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

No. 24-304

IN THE

Supreme Court of the United States

__________

LABORATORY CORPORATION OF AMERICA HOLDINGS,

D/B/A LABCORP,

Petitioner,

v.

LUKE DAVIS, JULIAN VARGAS, AND AMERICAN

COUNCIL OF THE BLIND, individually and on behalf of

all others similarly situated,

Respondents.

___________

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

___________

BRIEF OF AARP ET AL., AS AMICI CURIAE IN

SUPPORT OF RESPONDENTS

___________

WILLIAM A. RIVERA

LOUIS LOPEZ

REBECCA RODGERS

AARP FOUNDATION

601 E Street NW

Washington, D.C. 20049

(202) 434-3392

warivera@aarp.org

JOHN PAUL SCHNAPPER-CASTERAS

Counsel of Record

RACHAEL R. YOCUM

SCHNAPPER-CASTERAS PLLC

1717 K Street NW, Suite 900

Washington, D.C. 20006

(202) 630-3644

jpsc@schnappercasteras.com

(Additional Counsel Listed

on Inside Cover)

Counsel for Amici Curiae

LORI ANDRUS

JEFFREY R. WHITE

AMERICAN ASSOCIATION FOR JUSTICE

777 6th Street NW, #200

Washington, D.C. 20001

(202) 617-5620

Jeffrey.White@justice.org

i

TABLE OF CONTENTS

INTEREST OF AMICI CURIAE ................................ 1

SUMMARY OF ARGUMENT ..................................... 4

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

I. PETITIONER’S THEORY REQUIRES

CALCULATING AND PARSING INJURIES OF

PUTATIVE CLASS MEMBERS BEFORE RULE 23

CERTIFICATION, WHICH WOULD BE ARDUOUS

AND UNSETTLING IN MANY AREAS OF LAW..... 7

A. Petitioner’s Constitutional Argument is

Sweeping and Unnecessary ..................................... 7

B. Petitioner’s Theory Would Upend Many

Areas of Law ........................................................... 10

C. Petitioner’s Theory Clashes With the

Logic of Tyson Foods .............................................. 17

D. Petitioner and Its Amici Are Wrong

About Class Action Settlement Dynamics ............ 19

II.

PETITIONER’S THEORY WOULD

UNDERMINE CLASS ACTIONS WHERE EACH

MEMBER HAS A MODEST RECOVERY,

WHICH THIS COURT HAS REPEATEDLY

SAFEGUARDED. ...................................................... 24

CONCLUSION........................................................... 29

ii

TABLE OF AUTHORITIES

CASES

Amchem Prods., Inc. v. Windsor,

521 U.S. 591 (1997) ............................................ 8, 24

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

568 U.S. 455 (2013) ................................................ 19

Apple, Inc., v. Pepper,

587 U.S. 273 (2019) .......................................... 13, 14

Baker v. United Parcel Service, Inc.,

No. 21 Civ. 114 (E.D. Wa.) ......................... 10, 12, 13

Beattie v. CenturyTel, Inc.,

511 F.3d 554 (6th Cir. 2007) .................................. 25

Bell Atl. Corp. v. Twombly,

550 U.S. 544 (2007) ................................................ 22

Bright v. Brookdale Senior Living, Inc.,

No. 3:19-CV-00374, 2021 WL 6496799

(M.D. Tenn. Mar. 12, 2021) ................................... 23

Brooklyn Ctr. for Indep. of the Disabled v.

Bloomberg, 290 F.R.D. 409 (S.D.N.Y. 2012) ........... 9

C.K. through P.K. v. McDonald,

2:22-cv-01791 (NJC) (JMW),

2024 WL 730494 (E.D.N.Y. Feb. 22, 2024) ........... 22

Carnegie v. Household Int’l, Inc.,

376 F.3d 656 (7th Cir. 2004) .................................. 25

Clarkson v. Alaska Airlines Inc.,

No. 19 Civ. 5, 2020, U.S. Dist. LEXIS 138838

(E.D. Wash. Aug. 4, 2020) ...................................... 11

Eisen v. Carlisle & Jacquelin,

417 U.S. 156 (1974) ................................................ 25

iii

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

457 U.S. 147 (1982) ................................................ 10

Gintis v. Bouchard Transp. Co.,

596 F.3d 64 (1st Cir. 2010) .................................... 25

Glass Dimensions, Inc. v.

State Street Bank & Trust Co.

285 F.R.D. 169 (D. Mass. 2012) ............................. 26

Haley et al. v. Delta Airlines,

No. 21 Civ. 1076 (N.D. Ga. June 13, 2022) ........... 12

Halliburton Co. v. Erica P. John Fund, Inc.,

573 U.S. 258 (2014) ................................................ 17

Home Depot U.S.A., Inc. v. Jackson,

587 U.S. 435 (2019) ................................................ 27

Huntsman v. SW. Airlines Co.,

No. 19 Civ. 83, 2021 U.S. Dist. LEXIS 20856

(N.D. Cal. Feb. 3, 2021).......................................... 11

In re Asacol Antitrust Litig.,

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

In re Countrywide Fin. Corp. Sec. Litig.,

273 F.R.D. 586 (C.D. Cal. 2009) ............................ 16

In re Nexium Antitrust Litig.,

777 F.3d 9 (1st Cir. 2015) .................................. 8, 15

In re Rail Freight Fuel Surcharge Antitrust

Litig. (Rail Freight II),

292 F. Supp. 3d 14 (D.D.C. 2017) .......................... 14

In re SunEdison, Inc. Securities Litig.,

329 F.R.D. 124 (S.D.N.Y. 2019) ............................. 17

In re Visa Check/MasterMoney Antitrust Litig.,

280 F.3d 124 (2d Cir. 2001) (Sotomayor, J.),

abrogated on other grounds by In re Initial Public

Offerings Sec. Litig., 471 F.3d 70 (2d Cir. 2007) .. 23

iv

In re Vivendi Univ., S.A. Securities Litig.,

123 F. Supp. 3d 424 (S.D.N.Y. 2015) ..................... 17

Kleen Products LLC v. International Paper Co.,

831 F.3d 919 (7th Cir. 2016) .................................... 9

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992) .................................................. 9

