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

Supreme Court briefMar 12, 2025

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No. 24-304

IN THE

Supreme Court of the United States

————

LABORATORY CORPORATION OF AMERICA

HOLDINGS, D/B/A LABCORP,

Petitioner,

LUKE DAVIS, JULIAN VARGAS, AND AMERICAN COUNCIL

OF THE BLIND, Individually and on Behalf of

All Others Similarly Situated,

————

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

————

BRIEF OF AMICI CURIAE

CLAIMS ADMINISTRATORS

IN SUPPORT OF NEITHER PARTY

————

TILLMAN J. BRECKENRIDGE

STRIS & MAHER LLP

1717 K Street NW

Suite 900

Washington, DC 20006

(202) 800-6030

PETER K. STRIS

Counsel of Record

JOHN STOKES

STRIS & MAHER LLP

17785 Center Court Dr. North

Suite 600

Cerritos, CA 90703

(213) 995-6800

pstris@stris.com

Counsel for Amici Curiae

March 12, 2025

TABLE OF CONTENTS

Page

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

INTEREST OF AMICI CURIAE ........................

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

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

I. Claims Administrators Provide Essential,

Case-Specific Tools for Identifying

Injured Class Members ............................

A. Claims Administrators Design CaseSpecific Notice Processes.....................

B. In Almost All Cases, Claims

Administrators Have Efficient Tools

to Verify Class Members’ Injuries ......

1. Use of Defendants’ Records ...........

2. Use of Third-Party Data ................

3. Class Member Proof .......................

II. Under Rule 23(b)(3), Courts Consider the

Efficacy of the Services Provided by

Claims Administrators .............................

III. Claims Administrators Can Work with

Parties to Ensure that Settlements Are

Based on Accurate Information................

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

APPENDIX

TABLE OF AUTHORITIES

CASES

Page(s)

Amchem Prods., Inc. v. Windsor,

521 U.S. 591 (1997) ...................................

Califano v. Yamasaki,

442 U.S. 682 (1979) ...................................

Cherry v. Dometic Corp.,

986 F.3d 1296 (11th Cir. 2021) .................

Hargrove v. Sleepy’s LLC,

974 F.3d 467 (3d Cir. 2020) ..........................

Howard v. Liquidity Servs. Inc.,

No. 1:14-cv-01183, 2018 WL 4853898

(D.D.C. Oct. 5, 2018) .................................

In re Ethylene Propylene Diene Monomer

(EPDM) Antitrust Litig.,

256 F.R.D. 82 (D. Conn. 2009)..................

In re Gilat Satellite Networks, Ltd.,

No. 1:02-cv-01510, 2009 WL 803382

(E.D.N.Y. Mar. 25, 2009) ..........................

In re Marriott Int’l, Inc.,

Customer Data Sec. Breach Litig.,

341 F.R.D. 128 (D. Md. 2022) ...................

In re Mutual Funds Inv. Litig.,

MDL No. 1586, 2010 WL 2342459

(D. Md. May 19, 2010) ..............................

In re Namenda Indirect Purchaser

Antitrust Litig.,

338 F.R.D. 527 (S.D.N.Y. 2021) ................

iii

TABLE OF AUTHORITIES—Continued

Page(s)

In re Ranbaxy Generic Drug Application

Antitrust Litig.,

338 F.R.D. 294 (D. Mass. 2021).................

Lyngaas v. Curaden AG,

992 F.3d 412 (6th Cir. 2021).....................

McDermid v. Inovio Pharms., Inc.,

No. 2:20-cv-01402, 2023 WL 227355

(E.D. Pa. Jan. 18, 2023) ............................

Mullins v. Direct Dig., LLC,

795 F.3d 654 (7th Cir. 2015).....................

Rikos v. Procter & Gamble Co.,

799 F.3d 497 (6th Cir. 2015).....................

Scott v. Family Dollar Stores, Inc.,

No. 3:08-cv-00540, 2018 WL 1321048

(W.D.N.C. Mar. 14, 2018) .........................

Waldner v. Natixis Inv. Managers, L.P.,

No. 21-cv-10273, 2023 WL 3466272

(D. Mass. Mar. 24, 2023) ..........................

RULES

Fed. R. Civ. P. 23 .......................................... 4, 15

Fed. R. Civ. P. 23(b)(3) ............................. 2, 15, 16

Fed. R. Civ. P. 23(c)(2)(B) .............................

COURT FILINGS

Claim Form, In re Seroquel XR (Extended

Release Quetiapine Fumarate) Antitrust

Litig., No. 1:20-cv-01076 (D. Del. Sept.

30, 2024) (ECF No. 768-6) ........................

TABLE OF AUTHORITIES—Continued

Page(s)

Claim Form, Iowa Pub. Employees’ Ret.

