News

Update: Supreme Court declines to resolve key class certification question

24 June 2025

Key takeaways

This development reinforces the importance of early case assessment and a tailored class certification defense strategy.

Lower courts may continue to diverge on this issue, creating inconsistent outcomes depending on jurisdiction.

Plaintiffs may take advantage of that divide by filing in more favorable forums.

Until the Court provides guidance, class certification strategy remains jurisdiction-sensitive and high-stakes.

As an update to our original insight on Labcorp v. Davis—a case that could have clarified whether a class can be certified if some members lack Article III standing—the Supreme Court declined to decide on the issue, dismissing the case as improvidently granted on June 5. This leaves a critical question in class action law unanswered, allowing lower courts to continue applying inconsistent standards and reinforcing the need for strategic, jurisdiction-specific litigation planning.

By dismissing Labcorp v. Davis as improvidently granted, the Court left unresolved the important question of whether a class can be certified if some members of the proposed class lack Article III standing. Though there is no way to know with certainty why the Court dismissed the appeal, as the order does not provide an explanation, the Court’s dismissal appears to have been rooted in procedural complications in the Davis case, unrelated to the class action certification question. Indeed, during argument, several Justices expressed concern that the case was moot because defendants had appealed from an earlier class certification order, rather than a subsequent class certification order that governed the action. See also June 5, 2025 Order (Kavanaugh, J., dissenting). But for purposes of future litigation, trial and lower appellate courts will continue to take divergent approaches to class certification unless and until the Supreme Court provides more clarity on the issue.

Notably, Justice Brett Kavanaugh dissented from the dismissal and made his position clear: “I would hold that a federal court may not certify a damaged class that includes both injured and uninjured members. Rule 23 requires that common questions predominate in damages class actions. And when a damaged class includes both injured and uninjured members, common questions do not predominate.” This suggests that in a future case addressing this issue, Justice Kavanaugh—often considered a swing Justice on the Court—may rule that a damages class cannot include uninjured members. Given the circuit split on this important issue, the Supreme Court is likely to take it up again in a different case within the next one or two years.

Our initial 10 February 2025 article can be accessed here: Supreme Court to address class certification and Article III standing.

Update authored by Adam Levin, Katie Wellington, Carrie DeLone, and James Yates.

Original article authored by Adam Levin, Katie Wellington, and James Yates.