Supreme Court Declines to Resolve Circuit Split on Certifying Classes with Uninjured Class Members

On June 5, 2025, the U.S. Supreme Court dismissed as improvidently granted the writ of certiorari in Laboratory Corporation of America Holdings v. Luke Davis, No. 22-55873, which raised whether a federal court may certify a class action under Federal Rule of Civil Procedure 23(b)(3) when some members of the proposed class lack an Article III injury.

The case involved a putative class of legally blind plaintiffs who alleged that Labcorp’s express check-in kiosks at its patient service centers discriminated against them under various state and federal statutes. The plaintiffs’ proposed class definitions included individuals who, according to Labcorp, never attempted to use the kiosks or never wished to use them. Despite this, the district court certified the classes, concluding that the presence of potentially uninjured class members did not preclude certification under Rule 23. The Ninth Circuit affirmed.

The Supreme Court initially granted certiorari to resolve a three-way split among circuits. Some, such as the Second and Eighth Circuits, do not allow certification if there are any uninjured class members. Others, such as the D.C. Circuit and First Circuit, allow certification if there are only a de minimis amount of uninjured class members. And others, including the Ninth and Eleventh Circuits, allow certification unless a large number of class members are uninjured.

Despite creating expectations that it would do so, the Court declined to resolve that split. Justice Kavanaugh dissented, stating that he would have reached the merits and ruled that federal courts may not certify a class that includes uninjured members. In his view, Rule 23 requires common questions to predominate, which cannot occur if uninjured members are included in the class. And he cautioned that classes “overinflated with uninjured members” could pressure businesses into settlement by threatening excessive liability.

Accordingly, whether uninjured class members can defeat class certification will continue to depend on the applicable forum’s law.