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

Supreme Court briefApr 21, 2025

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No. 24-304

IN THE

Supreme Court of the United States

LABORATORY CORPORATION OF AMERICA HOLDINGS,

D/B/A LABCORP,

Petitioner,

LUKE DAVIS, JULIAN VARGAS, AND AMERICAN

COUNCIL OF THE BLIND, INDIVIDUALLY AND ON

BEHALF OF ALL OTHERS SIMILARLY SITUATED,

Respondents.

On Writ Of Certiorari To The United States

Court Of Appeals For The Ninth Circuit

REPLY BRIEF FOR PETITIONER

Noel J. Francisco

Counsel of Record

Brinton Lucas

Madeline W. Clark

David Wreesman

JONES DAY

51 Louisiana Ave., NW

Washington, DC 20001

(202) 879-3939

njfrancisco@jonesday.com

Counsel for Petitioner

TABLE OF CONTENTS

Page

INTRODUCTION ....................................................... 1

ARGUMENT .............................................................. 2

PLAINTIFFS CANNOT RUN FROM

ARTICLE III ....................................................... 2

Article III is relevant at

certification. .......................................... 3

Article III bars certifying a

damages class containing

uninjured members. .............................. 4

Article III prevents certification

here. ..................................................... 12

II.

PLAINTIFFS CANNOT HIDE FROM

RULE 23 .......................................................... 12

III.

PLAINTIFFS CANNOT EVADE THE

QUESTION PRESENTED .................................... 18

CONCLUSION ......................................................... 23

TABLE OF AUTHORITIES

Page(s)

CASES

Amchem Products, Inc. v. Windsor,

521 U.S. 591 (1997) ...................................... 4, 9, 16

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

Funds,

568 U.S. 455 (2013) ............................................ 1, 7

Califano v. Yamasaki,

442 U.S. 682 (1979) .............................................. 11

Comcast Corp. v. Behrend,

569 U.S. 27 (2013) ................................................ 17

Devlin v. Scardelletti,

536 U.S. 1 (2002) .................................................... 5

Gen. Bldg. Contractors Ass’n, Inc. v.

Pennsylvania,

458 U.S. 375 (1982) .............................................. 10

Grupo Mexicano de Desarrollo S.A. v.

All. Bond Fund, Inc.,

527 U.S. 308 (1999) ................................................ 9

Halliburton Co. v. Erica P. John Fund,

Inc.,

573 U.S. 258 (2014) .................................. 10, 14–16

iii

In re Asacol Antitrust Litig.,

907 F.3d 42 (1st Cir. 2018) ............................ 13, 14

In re Rail Freight Fuel Surcharge

Antitrust Litig.,

934 F.3d 619 (D.C. Cir. 2019) ........................ 13, 14

Lebron v. Nat’l R.R. Passenger Corp.,

513 U.S. 374 (1995) .............................................. 21

Ne. Fla. Chapter of Associated Gen.

Contractors v. City of Jacksonville,

508 U.S. 656 (1993) .............................................. 20

New Hampshire v. Maine,

532 U.S. 742 (2001) .............................................. 19

Ortiz v. Fibreboard Corp.,

527 U.S. 815 (1999) ........................................ 4, 8, 9

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

Allstate Ins. Co.,

559 U.S. 393 (2010) ................................................ 5

Smith v. Bayer Corp.,

564 U.S. 299 (2011) ............................................ 3, 5

Steel Co. v. Citizens for a Better Env’t,

523 U.S. 83 (1998) ................................................ 14

Stewart v. Dunham,

115 U.S. 61 (1885) .............................................. 8, 9

Town of Chester v. Laroe Ests., Inc.,

581 U.S. 433 (2017) ............................................ 3, 6

TransUnion LLC v. Ramirez,

594 U.S. 413 (2021) ........................ 2, 10, 11, 14, 16

Tyson Foods, Inc. v. Bouaphakeo,

577 U.S. 442 (2016) .................................. 10, 15, 16

U.S. ex rel. Eisenstein v. City of New

York,

556 U.S. 928 (2009) ............................................ 3, 6

United States v. Sanchez-Gomez,

584 U.S. 381 (2018) ............................................ 5, 6

United States v. Williams,

504 U.S. 36 (1992) ................................................ 21

Va. House of Delegates v. Bethune-Hill,

587 U.S. 658 (2019) .............................................. 21

Waetzig v. Halliburton Energy Servs.,

Inc.,

145 S. Ct. 690 (2025) .............................................. 3

Wal-Mart Stores, Inc. v. Dukes,

564 U.S. 338 (2011) ........................................ 10, 16

Walker v. Life Ins. Co.,

953 F.3d 624 (9th Cir. 2020) ................................ 20

Wolff v. Aetna Life Ins. Co.,

77 F.4th 164 (3d Cir. 2023) .................................. 20

Zahn v. Int’l Paper Co.,

414 U.S. 291 (1973) .......................................... 5, 11

OTHER AUTHORITIES

Robert G. Bone, Personal and

Impersonal Litigative Forms:

Reconceiving the History of

Adjudicative Representation,

70 B.U. L. REV. 213 (1990) ..................................... 8

JOSEPH STORY, COMMENTARIES ON

EQUITY PLEADINGS § 120 (1838) ............................ 8

INTRODUCTION

This Court typically begins its analysis with Article

III. Plaintiffs end with it. That is a tell, for they cannot

explain how the Constitution permits an uninjured

class member to pursue individual damages yet

prohibits him from collecting them.

