district court reaches a final

decision certifying a class, the case is highly likely to

settle—not reach a trial on the merits. See page 25,

infra. An approach that would delay until after trial

how to address absent class members’ lack of concrete

harm will in many cases force defendants to settle

even if they have valid objections to many putative

class members’ claims, effectively negating their due

process right to raise “every available defense.” Lindsey, 405 U.S. at 66 (quotation marks omitted).

C. The Rule 23(b)(3) determination must

take account of the defendant’s right to

resolution by the district court of challenges to absent class members’ injury

claims.

The district court, pointing to Ninth Circuit authority, brushed aside any need to consider individualized inquiries into absent class members’ standing

at the class-certification stage by asserting that a

3 Nothing in Dukes limits its logic to a defendants’ right to raise

“statutory defenses to individual claims.” 564 U.S. at 367 (emphasis added). The same rationale applies equally to constitutional and other defenses, including the defense that a class

member has not suffered a concrete injury fairly traceable to the

defendant’s conduct, has failed to satisfy the elements of his or

her claims, or is seeking an unjustified damages amount.

13

court can “create a claims process by which to validate

individualized claim determinations” on the back end.

Pet. App. 37a. That approach is fundamentally inconsistent with due process and the Rules Enabling Act.

Administrative determinations by an outside

third party are not an adequate substitute for a defendant’s rights, guaranteed by due process and the

Seventh Amendment, to cross-examine its accusers

and to “litigate its * * * defenses to individual claims”

in the same manner as in an individual action in federal court, including by trials on those issues. Dukes,

564 U.S. at 367.

Nor can defendants be forced to accept at face

value self-serving affidavits from class members asserting an injury without the opportunity to test the

veracity of those assertions. As a leading treatise has

summarized, “[c]ourts have rejected proposals to employ class member affidavits and sworn questionnaires as substitutes for traditional individualized

proofs” because such submissions “are, most importantly, not subject to cross-examination.” 2 Joseph

M. McLaughlin, McLaughlin on Class Actions § 8:6

(13th ed. 2016).

Moreover, a defendant cannot be deprived of the

right to have the relevant determinations made as the

Constitution guarantees—by the Article III judge or,

when required, a jury pursuant to the Seventh

Amendment. This Court has recognized that no matter how complex the case or numerous the parties, a

district court’s reliance on a non-Article III entity to

adjudicate fundamental issues without party consent

amounts to “an abdication of the judicial function depriving the parties of a trial before the court on basic

issues involved in the litigation.” La Buy v. Howes

Leather Co., 352 U.S. 249, 256 (1957) (concluding that

14

writ of mandamus was appropriate where district

court had referred case to a special master for trial).

A defendant’s right to have its individualized defenses resolved by a court or jury is a substantive one

protected by the Rules Enabling Act. Thus, this Court

in Dukes rejected the “novel project” of replacing individual proceedings regarding the relief, if any, owed

to class members with a “Trial by Formula” that

would have extrapolated determinations regarding a

sample of class members to the entire class. 564 U.S.

at 367. Such a result is forbidden by “the Rules Enabling Act,” and neither the class device nor other procedural mechanisms can avoid “the necessity of that

litigation” over whether each class member is entitled

to relief. Ibid.

Other courts have similarly recognized that defendants have “Seventh Amendment and due process

rights to contest every element of liability and to present every colorable defense.” In re Rail Freight Fuel

Surcharge Antitrust Litig., 934 F.3d 619, 625 (D.C.

Cir. 2019) (Rail Freight); see Asacol, 907 F.3d at 53

(similar).

Indeed, because Article III’s standing requirement governs the court’s very power to award damages, it would be especially inappropriate to outsource

standing determinations to third parties.

Protecting defendants’ rights in connection with

challenges to absent class members’ claims regarding

the concrete injury required to establish standing, and

sometimes also liability, is particularly important. To

begin with, as this case illustrates, the percentage of

putative class actions in which at least some absent

class members lack injury is high. That is illustrated

by the number of decisions addressing the issue cited

15

in the parties’ cert-stage filings. Pet. 13-19; BIO 2030; Pet. Reply 3-7.

In addition, evidence from the class-settlement

context indicates that the number of fraudulent

claims has exploded in recent years, with the emergence of new software and artificial-intelligence tools

making it easier for sophisticated bad actors to submit

large numbers of fraudulent claims.

