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 AMERICAN

HOLDINGS, D/B/A LABCORP,

Petitioner,

v.

LUKE DAVIS, JULIAN VARGAS, AND THE

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

LIONEL HARPER, DANIEL SINCLAIR,

HASSAN TURNER, AND LUIS VAZQUEZ

IN SUPPORT OF RESPONDENTS

Jamin S. Soderstrom

Counsel of Record

Soderstrom Law PC

1 Park Plaza, Suite 600

Irvine, CA 92614

(949) 667-4700

jamin@soderstromlawfirm.com

April 7, 2025

SUPREME COURT PRESS

Counsel for Amici Curiae

♦

(888) 958-5705

♦

BOSTON, MASSACHUSETTS

i

TABLE OF CONTENTS

Page

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

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

INTRODUCTION ....................................................... 3

SUMMARY OF ARGUMENT .................................... 6

ARGUMENT ............................................................... 8

I.

THE BURDEN TO ESTABLISH AN ARTICLE III

INJURY DEPENDS ON THE STAGE OF THE

LITIGATION ........................................................ 8

A. Article III Does Not Require Proof of Any

Class Member’s Injury at the Class

Certification Stage .................................... 10

B. Deciding Potential Class Members’

Injuries at the Class Certification Stage

Will Create Advisory Opinions and OneWay Intervention Problems ..................... 12

C. Reliance on Laroe Estates Is Misplaced

Because Class Members Are Not

Intervenors, Co-Plaintiffs, or Parties....... 14

D. Class Member Injury Questions and

Issues can and Should Be Resolved

Post-Certification ..................................... 15

II. PETITIONER’S PROPOSED RULE WILL MAKE

PRE-CERTIFICATION CLASS DISCOVERY FAR

MORE EXPENSIVE AND CONTENTIOUS ............. 18

A. Plaintiffs Will Need More Pre-Certification

Class Discovery and Both Sides Will

Incur More Costs ...................................... 19

ii

TABLE OF CONTENTS – Continued

Page

B. Defendants Will Be Tempted and

Encouraged to Manipulate, Conceal, or

Destroy Class Member Records ............... 22

C. Defendants Will Be Incentivized to

Solicit More Unreliable “Happy Camper”

Declaration ......................................... 24

III. COMPLAINTS OF IN TERROREM SETTLEMENTS

AND EXTORTION ARE UNSUPPORTED ............... 26

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

iii

TABLE OF AUTHORITIES

Page

CASES

TABLE OF AUTHORITIES

Aldapa v. Fowler Packing Co. Inc.,

310 F.R.D. 583 (E.D. Cal. 2015) ........................ 18

Amchem Products, Inc. v. Windsor,

521 U.S. 591 (1997) ..................................... 15, 28

American Pipe & Construction Co. v. Utah,

414 U.S. 538 (1974) ........................................... 12

Amgen Inc. v. Connecticut Ret. Plans & Tr.

Funds, 568 U.S. 455 (2013) ............... 4, 10, 13, 16

AT&T Mobility LLC v. Concepcion,

563 U.S. 333 (2011) ........................................... 29

Avilez v. Pinkerton Gov’t Servs.,

286 F.R.D. 450 (C.D. Cal. Oct. 9, 2012) ............ 24

Basic, Inc. v. Levinson,

485 U.S. 224 (1988) ........................................... 10

Bell Atlantic Corp. v. Twombly,

550 U.S. 544 (2007) ............................................. 8

Blackie v. Barrack,

524 F.2d 891 (9th Cir. 1975) ............................. 26

Califano v. Yamasaki,

442 U.S. 682 (1979) ............................................. 9

Comcast Corp. v. Behrend,

569 U.S. 27 (2013) ..................................... 4, 9, 10

Cordoba v. DIRECTV, LLC,

942 F.3d 1259 (11th Cir. 2019) ......................... 22

Devlin v. Scardelletti,

536 U.S. 1 (2002) ............................................... 14

iv

TABLE OF AUTHORITIES – Continued

Page

Frank v. Gaos,

586 U.S. 485 (2019) ........................................... 28

Haaland v. Brackeen,

599 U.S. 255 (2023) ........................................... 12

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

573 U.S. 258 (2014) ..................................... 20, 24

Harper et al. v. Charter Commc’ns, LLC,

Case No. 2:19-cv-00902

(E.D. Cal. Nov. 2, 2020) ................................. 1, 21

Harper v. Charter Commc’ns, LLC,

2021 WL 12190372

(E.D. Cal. Aug. 30, 2021)................................... 23

Harper v. Charter Commc’ns, LLC,

2021 WL 1783535 (E.D. Cal. May 5, 2021) ...... 23

Harper v. Charter Commc’ns, LLC,

2024 WL 689593 (E.D. Cal. Feb. 20, 2024) ...... 23

In re Facebook, Inc. Internet Tracking Litig.,

2024 WL 700985 (9th Cir. Feb. 21, 2024)......... 28

In re Patriot Nat’l, Inc. Sec. Litig.,

828 F. App’x 760 (2d Cir. 2020) ........................ 28

Longcrier v. HL-A Co.,

595 F.Supp.2d 1218 (S.D. Ala. 2008) ................ 24

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992) ................................. 8, 10, 15

Melnick v. TAMKO Bldg. Prods. LLC,

2022 WL 1211122 (D. Kan. Apr. 25, 2022) ....... 19

Moses H. Cone Mem’l Hosp. v. Mercury Constr.