To square that circle, plaintiffs slice class actions

into “two phases”—“litigation” and “relief”—and insist

unnamed members need only show standing in the

second. Resp. 31. But that makes no sense. After all,

as this Court has explained, if the class loses on the

merits, unnamed members are forever bound by that

judgment. Amgen Inc. v. Conn. Ret. Plans & Tr.

Funds, 568 U.S. 455, 470 n.5 (2013). There is no later

“relief” stage where a court sorts out which ones

lacked standing at the outset. It necessarily follows

that they all must have standing to press their claims

in the first place. Otherwise, unnamed members could

escape the preclusive effect of a merits loss by arguing

they lacked standing from the start. Plaintiffs’

position therefore assumes they either always win or,

more likely, that certification coerces a settlement

before standing is addressed. That is clearly incorrect.

Even if plaintiffs could cure this constitutional

defect, they still could not satisfy Rule 23. Plaintiffs

offer no defense of the Ninth Circuit’s categorical rule

that Article III injury is a trifle to be sorted out at the

back end. Instead, they urge a case-by-case approach

to determining whether culling the uninjured will

overwhelm other questions. But they identify no

mechanism to do so that is rigorous enough to protect

a defendant’s rights yet cursory enough to avoid

thousands of mini-trials. Still less do they explain how

to thread that needle here, where Labcorp is entitled

to test whether each class member—potentially

112,140 of them—even wanted to use its kiosks before

a court can award relief.

With little defense on the merits, plaintiffs try to

stave off review entirely, urging this Court to dismiss

the case. But no new vehicle problem has surfaced in

the three months since the Court granted review.

Instead, the only thing that has changed between now

and then is plaintiffs’ account of the procedural

history. Until their merits brief, they conceded the

district court’s “refinement” of the class definition was

an immaterial tweak that left the class “identical in

every way” to the one certified. D. Ct. Dkt. 107-1 at 3.

And the district court agreed. The problem of

uninjured members in this class therefore persists no

matter what definition is used, which is why the court

of appeals resolved the issue in reviewing the original

certification order. Having secured an answer to the

question presented from the Ninth Circuit, plaintiffs

cannot change their story to avoid one from this Court.

ARGUMENT

PLAINTIFFS CANNOT RUN FROM ARTICLE III.

Plaintiffs admit “[e]very class member must have

Article III standing in order to recover individual

damages.” Resp. 20 (quoting TransUnion LLC v.

Ramirez, 594 U.S. 413, 431 (2021)). They nevertheless

insist class-member standing is “irrelevant” until it

comes time “to order relief.” Resp. 31. But Article III

does not work that way in any other context, and there

is no class-action exception to the Constitution.

A. Article III is relevant at certification.

1. In claiming the Constitution may be ignored at

certification, plaintiffs start by attacking a strawman,

noting (Resp. 33) that unnamed class members are

not parties to, and their claims not part of, the case

“‘before the class is certified’” (or if certification is

denied). Smith v. Bayer Corp., 564 U.S. 299, 313

(2011). No one says otherwise. Nor does anybody

maintain that the presence of an uninjured member

“strip[s] the court of jurisdiction.” Resp. 41.

But those are not the questions here. A would-be

intervenor is likewise not a party to, and his claims

not part of, the case before intervention. U.S. ex rel.

Eisenstein v. City of New York, 556 U.S. 928, 933

(2009). And even if an intervenor lacked standing, his

presence would not destroy the court’s jurisdiction

over the rest of the case. But neither point eliminates

his duty to show “standing in order to intervene.”

Town of Chester v. Laroe Ests., Inc., 581 U.S. 433, 442

(2017). That is because intervention, like certification,

can add new parties and claims and hence involves

the exercise of judicial power. Pet. Br. 17-20, 31; U.S.

Br. 11-13. A court therefore must consider Article III

before taking that step. Laroe, 581 U.S. at 441.

2. None of plaintiffs’ cases suggest otherwise.

Waetzig v. Halliburton Energy Services, Inc., 145

S. Ct. 690 (2025), reasoned that whether a party could

reopen his case under Rule 60(b) had no bearing on

whether the district court would have jurisdiction to

vacate an arbitral award after reopening. Id. at 696.

Here, however, the Rule 23 certification motion itself

raises the “jurisdictional questions,” just as the Rule

24 intervention motion did in Laroe. Id.

As for Amchem Products, Inc. v. Windsor, 521 U.S.

591 (1997), and Ortiz v. Fibreboard Corp., 527 U.S.

815 (1999), those decisions only prove Labcorp’s point.

