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

Supreme Court briefMar 12, 2025

Ask Donna

What actually matters in this document.

Text

No. 24-304

In the

Supreme Court of the United States

LABORATORY CORPORATION OF AMERICA

HOLDINGS, D/B/A LABCORP,

Petitioner,

v.

LUKE DAVIS, et al.,

Respondents.

On Writ of Certiorari to the United States

Court of A ppeals for the Ninth Circuit

BRIEF OF THE CITY OF BEVERLY HILLS AND

THE CITY OF LOS ANGELES AS AMICI CURIAE

IN SUPPORT OF PETITIONER

Los A ngeles City

Attorney’s Office

Hydee Feldstein Soto

Shaun Dabby Jacobs

Counsel of Record

Denise C. Mills

K athleen A. Kenealy

200 North Main Street,

8th Floor

Los Angeles, CA 90012

(213) 978-2704

shaun.jacobs@lacity.org

Counsel for Amicus Curiae

The City of Los Angeles

Horvitz & Levy LLP

Jeremy B. Rosen

Counsel of Record

Sheridan L. Caldwell

505 Sansome Street,

Suite 1550

San Francisco, CA 94111

(415) 462-5600

jrosen@horvitzlevy.com

Horvitz & Levy LLP

Justin R. Sarno

3601 West Olive Avenue,

8th Floor

Burbank, CA 91505

Counsel for Amicus Curiae

The City of Beverly Hills

120292

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . iii

INTERESTS OF AMICI CURIAE . . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 2

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

I.

Current law is split over how to address

the need for Article III standing for all

class members in damages classes . . . . . . . . . . . 4

II. Overbroad damages class actions against

municipalities highlight the need for a

clear Article III standing requirement

for all class members . . . . . . . . . . . . . . . . . . . . . . . 9

A. Municipalities are uniquely burdened

by overbroad class action claims

involv ing high numbers of class

members who lack Article III injury . . . . . . 9

B. Requiring Article III injury for all

class members will align civil rights

class actions with the rigorous analysis

required for class certification . . . . . . . . . . 16

ii

Table of Contents

Page

III. Deferring adjudication of A rticle III

standing until after class certification

hu r t s mu n icipa l it ies by forci ng

settlements and draining public funds

that will never be returned . . . . . . . . . . . . . . . . . 22

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

iii

TABLE OF CITED AUTHORITIES

Page

Cases

Aichele v. City of Los Angeles,

314 F.R.D. 478 (C.D. Cal. 2013)

(No. CV 12-10863) . . . . . . . . . . . . . . . . . . . . . . . . . 10, 19

Amchem Prods., Inc. v. Windsor,

521 U.S. 591 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . 4, 17

Amgen Inc. v. Conn. Ret. Plans & Tr. Funds,

568 U.S. 455 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Anti Police-Terror Project v. City of Oakland,

No. 20-CV-03866 (N.D. Cal. Oct. 18, 2021),

2021 WL 4846958 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Astorga v. County of Los Angeles,

No. 20-cv-09805 (C.D. Cal. May 28, 2024),

2024 WL 3313747 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Astorga v. County of Los Angeles,

No. 20-cv-09805 (C.D. Cal. Nov. 11, 2020),

2020 WL 13584509 . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

AT&T Mobility LLC v. Concepcion,

563 U.S. 333 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Avritt v. Reliastar Life Ins. Co.,

615 F.3d 1023 (8th Cir. 2010) . . . . . . . . . . . . . . . . . . . . 5

iv

Cited Authorities

Page

Berg v. County of Los Angeles,

No. CV 20-7870, 2024 WL 2106724

(C.D. Cal. Apr. 3, 2024), vacated and remanded,

No. 24-3959, 2025 WL 310660

(9th Cir. Jan. 23, 2025) . . . . . . . . . . . . . . . . . . . . . . 9, 18

Black Lives Matter L.A. v. City of Los Angeles,

No. 20-CV-05027,

2022 WL 16888576 (C.D. Cal. Oct. 3, 2022) . . . . 18, 19

Black Lives Matter L.A. v. City of Los Angeles,

113 F.4th 1249 (9th Cir. 2024) . . . 3, 9, 10, 12, 16, 19-21

Brewster v. Beck,

859 F.3d 1194 (9th Cir. 2017) . . . . . . . . . . . . . . . . . . . . 9

Brewster v. City of Los Angeles,

No. EDCV 14-2257 (C.D. Cal. July 29, 2019),

2019 WL 7707886 . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10

Buffin v. California,

23 F.4th 951 (9th Cir. 2022) . . . . . . . . . . . . . . . . . . . . . 9

Buffin v. City & County of San Francisco,

No. 15-cv-04959 (N.D. Cal. Oct. 14, 2016),

2016 WL 6025486 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Bull v. City & County of San Francisco,

No. C 03-01840, 2004 WL 6068315

(N.D. Cal. June 10, 2004) . . . . . . . . . . . . . . . . . . . 10, 20

v

Cited Authorities

Page

Campbell v. City of Oakland,

No. C 11-05498 (N.D. Cal. Dec. 12, 2011),

2011 WL 13376906 . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Cangress v. City of Los Angeles,

No. 14-CV-1743 (C.D. Cal. Mar. 22, 2016),

2016 WL 5946878 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Cavanagh v. Humboldt County,

1 F. App’x 686 (9th Cir. 2001) . . . . . . . . . . . . . . . . . . . . 9

Chua v. City of Los Angeles,

No. LA CV16-00237 (C.D. Cal. May 25, 2017),

2017 WL 10776036 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

City of Los Angeles v. Heller,

475 U.S. 796 (1986) . . . . . . . . . . . . . . . . . . . . . . . . 12, 18

Coburn v. City of Sacramento,

No. 19-cv-00888 (E.D. Cal. Dec. 18, 2020),

2020 WL 7425345 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Cody v. City of St. Louis ex rel. Medium Sec. Inst.,