Sys. v. Bank of Am. Corp., No. 1:17-cv06221 (S.D.N.Y. Feb. 28, 2024) (ECF No.

662-2) .........................................................

Consumer Claim Form, In re Restasis

(Cyclosporine Ophthalmic Emulsion) Antitrust Litig., No. 1:18-md-02819 (E.D.N.Y.

Dec. 22, 2021) (ECF No. 715-4) ................

Decl. of Cameron R. Azari in Support of

End-User Consumer Purchaser Pls.’ Mot.

for Class Certification, In re Broiler Chicken

Antitrust Litig., No. 1:16-cv-08637 (N.D.

Ill. Oct. 30, 2020) (ECF No. 3972) ............

Decl. of Eric Schachter in Support of

Consumer Indirect Purchaser Pls.’ Mot.

for Class Certification, In re Pork Antitrust

Litig., No. 0:18-cv-01776 (D. Minn. May

2, 2022) (ECF No. 1348) ...........................

Decl. of Eric Schachter in Support of Mot.

for Class Certification, Barrett v. Apple,

Inc., No. 5:20-cv-04812 (N.D. Cal. June

15, 2023) (ECF No. 238-5) ........................

Decl. of Eric Schachter in Support of Mot.

for Class Certification, In re Telexfree

Securities Litig., No. 4:14-md-02566 (D.

Mass. Dec. 16, 2024) (ECF No. 2157-27) ....

Email Notice, In re MGM Int’l Resorts Data

Breach Litig., No. 2:20-cv-00376 (D. Nev.

Jan. 17, 2025) (ECF No. 243-1) ................

TABLE OF AUTHORITIES—Continued

Page(s)

Long Form Notice, In re Urethane Antitrust

Litig., No. 2:04-md-01616 (D. Kan. Mar.

24, 2016) (ECF No. 3238-4) ......................

Long Form Notice, Mahoney v. Endo

Health Solutions, Inc., No. 1:15-cv-09841

(S.D.N.Y. Nov. 29, 2016) (ECF No. 99-1) .

Mem. and Order, In re EpiPen (Epinephrine

Injection, USP) Marketing, Sales Pracs.

and Antitrust Litig., No. 2:17-md-02785

(D. Kan. June 1, 2020) (ECF No. 2074) ...

Order, In re MGM Int’l Resorts Data Breach

Litig., No. 2:20-cv-00376 (D. Nev. Jan.

22, 2025) (ECF No. 244) ...........................

Order, In re Restasis (Cyclosporine

Ophthalmic Emulsion) Antitrust Litig., No.

1:18-md-02819 (E.D.N.Y. Jan. 18, 2022)

(ECF No. 716)............................................

Order, In re Seroquel XR (Extended Release

Quetiapine Fumarate) Antitrust Litig.,

No. 1:20-cv-01076 (D. Del. Dec. 9, 2024)

(ECF No. 817)............................................

Order, Iowa Pub. Employees’ Ret. Sys. v.

Bank of Am., Corp., No. 1:17-cv-06221

(S.D.N.Y. Mar. 8, 2024) (ECF No. 664) ....

Order Authorizing Dissemination of Notice

to the Class, In re Urethane Antitrust

Litig., No. 2:04-md-01616 (D. Kan. Apr.

27, 2016) (ECF No. 3243) .........................

TABLE OF AUTHORITIES—Continued

OTHER AUTHORITIES

Page(s)

7AA Charles Allen Wright & Arthur R.

Miller, Fed. Prac. & Proc. Civ. (3d ed.

2024) ..........................................................

2 Newberg and Rubenstein on Class

Actions (6th ed. 2024) ...............................

3 Newberg and Rubenstein on Class

Actions (6th ed. 2024) ...............................

4 Newberg and Rubenstein on Class

Actions (6th ed. 2024) ...............................

INTEREST OF AMICI CURIAE

Amici, listed in the Appendix to this brief, are some

of the largest and most sophisticated class action

claims administrators in the country. 1 Claims administrators are neutral, court-appointed entities that

play key functions in federal class action lawsuits,

including notifying potential class members of ongoing

litigation or proposed settlements, verifying that

people who claim to be class members are, in fact, class

members, and distributing settlement or post-judgment

funds to class members who are entitled to damages.

While Amici have not been retained by any party in

this lawsuit—and take no position on whether class

certification was appropriate here—they wish to explain

their role in administering class action litigation,

which bears on the question presented.

SUMMARY OF ARGUMENT

Petitioners assert that “[u]ninjured class members

cannot prevail on the merits, so their claims must be

winnowed away at some point.” Pet. Br. 39 (cleaned

up). 2 Thus, they say a district court overseeing a class

action must identify “common evidence establishing

that all class members have standing,” or “find some

way to segregate the uninjured from the truly injured.”