In each, this Court rejected certification to avoid the

Article III problems certification would cause. Faced

with the risk that the classes included those without

“standing to sue,” the Court observed that the

constitutional issue “‘would not exist but for”

certification and held certification improper for other

reasons. Amchem, 521 U.S. at 612; see Ortiz, 527 U.S.

at 831. If, as plaintiffs contend, the presence of the

uninjured posed no “jurisdictional problem at

certification,” there would have been no Article III

issue for this Court to avoid. Resp. 31. Plaintiffs

cannot read these cases to both call for “constitutional

avoidance” and prove there is no constitutional issue

to begin with. Resp. 19-20. 1

B. Article III bars certifying a damages

class containing uninjured members.

1. With that distraction gone, plaintiffs do not deny

that if unnamed class members are akin to

intervenors, they must have standing to add damages

claims to the case through certification. Resp. 34-37.

Instead, plaintiffs resist the analogy on the

assumption that unnamed members of a certified

class are not “‘parties.’” Resp. 35. The premise is

incorrect and, regardless, the conclusion does not

follow.

At any rate, constitutional avoidance gets plaintiffs

nowhere, for even if they win on Rule 23, but see infra Pt. II, this

Court must still resolve the Article III issue. Unlike Labcorp,

plaintiffs must prevail on both issues for this class to proceed.

a. As to the premise, plaintiffs invoke (Resp. 35)

dicta stating that “unnamed members of a class

action … are not parties to the suit.” Smith, 564 U.S.

at 314. But they overlook that “[n]onnamed class

members … may be parties for some purposes and not

for others.” Devlin v. Scardelletti, 536 U.S. 1, 9-10

(2002); see United States v. Sanchez-Gomez, 584 U.S.

381, 387 (2018) (unnamed members are “parties to the

litigation in many important respects”). The question

therefore is whether unnamed members are “parties”

insofar as they must satisfy Article III at certification.

They are. A class action is a species of “traditional

joinder” that merely “allows willing plaintiffs to join

their separate claims against the same defendants” in

a single action. Shady Grove Orthopedic Assocs., P.A.

v. Allstate Ins. Co., 559 U.S. 393, 408 (2010)

(plurality); see Rubenstein & Miller Br. 2, 7. That is

why Rule 23 complies with the Rules Enabling Act—

“it leaves the parties’ legal rights and duties intact.”

Shady Grove, 559 U.S. at 408. To ensure that remains

true, courts can certify classes only where “[e]ach”

member could have brought “a freestanding suit

asserting his individual claim.” Id. No one denies that

if an unharmed member tried to bring his own suit,

Article III would require dismissal at the outset. Yet

plaintiffs’ theory would let the same person pursue

the same claim as part of a class without having to

show “standing” until it comes time “to recover.” Resp.

38. That cannot be right, as confirmed by plaintiffs’

silence on this Rules Enabling Act problem. Pet. Br.

20-22; see Zahn v. Int’l Paper Co., 414 U.S. 291, 300

n.9 (1973) (declining to “exempt[]” “unnamed

members” from “jurisdictional-amount requirement”

applicable to “named plaintiffs joining in an action”).

b. In any event, even if certification does not make

unnamed class members parties, it plainly adds their

claims—a point plaintiffs do not seriously dispute.

Pet. Br. 19-20; see Resp. 32 (asserting only that an

unnamed member’s “claim will not even arguably be

a part of the case until a class is certified”) (emphasis

added). That is why “when the claim of the named

plaintiff becomes moot after class certification,” “a

‘live controversy may continue to exist’ based on the

ongoing interests of the remaining unnamed class

members.” Sanchez-Gomez, 584 U.S. at 388.

The addition of claims, not parties, is the key

consideration under Article III, as Laroe confirms.

There, this Court did not hold that a would-be

intervenor must show standing just because he seeks

“to ‘become a party.’” Resp. 35. Indeed, if party status

were the only basis for the Court’s decision, it would

have required all intervenors to satisfy Article III, as

“intervention” is simply “the legal procedure by which

a third party” can “become a party.” Eisenstein, 556

U.S. at 933 (cleaned up). Instead, Laroe held that an

intervenor must satisfy “Article III if the intervenor

wishes to pursue relief not requested by a plaintiff.”

581 U.S. at 435. And it did so because “[f]or all relief

sought, there must be a litigant with standing,” as a

“‘case or controversy as to one claim does not extend

the judicial power to different claims or forms of

relief.’” Id. at 439 & n.3. Yet under plaintiffs’ theory,

certification would let courts adjudicate the separate

claims of those who lack Article III standing. That

cannot be squared with the Constitution.

In an attempt to obscure this problem, plaintiffs

divide class actions into “two phases”—“litigation”

and “relief”—and insist a court acts on unnamed

members’ “individual claims” only at phase two. Resp.

31, 36. But that convoluted theory assumes the class

always wins at phase one. If the class loses at that

point, the ruling “resolves all class members’ claims

once and for all, leaving no individual issues to be

adjudicated.” Amgen, 568 U.S. at 470 n.5. Courts do

not then conduct an artificial “relief” analysis where

they determine which unnamed members are bound

by the merits judgment; instead, they all are. And

that is so only because the court had jurisdiction over

all of them in the first place. Otherwise, unnamed

members could escape preclusion by showing they

lacked standing. Plaintiffs make no effort to defend

this cart-before-the-horse exercise, which confirms

courts must have jurisdiction before they adjudicate

the merits of unnamed members’ claims.