103 F.4th 523 (8th Cir. 2024) . . . . . . . . . . . . . . . . . . . 21

Collins v. City of Harker Heights,

503 U.S. 115 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Comcast Corp. v. Behrend,

569 U.S. 27 (2013) . . . . . . . . . . . . . . . . . . . . . . . 8, 14, 17

vi

Cited Authorities

Page

Connick v. Thompson,

563 U.S. 51 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Cordoba v. DIRECTV, LLC,

942 F.3d 1259 (11th Cir. 2019) . . . . . . . . . . . . . . . . . . . 6

Dakota Granite Co. v. BNSF Ry. Co. (In re Rail

Freight Fuel Surcharge Antitrust Litig.),

934 F.3d 619 (D.C. Cir. 2019) . . . . . . . . . . . . . . . . . . 5, 6

Daves v. Dallas County,

22 F.4th 522 (5th Cir. 2022) . . . . . . . . . . . . . . . . . . . . 13

Denney v. Deutsche Bank AG,

443 F.3d 253 (2d Cir. 2006) . . . . . . . . . . . . . . . . . . . .5, 6

Doe ex rel. Doe v. Sch. Dist. of City of Norfolk,

340 F.3d 605 (8th Cir. 2003) . . . . . . . . . . . . . . . . . . . . 13

DZ Reserve v. Meta Platforms, Inc.,

96 F.4th 1223 (9th Cir. 2024) . . . . . . . . . . . . . . . . . . . . 7

Frank v. Gaos,

586 U.S. 485 (2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Gaffett v. City of Oakland,

No. 21-cv-02881 (N.D. Cal. Oct. 1, 2021),

2021 WL 4503456 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Garcia v. County of Riverside,

No. EDCV 13-616 (C.D. Cal. Mar. 8, 2018),

2018 WL 3740528 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

vii

Cited Authorities

Page

Garza v. City of Sacramento,

No. 20-cv-01229 (E.D. Cal. July 14, 2022),

2022 WL 2757600 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

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

457 U.S. 147 (1982) . . . . . . . . . . . . . . . . . . . . . . . . 16, 17

Graham v. Connor,

490 U.S. 386 (1989), overruled on another

ground by Saucier v. Katz, 533 U.S. 194 (2001) . . . 11

Greene v. City of Beverly Hills,

No. 24-cv-05916 (C.D. Cal. July 15, 2024) . . . . . . . 9, 11

Henderson v. City & County of San Francisco,

No. C-05-234 (N.D. Cal. Dec. 1, 2006),

2006 WL 3507944 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Henneberry v. City of Newark,

No. 13-cv-05238 (N.D. Cal. Oct. 6, 2014),

2014 WL 4978576 . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11

In re Lamictal Direct Purchaser Antitrust Litig.,

957 F.3d 184 (3d Cir. 2020) . . . . . . . . . . . . . . . . . . . . . . 6

Khalif v. City of Union City,

No. C 09-2723 (N.D. Cal. May 8, 2012),

2012 WL 13048876 . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

viii

Cited Authorities

Page

Kincaid v. City of Fresno,

No. CV-F-06-1445 (E.D. Cal. May 12, 2008),

2008 WL 2038390 . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11

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

571 F.3d 672 (7th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . 6

Lacambra v. City of Orange,

No. 18-cv-00960 (C.D. Cal. Aug. 16, 2019),

2019 WL 6799108 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Los Angeles County v. Humphries,

562 U.S. 29 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Martinez v. City of Santa Rosa,

482 F. Supp. 3d 941 (N.D. Cal. 2020) . . . . . . . . . . . . 10

Maya v. County of San Bernardino,

No. EDCV 19-1871 (C.D. Cal. June 1, 2023),

2023 WL 4383344 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Mazza v. American Honda Motor Co.,

666 F.3d 581 (9th Cir. 2012) . . . . . . . . . . . . . . . . . . . 6, 7

Monell v. Department of Social Services of

New York,

436 U.S. 658 (1978) . . . . . . . . 2, 3, 12, 13, 15, 18, 20, 21

Multi-Ethnic Immigrant Workers Org. Network

v. City of Los Angeles,

246 F.R.D. 621 (C.D. Cal. 2007) . . . . . . . . . . . . . . 10, 19

ix

Cited Authorities

Page

NAACP of San Jose/Silicon Valley v.

City of San Jose,

No. 21-cv-01705 (N.D. Cal. Apr. 7, 2023),

2023 WL 2823506 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Olean Wholesale Grocery Coop., Inc. v.

Bumble Bee Foods LLC,

993 F.3d 774 (9th Cir. 2021) . . . . . . . . . . . . . . . . . . . 7, 8

Olean Wholesale Grocery Coop., Inc. v.

Bumble Bee Foods LLC,

31 F.4th 651, 669 (9th Cir. 2022) . . . . . . . 6, 7, 8, 21, 24

Puente v. City of Phoenix,

123 F.4th 1035 (9th Cir. 2024) . . . . . . . . . . . . . . . . 9, 15

Ruiz Torres v. Mercer Canyons Inc.,

835 F.3d 1125 (9th Cir. 2016) . . . . . . . . . . . . . . . . . . 6, 7

Rupan v. City of Oakland,

No. 20-cv-03866 (N.D. Cal. Oct. 24, 2023),

2023 WL 7026937 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

S.G. v. City of Los Angeles,

No. LA CV17-09003 (C.D. Cal. Feb. 4, 2021),

2021 WL 911254 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Sandoval v. County of Sonoma,

912 F.3d 509 (9th Cir. 2018) . . . . . . . . . . . . . . . . . . . . . 9

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

Allstate Ins. Co.,

559 U.S. 393 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

x

Cited Authorities

Page

Shorter v. County of Los Angeles,

No. CV 21-3347 (C.D. Cal. July 12, 2022),

2022 WL 3636687 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Sullivan v. City of Berkeley,

383 F. Supp. 3d 976 (N.D. Cal. 2019) . . . . . . . . . . 10, 15

TransUnion LLC v. Ramirez,

594 U.S. 413 (2021) . . . . . . . . . . . . . . . . . . . . . . 4, 12, 13

Tyson Foods, Inc. v. Bouaphakeo,

577 U.S. 442 (2016) . . . . . . . . . . . . . . . . . . . . . . 4, 17, 25

United Food & Com. Workers Unions & Emps.

Midwest Health Benefits Funds v. Warner

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

907 F.3d 42 (1st Cir. 2018) . . . . . . . . . . . . . . . . . . . . . . 5

Valdez v. City of San Jose,

No. C 09-0176 (N.D. Cal. Feb. 27, 2013),

2013 WL 752498 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Wal-Mart Stores, Inc. v. Dukes,

564 U.S. 338 (2011) . . . . . . . . . . . . . . . . 8, 14, 16, 17, 21

Warth v. Seldin,

422 U.S. 490 (1975) . . . . . . . . . . . . . . . . . . . . . . . . 12, 13

Williams v. City of Beverly Hills,

No. 21-cv-08698 (C.D. Cal. Nov. 3, 2021) . . . . . . 10, 11

xi

Cited Authorities

Page

Woodall v. Wayne County,

No. 20-1705, 2021 WL 5298537

(6th Cir. Nov. 15, 2021) . . . . . . . . . . . . . . . . . . . . . . . . 21

Zherka v. DiFiore,

412 F. App’x 345 (2d Cir. 2011) . . . . . . . . . . . . . . . . . . 13

Statutes, Rules and Other Authorities

Fed. R. Civ. P. 23(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Fed. R. Civ. P. 23(b)(3) . . . . . . . . . . . . . . . . . . . . 4, 8, 20, 22

Fed. R. Civ. P. 23(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

2 W. Rubenstein, Newberg on Class Actions

§ 4:50 (5th ed. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

3 Newberg and Rubenstein on Class Actions

§ 9:52 (6th ed. 2024) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Paulette Blanc et al., The Costs of Police Violence:

Measuring Misconduct, Measure (Feb. 2021),

https://tinyurl.com/yk3wfc7c . . . . . . . . . . . . . . . . . . . 29

S t e p h e n B . B u r b a n k & S e a n Fa rh a n g,

Class Certification in the U.S. Courts of

Appeals: A Longitudinal Study, 84 L. &

Contemp. Probs. 73 (2021) . . . . . . . . . . . . . . . . . . 13, 14

xii

Cited Authorities

Page

Charles B. Casper, The Class Action Fairness

Act’s Impact on Settlements, 20 Antitrust 26

(2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Daily News, City’s legal costs: $137M over past 2

years, Los Angeles Daily News (Aug. 28, 2017),

https://tinyurl.com/ydb2djkv . . . . . . . . . . . . . . . . 24, 28

Jeremy Gaston, Standing On Its Head: The

Problem of Future Claimants in Mass Tort

Class Actions, 77 Tex. L. Rev. 215 (1998) . . . . . . . . 25

Matthew Hall, Cratering customer levels and

ballooning legal costs blast a $33.2M hole in

the city budget, Santa Monica Daily Press

(Mar. 6, 2025), https://tinyurl.com/4xxpx583 . . . . . . 24

M ichael Maciag, City Lawsuit Costs

R e p o r t , G o v e r n i n g (O c t . 2 7, 2 0 16 ) ,

https://tinyurl.com/y69ymfwz . . . . . . . . . . . . . . . 23, 26

Geoffrey P. Miller, Rethinking Certification

and Notice in Opt-Out Class Actions, 74

UMKC L. Rev. 637 (2006) . . . . . . . . . . . . . . . . . . . . . 15

Marc L. Miller & Ronald F. Wright, Secret Police

and the Mysterious Case of the Missing

Tort Claims, 52 Buff. L. Rev. 757 (2004) . . . . . . . . . 27

Linda S. Mullenix, Dropping the Spear: The Case

for Enhanced Summary Judgment Prior to

Class Certification, 43 Akron L. Rev. 1197 (2010) . . . 15

xiii

Cited Authorities

Page

Richard A. Nagareda, Class Certification in the

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

97 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

National Police Funding Database, Settlements,

https://tinyurl.com/npfdsettlements . . . . . . . . . . . . . 23

Office of the County Counsel, Annual Litigation

C o s t R e p or t F Y 2 0 2 3 – 2 0 2 4 , ht t p s: //

tinyurl.com/countycounsel2324; Office of

the County Counsel, A nnual Litigation

Cost Report FY 2022–2023 (Feb. 6, 2024),

https://tinyurl.com/countycounsel2223 . . . . . . . . . . . 23

N. Chethana Perera, Back to School: A Lesson on

the Dual Standards for Class Ascertainability,

14 U. St. Thomas L.J. 249 (2018) . . . . . . . . . . . . . . . . 25

Martin H. Redish, Class Actions and the

Democratic Dif ficulty: Rethinking the

Intersection of Private Litigation and Public

Goals, 2003 U. Chi. Legal F. 71 (2003) . . . . . . . . . . . 18

Martin H. Redish et al., Cy Pres Relief and the

Pathologies of the Modern Class Action:

A Nor mative and Empir ical Analysis,

62 Fla. L. Rev. 617 (2010) . . . . . . . . . . . . . . . . . . . . . . 26

Joanna C. Schwartz, How Governments Pay:

Lawsuits, Budgets, and Police Reform, 63

UCLA L. Rev. 1144 (2016) . . . . . . . . . . . . . . . . . . . . . 27

xiv

Cited Authorities

Page

Dakota Smith & David Zahniser, L.A. city leaders

look to borrow money to cover soaring legal

payouts, Los Angeles Times (Nov. 2, 2024),

https://tinyurl.com/38mw8z5s . . . . . . . . . . . . 24, 26, 28

U.S. Court of Appeals—Judicial Caseload Profile,

Ninth Circuit & National Caseload Profiles

(2022), https://tinyurl.com/9thcircuitprofiles . . . . . . 14

Keely Webster, Newsom vetoes California judgment

obligation bond disclosure bill, The Bond Buyer

(Oct. 13, 2021), https://tinyurl.com/mr47vj8m . . . . . 24

Sam Yospe, Cy Pres Distributions in Class

Action Settlements, 2009 Colum. Bus. L. Rev.

1014 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Timothy Zick, Public Protest and Governmental

Immunities, 97 S. Cal. L. Rev. 1583 (2024) . . . . . . . 14

1

INTERESTS OF AMICI CURIAE1

The City of Beverly Hills and the City of Los Angeles

(“the Cities”) are municipalities in southern California

that are home to 35,000 and 3.8 million residents,

respectively, and host millions of visitors from around the

world every year. Both sit within Los Angeles County and

operate their own police and fire departments, schools,

recreational facilities, and public services.

The Cities support legislation and seek to actively

prevent and reduce crime throughout their city limits,

primarily related to violent crime, property crimes, cyber

crime, drugs, gang violence, mental illness, and pedestrian

safety. The Beverly Hills Police Department (“BHPD”)

and Los Angeles Police Department (“LAPD”) aim to

provide professional and proactive services in partnership

with their communities. Both the BHPD and LAPD are

at the forefront of implementing new and emerging public

safety programs.

Notwithstanding their proactive efforts to provide

cutting-edge services and safety to all of their constituents,

the Cities are currently named as defendants in a number

of active federal class action lawsuits in the Central

District of California, which relate to community policing

efforts. These suits define putative classes with high

numbers of uninjured class members. Thus, many of the

pending class action suits filed against the Cities will be

directly impacted by this Court’s resolution of the question

presented for review.

1. No party’s counsel authored this amicus brief in whole

or in part. No one other than the City of Beverly Hills, the City

of Los Angeles, or its counsel contributed money to prepare or

submit this brief.

2

The Cities understand the serious harm presented

when class actions include uninjured plaintiffs. This

Court’s reinforcement of Article III standing requirements

is important to both private and public entities alike.

The Cities have an interest in the proper interpretation

and application of constitutional standing requirements

governing class action lawsuits.

SUMMARY OF ARGUMENT

Municipalities like the Cities are uniquely impacted

by the lack of enforcement of Article III standing

requirements for absent class members. Cities, counties,

and other public agencies throughout California and the

nation are increasingly beset by class action suits which

seek to represent large, poorly defined classes. These

involve, for example, groups of individuals who claim to

have been targeted by task forces or community policing

efforts over the course of several years. But such cases

are particularly ill-suited to class treatment. Usually, they

include uninjured class members whose interactions with

public officials do not rise to the level of a constitutional,

Article III injury.

Despite this glaring deficiency, California district

courts certify these overbroad classes under Ninth

Circuit precedent, which has inexplicably declined to

adopt a classwide injury requirement. The lack of injury

requirement is exacerbated by lower courts’ misapplication

of Federal Rule of Civil Procedure 23’s “rigorous” analysis

for claims filed under Monell v. Department of Social

Services of New York, 436 U.S. 658, 694 (1978).

Under Monell, a plaintiff cannot recover from a

municipality unless they can show that they were injured

3

by the municipality’s “policy or custom.” Id. Although the

“policy or custom” requirement does not include proof of

an individual’s underlying injury, courts often conflate

the two principles when deciding whether individual

injury issues predominate at the class certification stage.

The result is that differences in class member injuries

are tabled and left for another day while the class is

certified. But a recent Ninth Circuit decision that did

rigorously apply Rule 23 to identify individual injury

issues demonstrates the benefits of enforcing a classwide

injury requirement for Monell (and potentially other

complex) claims at the class certification stage. See Black

Lives Matter L.A. v. City of Los Angeles, 113 F.4th 1249

(9th Cir. 2024) [hereinafter BLM].

Requiring injury determinations at the class

certification stage is important to municipalities because it

will deter overbroad and unjustified settlement payouts. In

practice, defendants are often forced to settle class actions

after they are certified to avoid protracted litigation costs

and the potentially catastrophic risks of losing at trial,

even when they have viable standing arguments. This is

particularly troublesome for municipalities, which finance

their own settlements using taxpayer money that could

otherwise be spent on community development. Worse

still, high value settlements can lead to cuts in essential

services or tax increases to help balance future city

budgets.

When settlement figures are artificially inflated by the

presence of uninjured class members, local communities

suffer. Even if uninjured members are eventually weeded

out, the settlement funds are not returned—they instead

go to third-party cy pres recipients. These parties are also

4

uninjured, and may not represent a cause that benefits

citizens as the tax dollars were intended.

To avoid these deleterious consequences for public

and private defendants alike, this Court should expressly

require a showing of Article III standing for all class

members at the time of class certification.

ARGUMENT

I.

Current law is split over how to address the need

for Article III standing for all class members in

damages classes.

Rule 23(b)(3) is the “‘the most adventuresome’

innovation” in class-action law. Amchem Prods., Inc.

v. Windsor, 521 U.S. 591, 614 (1997). It “added to the

complex-litigation arsenal class actions for damages

designed to secure judgments binding all class members

save those who affirmatively elected to be excluded.” Id.

at 614–15.

Along with the Rule 23(a) requirements of numerosity,

commonality, typicality, and adequacy, a Rule 23(b)(3)

class may be certified only if “questions of law or fact

common to class members predominate over any questions

affecting only individual members,” and the “class action is

superior to other available methods” of resolution. Fed. R.

Civ. P. 23(a), (b)(3). Named plaintiffs must also have Article

III standing. Frank v. Gaos, 586 U.S. 485, 492 (2019).

For absent class members, this Court has held that

“[e]very class member must have Article III standing in

order to recover individual damages.” TransUnion LLC

v. Ramirez, 594 U.S. 413, 431 (2021); see Tyson Foods,

5

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

C.J., concurring) (“Article III does not give federal

courts the power to order relief to any uninjured plaintiff,

class action or not.”). But it has expressly reserved

judgment regarding “whether every class member must

demonstrate standing before a court certifies a class.”

TransUnion, 594 U.S. at 431 n.4. That is the question

presented by the instant appeal.

As discussed in Labcorp’s Petition for Writ of

Certiorari, Circuit courts have taken differing approaches

when confronted with a putative class that includes

individuals who have suffered no injury. See generally Pet.

The Second and Eighth Circuits (as well as some

judges in the Fifth and Sixth Circuits) consider the

presence of uninjured class members an Article III

standing problem. See Avritt v. Reliastar Life Ins. Co.,

615 F.3d 1023, 1034 (8th Cir. 2010); Denney v. Deutsche

Bank AG, 443 F.3d 253, 264–65 (2d Cir. 2006); see also

Pet. 15–16 (discussing relevant opinions in the Fifth and

Sixth Circuits). These courts hold that “no class may

be certified that contains members lacking Article III

standing.” Denney, 443 F.3d at 264.