For example, one recent settlement of false-advertising claims against the maker of child car booster

seats was halted because the claims process resulted

in millions more claims for payment being filed than

car seats were ever sold. See Diana Novak Jones,

Scammers flood US class action settlements with

fraudulent claims, Reuters (May 7, 2024),

https://bit.ly/4hW2JGx. Sometimes even the lawyers

submitting the claims admit that they have been

duped into submitting fraudulent claims. See Mike

Scarcella, Law firm says fake claims were submitted

in $5.6 bln credit card settlement, Reuters (May 28,

2024), https://bit.ly/4i6H3Yc. And a digital payment

processor that works with claims administrators recently reported that more than 80 million claims submitted in 2023 showed “significant” signs of fraud—

an increase of over 19,000% in just the two years since

2021. See Western Alliance Bank, 2024 Digital Payments Report, https://bit.ly/3QN2OAq.

In sum, the Rule 23(b)(3) inquiry must respect the

defendant’s right to have its challenges to absent class

members’ concrete harm resolved by the court or jury,

not outsourced to third parties.

16

D. Proper application of the predominance

and superiority requirements will make

it difficult to certify classes that include

uninjured individuals.

As discussed (see pages 9-10, supra), Rule 23(b)(3)

requires consideration of the nature of the individualized inquiries; assessing predominance is not a mere

issue-counting exercise. In most cases where injury

cannot be determined on a class-wide basis, the individualized inquiries required will overwhelm any

common questions, making clear that common issues

do not predominate—and thereby precluding class

certification. There is rarely a simple test to identify

and exclude uninjured class members, and the inquiry

becomes even more difficult as the size of the class

grows.4

In this case, for example, the estimated size of the

damages class is more than 100,000 individuals. Labcorp Br. 9. And the proof of injury is inherently individualized and highly fact specific; each class member

would have to testify about his or her own experience

with Labcorp kiosks, and Labcorp would be entitled to

challenge that showing, including through cross-ex-

4 TransUnion is an example of the uncommon case where class

members’ standing could be subject to relatively simple proof.

Based on the evidence developed in advance of trial, the parties

stipulated that there were 8,185 total class members and that

only 1,853 of those class members had their credit reports disseminated to third parties. 594 U.S. at 421. That stipulation,

along with the nature of the asserted injury, created a clear dividing line among the class members for Article III purposes:

those whose credit reports were disseminated to third parties

had standing, and the remaining class members whose reports

were not disseminated did not. See id. at 432-39.

17

amination. Accordingly, while surveys and other evidence already indicate that a substantial portion of

the class is uninjured (see id. at 43-44), even more salient is that the size of the class and the individualized

nature of the proof together would require over

100,000 trials to locate and exclude the uninjured

class members. That prospect alone should have foreclosed certification of the class.

Denying class certification when uninjured class

members cannot be easily identified and excluded also

is compelled by Rule 23(b)(3)’s superiority requirement—particularly Rule 23(b)(3)(D)’s directive to assess whether the class action will be manageable. It

ensures that defendants who do not succumb to settlement pressure are not forced to needlessly expend

time and money litigating a certified class action

through trial only for a court to conclude at final judgment that significant portions of the certified class

lack standing.

Indeed, forcing a defendant to face the threat of

gigantic damages liability and bear the burden of litigating through trial the claims of numerous uninjured

class members is neither a “fair[]” nor “efficient[]”

mechanism for “adjudicating the controversy.” Fed. R.

Civ. P. 23(b)(3). The uninjured class members do not

have an Article III case or controversy that belongs in

federal court in the first place, so a federal class action

cannot be a superior method to resolve their claims.

And the need for tens of thousands of individual minitrials on each class member’s standing presents overwhelming and insuperable “difficulties in managing

[the] class action.” Fed. R. Civ. P. 23(b)(3)(D).

Moreover, and more broadly, the same reasons

why individualized inquiries into injury (and, where

18

applicable, the amount of damages) pose a predominance problem also undermine the superiority of the

class device. The “predominance analysis has a tremendous impact on the superiority analysis,” because

the more that individualized issues overwhelm common ones, the less desirable class treatment will be,

including “in absolute terms of manageability.” Sacred Heart Health Sys. v. Humana Military

Healthcare Servs., Inc., 601 F.3d 1159, 1184 (11th Cir.

2010) (quotation marks omitted).

Both predominance and superiority “require envisioning what a class trial would look like.” Crutchfield

v. Sewerage & Water Bd., 829 F.3d 370, 375 (5th Cir.