Plaintiffs blow past all this because they know class

actions rarely go to trial, as certification “typically”

coerces a settlement. Resp. 31. But that only

underscores why class-member standing must be

resolved at certification, before the court tackles the

merits. Only that approach will ensure courts do not

end up wielding the judicial power on behalf of those

who have no business invoking it. Pet. Br. 30-31.

2. Plaintiffs fare no better in invoking the history

of “representative actions” to shore up their view of

Article III. Resp. 39. In their telling, traditional

representative suits followed a two-phase approach:

(1) the court would first resolve the representative’s

“class claim,” and (2) absentees would then come to

court to recover. Id. But whether these historical cases

generally proceeded in two phases is beside the point,

for at no stage was the representative pursuing a

claim on behalf of the uninjured.

Instead, in each of plaintiffs’ examples, all

absentees suffered an injury-in-fact. Indeed, that was

the entire justification for representative suits. Under

“the necessary parties rule in equity,” litigants had to

join to a suit “‘all persons materially interested’”—by

definition persons with standing. Ortiz, 527 U.S. at

832. “But because that rule would at times unfairly

deny recovery to the party before the court,” id., equity

developed the representative suit to account for the

“rights and duties” of “necessary parties” without

requiring their formal joinder, Robert G. Bone,

Personal

and

Impersonal

Litigative

Forms:

Reconceiving

the

History

Adjudicative

Representation, 70 B.U. L. REV. 213, 243-44 (1990).

That is all plaintiffs’ cases show: the creation of a

procedural device that allowed courts to craft relief for

all whose legal rights were implicated by a suit. Id. at

245, 248; see JOSEPH STORY, COMMENTARIES ON

EQUITY PLEADINGS § 120 (1838) (“[I]n all of them there

always exists a common interest or a common right”);

Chamber Br. 18-20; U.S. Br. 16-17. None stand for the

startling proposition that courts can resolve the

claims of parties over whom they lack Article III

jurisdiction. That rule would make no sense, as those

persons would not share the requisite “common

interest” that would allow them to take advantage of

the representative suit to begin with. Bone, supra, at

245. History therefore provides no basis for plaintiffs’

two-phase approach to class-member standing.

Plaintiffs nevertheless clutch at Stewart v.

Dunham, 115 U.S. 61 (1885), to contend that issues of

“class-member standing” arising at phase two would

“not deprive the court of its ‘jurisdiction’” at phase one.

Resp. 41. But Stewart just used principles of ancillary

jurisdiction to permit the consideration of claims by

parties whose appearance would have destroyed

complete diversity under the jurisdictional statute.

115 U.S. at 63-64. It created no representative-action

exception to the Constitution: the representative and

the absentees there had all suffered an injury-in-fact

and the constitutional requirement of minimal

diversity was satisfied. Id. at 62-63. Indeed, had

Stewart created such an exception to the Constitution,

it would clash with precedents holding that Article III

is not relaxed in the class-action context. Pet. Br. 18.

In short, plaintiffs’ tour through history cannot

justify the certification of a class that sweeps in

plaintiffs and claims over which courts lack Article III

jurisdiction. And regardless, plaintiffs’ cases are the

“antecedents of the mandatory class action” in Rule

23(b)(1)(B), Ortiz, 527 U.S. at 841, not the damages

class action in Rule 23(b)(3). Unlike in the historical

representative cases and Rule 23(b)(1)(B) actions,

plaintiffs in a Rule 23(b)(3) class do not share a

“common interest”—each can bring his own claim

without affecting the others’ rights. That is why this

Court has described Rule 23(b)(3) as an

“‘adventuresome’ innovation” that, for the first time,

allowed “class actions for damages designed to secure

judgments binding all class members” who did not opt

out. Amchem, 521 U.S. at 614. Plaintiffs thus cannot

claim the equitable jurisdiction of the federal courts

at “‘the adoption of the Constitution’” would have

extended to damages class actions that contained

uninjured individuals, and accordingly cannot justify

allowing those suits today. Grupo Mexicano de

Desarrollo S.A. v. All. Bond Fund, Inc., 527 U.S. 308,

318 (1999); see Chamber Br. 14-25; U.S. Br. 16-17.

3. Plaintiffs likewise come up short on precedent.

Contrary to their suggestion (Resp. 41-43), Tyson

Foods, Inc. v. Bouaphakeo, 577 U.S. 442 (2016), did

not implicitly resolve the question presented here.

Instead, the issue of uninjured class members in that

case came to light only after the jury’s verdict, and the

Court explicitly declined to confront “whether a class

may be certified if it contains ‘members who were not

injured’” because the petitioner had “abandon[ed]”

that argument. Id. at 460; see id. at 460-61; id. at 46366 (Roberts, C.J., concurring). Indeed, had Tyson

Foods resolved that question, there would have been

no need for TransUnion to continue to reserve it. 594

U.S. at 431 n.4.