Meanwhile, the First, Third, and D.C. Circuits couch

the issue under Rule 23(b)(3)’s predominance requirement,

refusing to certify a class with more than a “de minimis”

number of uninjured members. See Dakota Granite Co.

v. BNSF Ry. Co. (In re Rail Freight Fuel Surcharge

Antitrust Litig.), 934 F.3d 619, 624–26 (D.C. Cir. 2019);

United Food & Com. Workers Unions & Emps. Midwest

Health Benefits Funds v. Warner Chilcott Ltd. (In re

Asacol Antitrust Litig.), 907 F.3d 42, 53–54 (1st Cir.

6

2018); see also In re Lamictal Direct Purchaser Antitrust

Litig., 957 F.3d 184, 194 (3d Cir. 2020) (similar); Pet. 16–18.

As with the previous group, this necessarily entails a

determination of how many uninjured class members are

present at the time of certification. In re Rail Freight,

934 F.3d at 624–25. If the class definition encompasses

more than a de minimis number of uninjured members,

common questions do not predominate. Id.

Yet a third group—the Seventh, Ninth, and Eleventh

Circuits—has waffled and declined to adopt either position.

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

Foods LLC, 31 F.4th 651, 669 (9th Cir. 2022) [hereinafter

Olean II] (en banc); Cordoba v. DIRECTV, LLC, 942

F.3d 1259, 1267, 1277 (11th Cir. 2019); Kohen v. Pac. Inv.

Mgmt. Co., 571 F.3d 672, 677 (7th Cir. 2009); see also Pet.

18–19. These courts reserve injury questions for postcertification, weeding out uninjured class members only

at the damages allocation phase, post-trial or settlement.

See Olean II, 31 F.4th at 668–69, 681–82; infra Part III.

Of this final group, the Ninth Circuit has taken the most

strident, albeit inconsistent, position. At different points

in time, the Ninth Circuit has avowed versions of both the

Article III approach and the de minimis predominance

approach, causing needless interpretational confusion for

lower courts. Worse yet, it has recently backpedaled on

both, resulting in uneven and often muddled treatment of

threshold injury questions. See, e.g., Olean II, 31 F.4th at

669 & n.14, 682 & n.32; Ruiz Torres v. Mercer Canyons

Inc., 835 F.3d 1125, 1137 n.6 (9th Cir. 2016).

As to the Article III approach—in Mazza v. American

Honda Motor Co., 666 F.3d 581 (9th Cir. 2012), the Ninth

Circuit cited the Second Circuit’s decision in Denney

7

for the proposition that “no class may be certified that

contains members lacking Article III standing.” Id. at

594 (quoting Denney, 443 F.3d at 264). Applying that

rule, it denied certification of a class that was “overbroad”

because it contained members who had not seen the

allegedly misleading statements at issue. Id. at 596. Only

a California subclass could be certified, it concluded,

because “California class members have Article III

standing.” Id. at 594.

A few years later, the Ninth Circuit seemingly

retreated, stating that at class certification it need only

be “possible that class members have suffered injury.”

Ruiz Torres, 835 F.3d at 1137 n.6 (emphasis added). Then

Mazza’s holding was expressly overruled in a footnote of

the Olean en banc decision. Olean II, 31 F.4th at 682 n.32.

Officially, the court limited its overruling to injunctive

relief classes. Id. But that limitation is called into doubt

by the same court’s affirmance of certification of a

damages class where nearly one-third of the class might

have been uninjured. Id. at 680–82 (discussing competing

expert evidence); see id. at 686 (Lee, J., dissenting)

(summarizing expert conflict). Subsequent decisions by

the Ninth Circuit have strongly suggested there is no

Article III requirement for absent class members at class

certification. See, e.g., DZ Reserve v. Meta Platforms, Inc.,

96 F.4th 1223, 1239 (9th Cir. 2024) (citation omitted) (“In

a class action, standing is satisfied if at least one named

plaintiff meets the requirements.”).

And as to the de minimis predominance approach—

the original panel decision in Olean expressly adopted

that rule, holding that anything more than a “de minimis”

number of “uninjured class members would be enough to

defeat predominance.” Olean Wholesale Grocery Coop.,

8

Inc. v. Bumble Bee Foods LLC, 993 F.3d 774, 792 (9th Cir.

2021), overruled on reh’g en banc, 31 F.4th 651 (9th Cir.

2022). The panel even concluded that “[t]he district court’s

gloss over the number of uninjured class members was an

abuse of discretion” under Rule 23(b)(3). Id. at 793.

In a jarring reversal, the Olean en banc majority

retracted that holding, calling the de minimis rule

“inconsistent with Rule 23(b)(3).” Olean II, 31 F.4th at

669. The court equated individual injury determinations

with individual damages determinations that need not

be resolved at the certification phase. Id. at 668–69; but

see Comcast Corp. v. Behrend, 569 U.S. 27, 34 (2013)

(“Questions of individual damage calculations” can

“overwhelm questions common to the class.”). Judge

Lee authored a forceful dissent, rejecting the majority’s

sudden change of tune and calling for a more “rigorous”

Rule 23 analysis under this Court’s decision in Wal-Mart

Stores, Inc. v. Dukes, 564 U.S. 338 (2011). Olean II, 31

F.4th at 685, 687–88 (Lee, J., dissenting).

The Ninth Circuit’s high level of interpretational

inconsistency—and ultimate refusal to apply any rule

that absent class members have standing—has created

immense confusion for lower courts. This Court should

eliminate any uncertainty by articulating an Article III

injury requirement for absent class members that can be

reliably applied at the class certification stage.

9

II. O verbroad da mages cla ss actions against

municipalities highlight the need for a clear Article

III standing requirement for all class members.

A.

Municipalities are uniquely burdened by

overbroad class action claims involving high

numbers of class members who lack Article

III injury.

Class action civil rights claims against municipalities

are increasingly common. Local governments across

California deal with these suits every day. 2 And not only

2. See, e.g., BLM, 113 F.4th 1249; Puente v. City of Phoenix,

123 F.4th 1035 (9th Cir. 2024); Buffin v. California, 23 F.4th 951

(9th Cir. 2022); Sandoval v. County of Sonoma, 912 F.3d 509

(9th Cir. 2018); Brewster v. Beck, 859 F.3d 1194 (9th Cir. 2017);

Cavanagh v. Humboldt County, 1 F. App’x 686 (9th Cir. 2001);

Complaint, Greene v. City of Beverly Hills, No. 24-cv-05916 (C.D.

Cal. July 15, 2024); Complaint, Berg v. County of Los Angeles,

No. CV 20-7870 (C.D. Cal. Apr. 3, 2024), 2024 WL 2106724;

Complaint, Astorga v. County of Los Angeles, No. 20-cv-09805

(C.D. Cal. May 28, 2024), 2024 WL 3313747; Complaint, NAACP

of San Jose/Silicon Valley v. City of San Jose, No. 21-cv-01705

(N.D. Cal. Apr. 7, 2023), 2023 WL 2823506; Complaint, Maya

v. County of San Bernardino, No. EDCV 19-1871 (C.D. Cal.

June 1, 2023), 2023 WL 4383344; Complaint, Rupan v. City of

Oakland, No. 20-cv-03866 (N.D. Cal. Oct. 24, 2023), 2023 WL

7026937; Complaint, Garza v. City of Sacramento, No. 20-cv01229 (E.D. Cal. July 14, 2022), 2022 WL 2757600; Complaint,

Shorter v. County of Los Angeles, No. CV 21-3347 (C.D. Cal.

July 12, 2022), 2022 WL 3636687; Complaint, Anti PoliceTerror Project v. City of Oakland, No. 20-CV-03866 (N.D. Cal.

Oct. 18, 2021), 2021 WL 4846958; Complaint, Gaffett v. City

of Oakland, No. 21-cv-02881 (N.D. Cal. Oct. 1, 2021), 2021 WL

4503456; Complaint, S.G. v. City of Los Angeles, No. LA CV1709003 (C.D. Cal. Feb. 4, 2021), 2021 WL 911254; Complaint,

10

is the sheer number of suits staggering, but many propose

extremely broad classes—implicating alleged misconduct

that occurred “at different times, and in different

places.” BLM, 113 F.4th at 1263 (reversing grant of class

Williams v. City of Beverly Hills, No. 21-cv-08698 (C.D. Cal. Nov.

