In Labcorp v. Davis, the U.S. Supreme Court was poised to decide if a federal court can certify a class that includes members who lack any Article III injury. But as we discussed last month, the oral argument suggested that a procedural snag would stop the Court from deciding that question.
Sure enough, the Court has now decided not to decide the class-action question in Labcorp. In a one-sentence order issued June 5, the Court dismissed its review of the case as improvidently granted. That order leaves the Ninth Circuit decision in Labcorp intact and the legal issue that has vexed the lower courts unresolved.
Justice Kavanaugh penned a solo dissent from the Court’s order. He said that in his view, the Court should have ruled on the merits. He also said that he would have held that Rule 23’s predominance requirement bars a federal court from certifying a damages class that includes uninjured members.
In sum, the wait continues for an answer to whether a federal class can include uninjured members. But the fact that the Supreme Court granted review in Labcorp suggests that it will be on the lookout for another case that raises this issue. When it finds one, Justice Kavanaugh has signaled that there will be at least one vote for a holding that uninjured class members are persona non grata. Whether four other Justices agree with that point remains to be seen.
