Class action question turns into procedural dispute 

Another day at the Supreme Court and, suitable for the way this term has gone, another case that pretty clearly does not belong before the court. The justices granted review in Laboratory Corporation of America Holdings v. Davis to decide whether a district court can certify a class action that includes claimants who in fact have not suffered any cognizable injury. Here, for example, a group of blind individuals filed suit against Labcorp when it installed automated check-in kiosks in its facilities in the COVID-19 era. The class contends that the kiosks discriminate against the blind, and the parties spent a lot of time in the district court arguing about the suitable bounds of the class. At one point, the court defined a class that excluded all who did not know about or did not want to use the kiosk, on the theory that they were not injured. Later, the district court modified the definition to include everybody who came into a clinic, whether they did or did not want to use the kiosk.

Labcorp’s arguments in the court challenge that second definition, but the problem is that it only appealed the first definition, which is strictly limited to those who can claim an injury from the presence of the kiosks. The U.S. Court of Appeals for the 9th Circuit held that because Labcorp did not appeal the second definition, it did not have jurisdiction to review that second definition. So now the justices have a case with briefs challenging the propriety of a definition that the defendant never appealed.

Predictably, a large share of the argument was about what the justices should do about that. For the most part, the sentiment (expressed repeatedly by Justices Amy Coney Barrett and Sonia Sotomayor) was that the court has no reason to address the second definition and that it should send the case back to the lower courts to let them consider whether there is any way for Labcorp still to challenge that definition.

To the extent the justices addressed the question on which they granted review, the justices appeared skeptical of Labcorp’s position. The leaders on that point were Justices Elena Kagan, Ketanji Brown Jackson, Neil Gorsuch, and Sotomayor. Labcorp contended that the members of the class necessarily have to share the same injury to be in the class, but the justices seemed to think that class definitions are quite “fluid,” as Sotomayor emphasized.

The group could not see any reason why the question of precisely who was injured needs to be settled up front. For them, the only requirement in the rules is that the court needs to find a way to sort the “wheat from the chaff” — the injured from the uninjured — before the court finally awards damages. 

Sotomayor, recalling her time as a trial judge, commented that class definitions “get amended constantly,” and that “it’s not until the judgment is entered that you have to … identify who’s been injured or not.” 

Seconding Sotomayor’s sentiment, Kagan commented that “the court is not doing anything with respect to those claims until the court actually provides damages, … and as long as the court figures this question out before the court actually does anything with respect to those claims, that seems to me good enough.” 

Gorsuch seemed persuaded by the practicalities, suggesting that from his perspective, “overall, looking at the whole thing, it’s manageable. There are at least some common questions. The named plaintiffs are generally typical and common issues predominate.” 

When Sopan Joshi, representing the government, argued that the problem is that the class doesn’t have “commonality” unless the plaintiffs shared a common injury, Gorsuch and Kagan both objected strenuously. Gorsuch interjected: “Hold on. … I had understood it as one issue has to be common, and that that has to be predominant. …. Now you’re telling me that Article III, and Article III alone, must be satisfied by everyone at the outset.” When Joshi insisted that all in the class must share a common injury, Gorsuch reiterated his point even more firmly: “No, they don’t all have to be common. There has to be a common question that predominates over others.”

Apparently bemused by his discussion of commonality, Kagan asked Joshi to look back at the past 70 years of the court’s class action cases. “[I]t strikes me that if you look at all the classes that have been certified by that point, you’re always going to be able to find people for idiosyncratic reasons who don’t share the same injury, who don’t have standing, and all that’s never been seen as kind of the end all and be all,” she said. To do that, Kagan continued, “we have to explode everything. So it seems very inconsistent to me with the way class actions have been practiced for many decades.”

That’s not to say that there was no sympathy for Labcorp’s position. Chief Justice John Roberts and Justice Brett Kavanaugh commented on the “elephant in the room” – that the very certification of a class often can force defendants to settle – but they did not suggest any way to avoid the procedural obstacle to reaching the question.

Although the justices have shown some interest this year in reaching out to decide the questions to which they devoted an hour of oral argument, this really seems to be one where there is little appetite for finding a way to reach that question. When skepticism about getting to the question includes Barrett, Gorsuch, Sotomayor, and Kagan, it is a little hard envisioning a majority finding a way around the obvious difficulties.