A Jurisprudential Blind Spot: Certification of Uninjured Claimants in Rule 23(b)(3) Damage Class Actions

This article analyzes a corporate defendant’s appeal from a Ninth Circuit adverse decision in  Laboratory Corporation of America Holdings, D/B/A Labcorp. v. Davis, et al., argued on April 29, 2025. The appeal addresses whether a federal court can certify a Rule 23(b)(3) damage class action where the class representative has standing to sue but the class may include members allegedly with no injuries, who would not be able to bring an individual lawsuit for lack of standing. In the underlying case, Labcorp installed easy access kiosks in its diagnostic clinics, which a class of blind and visually impaired patients claimed discriminated against them in violation of federal and California state laws. Labcorp contested class certification, arguing that the court could not certify the class because large numbers of class members had no injury at all. The California court certified the class, which the Ninth Circuit upheld, ruling that all class members did suffer a similar  injury. There is conflicting jurisprudence among the lower federal courts concerning whether all class members must have standing and show a cognizable injury at class certification. The outcome of the Labcorp appeal will most likely turn on which framing approach the Court takes to resolve the issues. The blind plaintiffs urge the Court that the appeal does not really present a problem of threshold Article III standing and prudential justiciability. The case does not present a problem of whether the court has authority to adjudicate the litigation. Rather, the case simply involves a Rule 23(b)(3) class certification problem, and since all the class members suffered the same injury of inaccessibility as a violation of the ADA and the Unruh Act, there is sufficient commonality to uphold the lower courts’ certification decisions. Any potential problems relating to uninjured class members can and should be resolved on the merits after certification but are not relevant inquiries at the time of class certification. In addition, the plaintiffs have offered the Court a menu of palliative post-certification procedures to deal with the problem of non-injured class members. As a policy matter, any contrary conclusion would create chaos for the courts and undermine the value of mass settlements commonly used in modern group litigation. In contrast, if the Court accepts Labcorp’s invitation to view the problem as one of threshold Article III standing, then this will take the Court down the Article III standing rabbit hole and the conflicting jurisprudence relevant to class certification. Or, the Court could view the problem simply as a Rule 23(b)(3) predominance issue, in which case the Court will have to determine whether, at class certification, the presence of arguably large numbers of uninjured class members defeats predominance. The Court also may be swayed by Labcorp’s dire policy arguments concerning the parade of horribles it predicts will result if the Court allows and endorses no-injury class certifications, especially in statutory damage cases. Finally, the plaintiffs have offered the Court two alternative procedural routes if the Court decides not to issue any rulings on the issue presented. Thus, the Court could conclude that it improvidently granted certiorari to Labcorp’s appeal, or it could kick the can down the road by vacating the Ninth Circuit’s decision and remand the case to the district court for a finding on the question of uninjured claimants in the class.