3, 2021); Complaint, Coburn v. City of Sacramento, No. 19-cv00888 (E.D. Cal. Dec. 18, 2020), 2020 WL 7425345; Complaint,

Martinez v. City of Santa Rosa, 482 F. Supp. 3d 941 (N.D. Cal.

2020) (No. 20-cv-04135-VC); Complaint, Astorga v. County of

Los Angeles, No. 20-cv-09805 (C.D. Cal. Nov. 11, 2020), 2020

WL 13584509; Complaint, Lacambra v. City of Orange, No.

18-cv-00960 (C.D. Cal. Aug. 16, 2019), 2019 WL 6799108;

Complaint, Sullivan v. City of Berkeley, 383 F. Supp. 3d 976

(N.D. Cal. 2019) (No. C 17-06051); Complaint, Brewster v. City

of Los Angeles, No. EDCV 14-2257 (C.D. Cal. July 29, 2019),

2019 WL 7707886; Complaint, Garcia v. County of Riverside,

No. EDCV 13-616 (C.D. Cal. Mar. 8, 2018), 2018 WL 3740528;

Complaint, Chua v. City of Los Angeles, No. LA CV16-00237

(C.D. Cal. May 25, 2017), 2017 WL 10776036; Complaint, Buffin

v. City & County of San Francisco, No. 15-cv-04959 (N.D. Cal.

Oct. 14, 2016), 2016 WL 6025486; Complaint, Cangress v.

City of Los Angeles, No. 14-CV-1743 (C.D. Cal. Mar. 22, 2016),

2016 WL 5946878; Complaint, Henneberry v. City of Newark,

No. 13-cv-05238 (N.D. Cal. Oct. 6, 2014), 2014 WL 4978576;

Complaint, Aichele v. City of Los Angeles, 314 F.R.D. 478 (C.D.

Cal. 2013) (No. CV 12-10863); Complaint, Valdez v. City of San

Jose, No. C 09-0176 (N.D. Cal. Feb. 27, 2013), 2013 WL 752498;

Complaint, Khalif v. City of Union City, No. C 09-2723 (N.D.

Cal. May 8, 2012), 2012 WL 13048876; Complaint, Campbell

v. City of Oakland, No. C 11-05498 (N.D. Cal. Dec. 12, 2011),

2011 WL 13376906; Complaint, Kincaid v. City of Fresno, No.

CV-F-06-1445 (E.D. Cal. May 12, 2008), 2008 WL 2038390;

Complaint, Multi-Ethnic Immigrant Workers Org. Network

v. City of Los Angeles, 246 F.R.D. 621 (C.D. Cal. 2007) (No.

CV 07-3072); Complaint, Henderson v. City & County of San

Francisco, No. C-05-234 (N.D. Cal. Dec. 1, 2006), 2006 WL

3507944; Complaint, Bull v. City & County of San Francisco,

No. C 03-01840 (N.D. Cal. Sept. 22, 2005), 2005 WL 8162537.

11

certification for “sprawling classes alleg[ing] a broad

range of injuries based on a medley of LAPD conduct

and policies”). 3

These broadly defined classes rarely make sense

as a way of recouping damages for alleged civil rights

violations: determinations about injury for each individual

are inherently fact-specific and raise serious Article III

considerations. For example, many civil rights claims

against municipalities center on interactions with law

enforcement—e.g., allegations of excessive force, improper

detention, or unlawful arrest—which require close

scrutiny of the facts surrounding each individual violation,

including the legitimate law enforcement objectives that

justify an encounter. See, e.g., Graham v. Connor, 490 U.S.

386, 396 (1989) (the reasonableness of an officer’s behavior

under the Fourth Amendment “requires careful attention

3. See, e.g., Complaint at ¶ 3, Greene v. City of Beverly Hills

(No. 24-cv-05916), Dkt. 36 (class of “[a]ll Black people who were

detained or arrested without being convicted of any crime by the

City of Beverly Hills Police Department (‘BHPD’) from July 15,

2022 forward”); Complaint at ¶ 2, Williams v. City of Beverly

Hills (No. 21-cv-08698), Dkt. 179 (class of “[a]ll Black people who

were detained or arrested by the City of Beverly Hills Police

Department (‘BHPD’) from August 30, 2019 through August

30, 2021 without being convicted of any crime”); Complaint at

¶ 25, Henneberry, 2014 WL 4978576 (No. 13–CV–05238) (class

of “persons arrested in the City of Newark, for misdemeanors,

who instead of being cited and released, were instead detained,

arrested, and imprisoned for unreasonable and lengthy periods

of time”); Kincaid, 2008 WL 2038390 (No. CV-F-06-1445), at

*1 (E.D. Cal. May 12, 2008) (class of “[a]ll persons in the City of

Fresno who were or are homeless, without residence, . . . and whose

personal belongings have been unlawfully taken and destroyed

in a sweep, raid, or clean up by any of the Defendants” during a

nearly 5-year period).

12

to the facts and circumstances of each particular case”),

overruled on another ground by Saucier v. Katz, 533 U.S.

194 (2001). Indeed, not every use of force or arrest without

conviction rises to the level of a “constitutional injury.”

City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986).

An individual who has suffered no injury has no claim

against the officer or the municipality. See id. (where

“officer inflicted no constitutional harm,” plaintiff could

not recover against municipality under Monell); BLM,

113 F.4th at 1259 (decertifying Monell classes where

it was unclear whether named plaintiff’s injury was

caused by police or by tripping on sidewalk, which is

“not a constitutional injury”). And for claims against a

municipality in particular, a plaintiff may recover only

if she can demonstrate that her injury was caused by a

“policy or custom” of the municipal entity. Monell, 436 U.S.

at 694 (“policy or custom” creates liability when it “inflicts

the injury”); accord Los Angeles County v. Humphries,

562 U.S. 29, 36 (2010).

These complex merits determinations dovetail with

Article III concerns. While Article III “standing in no

way depends on the merits of the plaintiff’s contention[s],”

the “standing question” in constitutional cases is “whether

the constitutional . . . provision on which the claim rests

properly can be understood as granting persons in the

plaintiff’s position a right to judicial relief.” Warth v.

Seldin, 422 U.S. 490, 500 (1975); id. at 505 (plaintiff must

show that they suffered a “harm that a constitutional

provision or statute was intended to prevent”); see also

TransUnion, 594 U.S. at 425 (concrete injuries for Article

III purposes may be “specified by the Constitution”). Thus,

any individual class member who lacks a constitutional

injury may very well lack standing.

13

Likewise, an individual who cannot demonstrate

causality under Monell may fall short of Article III’s

prerequisites. Under Article III, an injury must be

traceable to the defendant. TransUnion, 594 U.S. at 423

(plaintiff must “demonstrate a concrete and particularized

injury caused by the defendant”); Warth, 422 U.S. at 505

(for constitutional claim, plaintiff must show “injury was

the consequence of the defendants’ actions”). So, if an

individual’s injury does not relate back to the municipality’s

policy, they lack standing to sue the municipality. See, e.g.,

Zherka v. DiFiore, 412 F. App’x 345, 348 (2d Cir. 2011)

(finding plaintiffs lacked standing to pursue their First

Amendment claim, and for that reason “no municipal

liability attaches”); Doe ex rel. Doe v. Sch. Dist. of City

of Norfolk, 340 F.3d 605, 609–10 (8th Cir. 2003) (plaintiff

lacked standing to sue school district because he did not

“suffer[] an ‘injury in fact’ as a result of the policy” at

issue (emphasis added)); see also Daves v. Dallas County,

22 F.4th 522, 532 (5th Cir. 2022) (if alleged violations were

not committed by officials acting on behalf of the county,

“there is no case or controversy with, and no Article III

jurisdiction over, Dallas County”).

Yet district courts within the Ninth Circuit proceed

with class certification without any regard for the Article

III injury (or lack thereof) of absent class members.

See supra Part I. Given the sheer number of broadly

defined Monell classes, this is a problematic position

for municipalities across the United States, not simply

Beverly Hills and Los Angeles. See infra Part II.B.