Id. (cleaned up). According to Petitioners, “[n]o viable

tool exists for that job.” Id. at 40. In Amici’s experience,

that is not true. District courts do this all the time, and

so do claims administrators.

No counsel for either party authored this brief in whole or in

part, nor did any party or other person or entity other than Amici

curiae or their counsel make a monetary contribution to the

brief ’s preparation or submission.

Amici take no position on whether this premise is correct.

Claims administrators have an arsenal of sophisticated tools to distinguish uninjured from “truly

injured” individuals, and they use these tools every

day, across a variety of cases. This isn’t “magic[].” Pet.

Br. 39-40 (cleaned up). It is meticulous, data-driven

work informed by decades of experience and tailored

to the needs of each case.

Claims administrators perform three essential functions to identify injured class members and allocate

damages among them: (1) notifying class members of

a class certification decision, proposed settlement, or

class judgment and giving them an opportunity to opt

out or object; (2) working under a court-approved plan

to evaluate the claims of individuals who say they are

class members; and (3) distributing damages to class

members with adequate proof of their injuries. Claims

administrators have developed sophisticated and

customizable processes for each of these functions.

In Amici’s experience, these processes are very

effective, allowing claims administrators to identify

individuals who have the type of injury—and the proof

of injury—that courts deem necessary to recover

damages. They are also essential labor-saving devices

for courts, who, in the absence of these processes, could

be forced to sift through databases, receipts, and

business records to identify class members and calculate their damages.

When analyzing predominance and superiority

under Federal Rule of Civil Procedure 23(b)(3), district

courts often consider the functions they can effectively

delegate to claims administrators, given the facts and

circumstances of each case. To aid the district court

with this evaluation, claims administrators may

submit declarations describing the case-specific tools

they could use to identify class members with the

relevant type of injury.

Claims administrators may also help parties make

informed decisions about settlements. Amici urge the

Court not to adopt a bright-line rule requiring litigants

to identify every injured individual class member

prematurely and to recognize that claims administrators can (and do) prevent uninjured people from

recovering class funds or affecting class settlements.

ARGUMENT

I. Claims Administrators Provide Essential,

Case-Specific Tools for Identifying Injured

Class Members.

Working under court-approved plans, claims administrators routinely identify class members and verify

their entitlement to damages, without burdening the

courts with full-blown damages trials for each class

member. They do this by: (1) notifying potential class

members of class litigation, class judgments, and

proposed class settlements; and (2) collecting the

requisite evidence (under a court-approved plan) that

class members have compensable injuries.

A. Claims Administrators Design CaseSpecific Notice Processes.

Claims administrators provide notice to potential

class members after a district court certifies a class for

litigation purposes or preliminarily approves a settlement between a defendant and a proposed settlement

class. 3 The notice informs absent class members of

their rights—including their right to opt out of the

Class notice is also provided before claims administrators

distribute post-judgment funds to class members.

class and pursue their claims on an individual basis

and their right to object to the terms of a proposed

settlement. 4

Rule 23 allows for a flexible, case-specific approach

to notice, instructing district courts to identify “the

best notice that is practicable under the circumstances[.]”

Fed. R. Civ. P. 23(c)(2)(B) (emphasis added). To assist

courts in making this determination, the parties—

with input and guidance from claims administrators—

propose the form and content of class notice. District

courts then evaluate proposed notice plans and ensure

that such plans meet the requirements of Rule 23 and

due process.

The specific notice employed for a given case—and,

importantly, the universe of individuals contacted—

will vary according to the nature of the class. For

certain cases, it is easy for claims administrators

to identify members of a proposed class. In many

employment cases, for example, defendants will have

records of their employees’ work history and pay rates,

and claims administrators may be able to rely on these

records to identify and contact potential class members.5

See 3 Newberg and Rubenstein on Class Actions § 8:1 (6th ed.

2024) (“As a class action necessarily implicates the rights of

parties not present at the court proceedings themselves, the court

needs to keep those absent parties—whose rights will be extinguished through the litigation—apprised of the case’s progress.”);

id. (“[C]lass members must be given notice that a class has been

certified (i.e., that their rights are being adjudicated), and they

invariably must be given notice that their claims have been

settled and their counsel are seeking compensation for their work.”).

See, e.g., Scott v. Family Dollar Stores, Inc., No. 3:08-cv-00540,

2018 WL 1321048, at *2 (W.D.N.C. Mar. 14, 2018) (“The class list

of Notice recipients was determined using employment data

provided by Family Dollar and data gathered by Class Counsel

during the course of litigation.”).

Similarly, in certain data breach cases, defendants’

records include the contact information for the

individuals whose data was implicated by the breach.

