|
Supreme Court precedents establish that to have constitutional standing to sue, a litigant must establish, among other things, that he or she has suffered an “injury in fact.” Although this Article III “case or controversy” requirement applies to class actions, federal courts of appeals disagree about whether the named plaintiffs in a putative class action must demonstrate that every absent member of a proposed class has been injured, or whether a class can be certified even if it includes a minimal number of uninjured members.
In January 2025 the Supreme Court granted certiorari in Labcorp v. Davis (24-304) to address this crucial and long-percolating class-action issue. ALF filed an amicus brief, authored by Felix Shafir and John F. Querio of Horvitz & Levy LLP, arguing that a federal district court must not certify a class if it includes any uninjured members, or alternatively, that a class must not include more than a de minimis number of uninjured members. But following oral argument in April 2025, the Court, over Justice Kavanaugh’s dissent, dismissed the appeal as improvidently granted, apparently on mootness grounds.
The pending certiorari petition in Nestlé USA, Inc. v. Falcone (26-400) affords the Court a fresh opportunity to address the uninjured class member issue. In Nestlé the putative class is composed of millions of California consumers of certain Nestlé chocolate products that allegedly were marketed with labels misrepresenting that the products were “responsibly” and “sustainably” sourced.
Messrs. Shafir and Querio have authored an amicus brief urging the Court to grant review.
ALF's Amicus Brief
ALF’s amicus brief argues that Article III prohibits federal district courts from certifying class actions unless and until the named plaintiffs present common evidence, at the class-certification stage, that each and every absent member suffered some concrete harm. More specifically, (i) Article III requires that each and every class member have standing at the class-certification stage; (ii) absent class members cannot rely on the standing of the named plaintiffs; (iii) Federal Rule of Civil Procedure 23, which governs class actions, cannot be interpreted or applied in a way that circumvents the Article III standing requirement; and (iv) the burden is on the named plaintiffs to demonstrate, at the class-certification stage, that each and every member of the proposed class has been injured.
The amicus brief argues in the alternative that a federal district court must not certify a class that contains more than a de minimis number of absent uninjured members. Further, this de minimis standard can be satisfied only where a tiny fraction of the class (certainly less than 1% in any case with a few hundred members or more) consists of uninjured members. The brief explains that to satisfy a de minimis standard, the named plaintiffs would have to present a case-specific, administratively feasible mechanism for sifting out uninjured members—a method that must preserve a defendant’s constitutional right to present individualized challenges to class members’ standing.
| 