Even worse, the Courts of Appeals seldom grant Rule

23(f) petitions. See Stephen B. Burbank & Sean Farhang,

Class Certification in the U.S. Courts of Appeals: A

14

Longitudinal Study, 84 L. & Contemp. Probs. 73, 79–80

(2021) (grant rates of Rule 23(f) petitions fell to 22.9%

from 2006 to 2013, with only 23 out of 157 petitions in the

Ninth Circuit being granted during that period). The

Ninth Circuit, for example, reconsiders only a handful

of class certification decisions each year. See U.S. Court

of Appeals—Judicial Caseload Profile, Ninth Circuit

& National Caseload Profiles (2022), https://tinyurl.

com/9thcircuitprofiles (noting between three and five

interlocutory appeals were considered each year between

2017 and 2022).

Even when interlocutory review is granted, it is

increasingly uncommon for the Courts of Appeals

to overturn a district court’s decision to grant class

certification. See Burbank & Farhang, supra, at 91 (“[T]he

estimated probability of reversal of a district court grant

of certification. . . . declined precipitously by 39 percentage

points to 32% in 2017.”); id. at 99 (“[I]n the post-[Dukes]

and Comcast period defendants achieved lower rates of

reversal of certification.”). Therefore, once certification is

granted by the trial court, the fate of the case is largely

sealed. See infra Part III.

The problem of overbroad class certification is not

counteracted by pro-defense determinations at other

stages of litigation, either. Defendants rarely win dismissal

of putative civil rights class actions at the pleading stage.

See Timothy Zick, Public Protest and Governmental

Immunities, 97 S. Cal. L. Rev. 1583, 1583, 1610–11 (2024).

It is more feasible for defendants to prevail on the

merits at summary judgment. Id.; see also id. at 1639

15

(Monell claims resolved at summary judgment where

plaintiff cannot show a “policy or custom”). But summary

judgment motions are often filed or considered only after

class certification. See Linda S. Mullenix, Dropping the

Spear: The Case for Enhanced Summary Judgment

Prior to Class Certification, 43 Akron L. Rev. 1197,

1208–09 (2010) (noting reluctance of some courts to rule

on summary judgment pre-certification despite discretion

to do so).

As a result, public entities with viable merits-based

arguments—including injury arguments—face the

daunting class certification process and the attendant

specter of a high value settlement. See, e.g., Puente, 123

F.4th at 1042 (affirming summary judgment for defendants

as to all class claims under Monell after damages class and

injunctive relief class were already certified); Sullivan,

383 F. Supp. 3d at 981 (similar); see also Geoffrey P. Miller,

Rethinking Certification and Notice in Opt-Out Class

Actions, 74 UMKC L. Rev. 637, 640 (2006); 3 Newberg

and Rubenstein on Class Actions § 9:52 (6th ed. 2024)

(“[M]ost class actions today are settlement class actions

in any case.”); infra Part III.

Because of their frequent exposure to class claims

involving potentially high numbers of individuals who

have suffered no Article III injury, municipalities like the

City are uniquely affected by the pending issue before

this Court.

16

B. Requiring Article III injury for all class

members will align civil rights class actions

with the rigorous analysis required for class

certification.

Without limitations or guidelines regarding the

presence of uninjured class members, courts in the

Ninth Circuit erroneously certify Monell claims for class

treatment despite the presence of class members who

suffered no constitutional harm. This is borne out by an

examination of lower court certification decisions, and the

Ninth Circuit’s recent effort to correct course in BLM.

As has been repeated by this Court, class certification

requires a “rigorous” analysis of the Rule 23 requirements.

See Dukes, 564 U.S. at 350–52 (referring to Rule 23(a)

showing); see also Comcast, 569 U.S. at 33 (applying the

same to Rule 23(b) showing). This analysis often calls on

courts to “‘probe behind the pleadings’” to the “merits of

the plaintiff’s underlying claim.” Dukes, 564 U.S. at 350–

52 (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147,

160 (1982)). Indeed, “[t]he class determination generally

involves considerations that are enmeshed in the factual

and legal issues comprising the plaintiff’s cause of action.”

Id. at 351 (quoting Falcon, 457 U.S. at 160).

As relevant here, the Rule 23(a) commonality

requirement asks whether the class’s claims “depend upon

a common contention.” Dukes, 564 U.S. at 350. This means

that the case must be capable of “classwide resolution”

through “common answers” to liability questions. Id.

(citation omitted). The presence of “common ‘questions’—

even in droves” is insufficient. Id. (quoting Richard A.

Nagareda, Class Certification in the Age of Aggregate

Proof, 84 N.Y.U. L. Rev. 97, 132 (2009)).

17

For damages classes, a plaintiff must also satisfy

Rule 23(b)(3)’s predominance requirement, which asks

courts to “take a ‘close look’ at whether common questions

predominate over individual ones.” Comcast, 569 U.S. at

34 (quoting Amchem, 521 U.S. at 615). It demands “careful

scrutiny to the relation between common and individual

questions in a case. An individual question is one where

‘members of a proposed class will need to present evidence

that varies from member to member.’” Tyson Foods, 577

U.S. at 453 (quoting 2 W. Rubenstein, Newberg on Class

Actions § 4:50, pp. 196–97 (5th ed. 2012)).

Although commonality and predominance both

require at least a “rigorous” analysis, “Rule 23(b)(3)’s

predominance criterion is even more demanding than

Rule 23(a)” because of the limited safeguards for absent

class members. Comcast, 569 U.S. at 34.

One of the issues that must be considered through

both a commonality and predominance lens is whether the

putative “class members ‘have suffered the same injury’”

as their representative. Dukes, 564 U.S. at 350 (quoting

Falcon, 457 U.S. at 157–58); accord Comcast, 569 U.S. at

30 (“individual injury” of class members must be “capable

of proof at trial through evidence that [is] common to

the class rather than individual to its members”). The

“mere claim” that all class members have suffered an

injury “gives no cause to believe that all their claims

can productively be litigated at once.” Dukes, 564 U.S.

at 350. The existence and cause of class member injuries

therefore present “crucial question[s]” that must resolved

by “common answer[s].” Id. at 352.

Rule 23, like most of the Federal Rules, is designed

to be applied equally to all cases, regardless of subject

18

matter. See Martin H. Redish, Class Actions and the

Democratic Difficulty: Rethinking the Intersection of

Private Litigation and Public Goals, 2003 U. Chi. Legal

F. 71, 75–76 (2003) (referring to the “transsubstantive”

nature of Rule 23). But some courts confronted with

Monell claims have failed to rigorously apply Rule 23’s

commonality and predominance requirements—especially

as they relate to injury and causation.

As discussed above, Monell plaintiffs must show that a

common “policy or custom” caused their injury. 436 U.S. at

694; accord Humphries, 562 U.S. at 36. But the existence

of a common policy alone does not prove injury—the

“inquiry into the question of municipal responsibility and

the question whether a constitutional violation occurred”

are “separate.” Collins v. City of Harker Heights, 503

U.S. 115, 122 (1992); accord Connick v. Thompson, 563

U.S. 51, 60–61 (2011); Heller, 475 U.S. at 799 (“the fact

that the departmental regulations might have authorized

the use of constitutionally excessive force is quite beside

the point” if “no constitutional injury” actually occurred).

Yet courts within the Ninth Circuit (and elsewhere) seem

to conflate the presence of an alleged “policy or custom”

with a showing of classwide injury that would satisfy the

commonality and predominance requirements of Rule 23.

For example, in two recent decisions, courts in the

Central District of California certified Rule 23(b)(3)

damages classes against the city and county of Los

Angeles over credible objections that individual injury

determinations would predominate. See Berg v. County

of Los Angeles, No. CV 20-7870, 2024 WL 2106724, at *7

(C.D. Cal. Apr. 3, 2024), vacated and remanded, No. 243959, 2025 WL 310660 (9th Cir. Jan. 23, 2025); Black Lives

19

Matter L.A. v. City of Los Angeles, No. 20-CV-05027, 2022

WL 16888576, at *3 (C.D. Cal. Oct. 3, 2022), vacated and

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

In Berg, the court declined to consider the effect of

individual injury questions on predominance, reasoning

that the “focal point” of the predominance inquiry for

plaintiffs’ Monell claims was “whether Defendants have

a custom or practice of arresting peaceful protesters and

subjecting them to unconstitutional conditions, whatever

they may be.” 2024 WL 2106724, at *7. The Black Lives

Matter court likewise found that individual differences

between plaintiffs regarding their own behavior and the

responses of police officers during a protest—which both

relate back to injury—did not preclude certification. 2022

WL 16888576, at *3. It concluded that certification was

proper because the “Monell claims concern a common

question about the LAPD’s ratification of the individual

officers’” actions. Id. at *4.