In other cases, however, a wider net may be cast to

ensure that the class receives adequate notice. These

cases may include circumstances where the parties do

not possess records with contact information for

individuals affected by the challenged conduct. 6 Under

those circumstances, claims administrators may rely

on targeted advertising (e.g., through newspapers,

websites, and/or social media platforms) to identify

individuals who may have been injured by defendants’

conduct. Notice in such a case may reach individuals

who may not ultimately be eligible for recovery. But

even in the (uncommon) scenario where such individuals attempt to make a claim against a class-wide fund,

the claims administrator—in most situations the same

entity overseeing class notice—can design the claims

review process to weed them out.

B. In Almost All Cases, Claims Administrators Have Efficient Tools to Verify Class

Members’ Injuries.

In addition to their expertise with class notice,

claims administrators have a well-established roster

of techniques to prevent individuals from recovering

class funds if they lack compensable injuries (i.e., if

they lack the type of injury—or the proof of injury—

that the district court requires). These techniques

See, e.g., Mem. and Order at 1, In re EpiPen (Epinephrine

Injection, USP) Marketing, Sales Pracs. and Antitrust Litig., No.

2:17-md-02785 (D. Kan. June 1, 2020) (ECF No. 2074)

(authorizing class counsel to issue subpoenas duces tecum to

third-parties seeking contact information and purchase data for

class members for notice administration).

include analyzing defendants’ data and third-party

data and reviewing documents or other proof submitted

by class members. Claims administrators choose

and tailor these procedures for each case, and often

incorporate several in tandem.

Generally, class notice directs people or entities who

believe they are entitled to recover damages (from a

settlement or a post-judgment fund) to submit a claim

form with information concerning their eligibility to

receive a payout. Then, claims administrators use

evidence to verify the information provided in the

form. In many cases, claims administrators electronically code claim forms in a way that facilitates

eligibility determinations. Administrators’ trained

professional staff may also perform manual review of

claim form responses and supporting documents to

ensure claimants satisfy the court-ordered criteria for

recovering damages. A key component of the process is

a quality assurance review, which includes a series of

database-driven, algorithmic, and/or manual audits to

ensure that claim forms have been properly processed

and evaluated pursuant to the requirements of a

court-approved plan.

The claims review process thus allows administrators to identify and sort: (1) claimants who have

presented sufficient evidence that they have compensable

injuries; (2) claimants who have provided insufficient

information or documentation, such that follow-up is

required; and (3) claimants who are ineligible to

receive class funds because they do not meet the class

definition or cannot provide the proof of injury the

court has required. For claimants who have provided

insufficient information, the claims administrator

follows a remedial process agreed upon by the parties.

Typically, this involves notifying claimants of any

problems and affording them an opportunity to provide

additional information or supporting documentation.

Throughout the process, claims administrators ensure

compliance with the terms of the settlement or

judgment, which is designed to winnow uninjured

individuals out of the pool of people who can recover

from a settlement or post-judgment fund.

A few examples illustrate the rigorous procedures

claims administrators may employ to ensure that individuals recovering class funds have demonstrated their

entitlement to relief through a court-approved process.

1. Use of Defendants’ Records.

One of the primary methods claims administrators

use to prevent uninjured people from collecting class

funds is to check information provided in claim forms

against defendants’ data. Although the precise way

claims administrators might use defendants’ data

varies case-by-case, some examples show the broad

array of options available.

Consumer Cases. Defendants’ data often is used to

confirm claimants’ entitlement to damages in consumer

class actions. In Telephone Consumer Protection Act

cases, for example, claims administrators use defendants’

records to verify that only class members who received

unsolicited phone calls, texts, and faxes recover from

the class fund. Claims administrators can use defendants’

own list of targeted phone numbers that were sent

unsolicited communications to cross-check sworn

affidavits from class members attesting to their name,

contact information (telephone number and address),

their receipt of a communication from the defendants,

and that they did not invite the communication. 7 A

similar approach can be used in data breach cases

where defendants’ databases often contain the names

and contact information for class members whose

information was compromised. Claims administrators

can cross-check any affidavits from claimants against

defendants’ databases to verify class members were

affected by the conduct at issue. 8

Employment Cases. Defendants’ data is also

commonly used in cases in which employees allege

their employers have underpaid them (most commonly

under various employment and antitrust laws). In

such cases, defendants’ data may indicate whether and

to what extent claimants are eligible to receive back

See, e.g., Lyngaas v. Curaden AG, 992 F.3d 412, 432 (6th Cir.

2021) (affirming the district court’s order, following a bench trial,

establishing a claims administration process for class members

to verify their receipt of defendant’s unsolicited fax advertisements and determining that “the claims-administration process

[was] designed by the district court to weed out those who do not

fit within the class definition”).

See, e.g., Email Notice at 49, In re MGM Int’l Resorts Data

Breach Litig., No. 2:20-cv-00376 (D. Nev. Jan. 17, 2025) (ECF No.

