Labcorp v. Davis: Will the Supreme Court Finally Address Uninjured Class Members?

During argument before the U.S. Supreme Court on April 29, 2025, in Labcorp v Davis, No. 24-304 (covered by Re:Torts earlier this year), several justices expressed concerns about whether the case provides an appropriate vehicle to determine how courts should address uninjured class members under Article III standing and class certification rules. If the Court decides to dismiss the case as improvidently granted—as requested by plaintiffs—or remand without determining the issue, it would mark the second time the Court accepted the question for review without deciding it. See Tyson Foods v. Bouaphakeo, 577 U.S. 442 (2016).

This time, the issue is before the Court on appeal by Labcorp, a diagnostics lab services provider whose self-service kiosks are inaccessible to blind people. Plaintiffs won certification, affirmed by the Ninth Circuit, of a Federal Rule 23(b)(3) damages class of legally blind people who visited a Labcorp facility and were unable to use the kiosks. Labcorp argues the class includes members who did not want to use the kiosks and were thus not injured and that, as a result, the class lacks Article III standing. Labcorp also argues that because this is a fact-intensive issue, any effort to identify and remove uninjured plaintiffs from the class would predominate over common issues, precluding certification under Rule 23.

Federal courts of appeals are split, with the Second and Eighth Circuits limiting certification to classes that by definition do not contain uninjured members. Johannessohn v. Polaris Indus. Inc., 9 F.4th 981 (8th Cir. 2021); Denney v. Deutsche Bank AG, 443 F.3d 253 (2d Cir. 2006). The D.C. and First Circuits take a more functional approach, focusing on the manageability of removing uninjured class members under Rule 23, rather than on the constitutional standing issue. In re Rail Freight Fuel Surcharge Antitrust Litig., 934 F.3d 619, 624 (D.C. Cir. 2019); In re Asacol Antitrust Litig., 907 F.3d 42, 58 (1st Cir. 2018).

The Ninth Circuit in Labcorp held the named plaintiff’s standing alone was sufficient under Article III and rejected a Rule 23 predominance constraint, holding the circuit allows for “certification of a class that potentially includes more than a de minimus number of uninjured class members.” Davis v. Lab’y Corp. of Am. Holdings, No. 22-55873, 2024 WL 489288, at *2 n.1 (9th Cir. Feb. 8, 2024), cert. granted in part, 145 S. Ct. 1133, 220 L. Ed. 2d 428 (2025).

Over two hours of vigorous argument, the Supreme Court asked pointed questions about whether the issue was actually presented in the order appealed from the district court. Questioning on the merits was more mixed. Although the United States as amicus strongly supported Labcorp’s standing argument, Justices Kagan, Sotomayor, and Gorsuch expressed some skepticism. Labcorp’s position on Rule 23’s limitations drew more support: Chief Justice Roberts and Justice Kavanaugh noted concern with in terrorem settlement pressures created by overly expansive class definitions. Given the Court’s concerns about the procedural posture of the appeal, the most salient inquiry may have been Justice Barrett’s: “I want to figure out exactly what would be open to you on remand.”

The Court is expected to issue a decision before its July recess.