June 6, 2025
Business groups want the justices to put a stop to overly broad class actions that include people without injuries. But a group of scholars have identified a procedural flaw that could derail a ruling in the case currently set to be heard this month.
The U.S. Supreme Court is set to consider a case that business groups are hoping will stem the tide of class actions they say are swamping corporate defendants in recent years. But a group of scholars have identified a messy procedural flaw in the case that could derail any ruling by the justices.
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But the plaintiffs and a group of federal court scholars say the Supreme Court should never have taken the case in the first place and are urging the justices to dismiss Labcorp v. Davis as “improvidently granted” without issuing a ruling on the merits.
“There is only one way for the Court to avoid issuing an advisory opinion in this case: dismiss the writ of certiorari as improvidently granted or for lack of jurisdiction,” wrote a group of law professors who specialize in issues of federal jurisdiction, including Berkeley Law Dean Erwin Chemerinsky, Marin Levy of Duke University School of Law, and Cardozo Law School professor Alexander Reinert
Inherent in the case is a “tangle of jurisdictional, prudential, and factual issues that leave no viable path to the question presented,” the scholars wrote.
The Supreme Court has already dismissed two other class action cases this term as improvidently granted involving securities fraud claims against Facebook and Nvidia.
The scholars and plaintiffs have identified what they consider to be two fundamental flaws in the Labcorp case.
The first is that the question before the justices-whether a court can certify a class that includes uninjured plaintiffs-does not apply to the facts of the case because the Ninth Circuit affirmed that the class included only injured plaintiffs.
“There is nothing to reverse,” the plaintiffs wrote. “Neither the district court nor the Ninth Circuit had any occasion to decide the question presented at all because neither found that there were any uninjured members to begin with.”
That is because Labcorp, the scholars wrote, appealed the wrong class definition.
Labcorp only filed its appeal over the district court’s original May 2022 definition of the covered class, which includes all legally blind individuals who were “denied full and equal enjoyment” of Labcorp’s services.
After Labcorp objected to that definition as an improper “fail-safe” class, the district court later amended the class definition to cover those “who, due to their disability, were unable to use the Labcorp Express” kiosks.
Ironically, Labcorp had originally objected to the May class definition as a “fail-safe class” that “jettison[ed] all ‘uninjured’ plaintiffs.” Labcorp argued that fail-safe classes are unfair because they tie membership in the class to the outcome of the merits of the litigation.
Now, Labcorp is largely making the opposite argument about the subsequent August definition; that it impermissibly includes uninjured plaintiffs in violation of Article Ill standing requirements, the scholars wrote.
The plaintiffs and scholars say the company failed to appeal that definition and instead only filed a notice of appeal from the original May class definition that has since been supplanted by the district court as a result of Labcorp’s own litigation decisions.
“Labcorp makes no argument that the May class definition fails Rule 23, much less that it presents the question this Court granted certiorari to resolve,” the scholars wrote. “To the contrary, Labcorp argued below that the May class definition does not implicate the question presented because it includes only individuals who were injured. In Labcorp’s own view, then, answering the question presented here would be a purely advisory exercise.”
Added the scholars: “Because of these fundamental, unavoidable, and intractable problems, the Court should dismiss the writ as improvidently granted or for lack of jurisdiction.” The brief was filed by Joseph Marc Sellers of Cohen Milstein Sellers & Toll.
Read Scholars Say Justices Should Dump Case That Could Curb Class Actions.