Corp., 460 U.S. 1 (1983) .................................... 11

v

TABLE OF AUTHORITIES – Continued

Page

Nash v. Horizon Freight Systems, Inc.,

2020 WL 7640878

(N.D. Cal. Dec. 23, 2020) ................................... 24

Roberts v. C.R. England, Inc.,

2013 WL 3893987 (D. Utah July 26, 2013) ...... 18

Salgado v. O’Lakes,

2014 WL 7272784

(E.D. Cal. Dec. 18, 2014) ................................... 18

Sjoblom v. Charter Commc’ns, LLC,

2007 WL 5314916

(W.D. Wis. Dec. 26, 2007) .................................. 24

Spokeo, Inc. v. Robins,

578 U.S. 330 (2016) ............................................. 8

Taylor v. Sturgell,

553 U.S. 880 (2008) ........................................... 14

Town of Chester v. Laroe Estates, Inc.,

581 U.S. 433 (2017) ........................................... 14

Tracy v. Dean Witter Reynolds, Inc.,

185 F.R.D. 303 (D. Colo. 1998).......................... 18

TransUnion LLC v. Ramirez,

594 U.S. 413 (2021) ............. 10, 11, 13, 15, 16, 21

Trujillo v. Chef’s Warehouse W. Coast LLC,

2020 WL 7315346 (C.D. Cal. Oct. 19,

2020) .................................................................. 18

Tyson Foods, Inc. v. Bouaphakeo,

577 U.S. 442 (2016) ................... 11, 16, 17, 21, 22

Voulgaris v. Array Biopharma, Inc.,

60 F.4th 1259 (10th Cir. 2023).......................... 28

vi

TABLE OF AUTHORITIES – Continued

Page

Wakefield v. ViSalus, Inc.,

51 F.4th 1109 (9th Cir. 2022)............................ 29

Wal-Mart Stores, Inc. v. Dukes,

564 U.S. 338 (2011) ......................................... 4, 9

Warth v. Seldin,

422 U.S. 490 (1975) ............................................. 8

CONSTITUTIONAL PROVISIONS

U.S. Const. art. III .. 2-6, 8-13, 15-19, 21-23, 25, 28-30

STATUTES

28 U.S.C. § 1292(b) ................................................... 11

JUDICIAL RULES

Fed. R. Civ. P. 23 ............... 3-6, 9, 10, 13-18, 25, 28-30

Fed. R. Civ. P. 23(a) .................................................... 9

Fed. R. Civ. P. 23(b)(3) ............................................ 5, 9

Fed. R. Civ. P. 23(c)(1) .............................................. 20

Fed. R. Civ. P. 23(c)(1)(C) ......................................... 11

Fed. R. Civ. P. 23(c)(2) ................................................ 3

Fed. R. Civ. P. 23(c)(2)(B)(iv) .................................... 14

Fed. R. Civ. P. 23(c)(4)-(5) ........................................ 11

Fed. R. Civ. P. 23(d)(1)(A) ......................................... 11

Fed. R. Civ. P. 23(d)(1)(B)(iii) ................................... 14

Fed. R. Civ. P. 23(d)(1)(C) ......................................... 14

Fed. R. Civ. P. 23(e) .................................................. 28

vii

TABLE OF AUTHORITIES – Continued

Page

Fed. R. Civ. P. 23(f) ................................................... 13

Fed. R. Civ. P. 24(c) .................................................. 15

Fed. R. Civ. P. 42(b) .................................................. 11

Fed. R. Civ. P. 56 ...................................................... 10

Fed. R. Civ. P. 56(b) .................................................... 9

Fed. R. Civ. P. 56(c) .................................................... 9

Fed. R. Civ. P. 56(d) ........................................ 9, 10, 11

OTHER AUTHORITIES

2023 Carlton Fields Class Action Survey ................ 26

2024 Carlton Fields Class Action Survey ................ 26

1

INTEREST OF THE AMICI CURIAE1

LIONEL HARPER, DANIEL SINCLAIR, HASSAN TURNER,

and LUIS VAZQUEZ (collectively the “Amici”) are employees and consumers who have class action claims pending

in federal court against their former employer. Harper

et al. v. Charter Commc’ns, LLC, Case No. 2:19-cv-00902

(E.D. Cal.). They allege that certain sales positions are

misclassified as “exempt” during a new hire training

period (i.e., the first few weeks of their employment

when trainees are not required or expected to spend

more than half of their time outside the office attempting

to make sales). They also allege that wage statements

that identify employees’ monthly commission wages

are inaccurate, incomplete, and misleading. They are

seeking damages and penalties for themselves and

thousands of other employees. Due to the small potential

individual recoveries ranging from under $100 to a

few thousand dollars, many employees will not pursue

their claims or get any relief if the case is not resolved

on a class action basis.

Amici’s employer opposed class certification by

pressing many of the same arguments Petitioner is

pressing in this appeal. Their employer argued that some

employees might not have been injured because they

might not have worked any unpaid overtime despite

schedules that required and expected 45–55 hours of

work each training week. Their employer also argued

1 No party’s counsel or party authored any part of this brief.

No person or entity, other than Amici and their counsel, made a

monetary contribution intended to fund the preparation or

submission of this brief.

2

that some employees might not have been injured because they might not have been misled or confused by

inaccurate and incomplete information on their commission wage statements. Amici have an interest in

this appeal because the Court’s resolution of the Question Presented will impact their pending class action

against their employer.

Amici direct the Court’s attention to several

matters and considerations that are not the specific

focus of the parties’ briefing, including:

 that the burden to prove an Article III injury

slowly increases at each of the successive

stages of the litigation, and that Article III

does not impose a summary judgment or trial

burden of proof at the class certification stage.

 that Article III does not require courts to

decide at the class certification stage whether

all, some, or no potential class members actually suffered an injury;

 that Petitioner’s proposed rule will make precertification class discovery more expensive

and contentious than it already is, encourage

more discovery misconduct; and incentivize

unreliable “happy camper” declarations; and

 that Petitioner’s complaints about in terrorem

settlement pressure based on certified classes

that are inflated with uninjured members are

unsupported.

Amici support Respondents’ arguments in full,

and they ask the Court to affirm the lower court decisions. They also ask the Court to consider these matters

when addressing the Question Presented.

3

INTRODUCTION

Rule 23 instructs courts to decide certification at

an “early practicable time.” Fed. R. Civ. P. 23(c)(2). In

a typical class action, the certification decision comes

after the pleading stage and before the summary judgment stage, when some discovery has occurred but

most of it remains incomplete. There is a proposed

class definition but every potential class member has

not yet been identified. Unless the defendant files a

motion to dismiss or a preemptive motion for summary

judgment against the named plaintiffs, the court has

not yet addressed the merits of any claim, defense, or

theory of liability.

This is a typical class action. Some discovery has

occurred but it is far from complete. Every potential

class member has not yet been identified. The court has

not yet addressed the merits of the parties’ contentions,

including the central question that looms large in this

appeal: what does Article III require to prove an injury

in these circumstances?