Plaintiffs’ other cases are even farther afield.

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

258 (2014), had no occasion to address the existence of

a “jurisdictional barrier to certification” because it

had nothing to do with jurisdiction. Resp. 43. Rather,

it discussed the possibility of “individualized rebuttal”

to Basic’s “presumption of reliance,” 573 U.S. at 276—

a substantive “merits question” rather than a

threshold issue of Article III standing. Wal-Mart

Stores, Inc. v. Dukes, 564 U.S. 338, 351 n.6 (2011). And

in General Building Contractors Association, Inc. v.

Pennsylvania, 458 U.S. 375 (1982), the Court just

explained that because its “judgment has removed the

basis for” a litigant’s claim for “relief different from

that sought by plaintiffs,” it had no need to address

that party’s “standing” until the situation changed. Id.

at 402 n.22.

While grasping at these straws, plaintiffs ignore

precedents establishing that it is only “where the

district court has jurisdiction over the claims of the

members of the class” that it “has the discretion under

[Rule] 23 to certify a class action for the litigation of

those claims.” Califano v. Yamasaki, 442 U.S. 682,

701 (1979); see Zahn, 414 U.S. at 300-01; Pet. Br. 21;

U.S. Br. 18-19. Plaintiffs’ silence here speaks volumes.

4. That leaves plaintiffs to appeal to policy,

warning that Labcorp’s approach would produce

“chaos.” Resp. 43. But as Labcorp explained, and as

plaintiffs never refute, requiring parties to define

classes to exclude the uninjured would hardly

“eviscerate the operation of the class device.” Resp. 44;

see Pet. Br. 24-26; U.S. Br. 20. Nor do plaintiffs

address the continued existence of class actions in the

circuits that use this rule (the Second and Eighth),

confirming it is not a “novel” one. Resp. 14; see Pet. Br.

25-26.

Plaintiffs are even less persuasive in contending

that following the Constitution at certification would

“make it harder for defendants to settle.” Resp. 45.

Article III cannot be distorted to benefit plaintiffs or

defendants, Pet. Br. 27, and regardless, those most

likely to be class-action defendants side with Labcorp,

see, e.g., Chamber Br. 1-2, 25-28. That should come as

no surprise: Allowing plaintiffs to lard up classes with

the uninjured serves only to coerce settlements. Pet.

Br. 32-36. While plaintiffs claim (Resp. 29-30)

TransUnion solves the problem, they ignore that the

bar on recovery by uninjured members ordinarily does

nothing to reduce the defendant’s bottom line. Pet. Br.

34-35. Certification therefore remains the ballgame—

hence why plaintiffs and their amici are fighting so

hard to confine TransUnion to the end of the case.

C. Article III prevents certification here.

Plaintiffs also have no way around the fact that

their class includes members without standing, such

as those who had no interest in using the kiosks. Pet.

Br. 22-23. They do not deny their class consists of

thousands of blind patients who happened to walk

into a Labcorp location with a kiosk; they just quibble

over the exact number. Resp. 10-11, 30 n.4. But their

own expert estimated the class to range between 8,861

to 112,140 people in a given year, JA.253, and

plaintiffs offer no support for the remarkable

suggestion that all of them—whatever the total—

uniformly desired to use the kiosks, Resp. 9.

Instead, plaintiffs dismiss patient “preferences” as

“irrelevant” because the blind cannot use the kiosks

without assistance. Resp. 10. But a blind person who

does not want to use a kiosk (with or without

assistance) does not have standing to challenge how

kiosks work—any more than a vegan has standing to

challenge how a restaurant defines a “medium rare”

steak. Pet. Br. 22-23; U.S. Br. 26.

II. PLAINTIFFS CANNOT HIDE FROM RULE 23.

A. Plaintiffs are equally unpersuasive when it

comes to Rule 23. Their various debater’s points

cannot obscure the basic problem with their theory:

Unless a class definition excludes the uninjured, the

court will have to determine whether each member

has standing before adjudicating the merits of their

claims. And unless the court can weed out the

unharmed on a class-wide basis while still protecting

the defendant’s rights, questions of standing will

inevitably overwhelm other issues. It is therefore hard

to see how any class with an appreciable number of

uninjured members could satisfy Rule 23(b)(3). Pet.

Br. 39-43. 2

Rather than confront this problem, plaintiffs accuse

Labcorp of “‘counting noses.’” Resp. 25. But the de

minimis rule does not assign talismanic significance

to “the number of uninjured class members.” Id.

Rather, the presence of an appreciable number of the

unharmed is just a proxy for whether a court will be

able to “manageably remove uninjured persons from

the class in a manner that protects the parties’

rights.” In re Asacol Antitrust Litig., 907 F.3d 42, 54

(1st Cir. 2018); see Pet. Br. 42-43, 47. The parties

therefore agree that the real question is whether the

unharmed can be cut through a “winnowing

mechanism … truncated enough to ensure that the

common issues predominate, yet robust enough to

preserve the defendants’ Seventh Amendment and

due process rights.” In re Rail Freight Fuel Surcharge

Antitrust Litig., 934 F.3d 619, 625 (D.C. Cir. 2019)

(Katsas, J.) (Rail Freight II); see Asacol, 907 F.3d at

51-54 (same); Resp. 28.