243-1) (“You are receiving this Email Notice because data

provided by MGM indicates your information was included in one

of the Data Incidents and you are a Settlement Class member.”);

Order, In re MGM Int’l Resorts Data Breach Litig., No. 2:20-cv00376 (D. Nev. Jan. 22, 2025) (ECF No. 244) (approving notice

program); In re Marriott Int’l, Inc., Customer Data Sec. Breach

Litig., 341 F.R.D. 128, 144-45 (D. Md. 2022), vacated on other

grounds and remanded sub nom. In re Marriott Int’l, Inc., 78 F.4th

677 (4th Cir. 2023), reinstated by In re Marriott Int’l Customer

Data Sec. Breach Litig., 345 F.R.D. 137 (D. Md. 2023) (determining

that defendants’ database could be used to identify class

members, where defendants used the database to notify class

members of the data breach, in conjunction with other methods

to verify proof of injury).

pay. Defendants’ own payroll data can be used to

confirm claimants’ dates of employment and their pay

rates, for example, which claims administrators could

then use to determine the amount (if any) of back pay

owed. Alternatively, an expert could make those determinations and share them with the claims administrator.

Using this data enables the claims administrator (or

relevant expert) to identify and weed out claimants

who have not met the court-approved criteria for

recovering damages. If a claimant did not work for the

defendant during the relevant time period, for

example, the administrator can identify that issue—

and weed out that claimant—by checking the claimant’s

form against defendants’ data. The same is true for

claimants who, for whatever reason, were not underpaid.

Antitrust Cases. Antitrust cases also frequently

rely on defendants’ data to evaluate claims made

against a class-wide fund. This is especially true in

price-fixing cases where class members have purchased

the product at issue directly from a defendant. In these

cases, district courts generally review expert analyses

and make determinations about antitrust impact. Claims

administrators then use a court-approved process to

confirm that class members are entitled to damages.

Claims administrators often use defendants’ sales records

(among other tools) to confirm that any party making

a claim has, in fact, made a qualifying purchase. 10

See, e.g., Hargrove v. Sleepy’s LLC, 974 F.3d 467, 479-481 (3d

Cir. 2020) (discussing the use of payroll data to identify class members).

See, e.g., In re Ethylene Propylene Diene Monomer (EPDM)

Antitrust Litig., 256 F.R.D. 82, 85 (D. Conn. 2009) (granting class

certification where defendants’ sales and invoice records could be

used to identify class members); Long Form Notice at 5, In re

Urethane Antitrust Litig., No. 2:04-md-01616 (D. Kan. Mar. 24,

2016) (ECF No. 3238-4) (using defendants’ sales data as a

Of course, defendants’ records are not always

perfect, and claims processes usually allow claimants

to contest or supplement claim determinations (or their

amounts) based on defendants’ records with evidence

of their own. Any supplemental proof submitted by

claimants is examined and verified. While the district

court retains jurisdiction to supervise the claims process

and resolve disputed claims, judicial intervention is

rarely needed. Thus, where available, defendants’

records may be used to resolve hundreds, thousands,

or millions of individual injury issues efficiently and

narrow disputes to a manageable handful at most.

2. Use of Third-Party Data.

Claims administrators also can use third-party data

to confirm (to a standard approved by the court) that

claimants are entitled to damages. This method of

claims verification is particularly prevalent in cases

involving transactions where intermediaries sit

between claimants and the defendant(s). Because of

the lack of a direct relationship between the claimant

and the defendant, the defendant’s data may not be as

useful in evaluating the claims of putative class

members. One or more intermediaries often can fill

this gap by providing documentation and data to

evaluate claimants’ assertions of injury.

Pharmaceutical Cases. Third-party data often is

used in cases involving pharmaceutical transactions,

reflecting the myriad intermediaries—including wholesalers and pharmacy benefit managers (“PBMs”)—

that may separate the ultimate purchaser from the

pharmaceutical company that manufactures the drug

mechanism to identify and verify class members); Order Authorizing

Dissemination of Notice to the Class, In re Urethane Antitrust

Litig., No. 2:04-md-01616 (D. Kan. Apr. 27, 2016) (ECF No. 3243).

at issue. Certain entities, however, play a dual role,

acting as an intermediary for some transactions, while

acting as the ultimate purchaser in other transactions—

an important distinction in cases where the class is

limited to indirect purchasers. To distinguish between

these two kinds of situations (and to determine the

entity that ultimately suffered injury), claims administrators can use third-party data—such as PBM data.