McKinney v. U.S. Postal Service,

292 F.R.D. 62 (D.D.C. 2013) .................................. 25

N.C. State Bd. of Dental Exam’rs v. FTC,

574 U.S. 494 (2015) ................................................ 15

Parko v. Shell Oil Co.,

739 F.3d 1083 (7th Cir. 2014) .................................. 9

Phillips Petroleum Co. v. Shutts,

472 U.S. 797 (1985) ................................................ 25

Roofer’s Pension Fund v. Papa,

333 F.R.D. 66 (D.N.J. 2019) ................................... 17

Ruiz Torres v. Mercer Canyons Inc.,

835 F.3d 1125 (9th Cir. 2016) ................................ 23

Scanlan v. Am. Airlines Grp. Inc.,

No. 18 Civ. 4040,

2022 U.S. Dist. LEXIS 63755

(E.D. Pa. Apr. 6, 2022) ........................................... 11

Scharfstein v. BP West Coast Products, LLC,

292 Or. App. 69 (Or. Ct. App. 2018) ...................... 25

Shelter Realty Corp. v. Allied Maint. Corp.,

574 F.2d 656 (2d Cir. 1978) ................................... 10

Spector Mot. Serv. v. McLaughlin,

323 U.S. 101 (1944) .................................................. 6

Stoneridge Inv. Partners, LLC v. Sci.-Atlanta,

552 U.S. 148 (2008) ................................................ 22

v

Torres v. Mercer Canyons Inc.,

835 F.3d 1125 (9th Cir. 2016) ................................ 15

TransUnion LLC v. Ramirez,

594 U.S. 413 (2021) .............................................. 8, 9

Tyson Foods, Inc. v. Bouaphakeo,

577 U.S. 442 (2016) ...................................... 8, 18, 19

Wal-Mart Stores, Inc. v. Dukes,

564 U.S. 338 (2011) ................................................ 10

Weiner v. Tivity Health, Inc.,

528 F. Supp. 3d 795 (M.D. Tenn. 2021) ................ 17

White v. United Airlines, Inc.,

No. 19 Civ. 114 (N.D. Ill.) ...................................... 12

Won v. Amazon.com Services LLC,

No. 21 Civ. 2867 (E.D.N.Y. Oct. 7, 2022) .............. 13

STATUTES

15 U.S.C. § 1640 ......................................................... 22

15 U.S.C. § 1692k ...................................................... 22

38 U.S.C. Chapter 43 ................................................. 10

OTHER AUTHORITIES

American Bar Association, Antitrust Class Action

Handbook (1st ed. 2010) ........................................ 14

Andrew C. Baker, Single-Firm Event Studies,

Securities Fraud, and Financial Crisis: Problems

of Inference, 68 Stan L. Rev. 1207 (2016).............. 16

Benjamin Kaplan, Continuing Work of the Civil

Committee: 1966 Amendments of the Federal

Rules of Civil Procedure (I),

81 Harv. L. Rev. 356 (1967) ................................... 27

vi

Deborah R. Hensler et al., Class Action Dilemmas:

Pursuing Public Goals for Private Gain (2000) .... 27

James K. Goldfarb et al., Securities Class Actions:

Data, Trends, and Insights (March 13, 2023) ....... 20

Jason Hegland, When are Class Actions Dismissed

and When Do They Settle, Stanford Securities

Litigation Analytics (May 6, 2013) ........................ 20

Jayme Herschkopf, Securities Litigation

(Federal Judicial Center, 2017) ............................. 16

Manual for Complex Litigation, Fourth ................... 21

Nagareda, Class Certification in the Age of

Aggregate Proof, 84 N.Y.U. L. Rev. 97 (2009) ....... 19

Newberg and Rubenstein on Class Actions

(6th ed.) ............................................................. 21, 23

Rami Abdallah Elias Rashmawi, No Injury?

No Class: Proof of Injury in Federal Antitrust

Class Actions post-Wal-Mart,

77 Wash. & Lee L. Rev. 1375 (2020) ..................... 14

Stanford Securities Class Action Clearinghouse,

Key Statistics (2025) ............................................... 21

RULES

Fed. R. Civ. P. 23 .............................1, 5, 6, 7, 8, 13, 16,

17, 18, 19, 20, 22, 23

1

INTEREST OF AMICI CURIAE 1

Amici comprise national associations and non-profit

organizations representing millions of older adults, as

well as the interests of American consumers and

workers. Collectively, they have been involved in

hundreds of cases involving Rule 23 across a wide

range of issues and courts. Amici’s longstanding

litigation and advocacy relies upon the continuing

application of Rule 23 in a reasonable, cost-effective,

and

even-handed

manner,

consistent

with

constitutional requirements.

AARP is the nation’s largest nonprofit, nonpartisan

organization dedicated to empowering Americans age

50 and older to choose how they live as they age. With

a

nationwide

presence,

AARP

strengthens

communities and advocates for what matters most to

the more than 100 million Americans 50-plus and their

families: health and financial security, and personal

fulfillment. AARP’s charitable affiliate, AARP

Foundation, works for and with vulnerable people 50

and over to end senior poverty and reduce financial

hardship by building economic opportunity. AARP and

AARP Foundation believe that all Americans,

including older adults, should be able to exercise their

rights to seek redress for predatory and deceptive

business practices by enforcing consumer protection

and other statutes through class action lawsuits for

money damages.

1 Pursuant to Supreme Court Rule 37.6, counsel for amici

curiae states that no counsel for a party authored this brief in

whole or in part. No counsel or party made a monetary

contribution intended to fund the preparation or submission of

this brief, and no person other than amici, their members, or their

counsel made such a contribution.

2

The National Consumer Law Center (“NCLC”) is a

non-profit research and advocacy organization

focusing on the legal needs of low-income, financially

distressed, and elderly consumers. NCLC has been a

leading source of legal and public policy expertise on

consumer issues for legislatures, agencies, courts,

consumer advocates, journalists, and social service

providers for over fifty years. NCLC’s twenty-one

volume Consumer Credit and Sales Legal Practices

Series, including its seminal treatise and practice aid

on Consumer Class Actions (11th ed. 2024), is widely

recognized as one of the most comprehensive and

authoritative resources on consumer law issues and is

frequently referenced by courts and practitioners

alike. The organization also has sponsored an annual

Consumer Rights Litigation Conference for over thirty

years and an annual Class Action Symposium for over

twenty years.

The American Association for Justice (“AAJ”) is a

national, voluntary bar association established in 1946

to strengthen the civil justice system, preserve the

right to trial by jury, and protect access to the courts

for those who have been wrongfully injured. With

members in the United States, Canada, and abroad,

AAJ is the world’s largest plaintiff trial bar. AAJ

members primarily represent plaintiffs in personal

injury actions, employment rights cases, and

consumer cases, including class actions. Throughout

its 78-year history, AAJ has served as a leading

advocate for the right of all Americans to seek legal

recourse for wrongful conduct.

Public Justice is a national public interest advocacy

organization that specializes in precedent-setting,

socially significant civil litigation, with a focus on

fighting abusive corporate power and predatory

practices. As part of its mission, Public Justice seeks

3

to ensure that the civil court system remains an

effective tool for workers, consumers, and other smallclaims litigants to correct and deter corporate

wrongdoing. Through its Access to Justice Project,

Public Justice seeks both to preserve the availability

of the class mechanism and prevent its abuse, such

that it may serve its intended purpose: to hold

accountable those who break the law and whose

misconduct harms large numbers of people.