2016). For a damages class to satisfy Rule 23(b)(3) superiority, a “fair administration of the class claims”

must “‘save the resources of both the court and the

parties.’” Sacred Heart, 601 F.3d at 1184 (quoting

General Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 155

(1982)) (alterations omitted). That requirement is not

satisfied when, as in this case, weeding out uninjured

class members consistent with defendants’ due process and Seventh Amendment rights would be enormously burdensome and time consuming.

E. Courts of appeals have recognized that

Rule 23(b)(3) precludes certification of

proposed damages classes containing

uninjured members who cannot easily be

identified and excluded.

Given the settled principles discussed above, it is

not surprising that multiple courts of appeals already

recognize that “whether absent class members can establish standing” is “exceedingly relevant to the class

certification analysis required by” Rule 23. Cordoba v.

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

19

The Eleventh Circuit’s decision in Cordoba—

which this Court cited in TransUnion when reserving

the question presented here, 594 U.S. at 431 n.4—vacated certification of a damages class for lack of adequate demonstration of predominance when “each

plaintiff will likely have to provide some individualized proof that they have standing,” creating a key “individualized issue.” Cordoba, 942 F.3d at 1275, 1277

(emphasis added). As the Eleventh Circuit explained,

district courts “must consider under Rule 23(b)(3) before certification whether the individualized issue of

standing will predominate over the common issues in

the case.” Id. at 1277.

The Eleventh Circuit recently reaffirmed that

holding, explaining that “[t]he predominance inquiry

is especially important in light of TransUnion’s (and

Cordoba’s) reminder that every class member must

have Article III standing in order to recover individual

damages because a district court must ultimately weed

out plaintiffs who do not have Article III standing before damages are awarded to a class.” Green-Cooper v.

Brinker Int’l, Inc., 73 F.4th 883, 891 (11th Cir. 2023)

(emphasis added; quotation marks omitted).

The Third Circuit expressly followed Cordoba in

vacating certification of a damages class. See Huber v.

Simon’s Agency, Inc., 84 F.4th 132, 155-58 (3d Cir.

2023). The court emphasized that “predominance concerns can arise when unnamed class members must

submit individualized evidence to satisfy standing

and recover damages.” Id. at 156. And the court instructed the district court to “evaluate the feasibility

of receiving individualized evidence on class members’

standing” and “how burdensome” the standing determinations “will be for both the District Court and the

parties.” Id. at 157.

20

The Fourth Circuit, too, recently affirmed the denial of class certification because “the high share of

class members with no demonstrable injury presented

a predominance problem.” Mr. Dee’s Inc. v. Inmar,

Inc., 127 F.4th 925, 933 (4th Cir. 2025). The record

showed that nearly a third of the putative class members were uninjured, and “even among the class members that arguably did show injury,” the circumstances surrounding their asserted injuries “varied

substantially” and thus were not susceptible of classwide resolution. Ibid.

Or, as the First Circuit explained in a case where

there were “apparently thousands” of putative class

members “who in fact suffered no injury”: “The need

to identify those individuals will predominate and

render an adjudication unmanageable absent * * * [a]

mechanism that can manageably remove uninjured

persons from the class in a manner that protects the

parties’ rights.” Asacol, 907 F.3d at 53-54.

The D.C. Circuit has similarly affirmed the denial

of class certification when there were over 2,000 potentially uninjured putative class members, “all of

whom would need individualized adjudications of causation and injury.” Rail Freight, 934 F.3d at 625. The

“absence of a winnowing mechanism,” “short of fullblown, individual trials,” made class treatment wholly

unworkable. Ibid. As the court noted, there has never

been “even a single case ‘allowing, under Rule 23, a

trial in which thousands of class members testify.’” Id.

at 627 (quoting Asacol, 907 F.3d at 57-58).

These decisions are correct: When concrete injury

is an individualized issue, plaintiffs will almost never

be able to satisfy Rule 23(b)(3) predominance. Without

a “reliable means of proving classwide injury in fact,”

it is usually the case that “[c]ommon questions of fact

21

cannot predominate.” Rail Freight, 725 F.3d at 25253.

II. The Damages Class In This Case Should

Never Have Been Certified Because It Contains Uninjured Members And There Is No

Easy Way For A Court To Identify And Exclude Them.

Proper application of Rule 23 at the class-certification stage should have precluded certification of the

damages class in this case.