Where that data demonstrates that a claimant either

did not purchase the pharmaceutical in question or

was not the ultimate purchaser, the claims administrator

may use the third-party data to weed out those entities

or individuals. 12

ERISA Cases. Third-party data is also often examined

in Employee Retirement Income Security Act (“ERISA”)

cases, where there are strict recordkeeping requirements for data and information concerning the vested

retirement benefits and savings of all current and

former employees. Recordkeepers are often thirdparties hired by companies to maintain their 401(k)

plan data. These records, which all ERISA governed

See, e.g., In re Ranbaxy Generic Drug Application Antitrust

Litig., 338 F.R.D. 294, 308 (D. Mass. 2021) (“[T]he Court is satisfied

that the use of retail prescription transactions information from

(at least) the seven largest PBMs is an administratively feasible

process by which virtually all eligible class members can be

identified.”); In re Namenda Indirect Purchaser Antitrust Litig.,

338 F.R.D. 527, 549-550 (S.D.N.Y. 2021) (discussing the use of

data from PBMs to identify class members).

See, e.g., Long Form Notice at 4-5, Mahoney v. Endo Health

Solutions, Inc., No. 1:15-cv-09841 (S.D.N.Y. Nov. 29, 2016) (ECF

No. 99-1) (“Class counsel intends to follow the following distribution

plan set forth herein. First, the Claims Administrator will utilize

the data obtained from pharmacy chains, third party payors and

pharmacy benefits administrators to, where possible, identify

individual consumer Class members[.]”).

plans must maintain, are routinely used by claims

administrators to determine which class members

incurred the type of injury a court has deemed

compensable. For example, in cases challenging the

prudence of a subset of investments offered on a 401(k)

plan menu, the recordkeeper maintains detailed

records of which 401(k) participants invested in the

challenged funds and the amount invested therein.

Using this information, claims administrators can

identify the amount of money each 401(k) participant

invested in imprudently selected products and quantify

their losses. 13

Securities Cases. Third-party data is routinely

used in securities litigation, and in all Section 10(b)

and Section 11 cases involving allegations of a material

misrepresentation affecting a public company’s stock

price. In those cases, an economic expert conducts an

economic model called a “plan of allocation,” that,

among other things, calculates the amount of artificial

inflation in a company’s stock price throughout the

class period. Once the plan of allocation has been

approved, the claims administrator obtains trading

data from each claimant demonstrating how many

shares the claimant held prior to the class period, and

how many shares and at what price the claimant

See, e.g., In re Mutual Funds Inv. Litig., MDL No. 1586, 2010

WL 2342459, at *11 (D. Md. May 19, 2010) (discussing the claims

administrators use of data provided by the defendant, and often

managed by a third-party recordkeeper, to “administer the

process of receiving, reviewing, and approving or denying Proofs

of Claim”); cf. Waldner v. Natixis Inv. Managers, L.P., No. 21-cv10273, 2023 WL 3466272, at *10 (D. Mass. Mar. 24, 2023), report

and recommendation adopted, No. 21-cv-10273, 2023 WL 3467112

(D. Mass. May 15, 2023) (discussing the use of data obtained from

a third-party recordkeeper tracking investment selections in

ERISA plans to “cull uninjured class members”).

purchased and sold shares during the class period and

in the 90 days following the end of the class period. The

administrator applies that information to the plan of

allocation to determine the claimant’s loss amount (in

other words, the size—and existence—of the claimant’s

injury). Where that process generates a zero or

negative number, the claimant is ineligible to

recover. 14

3. Class Member Proof.

In addition to the methods described above, claims

administrators often examine documentation submitted

by class members to evaluate whether they can

provide the requisite proof of a compensable injury to

recover from a class fund. This documentation can

include receipts for proof of purchase, records of

financial transactions, sworn affidavits, and other

forms of corroboration (such as photographic evidence).

Typically, processes that depend on class member

proof are supplemented with audit practices that flag

suspicious claims for further inquiry and random

audits to ensure the validity of the method used. 15

See, e.g., McDermid v. Inovio Pharms., Inc., No. 2:20-cv-01402,

2023 WL 227355, at *6 (E.D. Pa. Jan. 18, 2023) (discussing how

the plan of allocation “calculates a ‘Recognized Loss Amount’ for

purchases of Inovio stock during the Class Period depending on

when the stock was purchased and sold” for each class member to

determine the amount and existence of an injury); Howard v.

Liquidity Servs. Inc., No. 1:14-cv-01183, 2018 WL 4853898, at *2

(D.D.C. Oct. 5, 2018); see also In re Gilat Satellite Networks, Ltd.,

No. 1:02-cv-01510, 2009 WL 803382, at *4 (E.D.N.Y. Mar. 25,

2009) (noting that, using this process, “[a] total of 3,257 claims

were rejected by the Claims Administrator in whole or in part for

one or more of the following reasons,” including that “the claim

did not result in a Recognized Loss”).

Courts have recognized the critical role that claims administrators play in implementing procedures to avoid fraudulent claims.