The National Employment Lawyers Association

(“NELA”) is the largest professional membership

organization in the country focused on empowering

workers’ rights. NELA is comprised of lawyers who

represent workers in labor, employment, and civil

rights disputes. NELA advances workers’ rights and

serves lawyers who advocate for equality and justice

in the American workplace, including representation

of employees facing discrimination in the workplace.

The Impact Fund is a non-profit legal foundation

that provides strategic leadership and support for

impact litigation to achieve economic, environmental,

racial, and social justice. The Impact Fund provides

funding, offers innovative training and support, and

serves as counsel for impact litigation across the

country. The Impact Fund has served as party or

amicus counsel in a number of major civil rights class

actions before this Court and the Courts of Appeals,

including

cases

challenging

employment

discrimination, lack of access for people with

disabilities, and limitations on access to justice.

Disability Rights Advocates (“DRA”) is based in

Berkeley, California with offices in New York City,

New York and Chicago, Illinois. DRA is a national

nonprofit public interest legal center recognized for its

expertise on issues affecting people with disabilities.

DRA is dedicated to ensuring dignity, equality, and

4

opportunity for people with all types of disabilities,

and to securing their civil rights. To accomplish those

aims, DRA represents clients with disabilities who

face discrimination or other violations of federal or

state civil rights or federal constitutional protections

in complex, system changing class action and impact

litigation. DRA is generally acknowledged to be one of

the leading public interest disability rights litigation

organizations in the country, taking on precedentsetting disability rights class actions across the nation.

Together, amici respectfully submit this brief to offer

their expert perspective about the practical effects

that Petitioner’s arguments would have across

different areas of federal law.

SUMMARY OF ARGUMENT

Petitioner advances a novel constitutional theory

that no federal court has adopted and that the Ninth

Circuit did not have the opportunity to pass upon.

Petitioner would mandate that every putative class

member make a “sufficiently specific” showing of their

injuries – before a court rules on Rule 23 certification.

That would transmogrify Article III principles into a

freestanding, pre-certification evidentiary requirement that all putative class members prove their

injuries “at the front end,” per Petitioner. Such a

theory is fundamentally misguided and would be

deeply disruptive in many areas of law that affect

workers, consumers, investors, and businesses.

For

example,

in

cases

where

military

servicemembers seek benefits equal to those that their

employers provide to nonmilitary employees,

Petitioner’s theory would demand that, before

certification, both parties expend enormous time and

expense gathering employer and military data, paying

experts to organize and analyze it, and litigating

5

related disputes. Requiring plaintiffs to go to such

great lengths at the pre-certification stage would be

arduous, expensive, and wasteful of judicial resources

– and would complicate areas of the law that are

already complex enough. This simply cannot be

squared with the logic of Tyson Foods, which properly

recognized that class action litigants (like any litigant)

have the right to prove to a jury that they were injured.

To adopt Petitioner’s position, the Court would either

have to overrule Tyson or require that injury be proven

through trial before a class can be certified.

Petitioner and its amici try to justify their novel

theory on the ground that certification rulings are

effectively final judgments, forcing them to pay

without proof of damages. But that is mistaken both

statistically and practically. As shown by

comprehensive empirical studies at Stanford Law and

elsewhere, the majority of class actions are still

resolved through dismissal – not certification,

settlement, or trial. In addition to the dismissal and

certification stages, there are several other guardrails

in place that protect defendants from being forced to

settle once a Rule 23 class is certified. District courts

have a number of tools in their tool belt to reduce

awards and winnow classes, as appropriate.

The net effect of Petitioner’s theory would be to

undermine the viability of class actions where each

individual member tends to recover modest sums. This

Court has repeatedly highlighted the legal and societal

significance of so-called “small dollar” class actions,

both to economize and incentivize class-based recovery

in the first place. And also because of the reality that

leaving such small dollar cases unremedied would

exacerbate the nickel-and-diming of Americans from

all walks of life.

6

Last but certainly not least, this Court should

sidestep the pitfalls of Petitioner’s theory and reject its

constitutional argument because of the doctrine of

constitutional avoidance. For the reasons that

Respondent lays out in their merits brief, this Court

should affirm the judgment below – or at most, vacate

and remand this case on the narrow Rule 23(b)(3)

predominance issue.

ARGUMENT

“If there is one doctrine more deeply rooted than any

other in the process of constitutional adjudication, it is

that [courts] ought not to pass on questions of

constitutionality . . . unless such adjudication is

unavoidable.” Spector Mot. Serv. v. McLaughlin,

323 U.S. 101, 105 (1944). Notwithstanding this

bedrock doctrine, Petitioner invites this Court to

adopt, as a matter of first impression, a novel

constitutional theory that would create a freestanding

requirement that every member of a putative class

establish injury before certification.

Aside from being wrong as a matter of text, history,

and practice, Resp. Br. 36-43, that theory would also

have profoundly unsettling effects across numerous

areas of law and would significantly undermine “small

dollar” class actions. This Court should rebuff this

constitutional argument.

7

I.

PETITIONER’S THEORY REQUIRES

CALCULATING

AND

PARSING

INJURIES OF PUTATIVE CLASS

MEMBERS

BEFORE

RULE

23

CERTIFICATION, WHICH WOULD BE

ARDUOUS AND UNSETTLING IN

MANY AREAS OF LAW.

Petitioner and its amici advance a broad rule that

would transform general Article III principles into a

fact-specific evidentiary requirement for putative class

members before the Rule 23 certification stage. That is

wrong as a matter of law and practice.

A.

Petitioner’s Constitutional Argument is Sweeping and Unnecessary.

It is black letter law that a named plaintiff is

required to show Article III standing in every case. But

under Petitioner’s theory, there would now be

“evidence required” for putative class members, inter

alia, to “plausibly establish that all class members

have been [] harmed.” Pet. Br. 25 (citation omitted).

According to Petitioner, this would mandate a

“sufficiently specific” showing of injury, Pet. 25 n.2

(emphasis added), and could “‘necessit[ate] []

touching aspects of the merits [determinations]”

Pet. 26 (citation and quotations omitted) (emphasis

added). Under all circumstances, Petitioner insists it

is “critical that Article III standing be policed at the

front end,” Pet. Br. 4.

Petitioner’s amici openly admit that this theory

necessitates detailed “determinations about injury for

each individual [that] are inherently fact-specific” and

that “require close scrutiny of the facts surrounding

each individual violation.” Brief of the City of Beverly

Hills et al., as Amici Curiae in Support of Petitioners

at 11. They also stress that “complex merits

8

determinations dovetail with Article III concerns” –

and even try to shoe-horn aspects of Monell into

Petitioner’s new theory. Id. at 12. That is a sweeping

and blatant attempt to frontload merits and damages

determinations to impede class actions.

While Petitioner occasionally tries to downplay the

extent of the evidentiary burden of its own theory, Pet.