This is not a new phenomenon, either. A number of

older decisions from lower courts in the Ninth Circuit

have employed the same reasoning. See Aichele, 314 F.R.D.

at 489–90, 495 (finding commonality and predominance

were satisfied because of a “common question . . . as to

the lawfulness of Plaintiffs’ arrests to the extent they

were based upon an overarching policy”); Multi-Ethnic

Immigrant Workers, 246 F.R.D. at 635 (certifying Rule

23(b)(3) class over objection that “the conduct of individual

officers in the field may present individual issues of

reasonableness” because “the individual issues share a

4. Both orders were vacated and remanded due to the Ninth

Circuit’s later decision in BLM, discussed further below.

20

common source: the command decisions to disperse the

crowd and to authorize the use of less-lethal munitions if

the crowd’s behavior warranted it”); Bull v. City & County

of San Francisco, No. C 03-01840, 2004 WL 6068315, at

*8 (N.D. Cal. June 10, 2004) (finding there was a policy in

place, so “any potential individualized issues [regarding

injury] can be addressed later in the litigation and do not

defeat class certification”).

The Ninth Circuit finally addressed this repeated

error last year in BLM, 113 F.4th 1249, which arose from

one of the recent Central District decisions discussed

above. Plaintiffs participated in protests in Los Angeles

following the killing of George Floyd, during which they

claimed they were wrongfully arrested or injured by

LAPD officers. Id. at 1253. They soon filed a class action

suit against the City of Los Angeles and its police chief for

constitutional and state law violations, and sought damages

under Monell. Id. at 1253, 1257. The named plaintiffs’

alleged injuries, the protest and arrest conditions they

experienced, and the responses of police officers all

differed. Id. at 1255–56. Still, the district court certified

three different Rule 23(b)(3) classes under the logic that

“because the damages classes bring Monell claims, there

[a]re common questions about whether LAPD customs or

policies injured protestors.” Id. at 1257.

On appeal, Judge Lee authored the decision reversing

certification across the board. Id. at 1254, 1266. He

rejected both the district court’s conclusion and plaintiffs’

argument that “Monell classes necessarily satisfy Rule

23(a)’s commonality and Rule 23(b)(3)’s predominance

requirements.” Id. at 1263. The court held that “Monell

is not a magic word that allows a plaintiff to cast aside

21

all the Rule 23 requirements for class certification.” Id.

“Plaintiffs seeking class certification based on challenges

to a defendant’s policies must show that the policies caused

every class member’s injury.” Id. (emphasis added).

Because of the disparate treatment and experiences of

class members, “[t]he plaintiffs here have not shown the

existence of common evidence that can resolve in ‘one

stroke’ the class members’ claims that hinge on a wide

array of facts and circumstances.” Id. at 1260 (quoting

Dukes, 564 U.S. at 350).

Thus, despite the Ninth Circuit’s rejection of any

injury requirement for absent class members in Olean

II—over Judge Lee’s dissent—Judge Lee functionally

enforced such a requirement in BLM. Id. at 1263. He

applied a “rigorous” Rule 23 analysis that took injury

questions seriously and declined to certify a class with

uninjured members. See id. at 1258–60, 1264. The BLM

decision therefore demonstrates that imposition of a

classwide injury requirement protects against certification

of overbroad classes with uninjured members.

Perhaps unsurprisingly, the other Circuits that are

aligned with BLM in rejecting over-inclusive Monell

classes also impose an injury requirement for absent class

members. See Cody v. City of St. Louis ex rel. Medium

Sec. Inst., 103 F.4th 523, 531 (8th Cir. 2024) (reversing

certification of Monell claims under Rule 23(b)(3) because

“Plaintiffs’ conditions claims—concerning plumbing, mold,

and pests—will turn on both the severity of the conditions

each plaintiff faced, and the length of exposure to those

conditions”); Woodall v. Wayne County, No. 20-1705, 2021

WL 5298537, at *7 (6th Cir. Nov. 15, 2021) (reversing

grant of class certification for Monell claims under

22

Rule 23(b)(3) and reasoning that “just because a policy

exists does not mean it caused the particular class

member’s harm”); supra Part I (discussing injury

requirement in different Circuit courts). Meanwhile, the

Seventh Circuit, which does not require any classwide

injury showing, supra Part I, recently took the opposite

stance, see Scott v. Dart, 99 F.4th 1076, 1092 (7th Cir. 2024)

(reversing denial of certification of Rule 23(b)(3) class

under Monell where common policy was involved, although

“class members would need to proceed in individualized

trials to prove causation and to seek damages”).

To ease review of Monell claims and other complex

issues at class certification, this Court should expressly

recognize an Article III injury requirement for absent

class members. Such a requirement will help to harmonize

treatment of Monell claims (and all other class claims)

with the Court’s other class certification decisions and the

rigorous analysis demanded by Rule 23(b)(3).

III. Deferring adjudication of Article III standing until

after class certification hurts municipalities by

forcing settlements and draining public funds that

will never be returned.

The alternative to resolving Article III standing at

class certification is to defer standing determinations to

the merits stage. But at that point the financial damage has

been done, and cities are worse for the wear. As a practical

matter, the size of the class as certified determines the

value of the case.

That is because certified class actions rarely make it

to trial. See Charles B. Casper, The Class Action Fairness

23

Act’s Impact on Settlements, 20 Antitrust 26, 26 (2005).

As this Court has recognized, the “in terrorem” effect

of massive aggregate class action judgments forces

settlement post-certification. AT&T Mobility LLC v.

Concepcion, 563 U.S. 333, 350 (2011). “Faced with even

a small chance of devastating loss, defendants [are]

pressured into settling questionable claims.” Id.; see also

Amgen Inc. v. Conn. Ret. Plans & Tr. Funds, 568 U.S.

455, 485 (2013) (Scalia, J., dissenting) (“Certification of the

class is often, if not usually, the prelude to a substantial

settlement by the defendant because the costs and risks

of litigating further are so high.”).

And the settlement payouts are not small. In the last

twenty years, municipalities around the country have

paid more than $2 billion in settlements, including for

class action claims. 5 The median annual total cost for

payouts, legal defense, and settlements in cases involving

police officers was $12 million per city for twenty major

American cities during fiscal years 2014–2016.6

Nowadays, larger communities are paying far more

than that. Los Angeles County paid more than $250

million in civil judgments and settlements in 2022–2023,

and nearly $125 million in 2023–2024.7 The City of Los

5. See National Police Funding Database, Settlements,

https://tinyurl.com/npfdsettlements (cataloguing settlement

payouts by municipalities around the country).

6. Michael Maciag, City Lawsuit Costs Report, Governing

(Oct. 27, 2016), https://tinyurl.com/y69ymfwz.

7. Office of the County Counsel, Annual Litigation Cost

Report FY 2023–2024, https://tinyurl.com/countycounsel2324;

Office of the County Counsel, Annual Litigation Cost Report FY

2022–2023 (Feb. 6, 2024), https://tinyurl.com/countycounsel2223.

24

Angeles spent $137 million on the same costs during a

two-year period. 8 And the City of Santa Monica recently

spent $230 million on a single settlement.9 In some cases,

municipalities have been forced to take drastic fiscal relief

measures to cover these costs, including borrowing large

sums of money at high interest rates.10

This sobering reality is made particularly acute when

litigants are aware that a high number of uninjured class

members could have been eliminated had the claims

been evaluated and adjudicated on the merits. See Shady

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

559 U.S. 393, 445 n.3 (2010) (Ginsburg, J., dissenting)

(certification will often “place[] pressure on the defendant

to settle even unmeritorious claims”); Olean II, 31 F.4th

at 685 (Lee, J., dissenting) (“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.”). “When courts do not

reach the issue of standing in cases which clearly call

for an analysis of the issue . . . the courts, by essentially

8. Daily News, City’s legal costs: $137M over past 2 years,

Los Angeles Daily News (Aug. 28, 2017), https://tinyurl.com/

ydb2djkv.

9. Matthew Hall, Cratering customer levels and ballooning

legal costs blast a $33.2M hole in the city budget, Santa Monica

Daily Press (Mar. 6, 2025), https://tinyurl.com/4xxpx583.