Claims administrators often examine documentation

submitted by potential class members to evaluate

their claims of injury. In some consumer cases, for

example, claimants must submit an affidavit attesting

under penalty of perjury to the purchase of the product

in question, or must provide a receipt or other

documentation of that purchase.16 In financial-industry

antitrust cases, class members often submit their own

transaction records in an electronic form that enables

administrators to review and verify injury and

calculate awards; these records are also supported by

affidavit and subject to audit. 17

A similar process takes place in pharmaceutical

cases, in which claimants often must attest to their

purchase of the pharmaceutical in question subject to

criminal penalties and then may be required to submit

supporting documentation to confirm they meet the

See Mullins v. Direct Dig., LLC, 795 F.3d 654, 667 (7th Cir. 2015)

(“[Courts] can rely, as they have for decades, on claims administrators,

various auditing processes, sampling for fraud detection, followup notices to explain the claims process, and other techniques

tailored by the parties and the court[.]”). Nonetheless, there is no

evidence that fraudulent claims are widespread. See id. (“We are

aware of no empirical evidence that the risk of dilution caused by

inaccurate of fraudulent claims in the typical low-value consumer

class action is significant.”).

See, e.g., Rikos v. Procter & Gamble Co., 799 F.3d 497, 526527 (6th Cir. 2015) (discussing the use of store receipts and

affidavits to verify purchase, in addition to reviewing sales records).

See, e.g., Claim Form at 2-3, Iowa Pub. Employees’ Ret. Sys. v.

Bank of Am. Corp., No. 1:17-cv-06221 (S.D.N.Y. Feb. 28, 2024)

(ECF No. 662-2) (requiring claimants to provide documentation

of financial transactions in order for claims administrator to

verify injury); Order, Iowa Pub. Employees’ Ret. Sys. v. Bank of

Am., Corp., No. 1:17-cv-06221 (S.D.N.Y. Mar. 8, 2024) (ECF No.

664) (approving claim form).

other court-approved criteria to show injury.18 To further

verify injury, claims administrators can and do use

data from defendants or third parties as a cross-check

against the proof of purchase submitted by the claimant.

In sum, claims administrators have developed

increasingly sophisticated processes for evaluating

claims accurately and efficiently. These processes work

well even in cases with unusually detailed or varied

claim submissions. Robust claims verification processes,

conducted according to plans approved by district

courts, can be an efficient means for identifying

individuals with the proof of injury courts deem

necessary to recover damages.

II. Under Rule 23(b)(3), Courts Consider the

Efficacy of the Services Provided by

Claims Administrators.

To determine whether a class satisfies the requirements of Rule 23, courts often consider the tools claims

administrators have at their disposal. Rule 23(b)(3)

permits courts to certify a class only if “questions of

See, e.g., Claim Form at 2, In re Seroquel XR (Extended

Release Quetiapine Fumarate) Antitrust Litig., No. 1:20-cv-01076

(D. Del. Sept. 30, 2024) (ECF No. 768-6) (requiring claimants to

produce transaction data to verify proof of purchase); Order, In re

Seroquel XR (Extended Release Quetiapine Fumarate) Antitrust

Litig., No. 1:20-cv-01076 (D. Del. Dec. 9, 2024) (ECF No. 817)

(approving claim form); Consumer Claim Form at 3-5, In re

Restasis (Cyclosporine Ophthalmic Emulsion) Antitrust Litig.,

No. 1:18-md-02819 (E.D.N.Y. Dec. 22, 2021) (ECF No. 715-4) (class

members attested to purchase information and were encouraged

to also submit pharmacy records or documentation from a

medical provider confirming purchase and the amount of the

medication prescribed); Order, In re Restasis (Cyclosporine

Ophthalmic Emulsion) Antitrust Litig., No. 1:18-md-02819 (E.D.N.Y.

Jan. 18, 2022) (ECF No. 716) (approving notice and claims plan).

law or fact common to class members predominate

over any questions affecting only individual members,

and . . . a class action is superior to other available

methods for fairly and efficiently adjudicating the

controversy.” Fed. R. Civ. P. 23(b)(3). Though the two

prongs are closely related, the predominance inquiry

asks “whether proposed classes are sufficiently cohesive

to warrant adjudication by representation,” Amchem

Prods., Inc. v. Windsor, 521 U.S. 591, 623 (1997),

weighing the relative import of common vs. individual

issues, while the superiority requirement compares

class litigation to other available forms of adjudication,

particularly from a judicial management perspective,

see 7AA Charles Allen Wright & Arthur R. Miller, Fed.

Prac. & Proc. Civ. § 1779 (3d ed. 2024).

Both analyses are contextual and comparative; the

outcome depends on not only the individual issues

presented, but also the common ones; and not only on

the manageability challenges of resolving individual

issues, but also their solutions, and the broader

efficiencies of class litigation. 19 See 2 Newberg and

Rubenstein on Class Actions § 4:51 (6th ed. 2024)

(“The predominance analysis is a pragmatic one . . . [a]

single common issue may be the overriding one in the

litigation, despite the fact that the suit also entails

numerous remaining individual questions.”).