On the Article III question, Respondents contend

that every legally blind patient who visits a California

location that uses a kiosk is denied access to services

on equal terms with non-disabled patients and suffers

a concrete injury. Petitioner contends that Article III

requires more: every patient must also intend to use

the kiosks. The Article III injury question is common

and can (and should) be answered post-certification for

all class members in one stroke. The answer to this

common question will drive the resolution of this case.

If Respondents are right, they likely can prove every

4

member’s injury at summary judgment or trial. If

Petitioner is right, it may have a basis to seek decertification.

Article III does not require—or even allow—courts

to answer the injury question for potential class members

at or before the class certification stage. Class certification is a procedural step that comes after the pleading

stage and before the summary judgment stage. Plaintiffs’ evidentiary burden under Rule 23 is heavier than

at the pleading stage but lighter than at the summary

judgment stage. Plaintiffs need to “affirmatively demonstrate” that Rule 23’s procedural safeguards are satisfied. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350

(2011). They also need to show that their common

contentions are “capable” of proof at trial. Comcast

Corp. v. Behrend, 569 U.S. 27, 30 (2013). They do not

need to show, however, that their contentions will

prevail. Amgen Inc. v. Connecticut Ret. Plans & Tr.

Funds, 568 U.S. 455, 468 (2013). They certainly do not

need to prove their contentions, which is reserved for

summary judgment or trial. Id. at 482.

Article III does not impose an additional or

different evidentiary burden on plaintiffs at the class

certification stage beyond what Rule 23 requires.

Article III does not require courts to analyze classwide

evidence and decide at class certification whether all,

some, or no potential class members actually suffered

an injury. Answering Article III injury questions at

class certification will create advisory opinions and

one-way intervention problems, and will make precertification class discovery even more expensive and

contentious.

The Court should reject Petitioner’s proposed rule

requiring courts to police potential class members’

5

injuries, and to preemptively identify and exclude every

potential class member who does not prove an injury

at the class certification stage. The Court instead should

adopt the following rule:

Courts may certify a class action pursuant to

Federal Rule of Civil Procedure 23(b)(3) when

the class definition ensures that each potential

class member could have suffered the alleged

injury. If later events or discoveries show that

some class members could not have suffered

or did not suffer the alleged injury, then courts

should alter or amend the class definition or

take other action to ensure that uninjured class

members do not recover individual damages.

This proposed rule is consistent with the Court’s

Rule 23 and Article III precedents. It prevents courts

from certifying classes with members who could not

bring a valid claim and recover individual damages in

federal court even if all of plaintiffs’ contentions prevail.

And it does not create advisory opinions or one-way

intervention problems, or make pre-certification class

discovery even more expensive and contentious than

it already is.

The certified class in this case only includes legally

blind plaintiffs who could have suffered the alleged

injury. Whether Respondents’ theories of liability and

injury—including what is required to prove an Article

III injury in these circumstances—will prevail on the

merits remains to be seen. Those common questions

can and should be answered post-certification. Because

the class certification order is consistent with Rule 23

and Article III, the lower courts’ decisions should be

affirmed.

6

SUMMARY OF ARGUMENT

I. The burden to establish an Article III injury

depends on the successive stages of the litigation.

Class certification is an intermediate procedural step

between the pleading stage and the summary judgment

stage. Rule 23 sets the burden for class certification,

and that burden applies equally to common Article III

questions.

A.

Article III does not require proof of every—

or any—potential class member’s injury at

the class certification stage. Plaintiffs eventually must prove that class members suffered

Article III injuries before they can recover

individual damages, but Article III does not

impose a summary judgment or trial burden

at the class certification stage.

B.

Petitioner’s proposed rule will create advisory

opinions and one-way intervention problems

because potential class members are not yet

before the court when class certification is

granted or denied. Petitioner’s proposed rule

also conflates potential class members with

intervenors, and imposes a greater Article III

burden on potential class members than it

does on intervenors.

C.

Ultimately, class member injury questions can

and should be resolved post-certification. The

fact that later events or discoveries may show

that some or no class members actually

suffered an injury does not make an initial

grant of class certification incorrect or an

7

abuse of discretion. There are many postcertification procedures and tools that courts

and parties can use to ensure that any uninjured class members do not recover individual

damages.

II. Petitioner’s proposed rule will make pre-certification class discovery far more expensive and contentious. The tension between defendants’ desire to limit

pre-certification class discovery, and plaintiffs’ need to

obtain sufficient pre-certification class discovery to

satisfy their evidentiary burden, will explode if courts

must police every potential class member’s injury

before they can grant certification.

A.

Petitioner’s proposed rule will force plaintiffs

to demand every potential class member’s

records and information, and to invest more in

pre-certification classwide expert analysis and

reports. It also will force defendants to expend

more resources on pre-certification class

discovery and experts. The class and expert

discovery that typically occurs post-certification will need to occur pre-certification.

B.

Petitioner’s proposed rule will tempt and

encourage defendants to manipulate, conceal,

or destroy potential class members’ records.

From defendants’ perspective, the risks associated with record-keeping violations and discovery sanctions will be outweighed by the

risks of class certification.

C.

Petitioner’s proposed rule will incentivize

defendants to conduct more declaration blitzes

to try to get potential class members to dis-

8

claim their injuries using unreliable, prewritten “happy camper” declarations.

III. There is no evidence of in terrorem settlements

or extortion based on certified classes that are inflated

with undisputedly uninjured class members. Even if

there was, limiting certified classes to members who

could have suffered the alleged injury mitigates these

alleged problems.

ARGUMENT

I.

THE BURDEN TO ESTABLISH AN ARTICLE III

INJURY DEPENDS ON THE STAGE OF THE

LITIGATION.

To commence a class action, like any other action,

plaintiffs “must ‘clearly . . . allege facts demonstrating’

each element” of standing.” Spokeo, Inc. v. Robins, 578

U.S. 330, 338 (2016) (quoting Warth v. Seldin, 422

U.S. 490, 518 (1975)). Their allegations, taken as true,

must plausibly suggest that they suffered injuries that

are fairly traceable to the challenged conduct and are

likely to be redressed by a favorable decision. Id.