There is no class-wide basis for absent class members to establish that they were injured by Labcorp’s

failure to offer an accessible self-serve kiosk. Resolving that issue would instead devolve into tens of thousands of highly individualized inquiries—meaning

that any questions common to the class could not predominate—and therefore render any class-wide trial

unworkable.

As relevant here, plaintiffs allege they suffered

discrimination prohibited by the ADA and hence California’s Unruh Act. Pet. App. 13a. “‘In general, a person suffers discrimination under the [Unruh]

Act when the person presents himself or herself to a

business with an intent to use its services but encounters an exclusionary policy or practice that prevents

him or her from using those services.’” Pet. App. 33a

(quoting White v. Square, Inc., 446 P.3d 276, 277

(2019)). Plaintiffs allege that Labcorp has adopted

such an “exclusionary” practice because it installed

check-in kiosks in its patient service centers that are

inaccessible to the visually impaired. Pet. App. 14a.

And based on that theory, plaintiffs sought certification of a damages class of “[a]ll legally blind individuals in California who visited a Labcorp patient service

22

center in California” with a check-in kiosk—regardless of whether the patient knew of the kiosk’s presence or wanted to use it. Pet. App. 16a.

But as Labcorp’s brief explains (at 8-9), the record

evidence showed that many blind patients were either

unaware of the kiosks or uninterested in using them,

because they were served well by other options. Labcorp provides other mechanisms for checking in, such

as using the Labcorp website or going to the service

center’s front desk, where staff use the same technology in the kiosks.

If a class member did not even experience wanting

to use the check-in kiosk and being unable to do so,

then he or she could not establish a concrete injury.

See TransUnion, 594 U.S. at 431. Just as the “mere

presence of an inaccuracy in an internal credit file”

“cause[d] no concrete harm” to the majority of the

class members in TransUnion because that inaccuracy was not disclosed, the mere presence of a checkin kiosk in the same room as a legally blind Labcorp

patient, without more, did not cause a cognizable injury to that patient. Id. at 434.

Yet neither the Ninth Circuit nor the district court

held plaintiffs to the proper burden of demonstrating

that common issues predominated, and class resolution was superior, even though the district court

would have to differentiate between legally blind Labcorp patients who allegedly experienced a harm and

those who did not. The Ninth Circuit instead merely

counted up the issues that it believed were common,

such as whether the kiosks were accessible to the

blind, while ignoring the fact-intensive nature of the

tens of thousands of individualized trials that would

be required to determine whether each class member

23

experienced a concrete injury and is eligible to recover

damages. Pet. App. 5a.

The Ninth Circuit also stated that “the relevant

inquiry is whether class members were subject to the

same injuring behavior,” Pet. App. 5a—namely, the

presence of the kiosks. But that analysis assumes that

simply being in the presence of a kiosk is sufficient

injury to confer standing—which is plainly wrong under TransUnion and Spokeo, Inc. v. Robins, 578 U.S.

330, 342 (2016).

Instead, this Court’s precedents make clear that,

before recovering damages, each class member would

have to present evidence that he or she was aware of

the kiosk and wished to use it, rather than preferring

the alternatives. That determination can only be

made on an individualized basis (such as through the

testimony of each class member). And in response,

Labcorp would be entitled to present its defenses to

the contentions of each allegedly injured class member, including by cross-examination. The need for

these procedures—which, again, would have required

tens of thousands of trials—should have been front

and center in the lower courts’ “rigorous analysis” of

predominance and superiority required by this

Court’s precedents. E.g., Comcast, 569 U.S. at 33-34;

Dukes, 564 U.S. at 348, 351. Had the Ninth Circuit

engaged in that analysis, it would have been apparent

that a damages class could never be certified.

24

III. An Impermissibly Lax Approach To The Issue Of Uninjured Class Members At Class

Certification Harms Businesses And The Judicial System.

The Ninth Circuit’s unlawful approach to the

problem of uninjured class members at the class-certification stage invites problems far beyond this case.

The statute invoked by the members of the proposed damages class—the Unruh Act—is only one of

many state and federal statutes that authorize statutory damages. Many other statutes also authorize

minimum statutory damages for each violation, which

“can add up quickly in a class action.” Barr v. American Ass’n of Pol. Consultants, 591 U.S. 610, 616 (2020)

(plurality op.) (discussing the Telephone Consumer

Protection Act). As Judge Wilkinson put it in assessing a different federal statute, “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.” Stillmock v. Weis

Markets, Inc., 385 F. App’x 267, 276 (4th Cir. 2010)

(Wilkinson, J., concurring specially).