Br. 13, 14, 25, that simply cannot be squared with the

categorical rule that it ultimately wants. Compare Pet.

Br. 22 (“Certifying a Rule 23(b)(3) class with uninjured

members, however, would [impermissibly extend

Article III and violate the Rules Enabling Act.]”), with

id. at 14 (“[N]o one maintains that a class must

invariably be decertified whenever an uninjured

member is found hiding in the ranks.”). See also Pet.

Br. at 24. Moreover, establishing injuries for all class

members would necessarily require some sort of

heightened proceedings or evidentiary submissions,

which Petitioner does not seriously deny and the First

Circuit has previously recognized. See In re Nexium

Antitrust Litig., 777 F.3d 9, 22 (1st Cir. 2015) (to

“entirely separate the injured from the uninjured at

the class certification stage” would—at least

“[w]ithout the benefit of further proceedings”—be

“almost impossible in many cases.”).2

2 Moreover, Petitioner’s fallback argument about Rule 23(b)(3)

similarly foreshadows “individualized mini-trials” “to determine

which class members were injured and which ones were not.” Pet.

Br. 14. One way or the other, Petitioner cannot escape its own

suggestion that its theory seeks to weigh down class actions with

“individualized, adjudicatory inquiries” on the front end that this

Court has never before seen fit to impose. See TransUnion LLC v.

Ramirez, 594 U.S. 413, 431 n.4 (2021); Tyson Foods, Inc. v.

Bouaphakeo, 577 U.S. 442, 460 (2016); Amchem Prods., Inc. v.

Windsor, 521 U.S. 591, 612 (1997).

9

At the very least, Petitioner’s constitutional theory

would considerably complicate areas of law that are

already quite complex, see also Resp. Br. at 43-46, and

would be unworkable in practice. Judge Posner laid

out these concerns clearly:

To require the district judge to determine whether

each of the 150 members of the class has

sustained an injury—on the theory that if 140

have not, and so lack standing, and so should be

dropped from the class, certification should be

denied and the 10 remaining plaintiffs be forced

to sue (whether jointly or individually)—would

make the class certification process unworkable;

the process would require, in this case, 150 trials

before the class could be certified. The defendants

are thus asking us to put the cart before the horse.

How many (if any) of the class members have a

valid claim is the issue to be determined after the

class is certified.

Parko v. Shell Oil Co., 739 F.3d 1083, 1084–85 (7th

Cir. 2014).3

All of this hubbub is unnecessary. There is already a

workable procedure for assessing standing at the

certification stage. Under Article III, named plaintiffs

must maintain standing at each stage of the litigation,

but the burden of demonstrating standing rises as the

3 At the certification stage, the Seventh Circuit also rejected

the notion that plaintiffs “have the burden of showing that every

class member must prove at least some impact from the alleged

violation,” and held that “[w]hile we have no quarrel with the

proposition that each and every class member would need to

make such a showing in order ultimately to recover, we have not

insisted on this level of proof at the class certification stage.”

Kleen Products LLC v. International Paper Company, 831 F.3d

919, 927 (7th Cir. 2016).

10

litigation proceeds. See TransUnion LLC v. Ramirez,

594 U.S. 413, 431 (2021) (“A plaintiff must

demonstrate standing ‘with the manner and degree of

evidence required at the successive stages of the

litigation.’”) (quoting Lujan v. Defenders of Wildlife,

504 U.S. 555, 561 (1992)). See also Brooklyn Ctr. for

Indep. of the Disabled v. Bloomberg, 290 F.R.D. 409,

414 (S.D.N.Y. 2012) (“[A]lthough it is plaintiffs’ burden

to establish such injury, plaintiffs are not required to

prove injury-in-fact at the class certification stage.

Instead, at this stage of the litigation, plaintiffs need

only properly allege such an injury.”) (cleaned up). See

also id. at 417 (“In determining whether to certify a

class, a district court is required to consider only the

allegations set forth in the complaint and to take all of

plaintiffs’ allegations as true.”) (citing Shelter Realty

Corp. v. Allied Maint. Corp., 574 F.2d 656, 661 n. 15

(2d Cir. 1978)). LabCorp and its amici are asking to

upend that longstanding practice.

B.

Petitioner’s Theory Would Upend

Many Areas of Law.

This Court should be aware of the problematic realworld consequences that Petitioner’s theory could

impose across various areas of law affecting workers,

consumers, investors, and businesses.

For instance, consider a group of U.S. military

servicemembers who allege discriminatory benefit

policies at their civilian day job when they take leave

to train in the National Guard. Since such conduct

violates the Uniformed Services Employment and

Reemployment Rights Act (USERRA), 38 U.S.C.

Chapter 43, the servicemembers have the right to

pursue a class action provided they satisfy the normal

requirements of Rule 23, “numerosity, commonality,

typicality, and adequate representation,” Wal-Mart

Stores, Inc. v. Dukes, 564 U.S. 338, 349 (2011) (quoting

11

Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 156

(1982)).

Typically, these cases present a class of employees

who share common circumstances; they serve in the

National Guard or Reserves, work for the same civilian

employer, and are subject to the same company benefit

policies.4 Most of them sacrifice weekends, vacations,

or other time to serve in the Guard – an obligation that

sometimes, but not always, requires them to take time

off from work. They all experience the same company

policies, but whether a given class member was

impacted in a given week – while ascertainable –

requires significant work to determine.

Under Petitioner’s theory, district courts handling

such USERRA cases would first have to “police” Article

III by requiring a “sufficiently specific” showing that

“all class members have been so harmed” by their

civilian employer. In practice, in a USERRA case like

this, that would require all the putative class members

to undertake a number of specific and onerous steps,

including:

(1) obtaining detailed payroll records from the

defendant for an extended, multiyear period;

(2) obtaining military service records from the

U.S. Department of Defense, Department of

4 Courts regularly certify classes in these cases. See e.g., Baker

v. UPS, No. 21 Civ. 0114, 2023 U.S. Dist. LEXIS 115334, at *17

(E.D. Wash. July 5, 2023) (certifying USERRA class alleging that

military leave did not receive equivalent benefits compared with

other leaves of absence); Scanlan v. Am. Airlines Grp. Inc., No. 18

Civ. 4040, 2022 U.S. Dist. LEXIS 63755, at *18-21 (E.D. Pa. Apr.

6, 2022) (same); Huntsman v. SW. Airlines Co., No. 19 Civ. 83,

2021 U.S. Dist. LEXIS 20856, *40-41 (N.D. Cal. Feb. 3, 2021)

(same); Clarkson v. Alaska Airlines Inc., No. 19 Civ. 5, 2020 U.S.

Dist. LEXIS 138838, at *19-21 (E.D. Wash. Aug. 4, 2020) (same).

