Individual Inquiries About Injury Preclude Class Certification

On Sept.12, 2025, the U.S. Court of Appeals for the Ninth Circuit provided defendants with additional clarity in the fight against class certification.

In Ambrosio v. Progressive Preferred Insurance Co., the Ninth Circuit affirmed the denial of class certification in a challenge to Progressive's use of a "projected sold adjustment" (PSA) calculation in deriving the actual cash value of totaled vehicles.

While the plaintiffs argued that the calculation uniformly reduced claim payments in violation of policy terms, the Ninth Circuit upheld the district court's finding that whether any particular class member was underpaid required individualized inquiry and precluded class certification under Rule 23(b)(3).

The Ninth Circuit's holding in Ambrosio is significant in light of its 2022 holding in Olean Wholesale Grocery Cooperative, Inc. v. Bumble Bee Foods LLC and the U.S. Supreme Court's holding in Laboratory Corp. of America Holdings v. Davis from earlier this year.

In Olean, the Ninth Circuit rejected a per se "de minimis rule" under which a certified class cannot include more than a minimal number of uninjured members. In doing so, the Olean court held that the presence of uninjured class members does not automatically defeat certification and the court should instead focus its inquiry on whether or not individual issues concerning injury predominate.

Applying this holding to the case at hand, the Olean court upheld the certification even though defense experts suggested that as many as 28% of the class might not have suffered any injury.

Although many in the class action defense bar had hopes that the Supreme Court might intervene, so far it has opted not to do so. On June 5, 2025, the U.S. Supreme Court dismissed as improvidently granted the writ of certiorari in Laboratory Corp. of America Holdings v. Davis, thereby sidestepping the question of whether a district court may certify a class that includes uninjured members.

The Ninth Circuit decision below affirmed class certification even though some class members arguably lacked injury. The Supreme Court's refusal to resolve the issue left it open.

Key Take Away

• Ambrosio confirms that even in light of Olean and Laboratory Corp., challenges surrounding the putative class's alleged injury remain viable in the Ninth Circuit.
• Specifically, a court assessing class certification must still analyze whether individual questions concerning the existence of injury predominate among the putative class. If so, certification is not warranted.

Practical Implications

• Ambrosio provides a strong tool to resist class certification by emphasizing the individual questions surrounding the putative class's potential injuries.
• Defendants should be prepared to marshal expert evidence showing that some putative class members were not harmed, making individualized injury inquiries inevitable.

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