Deferring the issues associated with weeding out

uninjured members of a damages class, as the Ninth

Circuit did here, gives enterprising class-action plaintiffs’ lawyers a clear roadmap: Allege a technical statutory violation and bring a challenge based on that violation on behalf of the broadest possible class, regardless of how many class members suffered any

real-world harm. Permitting that approach inevitably

will result in a flood of shakedown class actions.

Class-action litigation costs in the United States

are huge. They hit a record high in 2024, totaling a

staggering $3.9 billion and continuing a rising trend

25

that started in 2015. See 2024 Carlton Fields Class

Action Survey, at 6-7 (2024), https://ClassActionSurvey.com.

Moreover, defendants in class actions already face

tremendous pressure to capitulate to what Judge

Friendly termed “blackmail settlements.” Henry J.

Friendly, Federal Jurisdiction: A General View 120

(1973). This Court has long recognized the power of

class-action lawsuits to coerce settlement. As the

Court explained nearly 50 years ago, “[c]ertification of

a large class may so increase the defendant’s potential

damages liability and litigation costs that he may find

it economically prudent to settle and to abandon a

meritorious defense.” Coopers & Lybrand v. Livesay,

437 U.S. 463, 476 (1978); see also AT&T Mobility LLC

v. Concepcion, 563 U.S. 333, 350 (2011) (noting “the

risk of ‘in terrorem’ settlements that class actions entail”); Shady Grove, 559 U.S. at 445 n.3 (Ginsburg, J.,

dissenting) (“[A] class action can result in ‘potentially

ruinous liability.’”) (quoting Advisory Committee’s

Notes on Fed. R. Civ. P. 23).

That undue pressure is amplified further still in

statutory damages class actions like this one, where

potential liability—and the corresponding pressure to

settle—is based on the overall number of class members rather than how many class members were actually injured by the defendant’s conduct.

Plaintiffs’ lawyers seeking to maximize their

class-wide payday, however unwarranted, therefore

have a strong incentive to seek statutory damages on

behalf of the broadest possible class. “What makes

these statutory damages class actions so attractive to

plaintiffs’ lawyers is simple mathematics: these suits

multiply a minimum $100 statutory award (and potentially a maximum $1,000 award) by the number of

26

individuals in a nationwide or statewide class.” Sheila

B. Scheuerman, Due Process Forgotten: The Problem

of Statutory Damages and Class Actions, 74 Mo. L.

Rev. 103, 114 (2009).

Indeed, this case—in which plaintiffs seek half a

billion dollars per year in minimum statutory damages—amply demonstrates that combining minimum

statutory damages with the class-action mechanism

can create potential liability wildly disproportionate

to the actual harm allegedly caused by the defendant’s

conduct. As the Second Circuit has noted, “the potential for a devastatingly large damages award, out of

all reasonable proportion to the actual harm suffered

by members of the plaintiff class, may raise due process issues.” Parker v. Time Warner Ent. Co., 331 F.3d

13, 22 (2d Cir. 2003). “Those issues arise from the effects of combining a statutory scheme that imposes

minimum statutory damages awards on a per-consumer basis—usually in order to encourage the filing

of individual lawsuits as a means of private enforcement of consumer protection laws—with the class action mechanism that aggregates many claims.” Ibid.

And these troubling consequences are even more pronounced when a proposed class is packed full of class

members who experienced no real-world harm.

Businesses already expend enormous resources

defending and settling lawsuits designed to extract lucrative settlements. But the due process concerns

raised by cases like this one—and the burdens to defendants of defending and settling claims that should

never have been asserted by individuals who suffered

no concrete harm—can be ameliorated if federal

courts rigorously scrutinize whether Rule 23(b)(3)’s

predominance and superiority requirements have

27

been met, including with respect to absent class members’ standing.

CONCLUSION

The judgment of the court of appeals should be reversed.

28

Respectfully submitted.

ANDREW J. PINCUS

Counsel of Record

ARCHIS A. PARASHARAMI

DANIEL E. JONES

CARMEN N. LONGORIAGREEN

Mayer Brown LLP

1999 K Street, NW

Washington, DC 20006

(202) 263-3000

apincus@mayerbrown.com

Counsel for Amicus Curiae

MARCH 2025