12

Homeland Security, and/or relevant state

national guard units;

(3) obtaining records of civilian benefits from the

defendant (such as profit-sharing plans and

how awards were calculated)

(4) identifying, preparing, and compensating a

quantitative expert or statistician;

(5) directing the expert to review and analyze data

from these different sources; and

(6) having that expert calculate the individual

financial injury experienced by each member of

the class.

The employer in a case like this, careful not to forego

any argument or defense, would then be obliged to

engage their own expert to evaluate the work done by

the plaintiffs’ expert. That in turn would require:

(7) identifying and paying a second quantitative

expert or statistician;

(8) having that expert prepare a report evaluating

the work done by the plaintiff’s expert;

(9) deposing the plaintiffs’ expert and defending

the defense expert’s deposition; and

(10) potentially briefing a Daubert challenge.

This is no small feat for plaintiffs or defendants.5 For

these very reasons, it is standard practice in class

5 It can take a surprisingly long time to obtain basic military

service dates from the U.S. Department of Defense, so expert

witnesses could have at least a starting point for their analysis.

See Baker v. United Parcel Service, Inc., No. 21 Civ. 114, ECF Nos.

82, 95 (E.D. Wa.) (court ordered subpoenas to Department of

Defense in October 2023; parties requested sixth deadline

extension in January 2025 due to still-pending Department of

13

actions to stage the litigation to defer expensive and

disputed forms of discovery to later phases.6

All told, Petitioner’s theory would frontload an

enormous amount of work for military plaintiffs that

is properly saved for later damage calculations. The

net result is that this would impede Rule 23 class

actions for USERRA and military cases or eliminate

the vast majority of class members if they could not

make such a specific evidentiary showing precertification.

In the antitrust realm too, Petitioner’s argument

could destabilize existing precedent and practice.

Consider, for instance, a case involving smartphone

Defense production); White v. United Airlines, Inc., No. 19 Civ.

114, ECF Nos. 145-46, 167 (N.D. Ill.) (court ordered subpoenas to

Department of Defense and Department of Homeland Security in

July 2024; by March 2025, subpoenas were still pending, with no

timetable for production); Haley et al. v. Delta Airlines, No. 21

Civ. 1076 at ECF No. 54 (N.D. Ga. June 13, 2022) (“The putative

class potentially comprises thousands of individuals and the

records potentially involve hundreds or thousands of periods of

short-term military leave over a proposed class period of over 15

years . . . this case will likely require subpoenaing military

records from non-parties such as the Department of Defense, and

such subpoenas can only be issued once [the civilian employer]

produced its military leave data for the Class . . . .”).

6 See, e.g., Won v. Amazon.com Services LLC, No. 21 Civ. 2867,

ECF No. 30 (E.D.N.Y. Oct. 7, 2022) (“the parties anticipate that

class certification briefing will involve the production of

significant data . . . the Parties believe that six months is an

appropriate period for class-certification discovery, with merits

discovery to follow.”); Baker v. United Parcel Service, Inc., No. 21

Civ. 114, ECF No. 45 (E.D. Wa. June 2, 2022) (“The parties

propose an initial period of discovery focused primarily on class

certification . . . . The parties will propose a schedule for

additional discovery, if any, including expert discovery, following

the Court’s decision on Plaintiff’s anticipated motion for class

certification”).

14

users who allege an anti-competitive pricing structure

for mobile apps. See generally Apple, Inc., v. Pepper,

587 U.S. 273 (2019). Under Petitioner’s theory, before

moving for class certification, every smartphone user

(including all absent class members) would now need

to make a specific, individualized showing of injury, for

example by:

(1) documenting which app(s) they had purchased

and at what price(s);

(2) collecting data about app pricing, software

development costs, and other market dynamics;

(3) identifying, preparing, and compensating an

economist or quantitative expert;

(4) designing an appropriately rigorous economic

model;

(5) directing the expert to assess the competitive

price and the economic impact of the anticompetitive behavior; and

(6) having that expert calculate relevant injuries to

each putative member of the class.

See generally American Bar Association, Antitrust

Class Action Handbook 192-94, 196-99 (1st ed. 2010).

If this sounds like it would be complex and difficult for

each individual user to do early in litigation, that is

because it is. Indeed, in the Pepper litigation, “Apple

[itself] warn[ed] that calculating the damages in

successful

consumer

antitrust

suits

against

monopolistic retailers might be complicated. It is true

that it may be hard to determine what the retailer

would have charged in a competitive market. Expert

testimony will often be necessary. But that is hardly

unusual in antitrust cases.” 587 U.S. at 286. Accord

Rami Abdallah Elias Rashmawi, No Injury? No Class:

15

Proof of Injury in Federal Antitrust Class Actions postWal-Mart, 77 Wash. & Lee L. Rev. 1375, 1397 (2020)

(“Establishing antitrust injury frequently involves

voluminous testimony from an assertedly qualified

expert.”) (citing In re Rail Freight Fuel Surcharge

Antitrust Litig. (Rail Freight II), 292 F. Supp. 3d 14,

40–87 (D.D.C. 2017); In re Asacol Antitrust Litig., 907

F.3d 42, 46 (1st Cir. 2018)). Petitioner seeks to further

frontload intricate expert inquiries and the concordant

questions about admissibility.7

In other antitrust cases, courts have also rejected the

logic behind Petitioner’s theory that the occasional

presence of uninjured class members defeats class

certification. See, e.g., Nexium, 777 F.3d at 21 (“[I]t is

difficult to understand why the presence of uninjured

class members at the preliminary stage should defeat

class certification.”); id. at 23 (noting the “obvious

utility of allowing the inclusion of some uninjured

class members in the certified class”). “[T]he district

court is well situated to winnow out those non-injured

members,” Torres v. Mercer Canyons Inc., 835 F.3d

1125, 1137 (9th Cir. 2016). Particularly since “[f]ederal

antitrust law is a central safeguard for the Nation’s

free market structure,” N.C. State Bd. of Dental

Exam’rs v. FTC, 574 U.S. 494, 502 (2015), this Court

should be careful not to unintentionally throw it into

disarray.

Additionally, in the context of securities and

retirement fund class actions, parsing and calculating

the injury to every putative member of the class at the

front end would be inappropriate, inefficient, and

7 Although the plaintiffs in Pepper did not make such specific

showings of their injuries (before certification), this Court did not

raise or see any Article III problems when it affirmed and let the

class action claims there proceed.

16

challenging. For example, in cases involving fraud on

the market, Petitioner’s theory would require each

class member to retain a quantitative expert to

perform nuanced empirical examination of how a

given piece of information affected market efficiency

and the price of relevant securities. These types of indepth economic assessments often take the form of a

regression analysis known as an “event study,” which

can be relevant to both the question of certification and

to merits issues. See, e.g., In re Countrywide Fin. Corp.

