On June 5, 2025, the U.S. Supreme Court was set to rule in Labcorp v. Davis, which sought to resolve division among federal circuit courts regarding the certification of a damages class under Rule 23 of the Federal Rules of Civil Procedure when the class included both injured and uninjured members. Rather than resolving the issue, however, the Supreme Court dismissed the petition as improvidently granted and left the state of the law unclear.
The case revolved around legally blind and visually impaired plaintiffs who sued Labcorp, alleging that the company's self-service kiosks violated the Americans with Disabilities Act and California's Unruh Civil Rights Act. In May 2022, the District Court certified a damages class under F.R.C.P. 23, which consisted of "all legally blind individuals" in California who visited a Labcorp facility with self-service kiosks, regardless of whether those patients wanted to use the machines. Labcorp appealed that certification to the Ninth Circuit, arguing that the plaintiffs' overbroad class definition would sweep in many uninjured members who did not have constitutionally required standing and failed to satisfy Rule 23(b)'s predominance requirement. However, the Ninth Circuit affirmed, ruling that neither Article III nor Rule 23(b) barred certification, even when the class "potentially included more than a de minimis number of uninjured class members."
Labcorp asked the Supreme Court to determine whether a certified class could be defined to encompass more than a de minimis number of uninjured class members—here, legally blind patients who never wanted to use a kiosk in the first place—while deferring questions of individualized harm. Tabling the question of Article III injury, Labcorp argued, often bloats the class and, accordingly, a defendant's potential liability, prompting a settlement based on those exaggerated numbers before ever having reached the issue of damages.
The case was dismissed as improvidently granted, leaving the Ninth Circuit's opinion in place. Yet Justice Kavanaugh's dissent provides a window into how he would have decided the case, thereby encouraging future litigants to re-raise this issue to the Court.
Justice Kavanaugh wrote that a damages class comprising injured and uninjured members does not meet Rule 23's requirement that common questions predominate in damages class actions. Kavanaugh cited the "serious real-world consequences" that classes "overinflated with uninjured members" can have on businesses. Specifically, overbroad and incorrectly certified classes threaten massive liability, which in turn "can coerce businesses into costly settlements that they sometimes must reluctantly swallow rather than betting the company on the uncertainties of trial."
Kavanaugh further noted that "coerced settlements substantially raise the costs of doing business"—costs that companies, in turn, pass on to consumers through higher prices, to retirement account holders in the form of lower returns, and to workers in the form of lower salaries and lesser benefits. Expect to see these arguments raised next time a challenge to a Rule 23 certification involving uninjured class members emerges.
The Supreme Court's decision not to clarify the inclusion of uninjured members in class actions leaves businesses facing heightened risks of litigation and damages claims, making legal planning essential. Venable's attorneys can provide the necessary expertise and guidance to navigate this uncertain legal environment effectively.