Kavanaugh Dissent Invites More Cases With Uninjured Class Members

 Holland & Knight’s Paul Bond and Madeline Schonberger write that the Supreme Court has left open a critical question about whether courts can certify classes with members that don’t have injuries.

The US Supreme Court’s dismissal of Laboratory Corp. of America Holdings v. Davis represents a missed opportunity to resolve a fundamental question in class action litigation. The 8-1 dismissal as “improvidently granted” left unaddressed whether federal courts can certify Rule 23 damages classes that sweep in both injured and uninjured members—a question with significant implications for class action practice nationwide.

Justice Brett Kavanaugh disagreed with the dismissal, echoing concerns his fellow conservative justices voiced during oral arguments, but that he made by himself in his dissent.

The court’s dismissal leaves unresolved a significant circuit split on class certification standards. The US Courts of Appeals for the Ninth and Eleventh Circuits have indicated they may allow Rule 23(b)(3) certification with potentially uninjured class members, while the Second, Fourth, and Eighth Circuits bar certifications where members lack standing. Kavanaugh’s dissent reflects broader concerns about expansive class action liability and its economic effects.

By insisting on the application of Article III rigor to Rule 23’s predominance requirement, Kavanaugh would make it harder for plaintiffs to bring large-scale claims based on abstract or intangible alleged harms.

https://news.bloomberglaw.com/us-law-week/kavanaugh-dissent-invites-more-cases-with-uninjured-class-members