When the question “who is injured” raises some

number of individualized inquiries, the predominance

See Cherry v. Dometic Corp., 986 F.3d 1296, 1304-1305 (11th

Cir. 2021) (“[B]ecause the superiority requirement of Rule

23(b)(3) turns on whether a class action is better than other

available methods of adjudication,” courts must determine how

“manageability concerns compare with the other advantages or

disadvantages of a class action”—questions that necessarily “will

depend on the facts of each case.”).

and superiority analyses may depend—at least in

part—on whether (or how many of) those inquiries can

be resolved by claims administrators. For this reason,

claims administrators routinely submit declarations

in support of motions for class certification that

explain how they can identify class members with the

requisite proof of injury. 20 Whether those procedures

are sufficient is a question committed to the sound

discretion of the district court. 21

III. Claims Administrators Can Work with

Parties to Ensure that Settlements Are

Based on Accurate Information.

Finally, Petitioners contend that, without their

proposed bright-line rule, “a plaintiff can inflate the

size of a class with uninjured persons,” which would

“drive up potential liability, and thus manufacture

leverage to extort a settlement[.]” Pet. Br. 3 (emphasis

added). This argument is inconsistent with Amici’s

experience in two respects.

First, in some cases, parties work with claims

administrators in advance of settlement to estimate

See, e.g., Decl. of Eric Schachter in Support of Mot. for Class

Certification, In re Telexfree Securities Litig., No. 4:14-md-02566

(D. Mass. Dec. 16, 2024) (ECF No. 2157-27); Decl. of Eric

Schachter in Support of Mot. for Class Certification, Barrett v.

Apple, Inc., No. 5:20-cv-04812 (N.D. Cal. June 15, 2023) (ECF No.

238-5); Decl. of Eric Schachter in Support of Consumer Indirect

Purchaser Pls.’ Mot. for Class Certification, In re Pork Antitrust

Litig., No. 0:18-cv-01776 (D. Minn. May 2, 2022) (ECF No. 1348);

Decl. of Cameron R. Azari in Support of End-User Consumer

Purchaser Pls.’ Mot. for Class Certification, In re Broiler Chicken

Antitrust Litig., No. 1:16-cv-08637 (N.D. Ill. Oct. 30, 2020) (ECF

No. 3972).

See Califano v. Yamasaki, 442 U.S. 682, 703 (1979) (class

certification decisions are reviewed for abuse of discretion).

the number of injured class members and design a

process to identify those individuals. In such cases,

settlements are insulated from unsubstantiated

assertions about the number of people who were

injured or fears that there is no way to separate

injured from uninjured claimants.

Second, parties routinely settle after they have

exchanged expert reports containing aggregate damages

calculations. Though such calculations are not necessarily

required, see 4 Newberg and Rubenstein on Class

Actions § 12:2 (6th ed. 2024), in many cases they are

offered in certification motions as a means of

demonstrating the predominance of common issues.

Thus, parties often negotiate settlements with full

knowledge of their experts’ calculations of defendants’

total liability. In such cases, claims administrators

may rely on the experts’ work—or the data underlying

the experts’ work—to identify injured class members

and allocate settlement funds among them. 22

Parties do sometimes settle before class certification without

the benefit of aggregate damages calculations, but the concern

Petitioner identifies presumes that it is the inclusion of uninjured

class members in a certified class that inflates perceived damages.

If this argument is ever really an issue, it is an issue only in

the rare case where plaintiffs have made no effort to estimate

aggregate damages. And, as noted above, in those rare cases, the

parties may call on claims administrators or experts to estimate

defendants’ exposure.

CONCLUSION

For the foregoing reasons, Amici urge the Court

to recognize that, across many kinds of cases, claims

administrators use a diverse array of tools to prevent

uninjured individuals from recovering class funds or

affecting class settlements.

Respectfully submitted,

TILLMAN J. BRECKENRIDGE

STRIS & MAHER LLP

1717 K Street NW

Suite 900

Washington, DC 20006

(202) 800-6030

PETER K. STRIS

Counsel of Record

JOHN STOKES

STRIS & MAHER LLP

17785 Center Court Dr. North

Suite 600

Cerritos, CA 90703

(213) 995-6800

pstris@stris.com

Counsel for Amici Curiae

March 12, 2025

APPENDIX

APPENDIX TABLE OF CONTENTS

Page

APPENDIX:

List of Amici Curiae .........................................

APPENDIX

List of Amici Curiae

A.B. Data, Ltd.

Angeion Group, LLC

Epiq Class Action & Claims Solutions, Inc.

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.