(citing Lujan v. Defenders of Wildlife, 504 U.S. 555,

560-61 (1992)); Bell Atlantic Corp. v. Twombly, 550

U.S. 544, 557 (2007).

Thereafter, plaintiffs must support each element

of Article III standing “with the manner and degree of

evidence required at the successive stages of the litigation.” Lujan, 504 U.S. at 561. The successive stages

of a class action are: pleading; pre-certification class

discovery and motion practice; class certification; postcertification class discovery and motion practice; trial;

9

post-trial motion practice; and administering a claims

process (if any) and distributing a damages award (if

any). In class actions, like other actions, plaintiffs

establish standing at the pleading stage by pleading

plausible factual allegations of injury. Id. They establish

standing at the summary judgment stage by presenting

some evidence setting forth specific facts which, taken

as true, show injury.2 Id. And they establish standing

at trial by actually adducing admissible evidence of

injury. Id. This appeal involves an intermediate procedural step in litigation—class certification—that requires

more than allegations but less than specific facts.

Under Rule 23, plaintiffs’ burden is to “affirmatively demonstrate” and be “prepared to prove” that

Rule 23(a)’s numerosity, commonality, typicality, and

adequacy requirements are satisfied. Dukes, 564

U.S. at 350. They also must “satisfy through evidentiary

proof” Rule 23(b)(3)’s predominance and superiority

requirements. Comcast, 569 U.S. at 33. Whether they

satisfy these requirements is committed to the court’s

discretion. Califano v. Yamasaki, 442 U.S. 682, 703

(1979).

Neither Rule 23 nor Article III requires plaintiffs

to marshal classwide evidence and affirmatively prove

2 Plaintiffs only need to show a “genuine dispute” of material fact

to survive a summary judgment motion challenging their own or

class members’ injuries. Fed. R. Civ. P. 56(c). They do not need

to affirmatively prove their own or class members’ injuries at the

summary judgment stage, which typically is after the close of

discovery. Fed. R. Civ. P. 56(b). If a court raises a class member

standing question sua sponte, plaintiffs are entitled to “notice

and a reasonable time to respond,” which requires access to the

essential facts and discovery for each class member. Fed. R. Civ.

P. 56(d).

10

at the class certification stage that every—or any—

potential class member actually suffered an injury.

“‘Proof of that sort is a matter for trial’ (and presumably

also for a summary-judgment motion under Federal

Rule of Civil Procedure 56).” Amgen, 568 U.S. at 482

(quoting Basic, Inc. v. Levinson, 485 U.S. 224, 249

n.29 (1988)). It is not until classwide fact and expert

discovery is complete and the action “proceeds to trial”

that plaintiffs’ and class members’ alleged injuries

“‘must be supported adequately by the evidence adduced

at trial.’” TransUnion LLC v. Ramirez, 594 U.S. 413,

431 (2021) (quoting Lujan, 504 U.S. at 561).

A. Article III Does Not Require Proof of Any

Class Member’s Injury at the Class

Certification Stage.

Article III does not require plaintiffs to prove

every—or any—potential class member’s injury as a

pre-condition for class certification. Plaintiffs’ burden

to establish Article III standing slowly increases at

each successive stage of the litigation. Lujan, 504 U.S.

at 561. Plaintiffs’ burden does not increase faster

simply because the litigation is a class action.

Rule 23 requires plaintiffs to show that common

evidence makes their own and class member injuries

“capable” of proof at summary judgment or trial.

Comcast, 569 U.S. at 30. The Rule 23 burden applies

equally to class member injury questions. This makes

sense because class certification typically is decided

before fact and expert discovery is completed, and before

plaintiffs have access to all of the facts and discovery

that are essential to proving their contentions—

including their contentions concerning class member

injuries—at summary judgment or trial. Fed. R. Civ.

11

P. 56(d) (courts may defer or deny summary judgment

when essential facts or discovery are not yet available

to the nonmovant). Plaintiffs eventually must prove at

summary judgment or trial that class members suffered

an Article III injury before they can recover individual

damages in federal court. TransUnion, 594 U.S. at 431.

But Article III does not impose a summary judgment

or trial burden on plaintiffs at the class certification

stage.

The reason orders granting or denying class

certification “may be altered or amended” at any time

before “final judgment” is that “later events or

discoveries may mandate a different result.” Moses H.

Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S.

1, 13 n.14 (1983); Fed. R. Civ. P. 23(c)(1)(C). That is what

happened for a few thousand consumer class members

in TransUnion and what arguably should have happened for a few hundred employee class members in

Tyson Foods.

Under Rule 23, courts also have power to certify

“subclasses,” certify classes “with respect to particular

issues,” and issue orders that “determine the course of

proceedings.” Fed. R. Civ. P. 23(c)(4)-(5) & 23(d)(1)(A).

These powers let courts focus on and even prioritize

specific questions and issues during post-certification

proceedings. In some cases, it may be appropriate for

a court to address common Article III questions or

issues promptly after certification, through a certified

interlocutory appeal under 28 U.S.C. § 1292(b), through

bifurcation under Federal Rule of Civil Procedure 42(b),

or by using a claims process or similar procedural

tools.

12

B. Deciding Potential Class Members’

Injuries at the Class Certification Stage

Will Create Advisory Opinions and OneWay Intervention Problems.

Whether all, some, or no potential class members

have actually suffered an Article III injury is not a

question that federal courts should answer—or can

answer—at the class certification stage.

Requiring courts to decide at or before the class

certification stage whether all, some, or no potential

class members actually suffered an injury will violate

Article III because even a persuasive explanation of

the rights and interests of persons not yet before the

court is an advisory opinion. Haaland v. Brackeen,

599 U.S. 255, 293-94 (2023). Until a class is certified

and the individuals who fit within the class definition

have an opportunity to opt out, there are only potential

class members who are not yet before the court. Even

a persuasive explanation of their rights and interests

is an advisory opinion.

Requiring courts to decide at or before the class

certification stage whether all, some, or no potential

class members have suffered an Article III injury also

will create one-way intervention problems because

potential class members will not be bound by unfavorable rulings but will benefit from favorable ones if

they do not opt out. American Pipe & Construction Co.

v. Utah, 414 U.S. 538, 547 (1974).