Sec. Litig., 273 F.R.D. 586, 614-15 (C.D. Cal. 2009);

Andrew C. Baker, Single-Firm Event Studies,

Securities Fraud, and Financial Crisis: Problems of

Inference, 68 Stan L. Rev. 1207, 1217 (2016) (“[T]here

must be . . . a proper calculation of classwide damages

upon positive disposition on the merits. Each of these

factual determinations would become empirical

prerequisites, requiring the provision of expert

testimony and econometric analysis.”).

These sorts of econometric studies require extensive

data and expertise and are fundamentally

inappropriate at the pre-certification stage. Here too,

Petitioner’s theory would disrupt settled practice in

the securities bar and be a drain on the judiciary’s

resources. As a guide from the Federal Judicial Center

highlighted, “damages calculations [in securities

cases] can be quite complex, so they often require

considerable judicial attention.” Jayme Herschkopf,

Securities Litigation 35 (Federal Judicial Center,

2017).

In the securities law context, this Court has

previously rejected the suggestion by some companies

that individualized questions should defeat (or

preempt) Rule 23 certification:

Basic does afford defendants an opportunity to

rebut the presumption of reliance with respect to

17

an individual plaintiff by showing that he did not

rely on the integrity of the market price in trading

stock. While this has the effect of “leav[ing]

individualized questions of reliance in the

case,” post, at 2424, there is no reason to think

that these questions will overwhelm common ones

and render class certification inappropriate

under Rule 23(b)(3). That the defendant might

attempt to pick off the occasional class member

here or there through individualized rebuttal does

not cause individual questions to predominate.

Halliburton Co. v. Erica P. John Fund, Inc., 573 U.S.

258, 276 (2014) (emphasis added). Lower courts have

rightly relied upon this language and recognized that

in some circumstances, defendants can prove that

particular class members did not rely upon the

defendant’s fraudulent statement (and hence were not

injured).8

Overall, this Court should be careful not to adopt

Petitioner’s theory – and therefore inadvertently affect

complex questions of substantive law, such the

examples discussed above – when its concern about

uninjured class members is sufficiently addressed by

Rule 23(b)(3)’s predominance inquiry.

C.

Petitioner’s Theory Clashes With the

Logic of Tyson Foods.

The reasoning of Tyson Foods also underscores the

unworkability of Petitioner’s new theory. In Tyson

8 See, e.g., Weiner v. Tivity Health, Inc., 528 F. Supp. 3d 795,

805–06 (M.D. Tenn. 2021); Roofer’s Pension Fund v. Papa, 333

F.R.D. 66, 80–81 (D.N.J. 2019); In re SunEdison, Inc. Securities

Litig., 329 F.R.D. 124, 142–44 (S.D.N.Y. 2019). Federal courts can

and do resolve questions of individual injuries after deciding

classwide issues. See, e.g., In re Vivendi Univ., S.A. Securities

Litig., 123 F. Supp. 3d 424 (S.D.N.Y. 2015) (securities).

18

Foods, this Court rejected a broad rule that would have

categorically barred representative evidence in class

actions. In so doing, the Court underscored the vital

role juries play in deciding all kinds of issues at trial –

including the fact and extent of injury – and recognized

that such issues must often be proven by allowing

juries to weigh evidence and draw inferences.

In Tyson, as in many wage and hour cases, the only

practical way to identify class members who worked

over 40 hours – and thus suffered the injury of unpaid

overtime – was for an expert to analyze evidence that

gave rise to a “just and reasonable inference” about

each employee’s hours of work. 577 U.S. at 456-57

(“Rather than absolving the employees from proving

individual injury, the representative evidence here

was a permissible means of making that very

showing.”) (emphasis added). And just as in any case

where evidence must be weighed and inferences

drawn, Tyson affirmed that this task “is the nearexclusive province of the jury.” Id at 459. To prevent

class action plaintiffs from using such evidence “would

ignore the Rules Enabling Act’s pellucid instruction

that use of the class device cannot ‘abridge . . . any

substantive right.’” Id. at 455 (citation omitted).

If this Court were to accept Petitioner’s theory that

“Article III standing must be policed at the front end,”

Pet. Br. 4, by requiring an evidentiary showing for

putative class members, Pet. Br. 25, that rule would

force district courts to weigh evidence on merits

questions that are properly left to the jury. Petitioner

claims there are limits to the showing it would require

but it is vague and inconsistent about what those

limits are. Tyson, like many cases, presents a class

where some members were uninjured, and there is a

clear way to sort them from the injured class members.

The manner and ease of identifying uninjured class

19

members is the province of Rule 23(b)(3)’s

predominance inquiry, but that process cannot be done

before trial, where a jury may need to weigh competing

approaches to doing so. Petitioner’s insistence on a

categorical standing rule cannot be squared with such

cases, or with the overarching rule that merits

inquiries should be limited at the class certification

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

568 U.S. 455, 465-66 (2013).

Petitioner’s sweeping constitutional theory would

force district courts into ad hoc decisions about how far

to delve into standing issues, graft a new requirement

onto Rule 23, and deprive district courts of the

flexibility they have to sequence and referee methods

of proof. In Tyson, this Court rightly left those

determinations to the district court (on remand).9

Allowing district courts flexibility in addressing

variable damages was prudent then and now.

D.

Petitioner and Its Amici Are Wrong

About Class Action Settlement

Dynamics.

Petitioner and its amici try to justify their expansive

new theory by arguing that “once certification is

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

sealed.” Brief of the City of Beverly Hills et al., as

9 Moreover, the majority opinion in Tyson Foods highlighted

that individualized defenses could still be litigated, including “as

a matter of summary judgment, not class certification.’” 577 U.S.

at 457 (quoting Nagareda, Class Certification in the Age of

Aggregate Proof, 84 N.Y.U. L. Rev. 97, 107 (2009)). Here too, if

uninjured class members come to light, other solutions are readily

available, including summary judgment, specific jury

instructions (so as not to determine a damages award on

uninjured individuals), or a narrower class definition. BIO at 33.

20

Amici Curiae in Support of Petitioners at 15; 22-30.10

See also Pet. Br. at 3, 46, 47; Brief of the National

Federation of Independent Business Small Business

Legal Center, Inc. as Amicus Curiae in Support of

Petitioner at 3, 19-24; Brief for the United States as

Amicus Curiae Supporting Neither Party at 19-20;

Brief of Chamber of Commerce et al., as Amici Curiae

Supporting Petitioner at 26-28.

But this is wrong in three fundamental ways.

1. Empirical Context. Petitioner’s and amici’s

suggestion that Rule 23 certification is the be-all and

end-all of class litigation belies the broader picture and

considerably overstates the role of certification. This

Court should keep in mind that a wide majority of

class actions are resolved through dismissal – not

certification, settlement, or trial. In the securities

context:

Plaintiffs voluntarily dismissed the action 18

percent of the time and settled 8 percent of the

time. Courts ruled in 73 percent of cases,

dismissing the case in whole or in part 80 percent

of the time: 54 percent without prejudice, 7

percent with prejudice; 19 percent were partially

granted. Courts denied motions to dismiss in their

entirety only 20 percent of the time.