Where they part ways is whether that mechanism

will be available. While plaintiffs claim there are ways

to “identify” the uninjured, they never point to one

that would sufficiently protect a defendant’s rights.

Resp. 26; see Pet. Br. 40-41. For instance, they suggest

“class-member affidavits” will do the trick, Resp. 26,

but if a defendant sought “to challenge any affidavits

that might be gathered,” they would “be inadmissible

2 Contrary to plaintiffs’ assertion, this is not a “novel” rule.

Resp. 24. While plaintiffs fault Labcorp for using “appreciable

number” and “de minimis” as interchangeable terms, that only

shows they prefer Latin over English. E.g., Pet. Br. 14, 39.

hearsay at trial, leaving a fatal gap in the evidence for

all but the few class members who testify,” Asacol, 907

F.3d at 52-53; see Rail Freight II, 934 F.3d at 625

(similar). So even if it were correct to treat Article III

like any other question (it is not), the presence of an

appreciable number of uninjured members will cause

individual issues to swamp the case. See, e.g.,

Halliburton, 573 U.S. at 281-82 (If “[e]ach plaintiff” in

a securities-fraud action had to “prove reliance

individually,”

“common

issues

would

not

‘predominate’”).

B. In any event, questions of class-member

standing are different in kind from other issues in the

predominance inquiry. Pet. Br. 46; U.S. Br. 10-11.

Because “standing” is a “threshold question” going to

the court’s “power,” it must be considered even when

“‘the parties make no contention concerning it.’” Steel

Co. v. Citizens for a Better Env’t, 523 U.S. 83, 88-89,

95 (1998). And to avoid issuing an advisory opinion,

the court must resolve whether “[e]very class

member … ha[s] Article III standing,” TransUnion,

594 U.S. at 431, before “the merits,” so this critical

question cannot be deferred, Rail Freight II, 934 F.3d

at 624. Given all that, it is difficult to see how any

common question could possibly predominate over

individualized Article III inquiries. Labcorp therefore

agrees that “‘predominance is a qualitative rather

than a quantitative concept,’” and no issue is more

qualitatively important than whether a court has

Article III jurisdiction to adjudicate each class

member’s claims. Resp. 25. 3

Plaintiffs barely confront any of this. Instead, they

contend that “all kinds of individualized questions”

must receive “the same” treatment because Rule

23(b)(3) requires common questions to predominate

over “‘any’” individual issues. Resp. 21-22. But that

misses the point. While the meaning of Rule 23(b)(3)

remains the same in all cases, its application will

depend on the type of individualized question at issue.

For instance, this Court’s rule that individualized

“reliance” questions in securities-fraud cases will

inevitably defeat predominance simply recognizes

how resolving this kind of question will play out in

practice. Halliburton, 573 U.S. at 281-82. Nothing in

Rule 23(b)(3) prohibits this Court from taking a

similar approach with respect to the foundational

question of Article III injury.

Turning to precedent, plaintiffs assert that Tyson

Foods and Halliburton prove the need to filter out the

uninjured will not “invariably defeat” predominance.

Resp. 23. But neither case even addressed Article III

standing, much less resolved the question presented

3 By contrast, the parties do not “agree” that the presence of

the uninjured will only sometimes bar certification “depending

on the circumstances.” Resp. 20. Labcorp has never advanced a

reading of Rule 23(b)(3) that would permit an Article III violation

in just some cases. See supra Pt. I. Rather, its position has always

been that “if” this Court rejects its Article III arguments, Rule

23(b)(3) would still pose an independent bar to certification, and

even then only “might” permit certification of a class with

uninjured members in a few cases, “to the extent they exist.” Pet.

Br. 37, 42. Plaintiffs mistake Labcorp’s fallback argument for an

opening bid.

here. Tyson Foods declined to touch the issue, 577

U.S. at 460, and the securities-fraud class in

Halliburton had alleged a clear pocketbook injury, 573

U.S. at 267. Both cases also relied on a “presumption,”

id. at 265, or “inference,” in favor of all class members,

Tyson Foods, 577 U.S. at 446. Here, by contrast, the

presumption is against jurisdiction, meaning all class

members “bear the burden of demonstrating that they

have standing.” TransUnion, 594 U.S. at 430-31; see

Pet. Br. 42-43. Plaintiffs never address this

distinction, let alone explain how they could overcome

this presumption en masse.

Nor do plaintiffs have a good response to the fact

that Labcorp’s rule follows a fortiori from precedents

holding that even a difference in the kind of injury

among class members defeats certification. Pet. Br.