10. Dakota Smith & David Zahniser, L.A. city leaders look

to borrow money to cover soaring legal payouts, Los Angeles

Times (Nov. 2, 2024), https://tinyurl.com/38mw8z5s; see also Keely

Webster, Newsom vetoes California judgment obligation bond

disclosure bill, The Bond Buyer (Oct. 13, 2021), https://tinyurl.

com/mr47vj8m.

25

assuming standing, lend an aura of acceptability to the

notion that these plaintiffs actually have standing, whether

they do or do not.” Jeremy Gaston, Standing On Its Head:

The Problem of Future Claimants in Mass Tort Class

Actions, 77 Tex. L. Rev. 215, 232–33 (1998). Therefore, in

the shadow of a large certified class, defendants are more

likely to agree to inflated settlement figures that account

for the presence of uninjured class members.

Rule 23 also offers little guidance to courts about how

to administer class action judgments after settlement

or trial. Fed. R. Civ. P. 23(e). This again leaves open the

possibility that uninjured class members will recover

because district courts have no choice but to fashion ad

hoc remedies to weed them out. See Tyson Foods, 577 U.S.

at 464 (Roberts, C.J., concurring) (writing separately to

emphasize that he was “not convinced that the District

Court will be able to devise a means of distributing the

aggregate award only to injured class members”). Some

courts devise creative methods of eliminating fraudulent

claims by uninjured class members, while others are less

careful. See N. Chethana Perera, Back to School: A Lesson

on the Dual Standards for Class Ascertainability, 14 U.

St. Thomas L.J. 249, 280–81 (2018) (discussing several

examples).

And even when stricter weed-out processes are

in place, defendants are usually still on the hook for

whatever settlement amount they agreed to (which may

be a lump sum that assumes a much larger class size,

inflated by uninjured class members). Indeed, it is rare

for a defendant to get back any money they allocated to a

settlement fund. See 4 Newberg and Rubenstein on Class

Actions § 12:29 (6th ed. 2024) (noting that reversion of

26

funds to defendants is “disfavored”). If there is money

left over after all injured class members have been paid,

the most common resolution is for courts to allocate

the remaining funds to a cy pres recipient. See Martin

H. Redish et al., Cy Pres Relief and the Pathologies of

the Modern Class Action: A Normative and Empirical

Analysis, 62 Fla. L. Rev. 617, 620–21 (2010).

Courts have broad discretion to allocate cy pres

awards, and often the recipients provide no benefit to the

injured class members. Sam Yospe, Cy Pres Distributions

in Class Action Settlements, 2009 Colum. Bus. L. Rev.

1014, 1025 (2009). So even if the cy pres cause is worthy,

the result is still that an uninjured party receives a payout

from the defendant. Redish, supra, at 641–42, 646. And as

with most other things in the world of class certification,

these determinations are rarely overturned on appeal.

Yospe, supra, at 1037.

In the case of local government, overlarge settlement

payments to uninjured parties are especially harmful

because they direct public funds away from their

intended purposes. Distribution of public money to

plaintiffs’ attorneys and cy pres awards is unlikely to

reflect community needs or voters’ wishes. And although

litigation budgets may be only a small part of a city’s

overall expenditures, they still harmfully decrease a

municipality’s remaining budget for other important line

items that more broadly support all city residents, and

may contribute to increased local taxes.11

11. See Smith & Zahniser, supra note 10; Maciag, supra

note 6.

27

Most municipalities (including in California) are selfinsured and pay their own settlements. See Joanna C.

Schwartz, How Governments Pay: Lawsuits, Budgets,

and Police Reform, 63 UCLA L. Rev. 1144, 1212 (2016)

(listing departments that are self-insured). This means

that local budgets are harmed when settlement payouts

are made. Id. at 1174. Even municipalities that maintain

separate litigation budgets may have to dip into other

funds to cover large settlements, again depleting public

funds set aside for other purposes. Id. at 1178–80.

Other towns and cities pay for private insurance, but

those policies are also funded by taxpayer money. Id.; see

Marc L. Miller & Ronald F. Wright, Secret Police and the

Mysterious Case of the Missing Tort Claims, 52 Buff. L.

Rev. 757, 781–82 (2004) (“Civil judgments come out of city

or county funds, or perhaps from insurance policies that

the local government purchases—i.e., from taxpayers.”).

Jurisdictions that rely on private insurance end up paying

substantially more in settlement costs, which may also

require the municipality to dip into their general funds.

See Schwartz, supra, at 1165 n.75. This money comes

directly out of the taxpayer’s pocket too, of course.

Thus, regardless of the method of payment, the

funds used to cover municipal settlements are being

taken away from other local causes, including basic

social services, health care, homeless shelters, etc. Id.

at 1174 (“[S]ettlements and judgments decrease the

jurisdiction’s budget as a whole, and the money to satisfy

those increased costs must be taken from somewhere.”);

id. at 1181 (“[L]awsuit payouts necessarily take money

away from other needs.”).

28

And because local government funds are derived from

various community resources—“including property taxes;

sales taxes; income tax; utilities; charges for parking,

parks, and other services; fines; interest; and federal

and state grants”—high settlement payments can also

cause an increase in local taxes to offset past judgments

or expand future litigation budgets. Id. at 1161. For

example, in a Michigan town of 25,000 people, citizens

paid, on average, an additional $178 in property taxes per

household to cover a $1.37 million settlement. Id. at 1174.

On average, every person in the United States is likely

paying more than $800 per year in “lawsuit taxes.”12

Larger communities are not immune either, as they

may have to recoup a far larger amount of money. In fall

2024, for example, the City of Los Angeles announced

a plan to borrow at least $80 million for a “judgment

obligation bond” that will be used to pay for settlements

and judgments.13 With interest, Los Angeles may end

up paying an additional $20 million just to borrow those

funds.14 And this is on the heels of a similar $53 million

bond the city secured in 2010 to cover the costs of protestrelated settlements.15

When comparing these figures to the costs of other

line items for municipalities, it puts into perspective just

how damaging over-inflated settlements can be. In Los

12. Daily News, supra note 8.

13. Smith & Zahniser, supra note 10.

14. Id.

15. Id.

29

Angeles, the Cultural Affairs Department budget is

$18.6 million,16 and the city’s litigation costs for two years

would be enough to hire nearly 1,300 police officers and

cover most of the public works budget.17 Similarly, $65

million (which was the Los Angeles litigation budget for

2007–2008) would cover the city’s annual infrastructure

improvements, including upgrades to storm drains and

streets.18 In Austin, Texas, the average yearly cost of

litigation related to police misconduct was roughly equal to

the combined budgets for the city’s mental health response

first initiative and enhanced police training to avoid the

misconduct at issue.19

Certification of artificially inflated classes with high

numbers of uninjured class members therefore hurts

municipalities because it drives up the likelihood—and

cost of—settlement for non-meritorious claims. Evaluating

absent class members’ Article III standing as part of the

Rule 23 analysis will help to ensure greater transparency

and efficiency for municipal agencies by reducing the

risk that public funds will be spent on premature and

overbroad settlements.

16. Id.

17. Daily News, supra note 8.

18. Id.

19. Paulette Blanc et al., The Costs of Police Violence:

Measuring Misconduct, Measure (Feb. 2021), https://tinyurl.

com/yk3wfc7c.

30

CONCLUSION

For these reasons, the Court should hold that Article

III standing is a requirement for all absent class members

at the class certification stage.

Respectfully submitted,

Los A ngeles City

Attorney’s Office

Hydee Feldstein Soto

Shaun Dabby Jacobs

Counsel of Record

Denise C. Mills

K athleen A. Kenealy

200 North Main Street,

8th Floor

Los Angeles, CA 90012

(213) 978-2704

shaun.jacobs@lacity.org

Counsel for Amicus Curiae

The City of Los Angeles

Horvitz & Levy LLP

Jeremy B. Rosen

Counsel of Record

Sheridan L. Caldwell

505 Sansome Street,

Suite 1550

San Francisco, CA 94111

(415) 462-5600

jrosen@horvitzlevy.com

Horvitz & Levy LLP

Justin R. Sarno

3601 West Olive Avenue,

8th Floor

Burbank, CA 91505

Counsel for Amicus Curiae

The City of Beverly Hills

March 12, 2025

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.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.