James K. Goldfarb et al., Securities Class Actions:

Data, Trends, and Insights (March 13, 2023),

https://www.dwt.com/blogs/financial-services-lawadvisor/2023/03/securities-class-actions-data-trends2022. See also Jason Hegland, When are Class Actions

10 To the extent that the City’s ultimate gripe is that the Ninth

Circuit is not applying Rule 23 rigorously — either in fact-specific

protest cases or after settlement or trial — that is neither an

Article III issue nor within the purview of the question presented.

21

Dismissed and When Do They Settle, Stanford

Securities Litigation Analytics (May 6, 2013),

https://law.stanford.edu/2013/05/06/sla-2013-05-06when-are-class-actions-dismissed-and-when-do-theysettle/ (“Despite the paradigm that frames class

actions as lengthy and litigious, most cases reached a

resolution relatively quickly. In fact, 58% of class

actions in the study were dismissed, dropped,

abandoned, or settled before the filing of a Second

Consolidated Complaint.”). See also Stanford

Securities Class Action Clearinghouse, Key Statistics

(2025), https://securities.stanford.edu/stats.html.

2. Discovery and Litigation Expenses. Contrary

to the main thrust of Petitioner’s and amici’s policy

argument – that early certification of allegedly

overbroad classes imposes undue settlement pressure

– adjudicating class certification early generally does

the opposite. If no class is certified, expensive

discovery and expert work can be avoided.

Alternatively, if a class is certified, and the defendant

has not yet expended litigation costs, it is in a better

position to manage risk by deciding whether to defend

or settle.

Forcing parties to litigate the standing of absent

class members early would achieve the opposite effect.

It would frontload discovery expenses in a class action,

imposing costs that are often borne by defendants. See

Newberg and Rubenstein on Class Actions § 7:17 (6th

ed.) (listing reasons why district courts avoid merging

class certification and merits discovery). This

increased up-front litigation cost would impose

settlement pressure whether or not a class is

ultimately likely to be certified.11 This Court’s

11 This problem is especially acute in small-dollar cases that are

unlikely to continue if certification is not granted. See Manual for

22

precedents, including those cited extensively by

Petitioner and amici, recognize that discovery and

litigation expense – not the fact of class certification

per se – has the potential to drive settlement

dynamics. See Stoneridge Inv. Partners, LLC v. Sci.Atlanta, 552 U.S. 148, 163 (2008) (“extensive discovery

and the potential for uncertainty and disruption in a

lawsuit allow plaintiffs with weak claims to extort

settlements”) (emphasis added); see Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 559 (2007) (“the threat of

discovery expense will push cost-conscious defendants

to settle even [presumably] anemic cases before

reaching” summary judgment) (emphasis added). That

logic applies squarely to Rule 23(b)(3) cases too.

3. Other Guardrails and Tools. After the motion

to dismiss and certification stages, there are several

guardrails in place that protect defendants from being

forced into settling after a Rule 23(b)(3) class is

certified.

To begin with, many consumer protection statutes,

such as the Truth in Lending Act and the Fair Debt

Collections Practices Act, cap statutory damages for

this very purpose. See 15 U.S.C. § 1640(a) (TILA); 15

U.S.C. § 1692k (FDCPA).

Additionally, the parties can and do stay litigation

pending settlement talks and the defendants may

assess their own records (pursuant to Rule 408) to

determine the extent of possible injuries. See, e.g., C.K.

through P.K. v. McDonald, 2:22-cv-01791 (NJC)

(JMW), 2024 WL 730494, at *6 (E.D.N.Y. Feb. 22,

2024) (granting parties’ joint motion to certify two

Complex Litigation, Fourth, § 21.14 (“in cases that are unlikely

to continue if not certified, discovery into aspects of the merits

unrelated to certification delays the certification decision and can

create extraordinary and unnecessary expense and burden”).

23

proposed classes, including an ADA class, extend

current litigation deadlines, and stay litigation

activity for three months for the purpose of settlement

discussions). They do not simply assume that every

class member is owed full damages and stroke a check.

More generally, district courts have several tools at

their disposal to manage the size and shape of the class

after certification, which informs settlement

dynamics. They can “(1) bifurcat[e] liability and

damage trials with the same or different juries; (2)

appoint[] a magistrate judge or special master to

preside over individual damages proceedings; (3)

decertify[] the class after the liability trial and

provid[e] notice to class members concerning how they

may proceed to prove damages; (4) creat[e] subclasses;

or (5) alter[] or amend[] the class.” In re Visa

Check/MasterMoney Antitrust Litig., 280 F.3d 124,

141 (2d Cir. 2001) (Sotomayor, J.), abrogated on other

grounds by In re Initial Public Offerings Sec. Litig.,

471 F.3d 70 (2d Cir. 2007).12

12 See also Ruiz Torres v. Mercer Canyons Inc., 835 F.3d 1125,

1137 (9th Cir. 2016) (“fortuitous non-injury to a subset of class

members does not necessarily defeat certification of the entire

class, particularly as the district court is well situated to winnow

out those non-injured members at the damages phase of the

litigation, or to refine the class definition.”) (citing Newberg on

Class Actions); Bright v. Brookdale Senior Living, Inc., No. 3:19CV-00374, 2021 WL 6496799, at *16 (M.D. Tenn. Mar. 12, 2021)

(citation omitted) (“refus[ing] to foreclose class certification

merely ‘due to the possibility that some unnamed class members

might have signed arbitration agreements,’ but reserv[ing] the

right to create a subclass, modify the class definition, or otherwise

specially treat the class members subject to arbitration at a later

juncture.”). See also 1 Newberg and Rubenstein on Class Actions

§ 2:3 (6th ed.) (“the possibility that a well-defined class will

nonetheless encompass some class members who have suffered

no injury . . . is generally unproblematic as the non-injured

parties can just be sorted out at the remedies phase of the suit”).

24

Even once a settlement has been reached, Rule 23(e)

requires “the court’s approval,” which can be granted

only after considering “the effectiveness of any

proposed method of distributing relief to the class,

including the method of processing class-member

claims.” That is yet another opportunity to address

uninjured class members.

All told, federal courts have various tools at their

disposal to address or reduce any undue settlement

pressure that certification might impose, see also Brief

of Amici Curiae Claims Administrators in Support of

Neither Party at 5-15 – and the vast majority of class

action cases still never reach this phase.

II.

PETITIONER’S

THEORY

WOULD

UNDERMINE

CLASS

ACTIONS

WHERE EACH MEMBER HAS A

MODEST RECOVERY, WHICH THIS

COURT

HAS

REPEATEDLY

SAFEGUARDED.