38-39, 44-46; U.S. Br. 9-10, 23-24. They wave away

Wal-Mart’s holding that even “[c]ommonality requires

the plaintiff to demonstrate that the class members

‘have suffered the same injury,’” 564 U.S. at 349-50,

by asserting that the class there advanced

“heterogeneous legal claims,” Resp. 23. Not so. The

Wal-Mart class members all pressed the same claim—

that their employer violated Title VII “by denying

them equal pay or promotions”—but the allegation

that they “all suffered a violation of the same

provision of law” was not the same as the allegation

that they all “‘suffered the same injury.’” 564 U.S. at

343, 350. And plaintiffs simply ignore Amchem’s

holding that a class of those exposed to asbestos could

not satisfy predominance when only some had

manifested injuries. 521 U.S. at 624. This case is

Amchem in spades. Pet. Br. 39.

Plaintiffs likewise dismiss as a “case-specific

holding” (Resp. 27) the rule that “[q]uestions of

individual damage calculations will inevitably

overwhelm questions common to the class” unless

“damages are capable of measurement on a classwide

basis.” Comcast Corp. v. Behrend, 569 U.S. 27, 34

(2013). But while the dissenters in Comcast shared

plaintiffs’ view that the decision was “good for this day

and case only,” id. at 42, the majority gave no

suggestion that its rule was cabined to the “specific

flaw” in the “damages model” there, Resp. 27. And

even if Comcast could be limited to its facts, plaintiffs

would still be left with the problem that damages

questions go to how much relief is needed to redress a

meritorious claim, whereas questions of class-member

standing go to the court’s power to adjudicate the

merits of that claim in the first place.

C. In all events, this class should never have been

certified. Even under plaintiffs’ test, they did not

prove that there exists an “‘administratively feasible’

‘mechanism for distinguishing the injured from the

uninjured.’” Resp. 26. One will search their brief in

vain for any suggestion as to how a court could

manageably determine how many of the 8,861 to

112,140 class members at least wanted to use the

kiosks while protecting Labcorp’s rights. See Pet. Br.

43-44; supra Pt. I.C.

Instead, plaintiffs ask this Court to ignore this

deficiency because “no court below addressed this

issue.” Resp. 26. But that is precisely the problem. The

Ninth Circuit saw no need to resolve the question

because it applied a brightline rule that “Rule 23

permits ‘certification of a class that potentially

includes more than a de minimis number of uninjured

class members.’” JA.397 n.1. Plaintiffs make no

attempt to defend that approach, instead renouncing

“categorical rules” altogether. Resp. 20. This Court

should therefore reverse the decision below, or at least

vacate it and confirm that Rule 23 requires far more.

III. PLAINTIFFS CANNOT EVADE THE QUESTION

PRESENTED.

Given their weakness on the merits, plaintiffs urge

this Court to toss this case from its docket on the

theory that it does not implicate the question

presented. But they raised the same meritless

objection in opposing certiorari, and it is no more

persuasive this time around.

A. In relitigating the Court’s decision to take the

case, plaintiffs emphasize (Resp. 15-18) that the

district court refined the class definition after Labcorp

filed its Rule 23(f) petition. But they flagged the same

wrinkle in opposing certiorari, and it did not deter this

Court from granting review. See BIO 7 (noting the

district court granted plaintiffs’ “motion to refine the

class definitions” after “Labcorp filed a Rule 23(f)

petition”).

Rightly so. Everyone agrees the original May

certification order—including its class definition—is

“before this Court.” Resp. 15. Everyone also agrees

this Court has jurisdiction unless the district court’s

later refinements to that order rendered “the appeal

moot.” Resp. 17. And that question is easy: those

changes could not have mooted the appeal because, as

the district court explained, its decision to “refin[e] the

class definition” did “not materially alter the

composition of the class or materially change in any

manner” the original certification order. JA.386 n.10.

Indeed, plaintiffs shared that understanding until

they filed their merits brief. In urging the district

court “to slightly refine” the definition “to remove any

potentially fail-safe language,” plaintiffs promised

that the class would remain “identical in every way”

under the new definition. D. Ct. Dkt. 107-1 at 3, 7.

And under either definition, the class included

uninjured members. As the district court explained,

the original definition—which covered all blind

patients who “visited a Labcorp patient service center

in California” and “were denied full and equal

enjoyment” of Labcorp’s services, JA.370—included

any blind patient who was merely “exposed to a

kiosk,” whether or not he had any desire to use it,

JA.358. And plaintiffs agreed. As they told the Ninth

Circuit, the original definition covered “all legally

blind Californians who visited” a Labcorp with a

kiosk. Rule 23(f) Opp. 23 (emphasis added); see C.A.

Ans. Br. 41 (similar). That is why plaintiffs insisted

that all that is needed “to identify[] class members”

under either definition are “records of … patient

visit[s]” and “methods to identify legally blind

patients amongst [those] visits.” C.A. Ans. Br. 47. And

that is why they used the refined definition to describe

the class in opposing this Court’s review. See BIO 12.

It is therefore plaintiffs who seek “to rewrite the

procedural history” by suggesting that the refined

definition was meaningfully “different” all along.

