Duane Morris Takeaways: On June 5, 2025, the U.S. Supreme Court issued a decision in Laboratory Corporation of America Holdings d/b/a Labcorp v. Davis, No. 24-304 (U.S. June 5, 2025), that dismissed the writ of certiorari as improvidently granted, an extremely rare move colloquially known as a "DIG." Even more interesting, from the vantage point of issues that are the subject of this blog – namely, defense of class action litigation – Justice Kavanaugh wrote in dissent, stating that he would have decided the case and ruled that federal courts may not certify damages classes under Rule 23 that include both injured and uninjured class members. He reasoned that allowing such classes would not satisfy the Rule 23(b)(3) requirement that common issues predominate over individual issues. This unique decision, while it does not carry precedential weight, is instructive because the dissenting opinion provides a new roadmap for defendants facing class claims involving uninjured class members to challenge class certification, potentially keeping the door open for future review by the U.S. Supreme Court.
Background
The U.S. Supreme Court's majority per curiam opinion dismissing the writ as improvidently granted is, as is typical, a perfunctory statement that says: "The writ of certiorari is dismissed as improvidently granted." Slip op. at 1. The dissenting opinion authored by Justice Kavanaugh provides the background of the case, at least as it informs the issues he addresses in his dissent. His dissent starts by explaining that the majority decided the case was moot, but that he found that issue to be "insubstantial." Id. at 1. He stated that he would have decided the case.
He provided the following background information — a federal district court in California certified a Rule 23 class of blind and visually impaired individuals who sued Labcorp, a company providing diagnostic medical testing services to consumers. The plaintiffs who brought the class action alleged they were "denied full and equal enjoyment of" goods, services, and accommodations required under the Americans with Disabilities Act by "LabCorp's [sic] failure to make its e-check-in kiosks accessible to legally blind individuals." Id. at 2. Later, the district court issued an order refining the class definition to include "all legally blind individuals who . . ., due to their disability" were unable to use Labcorp's e-check in kiosks in California. Id. at 3.
Labcorp appealed the class certification decision to the Ninth Circuit under Rule 23(f). Id. The Ninth Circuit affirmed the district court and held that even if more than a de minimis number of class members are uninjured, Rule 23 allows district courts to certify such classes. Id. After en banc review was denied by the Ninth Circuit, the U. S. Supreme Court granted certiorari to decide the question whether Rule 23 authorizes certification of damages classes including uninjured class members.
Justice Kavanaugh's Dissent From The U.S. Supreme Court's DIG
In the substance of his dissenting opinion, Justice Kavanaugh opined that the predominance requirement of Rule 23 (b)(3) precludes district courts from certifying damages classes that include individuals who have suffered no legally cognizable injury. After discussing his disagreement with the majority's analysis of the mootness issue (relating to whether Labcorp filed its Rule 23(f) petition against the correct class certification order), he analyzed the merits of the predominance inquiry. Id. at 4-5.
He reasoned that the Ninth Circuit decision ignores several U.S. Supreme Court decisions in the class actions area that, in his view, rule out including non-injury class members in damages classes (among them Comcast v. Behrend and Wal-Mart v. Dukes.) He also pointed to the Advisory Committee notes history of Rule 23(f) to conclude that it was established to prevent efforts to "coerce businesses into costly settlements" that include an unknown number of persons to have suffered no loss at all. Id. at 6. He also opined that such settlements raise the cost of doing business such that they create public policy effects such as higher costs of living that ultimately harm consumers, retirees and workers. Id.
Implications Of The Decision
The U.S. Supreme Court's DIG order, while exceedingly rare, is actually not the big news embedded in this decision. The dissent by Justice Kavanaugh to the DIG order provides an explanation of how future litigants facing class actions that include individuals who have no legal injury conferring standing can present the issue in arguing Rule 23(b)(3) predominance. Companies facing the litigation pressures that class actions often produce should follow this blog for future developments in what we predict will be a significant area of litigation in the coming years.
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