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United States Supreme Court Declines to Decide Whether a Class Including Uninjured Members May Be Certified, But Justice Kavanaugh Weighs In
By Gil Walton
In Laboratory Corporation of America Holdings v. Davis, the United States Supreme Court granted certiorari to determine “[w]hether a federal court may certify a class action pursuant to Federal Rule of Civil Procedure 23(b)(3) when some members of the proposed class lack any Article III injury.” This is a question that, for well over a decade, has deeply divided federal courts of appeals, and it appeared the Supreme Court was ready to provide an answer this term.
But rather than resolving this important issue of class action law, in a June 5, 2025 per curiam opinion, the Supreme Court dismissed Laboratory Corporation as improvidently granted (colloquially called a “DIG”). Justice Kavanaugh, however, disagreed with the DIG. In a solo dissent, he stated that he would have addressed the merits of the case and would have concluded that a Rule 23 damages class may not be certified where it includes injured and uninjured class members.
Although Laboratory Corporation ultimately set no new class-action precedent, the Supreme Court’s initial grant of certiorari and Justice Kavanaugh’s dissent suggest it may decide in upcoming terms whether classes may include uninjured members. And while it is difficult to predict how the Supreme Court will ultimately resolve that question, if Justice Kavanaugh’s position is adopted, the scope of class actions will be narrowed substantially. Businesses facing class actions thus should follow this issue closely in the coming Supreme Court terms.
Proceedings in the Lower Courts
In Laboratory Corporation, a proposed class of blind individuals sued LabCorp after the company installed automated, touchscreen check-in kiosks in its facilities. The kiosks, the class claimed, discriminated against blind persons, who could not use the kiosks without assistance. So, the class brought claims under the Americans with Disabilities Act and California’s Unruh Civil Rights Act, which provides for a minimum of $4,000 in state-law statutory damages per violation.
In May 2022, a Central District of California district court certified a damages class under Rule 23 consisting of “[a]ll legally blind individuals in California who visited a LabCorp patient service center in California during the applicable limitations period 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 immediately petitioned the Ninth Circuit for an interlocutory appeal from that order. It contended that the class definition included many uninjured persons, including blind patients who would not use kiosks because they disliked them or because they preferred to speak with a front-desk employee when checking in for appointments.
In August 2022, while LabCorp’s petition for an interlocutory appeal was pending, the district court modified the class definition, explaining that the class included “[a]ll legally blind individuals who . . . , due to their disability, were unable to use” LabCorp kiosks in California. The district court stated, however, that the revised class definition did not “materially alter the composition of the class or materially change in any manner” the original class certification order.
The Ninth Circuit then authorized LabCorp’s interlocutory appeal, affirmed the district court’s May 2022 class certification order, and denied rehearing en banc.
The Supreme Court Takes Up the Case
Following the Ninth Circuit’s decision, LabCorp filed a petition for a writ of certiorari. The Supreme Court granted the petition and heard oral argument in April 2025. While Laboratory Corporation, on its face, dealt with whether federal courts may certify a Rule 23 damages class that includes both injured and uninjured members, the justices focused on a different issue at argument: LabCorp’s briefs at the Supreme Court challenged the district court’s August 2022 class certification order, but LabCorp only appealed from the May 2022 order. As a result, several justices expressed the view that the Supreme Court should not address the August 2022 order at all, and that the case instead should be sent back to the lower courts to first consider any challenge to the class definition in that order (assuming the later order was still reviewable).
Following oral argument, it appeared likely the Supreme Court would DIG based on this procedural irregularity. And that’s precisely what it did. In its one-sentence decision June 5, the Supreme Court dismissed the case as “improvidently granted” without further explanation.
But not all the justices agreed with the disposition. In a seven-page dissent, Justice Brett Kavanaugh opined that what he called the “threshold mootness question” in the case was “insubstantial.” In his view, the Supreme Court should have addressed the merits of the question presented because LabCorp “could only appeal the [first] class certification order,” and it did so.
Turning to the merits, Justice Kavanaugh would have held that a federal court may not certify a damages class that includes both injured and uninjured members. He explained that because “Rule 23 authorizes damages class certification only when common questions of law and fact predominate,” “‘if there are members of a class that aren’t even injured, they can’t share the same injury with the other class members,’” and common questions cannot predominate.
Justice Kavanaugh also expressed some practical concerns about the Ninth Circuit’s decision:
Classes that are overinflated with uninjured members raise the stakes for businesses that are the targets of class actions. Overbroad and incorrectly certified classes threaten massive liability— here, with potential damages up to about $500 million per year. That reality in turn can coerce businesses into costly settlements that they sometimes must reluctantly swallow rather than betting the company on the uncertainties of trial.
These coerced settlements, he added, raise the costs of doing business for companies, and those costs are passed on to the public. Justice Kavanaugh thus concluded that “the consequences of overbroad and incorrectly certified damages class actions can be widespread and significant.”
Key Takeaway
While the Supreme Court declined to decide whether federal courts may certify a Rule 23 damages class that includes both injured and uninjured members, its grant of certiorari in Laboratory Corporation and Justice Kavanaugh’s dissent suggest it may be primed to address the issue in upcoming terms when the right case arrives. Whichever way the Supreme Court ultimately rules on the question is likely to have a profound impact on class action practice for both sides of the “v.”
Case citation: Laboratory Corporation of America Holdings v. Davis, No. 24-304, 605 U.S. __ (2025)
Gil Walton is an associate at the firm.