Resp. 16. But having “‘prevail[ed] in one phase’” on the

theory that the refinements to the definition were

immaterial, they are estopped from taking a

“‘contradictory’” position now. New Hampshire v.

Maine, 532 U.S. 742, 749 (2001).

Plaintiffs further distort the record in claiming that

Labcorp’s Rule 23(f) petition argued that “only people

in” the original definition (as opposed to the refined

one) “were injured.” Resp. 15-16. To be sure, Labcorp

argued in the alternative that the class definition—in

both its original and refined forms—created an

improper “fail-safe” class. JA.399-400; see Rule 23(f)

Pet. 13-14; C.A. Pet. Br. 48-49. But it also contended

that the original order impermissibly included “many”

class members who lacked Article III injury because

they had no desire to use kiosks. Rule 23(f) Pet. 14-16.

And that flaw persisted under the refined definition

since it did not alter the composition of the class in

any material way. Supra at 18. That is why LabCorp

appealed the original certification order on Article III

grounds. Rule 23(f) Pet. 14-16.

In short, the original certification order implicated

the question presented, and the district court’s later

immaterial refinements did nothing to moot the

appeal. See Ne. Fla. Chapter of Associated Gen.

Contractors v. City of Jacksonville, 508 U.S. 656, 662

(1993) (“insignificant” revision to law does not moot

case). In fact, the tweaks were so insignificant that

Labcorp could not have appealed the August order, as

only an order that “materially change[s] the original

certification order” qualifies as “an order granting or

denying class-action certification” appealable under

Rule 23(f). Walker v. Life Ins. Co., 953 F.3d 624, 636

(9th Cir. 2020). Orders making “minor changes in the

class definition,” by contrast, are not appealable. Wolff

v. Aetna Life Ins. Co., 77 F.4th 164, 173 (3d Cir. 2023).

All this explains why the Ninth Circuit expressly

resolved the question presented. While that court

refused to consider Labcorp’s argument that the

refined definition created a “fail-safe” class on the

ground that the August order was not “properly

before” it, JA.399-400, it did address the fundamental

objection that certification was inappropriate because

some class members were not “injured,” JA.397 n.1.

And that was because Labcorp had argued that the

original “May 23 class-certification order” violated

“Article III,” and the district court’s later actions did

nothing to address that problem. JA.394.

This history also disposes of plaintiffs’ suggestion

that Labcorp had to raise a “separate challenge to the

May order” to avoid forfeiture. Resp. 17. Setting aside

that “standing to litigate cannot be waived or

forfeited,” Va. House of Delegates v. Bethune-Hill, 587

U.S. 658, 662-63 (2019), Labcorp’s “consistent claim”

has been that this class unlawfully includes the

uninjured, Lebron v. Nat’l R.R. Passenger Corp., 513

U.S. 374, 379 (1995). That claim is not limited to the

refined definition and, in any event, Labcorp remains

free to “make any argument in support of” it. Id. at

378-79 (petitioner could make argument “expressly

disavowed” below). And “even if this were a claim not

raised by petitioner below,” this Court could still

consider it, as “it was addressed by the court below.”

Id. at 379.

B. Plaintiffs continue their revisionist history

when it comes to the Ninth Circuit’s decision, claiming

that court “found that ‘all class members were

injured.’” Resp. 13. But they tried the same maneuver

in opposing certiorari, and the Court “necessarily

considered and rejected” it, so it cannot be a reason to

“dismiss” the writ now. United States v. Williams, 504

U.S. 36, 40 (1992); see BIO 11. At any rate, age has not

improved the argument.

First, while plaintiffs assert that the Ninth Circuit

“held that ‘all class members’ suffered an ‘injury that

resulted from the complete inaccessibility of a Labcorp

kiosk,” Resp. 15 (brackets omitted), what it actually

said was that “[b]ecause all class members maintain

that their injury resulted from the inaccessibility of a

LabCorp kiosk, the commonality requirement is

satisfied,” JA.397 (emphasis added). In other words,

the court thought it sufficient that all members

alleged they had been injured by merely being exposed

to an inaccessible kiosk, regardless of whether they

were injured by such exposure. The Ninth Circuit

therefore declined to address “LabCorp’s allegation

that some potential class members may not have been

injured,” because it (erroneously) thought classmember standing irrelevant. JA.397 n.1.

Second, in rejecting the objection that the injunctive

class should not have been certified “because not all

blind people prefer the same accommodations,” the

Ninth Circuit stated that “all class members were

injured by the complete inaccessibility of LabCorp

kiosks.” JA.399. But in doing so, it was not resolving

the Article III question, which, as just explained, it

had already addressed. Instead, it merely said the

injunction would uniformly address the class’s injury

by rendering kiosks accessible to blind patients if they

wanted to use them. In all events, if the Ninth Circuit

had actually held that “class members [who] … prefer

not to use the kiosks” suffered an Article III “injury,”

that would only provide another reason to reverse,

because it is obviously wrong. JA.399; see supra Pt.

I.C.

CONCLUSION

The judgment below should be reversed or at least

vacated.

April 21, 2025

Respectfully submitted,