Requiring courts to decide at or before the class

certification stage whether all, some, or no potential

class members have suffered an Article III injury also

will inundate the courts of appeals with more interlocutory appeals that focus on the merits of Article III

13

injury questions rather than on whether Rule 23’s

requirements were satisfied. Fed. R. Civ. P. 23(f). The

party on the losing side of a class certification order will

contend that the court got the Article III analysis

wrong on the merits, and the courts of appeals will be

asked to resolve the merits of Article III questions

when the individuals whose injuries are at issue are

not yet before the court, when the certification order

still may be altered or amended, and when there is no

final judgment.

There is no reason that Article III questions that

can be answered in one stroke for all class members

should be subject to a different analysis and different

manner or burden of proof than other common questions. A “failure of proof” on a common Article III

injury question—like a failure of proof on many common

questions—“would end the case” for all or part of a

certified class. Amgen, 568 U.S. at 460; TransUnion,

594 U.S. at 437-41 (failure to prove injury ends the case

for 77% of certified class).

Courts do not “punt” questions of potential class

member injuries or “hand” plaintiffs unearned victories

when they grant class certification. They confirm that

plaintiffs have met their burden of proof under Rule

23, and that one or more common questions predominates and can be answered in one stroke based on

common evidence and contentions.

14

C. Reliance on Laroe Estates Is Misplaced

Because Class Members Are Not

Intervenors, Co-Plaintiffs, or Parties.

Petitioner’s reliance on Town of Chester v. Laroe

Estates, Inc., 581 U.S. 433 (2017) is misplaced. In

Laroe Estates, the Court observed that plaintiffs must

“allege” a “personal stake in the outcome of the controversy.” Id. at 438-39. The Court held that the “same

principle applies to intervenors of right” who “seek[]

additional relief beyond that which the plaintiff

requests.” Id. at 439.

Potential class members are not intervenors, coplaintiffs, or parties. If a court certifies a class, and if

individuals who fit within the class definition do not

opt out, they still are not intervenors, co-plaintiffs, or

parties.3 They are each a “nonparty” whose rights and

interests are being represented by one or more courtappointed plaintiffs who already have satisfied each

of Rule 23’s procedural safeguards. Taylor v. Sturgell,

553 U.S. 880, 900-01 (2008). At most, they are each a

“nonnamed class member” who may be treated as a party

for some purposes but not others. Devlin v. Scardelletti,

536 U.S. 1, 9-10 (2002).

Even if there were similarities between potential

class members and proposed intervenors, Petitioner

3 Members of a certified class may, but are not required to, “enter

an appearance through an attorney,” Fed. R. Civ. P. 23(c)(2)(B)(iv),

and may, but are not required to, “intervene and present claims

or defenses, or to otherwise come into the action,” subject to any

court-imposed “conditions.” Fed. R. Civ. P. 23(d)(1)(B)(iii) &

23(d)(1)(C). If potential class members were the same as intervenors, co-plaintiffs, or named parties there would be no need for

Rule 23 to grant members of a certified class the right to enter

an appearance through an attorney or to seek intervention.

15

misses a crucial point. Proposed intervenors only need

to plausibly allege an Article III injury in the pleading

that accompanies their motions to intervene. Fed. R.

Civ. P. 24(c). They do not have to satisfy a summary

judgment or trial burden that requires the submission

of evidence that affirmatively proves their injuries

before the court can grant their motion intervene. A

plausible allegation of injury in the accompanying

pleading suffices. Lujan, 504 U.S. at 561.

Just as courts are not required to determine if

proposed intervenors actually suffered an injury before

granting a motion to intervene, courts are not required

to determine if every potential class member actually

suffered an injury before granting a motion for class

certification.

D. Class Member Injury Questions and Issues

can and Should Be Resolved PostCertification.

Class member injury questions and issues can

and should be resolved after class certification is

decided in accordance with Rule 23. This approach

has long been the Court’s expectation and practice.

Amchem Products, Inc. v. Windsor, 521 U.S. 591, 612

(1997) (certification issues are “logically antecedent

to” class member standing issues, and it is “appropriate

to reach them first” because the Article III issues

would not exist but for the certification).

Take TransUnion. The Article III injury question

was common for all 8,185 members of the certified

class, disputed on the merits, and properly addressed

post-certification by the district court, Ninth Circuit,

and this Court. 594 U.S. at 417-18. The plaintiff

contended that each member suffered an injury, and

16

the defendant contended that no member suffered an

injury. Id. Post-certification class discovery was needed

before the injury question could be answered for each

member. The Court partially agreed with both sides’

arguments, holding that 6,332 class members (77% of

the certified class) had not suffered an injury and

could not recover individual damages. Id. at 437-41.

The fact that a supermajority of class members did not

suffer an Article III injury did not make the initial

grant of class certification incorrect or an abuse of discretion because the plaintiff “need not, at that threshold,

prove that the predominating question will be answered

in their favor.” Amgen, 568 U.S. at 468.

The initial certification order in TransUnion

would have been proper under Rule 23 and Article III

if every class member had suffered an injury (as the

plaintiff argued) or if no class member had suffered an

injury (as the defendant argued). The class action procedure and the right of appeal worked just as they

should. If the case had not settled shortly after remand

to the Ninth Circuit, the class certification order easily

could have been altered or amended, or the lower courts

could have taken other appropriate action, to ensure that

uninjured members did not recover any individual

damages.

Also take Tyson Foods, Inc. v. Bouaphakeo, 577 U.S.

442 (2016). During post-certification fact and expert

discovery, the plaintiffs obtained evidence showing

that thousands of class members worked some unpaid

overtime, but several hundred class members did not.

577 U.S. at 448-50. The classwide records and breakdown of members were not known or available to the

plaintiffs or the court at the class certification stage.

The fact that post-certification discovery showed that

17

around 5-10% of class members did not work any

unpaid overtime and thus did not suffer an Article III

injury—even when the plaintiffs prevailed on the merits

of their class claims—did not make the court’s initial

grant of class certification incorrect or an abuse of discretion.

