On June 5, 2025, the United States Supreme Court issued a one-line decision dismissing a writ of certiorari “as improvidently granted” in the closely watched case Laboratory Corporation of America Holdings d/b/a Labcorp v. Davis, et al.1 In doing so, the Supreme Court declined to make a decision—at least for now—regarding a pivotal question that often appears in consumer class action cases: “[w]hether a federal court may certify a damages class pursuant to Federal Rule of Civil Procedure 23 when the class includes both injured and uninjured class members.”
In Labcorp v. Davis, the plaintiffs alleged that Labcorp, a clinical diagnostic laboratory, violated the Americans With Disabilities Act (ADA) and California’s Unruh Civil Rights Act by implementing e-check-in kiosks that were not accessible to legally blind individuals, though traditional check-in methods were available and accessible. In May 2022, the United States District Court for the Central District of California certified a damages class that included all legally blind patients who visited Labcorp facilities in California and “were denied full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations due to Labcorp’s failure to make its e-check-in kiosks accessible to legally blind individuals.” Labcorp petitioned for interlocutory appeal arguing that the class definition was overbroad because many members of the class did not know about the kiosks or did not intend to use them, and therefore, they had not suffered a cognizable injury and lacked Article III standing. In August 2022, with the petition for the appeal pending, the district court clarified the class definition to read “[a]ll legally blind individuals who … due to their disability, were unable to use” Labcorp’s kiosks in California, though the court itself noted that this definitional change did not materially alter the class or the class certification order from May 2022. In September 2022, the Ninth Circuit affirmed the lower court’s decision, holding that commonality among the proposed class members was not defeated simply because some potential class members were not injured, as Rule 23 permits certification of a class that “potentially includes more than a de minimus number of uninjured class members.”2
During oral arguments, the Supreme Court justices, particularly Justice Barrett and Justice Sotomayor, expressed concern that the procedural history of the case precluded the Supreme Court’s ability to render a substantive decision on the issue. In particular, the writ of certiorari was granted to review the Ninth Circuit’s decision on the appeal of the May 2022 class definition as opposed to the operative class definition from August 2022. Thus, while the definitional change to the class in August 2022 did not materially alter the class composition or class certification, it appears the majority relied on this procedural technicality as the basis for its conclusion that the writ of certiorari was “improvidently granted.”
Justice Kavanaugh issued a dissent opining that the Supreme Court should have addressed the issue on the merits. Significantly, Justice Kavanaugh agreed with Labcorp and argued “[f]ederal courts may not certify a damages class under Rule 23 when, as here, the proposed class includes both injured and uninjured class members.” Justice Kavanaugh believed the issue to be straightforward, stating that allowing injured and uninjured members to be included in a case does not meet the requirement that the damages class may only be certified when common questions of law and fact predominate. From a policy standpoint, Justice Kavanaugh also expressed his concern that allowing uninjured parties to be included will overinflate classes and “threaten massive liability” to businesses. Justice Kavanaugh correctly observed that certifying such overinflated classes has the effect of weaponizing the class certification process and may lead to defendants being coerced into settlements to avoid “potentially ruinous liability.” Justice Kavanaugh’s dissent is not binding on lower courts, but it does have the potential to influence new decisions on this issue and gives insight into how the Supreme Court may rule on this issue in the future.
The impact that potentially uninjured class members may have on class certification will likely be addressed by the Supreme Court in the near future. In the interim, however, a split among the federal circuit courts remains. Some circuits, such as the Second and Eighth Circuits, have applied a strict approach that requires all members of a proposed class have an Article III injury. Other circuits, such as the First Circuit and DC Circuit, allow class certification if there is a “de minimis” number of uninjured members. Other circuits, such as the Seventh Circuit, have held that the presence of uninjured class members should not ordinarily prevent a class from being certified. For additional information about this issue, please refer to our prior alert.
If you have any questions regarding the content of this alert, please contact Yvonne Hennessey, Environmental Practice Area chair, at yhennessey@barclaydamon.com; Carol Snider, Mass & Toxic Torts Practice Area co-chair, at csnider@barclaydamon.com; Andrew Carroll, counsel, at acarroll@barclaydamon.com; or another member of the firm’s Environmental, Mass & Toxic Torts, and Torts & Products Liability Defense Practice Areas.
1Laboratory Corporation of America Holdings d/b/a Labcorp v. Davis, et al., No. 24-304.
2Davis v. Lab’y Corp. of Am. Holdings, 2024 U.S. App. LEXIS 2937 (9th Cir. Feb. 8, 2024).