A few months ago, we wrote about the U.S. Supreme Court’s decision to grant review in Labcorp v. Davis. As we noted at the time, Labcorp raises a long-debated question of class-action law: Can a federal court certify a class that includes members who lack any Article III injury? As we also noted, the Supreme Court was expected to answer this question almost a decade ago in Tyson Foods, Inc. v. Bouaphakeo, but ultimately did not resolve it.
The wait may go on. The Supreme Court held oral argument in Labcorp on April 29. After more than two hours of discussion, most of the Justices appeared to believe that the case has a vehicle problem that will stop the Court from using Labcorp to decide the question above.
This problem arises from the history of the case.
In May 2022, a district court in California certified a class of blind patients who had been denied the full enjoyment of Labcorp’s services because they couldn’t use the check-in kiosks in Labcorp’s offices. With this class definition, the court appeared to limit the class to persons who had an Article III injury: the denial of the full enjoyment of services.
Labcorp asked the Ninth Circuit to review the district court’s grant of class certification. Labcorp did so by filing a petition for permission to appeal the district court’s May 2022 order based on Rule 23(f) of the Federal Rules of Civil Procedure. That rule allows a party to ask a federal court of appeals for immediate review of a decision that grants or denies class certification.
While the Ninth Circuit was considering Labcorp’s Rule 23(f) petition, the district court didn’t rest on its laurels. The court twice amended its order granting class certification, once in June 2022, and again in August 2022. By the end of this process, the court had expanded the class definition to include all blind patients who were unable to use Labcorp’s kiosks because of their disability. Because this definition was no longer limited to persons who had been denied the full enjoyment of services, it appeared to sweep in persons who might lack an injury, such as persons who had no desire to use the kiosks. Labcorp did not, however, file a Rule 23(f) petition that asked for review of the district court’s June or August orders.
The Ninth Circuit then granted Labcorp’s request to appeal the May order. On the merits, the Ninth Circuit affirmed the grant of class certification. It also held that the district court’s orders from June and August were not part of the appeal, because Labcorp hadn’t petitioned for review of those orders.
The Supreme Court then agreed to review the Ninth Circuit’s decision and decide whether a class may include uninjured members. At that point, the case took a turn.
When Labcorp argued in its opening brief that the class at issue included uninjured members, Labcorp focused not on the narrower class definition in the May order, but on the broader class definition in the August order.
The plaintiffs objected. They argued that the Supreme Court lacks jurisdiction over the August order, because Labcorp never appealed that order. They also argued that any challenge to the May order is now moot, because that order has been superseded by the August order. As a result, the plaintiffs argued, the Supreme Court can’t review either order, and any merits decision would be an improper advisory opinion that has no effect on the case before the Court.
At oral argument, at least five of the nine Justices appeared to agree with the plaintiffs on these points. Through their questioning of Labcorp’s counsel, Justices Sotomayor, Kagan, Gorsuch, and Jackson each expressed serious doubts that the Court could actually decide the merits of the class-action question in the case. Justice Barrett expressed similar doubts, and she asked Labcorp’s counsel what would happen next if Labcorp lost on this point—a question that no lawyer likes to hear. Justice Thomas also signaled at least some doubts on this score.
Labcorp’s counsel tried to rescue the case from a jurisdictional defeat by pointing out that earlier in the case, both the district court and the plaintiffs said that the breadth of the class under the May and August orders was the same. Thus, Labcorp’s counsel argued, it made no difference that Labcorp had appealed the former order and not the latter. But this argument didn’t appear to convince the Justices. Justice Gorsuch, for example, pointed out that the orders “don’t say the same thing.” Thus, he suggested, the orders are not interchangeable.
The three remaining Justices—Chief Justice Roberts, Justice Alito, and Justice Kavanaugh—appeared to be more optimistic that the Supreme Court could reach the merits of the case. For example, Justice Alito echoed another point made by Labcorp’s counsel: that any snafu over which order was appealed may not be a truly jurisdictional defect, and instead may be a prudential problem that the Court has the discretion to forgive. Justice Alito also suggested that any fault in this case may lie with the Ninth Circuit for lacking a clear rule on whether Labcorp, having already appealed the May order, needed to appeal the August order as well. Those points did not, however, appear to catch hold with most of the other Justices.
Because the oral argument focused on these jurisdictional issues, the Justices spent comparatively little time on the merits of the class-action question. As a result, if the Court were ultimately to decide that question, the oral argument didn’t give a clear indication of what the result would be. Chief Justice Roberts and Justice Kavanaugh each appeared sympathetic to Labcorp’s argument that a class cannot include uninjured members. They emphasized the practical concern that the improper certification of a large class action can impose enormous pressure on a defendant to settle, even if the defendant has meritorious defenses. But other Justices suggested that it might be permissible for a class to include some uninjured members, as long as there is a straightforward mechanism for weeding out those uninjured members from the class before a final judgment is entered.
If a majority decides that the Court can’t reach the merits in Labcorp, we might learn of that decision soon through an order that dismisses the case as improvidently granted. Absent an order to that effect, we probably won’t learn the result until June. Either way, the wait may continue for an answer to whether a class can include uninjured members. As we noted above, the gap from Tyson Foods to Labcorp was almost a decade. We hope to have an answer for you before 2035.