The uninjured class member and damages allocation problems in Tyson Foods could have been solved

in any number of ways, including but not limited to:

partial decertification for the undisputedly uninjured

members; an altered or amended class definition or

partial decertification tied to the amount of work each

member needed to perform to result in unpaid overtime;

bifurcation of liability and damages; certification of

subclasses; and detailed verdict forms. The initial class

certification order was proper under Rule 23 and Article

III even if the parties and the court could have—

perhaps should have—taken other steps post-certification to ensure that uninjured members did not

recover individual damages.

Now take this case. The lower court anticipates

using various tools and methods to determine the course

of the post-certification proceedings, to hold Respondents to their burden to establish class member injuries

consistent with the successive stages of the litigation,

and to ensure that any class members who did not suffer

an injury will not recover individual damages. JA36061, 369-70, 398-99. Petitioner’s belief that it has the

better argument on the merits of the Article III question

is not a reason to depart from established precedent

that articulates the slowly increasing burden of proof

at each successive stage of the litigation. Petitioner

cannot preempt class certification by speculating that

post-certification class discovery and motion practice

18

might show that some class members might not have

suffered an injury if it is right on what Article III requires to prove injury in these circumstances.

II. PETITIONER’S PROPOSED RULE WILL MAKE PRECERTIFICATION CLASS DISCOVERY FAR MORE

EXPENSIVE AND CONTENTIOUS.

There already is significant tension between defendants’ desire and efforts to limit pre-certification class

discovery or avoid it altogether, and plaintiffs’ desire

and need to obtain pre-certification class discovery

to affirmatively establish Rule 23’s requirements.

Defendants complain that pre-certification class

discovery is too speculative, overbroad, and disproportionate, and courts regularly exercise their discretion

to limit pre-certification class discovery. See Trujillo

v. Chef’s Warehouse W. Coast LLC, 2020 WL 7315346,

at *29 (C.D. Cal. Oct. 19, 2020) (50% sampling); Aldapa

v. Fowler Packing Co. Inc., 310 F.R.D. 583, 592 (E.D.

Cal. 2015) (25% sampling); Salgado v. O’Lakes, 2014

WL 7272784, at *14 (E.D. Cal. Dec. 18, 2014) (20%

sampling); Roberts v. C.R. England, Inc., 2013 WL

3893987, at *4 (D. Utah July 26, 2013) (8% sampling).

But plaintiffs are entitled to pre-certification class

discovery that is sufficient to satisfy their evidentiary

burden at the class certification stage. Tracy v. Dean

Witter Reynolds, Inc., 185 F.R.D. 303, 304-05 (D.

Colo. 1998) (“Obviously, some discovery is necessary

prior to a determination of class certification. . . . The

discovery which is permitted should be sufficiently

broad that the plaintiffs have a fair and realistic

opportunity to obtain evidence which will meet the

requirements of Rule 23, yet not so broad that the

discovery efforts present an undue burden to the

19

defendant.”); Melnick v. TAMKO Bldg. Prods. LLC, 2022

WL 1211122, at *3 (D. Kan. Apr. 25, 2022) (defendant’s

arguments against pre-certification class discovery

because certification might be denied is “circular and

illogical”).

The tension between these competing interests

will explode if courts are required to police every

potential class member’s injury and confirm through

evidentiary proof that every potential class member

has actually suffered an Article III injury before granting

a motion for class certification.

A. Plaintiffs Will Need More Pre-Certification

Class Discovery and Both Sides Will

Incur More Costs.

If plaintiffs are required to submit evidence with

their motions for class certification that affirmatively

demonstrates that every potential class member has

actually suffered an Article III injury, then plaintiffs

will need even more expansive pre-certification class

discovery to satisfy this new, heightened evidentiary

burden.

Pre-certification class discovery will become even

more contentious than it already is with little room for

compromise because defendants will argue that “no

proof of injury” at the class certification stage is the

equivalent of “proof of no injury” on the merits.

Defendants will challenge every class definition that

might include one or more individuals who might not

have suffered an injury. But plaintiffs will be unwilling

to lose their motions for class certification due to a

lack of class member records and information, so they

will go “all in” on pre-certification class discovery and

20

demand every potential class members’ records and

information.

Plaintiffs will not let defendants defeat class certification by speculating the existence and number of

uninjured class members, or by attempting to “pick

off” class members by identifying a few potential class

members who allegedly did not suffer an injury.

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

258, 276 (2014). Plaintiffs will invest more resources

in pre-certification class discovery. They will engage

more experts to analyze classwide records and data

and prepare more pre-certification studies, surveys, and

reports. Defendants likewise will expend more resources

in pre-certification class discovery and experts, collecting

and producing all classwide records while trying to

thwart certification by trying to identifying more than

a de minimis number of allegedly uninjured class members. Petitioner’s own amici agree this will happen. See

ALF Brief at 19-24 (while “inquiry into whether each

member was injured entails significant burdens,”

those burdens are manageable via classwide discovery,

expert reports, representative evidence, and “more affidavits,” including “affidavits from every member at

the certification stage”).

The class and expert discovery that typically is

scheduled and expected to occur post-certification will

need to be completed before the deadline to move for

class certification. It will be nearly impossible for courts

to decide class certification at an “early practicable

time” without prejudicing plaintiffs’ right to meet their

evidentiary burden, and without prejudicing defendants’ right to rebut plaintiffs’ classwide evidence and

pre-certification expert reports. Fed. R. Civ. P. 23(c)(1).

21

In TransUnion, all 8,185 consumers’ credit report

records and personal information would have needed

to be produced and analyzed by experts before certification. 594 U.S. at 437-41. In Tyson Foods, all 3,344

employees’ records would have needed to be produced

and the time study and expert reports would have

needed to be completed before certification. 577 U.S. at

449-50. In Amici’s case, all 20,000+ employees’ records

would have needed to be produced and experts would

have needed to prepare detailed reports before certification. Harper v. Charter Commc’ns, LLC, 2020 WL

6158239, at *7 (E.D. Cal. Nov. 2, 2020) (10% sampling).

And in this case, each California location’s staffing

and kiosk records and all patient contact information

and service records would have needed to be produced,

and Respondents would have needed to contact and

survey thousands of patients and complete more expert

reports, before certification.

