Amicus Curiae Brief — Laboratory Corporation of America Holdings, dba Labcorp, Petitioner v. Luke Davis, et al.
Supreme Court briefMar 12, 2025
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No. 24-304
In the
Supreme Court of the United States
LABORATORY CORPORATION OF AMERICA
HOLDINGS, D/B/A LABCORP,
Petitioner,
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.