Petitioner’s theory would frontload complex damage

calculations, requiring the retention of expert

witnesses early on in litigation to establish the

individual Article III injuries of absent class members,

and imposing a major pre-certification evidentiary

burden. Many plaintiffs and absent class members

would face great difficulty satisfying such new

requirements and would be deterred from seeking

relief in the first place. The net effect would inevitably

make it harder and more costly to bring class actions

where each member would recover a modest sum.

As this Court has repeatedly stressed, class actions

are a vital mechanism to facilitate recovery and

equitable relief in these types of cases. “The policy at

the very core of the class action mechanism is to

overcome the problem that small recoveries do not

25

provide the incentive for any individual to bring a solo

action prosecuting his or her rights.” Amchem

Products, Inc. v. Windsor, 521 U.S. 591, 617 (1997).

“The availability of the class action procedure to these

consumers is the only way both to provide them with

restitution for their injuries and to deter . . . unlawful

conduct in the future. . . .” Id. “Class actions [] may

permit the plaintiffs to pool claims which would be

uneconomical to litigate individually.” Phillips

Petroleum Co. v. Shutts, 472 U.S. 797, 809 (1985). See

also Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 161

(1974) (“Economic reality dictates that petitioner’s suit

proceed as a class action or not at all.”).

Judge Posner again put it aptly: “[t]he realistic

alternative to a class action is not 17 million individual

suits, but zero individual suits . . . .” Carnegie v.

Household Int’l, Inc., 376 F.3d 656, 661 (7th Cir. 2004).

Justice Souter echoed this sentiment: even for cases

involving medium-sized damages, for example in the

$12,000 to $39,000 range, “there is a real question

whether the putative class members could sensibly

litigate on their own . . . especially with the prospect of

expert testimony required.” Gintis v. Bouchard

Transp. Co., 596 F.3d 64, 67 (1st Cir. 2010) (vacating

and remanding for further consideration of this issue

as well as predominance).

In the real world, this wisdom bears out. Older

adults and consumers of all stripes are regularly

affected by predatory practices, fraud, and junk fees

and are normally only able to obtain some relief

through class actions. See, e.g., Scharfstein v. BP West

Coast Products, LLC, 292 Or. App. 69 (Or. Ct. App.

2018) (facilitating refunds to 1.7 million residents of

Oregon who saw one price at the pump but paid

another at the register; ultimately denying

decertification of class, among other things, after trial

26

on the merits and award of damages); McKinney v.

U.S. Postal Service, 292 F.R.D. 62, 66 (D.D.C. 2013)

(noting, in a case about unpaid interest on death

benefits for postal workers, that “it is unlikely that

many putative plaintiffs could or would sue to recover

those amounts individually, given the comparatively

high costs of litigation”). See also Beattie v. CenturyTel,

Inc., 511 F.3d 554, 567 (6th Cir. 2007) (“[A] small

possible [individual] recovery would not encourage

individuals to bring suit, thereby making a class action

a superior mechanism for adjudicating this dispute.”);

Glass Dimensions, Inc. v. State Street Bank & Trust

Co. 285 F.R.D. 169, 180 (D. Mass. 2012) (“[W]hile

individual ERISA plans may not have a financial

incentive to challenge the reasonableness of the

[relevant] fee split, when the claims of the different

ERISA plans are aggregated, it provides an incentive

to thoroughly litigate the issue.”).

The non-partisan RAND Corporation highlighted

the practical and legal reasons why preserving the

ability to bring these types of class actions is critical:

Most individuals are too preoccupied with daily

life and too uninformed about the law to pay

attention to whether they are being overcharged

or otherwise inappropriately treated by those

with whom they do business. Even if they believe

that there is something inappropriate about a

transaction, individuals are likely just to ‘lump it,’

rather than expend the time and energy necessary

to remedy a perceived wrong. Moreover, in some

circumstances, courts have recognized grounds

for claims that are inherently collective, rather

than individual. For example, in securities law,

the ‘fraud on the market’ theory asserts that when

a publicly traded corporation engages in behavior

that artificially inflates or deflates the value of its

27

stock, it can be held liable for the excess costs or

losses incurred by those who purchased or sold

stocks during the period after the corporation

engaged in this behavior and before the behavior

was brought to a halt. This sort of collective harm

is unlikely to be detected by an individual

stockholder, whose involvement in actual

purchases and sales may be minimal.

Deborah R. Hensler et al., Class Action Dilemmas:

Pursuing Public Goals for Private Gain at 68 (2000).

See also id. at 70 (“[Requiring an opt-in procedure]

would result in freezing out the claims of people—

especially small claims held by small people—who for

one reason or another, ignorance, timidity,

unfamiliarity with business or legal matters, will

simply not take the affirmative step. The moral

justification for treating such people as null quantities

is questionable.”) (quoting Benjamin Kaplan,

Continuing Work of the Civil Committee: 1966

Amendments of the Federal Rules of Civil Procedure

(I), 81 Harv. L. Rev. 356, 397–98 (1967)).

Lastly, in addition to adhering to the logic of

Amchem and its predecessors, this Court should be

aware that impeding “small dollar” class actions could

have the unintended consequence of requiring greater

public enforcement and larger government budgets to

address the underlying forms of misconduct and

deception. “Congress could, of course, have provided

public funds or government attorneys for litigating []

claims, but it chose to ‘limi[t] the growth of the

enforcement bureaucracy’ by continuing to rely on the

private bar and by making defendants bear the full

burden of paying for enforcement of their []

obligations.” Hensley v. Eckerhart, 461 U.S. 424, 445-

28

446 (1983) (citation omitted). See generally Brian

Fitzpatrick, The Conservative Case for Class Actions

(2019).13

13 Additionally, adopting Petitioner’s broad theory could result

in channeling “small dollar” class actions into state courts, where

Article III would not apply, effectively frustrating Congress’s

intent in passing the Class Action Fairness Act in the first place.

See, e.g., Home Depot U.S.A., Inc. v. Jackson, 587 U.S. 435, 448–

50 (2019).

29

CONCLUSION

For the foregoing reasons, this Court should affirm.

Respectfully submitted,

WILLIAM A. RIVERA

LOUIS LOPEZ

REBECCA RODGERS

AARP FOUNDATION

601 E Street NW

Washington, D.C. 20049

(202) 434-3392

warivera@aarp.org

JOHN PAUL SCHNAPPER-CASTERAS

Counsel of Record

RACHAEL R. YOCUM

SCHNAPPER-CASTERAS PLLC

1717 K Street NW, Suite 900

Washington, D.C. 20006

(202) 630-3644

jpsc@schnappercasteras.com

LORI ANDRUS

JEFFREY R. WHITE

AMERICAN ASSOCIATION

FOR JUSTICE

777 6th Street NW, #200

Washington, D.C. 20001

(202) 617-5620

Jeffrey.White@justice.org

Counsel for Amici Curiae

April 7, 2025