Article III does not require plaintiffs to marshal

classwide evidence and affirmatively prove at the class

certification stage that every potential class member

actually suffered an injury. But even if it did, plaintiffs

will not sit back and lose class certification motions

simply because defendants advance “no proof of injury”

arguments at the class certification stage. Plaintiffs

will demand—and they will be entitled to obtain—every

potential class member’s records and information that

could help to establish an injury before they move

for class certification. Both sides will conduct more

discovery and pay more experts. Gone will be the days

of stipulated or court-ordered samplings of potential

class member’s records and phased class discovery,

because parties and courts cannot sidestep Article

III’s requirements by making stipulations and court-

22

approved discovery compromises such as sampling

class member records and contact information.

Petitioner’s rule will usher in a new regime where

plaintiffs who secure class certification effectively will

have already obtained classwide evidence and established every class member’s injury, and will have little

incentive to settle for less than 100 cents on the dollar.

And defendants who defeat class certification on

Article III grounds, or are able narrow a proposed class

definition, will have narrowed a potential classwide

settlement or judgment without having proved anything

on the merits or securing the benefits of res judicata.

Petitioner’s rule will increase the expense of pre-certification proceedings, and will likely result in pyrrhic

victories because potential class members can simply

file separate actions in federal court or choose to proceed in state court.

B. Defendants Will Be Tempted and

Encouraged to Manipulate, Conceal, or

Destroy Class Member Records.

Requiring plaintiffs to affirmatively prove at the

class certification stage that every potential class

member has actually suffered an Article III injury will

tempt and encourage defendants to engage in discovery

manipulation and misconduct.

One temptation will be to commit record-keeping

violations to try to avoid what defendants perceive as

a greater risk: class certification. This is already a

common practice. See, e.g., Tyson Foods, 577 U.S. at

450, 456 (employer breached record-keeping obligations

by not keeping accurate time records); Cordoba v.

DIRECTV, LLC, 942 F.3d 1259, 1271-72 (11th Cir.

2019) (company breached record-keeping obligations

23

by failing to keep do-not-call opt-out records). Defendants, including Amici’s employer, will be even more

likely to commit and try to exploit record-keeping

violations as a way to avoid class certification and a

classwide damages award.

Another temptation will be to conceal and withhold

potential class members’ records. Harper v. Charter

Commc’ns, LLC, 2021 WL 1783535, at *16 (E.D. Cal.

May 5, 2021) (employer repeatedly violated pre-certification class discovery stipulations and orders); Harper

v. Charter Commc’ns, LLC, 2021 WL 12190372, at *2

(E.D. Cal. Aug. 30, 2021) (modest monetary sanctions

of $13,333). Defendants will be more likely to risk

discovery sanctions knowing that the potential benefits

of concealing or withholding class member records

(thwarting class certification on Article III grounds)

outweigh the likely consequences (modest monetary

sanctions).

A third temptation will be to delete or destroy

potential class members’ records. Harper v. Charter

Commc’ns, LLC, 2024 WL 689593, at *19-20 (E.D.

Cal. Feb. 20, 2024) (employer deleted and destroyed

thousands of class member training schedules, training

checklists, and video recordings of training sessions).

Defendants will be incentivized to disregard preservation obligations and create gaps in classwide evidence

to try to frustrate plaintiffs’ ability to prove at the class

certification stage that each potential class member

suffered an injury. From defendants’ perspective, the

potential benefits of such conduct will outweigh the

likely consequences.

24

C. Defendants Will Be Incentivized to

Solicit More Unreliable “Happy Camper”

Declarations

Defendants and their counsel already conduct

pre-certification declaration “blitzes” to try to get

potential class members to disclaim their injuries. See

Sjoblom v. Charter Commc’ns, LLC, 2007 WL 5314916,

at *3 (W.D. Wis. Dec. 26, 2007) (striking 62 declarations solicited in defendant’s “blitz campaign of affidavit gathering”); Longcrier v. HL-A Co., 595 F.Supp.2d

1218, 1230 (S.D. Ala. 2008) (striking 245 declarations

solicited in defendant’s “declaration-gathering campaign”). These blitzes are an “attempt to pick off the

occasional class member” to try to spoil plaintiffs’ efforts

to satisfy commonality, typicality, and predominance.

Halliburton, 573 U.S. at 276.

The declaration blitz tactic is rarely successful in

defeating class certification under Rule 23. Id. This is

because happy camper declarations are notoriously

unreliable. Nash v. Horizon Freight Systems, Inc., 2020

WL 7640878, at *1-2 (N.D. Cal. Dec. 23, 2020) (“Many

courts have expressed skepticism about the use of

these ‘happy camper’ declarations to defeat a motion

for class certification in wage and hour cases” because

they “are submitted by companies with potentially

significant influence over the workers who sign them,

. . . [and] a further concern that the declarants are

relying on incomplete, or even false, information.”);

Avilez v. Pinkerton Gov’t Servs., 286 F.R.D. 450, 45859 (C.D. Cal. Oct. 9, 2012) (“An employee has every

incentive to answer ‘yes’ when her employer’s attorney

asks if she likes her employer’s current practices . . .

[and] [t]he incentives to answer untruthfully are even

more skewed where, as here, the employer’s question

25

concerns a practice currently being litigated in a

putative class action as an illegal practice.”) (emphasis

in original). They often are the result of coercion, misinformation, or both, and they often are pre-written

by defense counsel and signed in their presence. Many

alleged happy campers late recant their declarations

or have their statements refuted by objective evidence

obtained through additional discovery.

A new rule that requires courts to police potential

class member injuries at the class certification stage,

and to preemptively exclude any potential member

who has not affirmatively proved an injury, will

supercharge this pick-off tactic and encourage more

declaration blitzes. Defendants and their counsel will

round up as many alleged “happy campers” as possible

and get them to disclaim their injuries. The new goal

will be to use happy camper declarations to support

the argument that a class has uninjured potential class

members, and to defeat class certification on Article

III grounds instead of Rule 23 grounds.

In Amici’s case, their employer summoned several

dozen current employees to its corporate offices during

work hours and obtained declarations from the employees without showing them the complaint or any relevant

documents. The pre-written declarations stated that

the employees were not injured by the challenged

employment practices. The declarations were filed in

opposition to class certification, and their employer

argued that the declarations prove that the class has

some members who never suffered an injury. Additional discovery obtained later in the proceedings

refuted many of the statements, yet their employer

continues to rely on these happy camper declarations

as purported “proof” of uninjured class members.

26

Requiring plaintiffs to affirmatively prove at the

class certification stage that every potential class

member—or all but a “de minimis” number of potential

class members—has actually suffered an injury will

incentivize even more declaration blitzes that result

in even more unreliable happy camper declarations.

This will create even more pre-certification class

discovery disputes.

III. COMPLAINTS OF IN TERROREM SETTLEMENTS AND

EXTORTION ARE UNSUPPORTED

Petitioner and its amici emphasize the “supposed

in terrorem effect of class actions,” but their opinions

on these matters “are supported by highly inconclusive,

or no, empirical evidence.” Blackie v. Barrack, 524

F.2d 891, 899-900 (9th Cir. 1975). Their opinions are

“founded on speculation, primarily dictated by the

writer’s personal experience and feelings.” Id. In fact,

“a relatively high proportion of class actions are not

settled, but disposed of in defendant’s favor on preliminary motions.” Id. (noting “the class action was not a

particularly effective vehicle for coercing settlements”);

2023 Carlton Fields Class Action Survey, at 16

(“Bet-the-company matters are becoming rare in class

actions”), available at www.carltonfields.com/insights/

class-action-survey, last visited March 28, 2025.

Most defendants file motions to dismiss or early

motions for summary judgment to cut-down class

actions with weak or meritless claims. 2024 Carlton

Fields Class Action Survey, at 29, available at www.

carltonfields.com/insights/class-action-survey, last

visited March 28, 2025. Many use arbitration agreements and class waivers to avoid class actions. Id. at

30. Nearly half of all class actions that are not compelled to arbitration are dismissed or settled on an

27

individual basis. Id. at 26-27. And most class settlements use a “claims-made” process and require class

members to provide some proof of injury before they

recover individual damages. Id. at 28.

Class certification does not force or coerce

defendants to settle class claims. Defendants enter

into settlements for any number of reasons, class action

or not. They may think discovery is too expensive. They

may think courts are too permissive. They may want

to avoid the distraction of litigation. They may underestimate the strength of their defenses. They may

want to avoid the publicity of a trial or judgment. They

may want to avoid creating adverse judicial precedent.

Their counsel may be skilled at research and briefing but

unskilled in trial. For every defendant that believes it

overpaid in a class settlement, there is a plaintiff who

believes the defendant paid too little. The only way to

conclusively determine who is right is for the parties

to actually try the case and exhaust their rights of

appeal. Even then one side will believe the courts and/or

the jury reached the wrong result. TransUnion is a

good example of such a case.

28

The notion that class settlements are inflated or

artificially swelled with uninjured class members is

unsupported. Article III already prevents courts from

approving class settlements “if no named plaintiff has

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

Rule 23 imposes numerous procedural safeguards that

take into account the settlement pressures and incentives on both sides while ensuring that the class certified

for settlement purposes still satisfies Rule 23’s requirements for certification. Fed. R. Civ. P. 23(e); Amchem,

521 U.S. at 620 (instructing courts to give Rule 23’s

requirements “attention in the settlement context”).

Petitioner does not point to any examples of certified

classes with members who could not have suffered the

alleged injury. To the extent it is a real problem, Amici’s

rule solves it.

In truth, defendants often negotiate class settlements that result in huge discounts from their maximum

potential exposure, and plaintiffs and their counsel

often are criticized for accepting too little. See In re

Facebook, Inc. Internet Tracking Litig., 2024 WL 700985,

at *1 (9th Cir. Feb. 21, 2024) (rejecting $1.24 trillion as

an unreasonable statutory damages exposure baseline

and approving $90 million class settlement that represented 10% of an estimated “best-day-in-court” verdict

and 0.007% of maximum potential exposure); In re

Patriot Nat’l, Inc. Sec. Litig., 828 F. App’x 760, 762

(2d Cir. 2020) (6.1% of maximum potential damages);

Voulgaris v. Array Biopharma, Inc., 60 F.4th 1259, 1264

(10th Cir. 2023) (noting the average class settlement

is less than 10% of the maximum potential recovery).

29

In this case, Petitioner suggests its maximum

potential exposure is nearly half-a-billion dollars. This

exaggerated amount is more than 12 times what Respondents’ expert’s actual estimates, which are around

8,861 potential class members and around $35,444,000

in statutory damages per year. JA246. Ultimately, the

total of any statutory damages award would present a

potential due process issue, not a Rule 23 issue or an

Article III issue. Wakefield v. ViSalus, Inc., 51 F.4th

1109, 1120-23 (9th Cir. 2022). The availability of a

claims-made process—either during the damages

phase of the litigation or in connection with a class

settlement—substantially mitigates the risk that any

allegedly uninjured class members would recover

individual damages.

At bottom, the concept of “in terrorem” settlement

pressure and extortion settlements stems from the

unsupported idea that too many district courts and

juries get it wrong, and too many appellate courts do

not correct all of the alleged errors. But the risk of

error runs both ways.4 Both sides often believe they

got the short end of the stick, even when they reach a

class settlement.

4 When the Court noted the “risk of ‘in terrorem’ settlements,” it

was observing that a defendant had determined that “the risk of

an error” in a class arbitration was “unacceptable” because the

parties had bargained away the procedural rigor and appellate

review of the judicial system in favor of speedy and informal individual arbitrations. AT&T Mobility LLC v. Concepcion, 563 U.S.

333, 350 (2011). The risk of error is very different when class certification orders, trials, and judgments are subject to judicial

review and precedent.

30

CONCLUSION

At the class certification stage, courts should

examine Article III questions the same way they

examine every other question: through the lens and

subject to the requirements of Rule 23. The Court

should reject Petitioner’s proposed rule and hold that

Article III does not impose an additional or different

evidentiary burden on plaintiffs than Rule 23.

Respectfully submitted,

Jamin S. Soderstrom

Counsel of Record

SODERSTROM LAW PC

1 Park Plaza, Suite 600

Irvine, CA 92614

(949) 667-4700

jamin@soderstromlawfirm.com

Counsel for Amici Curiae

April 7, 2025