On Friday, the U.S. Supreme Court granted certiorari in Laboratory Corporation of America Holdings v. Davis, No. 24-304, to decide “[w]hether a federal court may certify a class action pursuant to Federal Rule of Civil Procedure 23(b)(3) when some members of the proposed class lack any Article III injury.” This has the potential to be one of the most significant developments in class action law in several years.

The plaintiffs, who are blind, sued Labcorp under the Americans With Disabilities Act and California Unrah Civil Rights Act (Act)  because its self-service kiosks were not accessible to the blind without assistance. They seek minimum statutory damages of $4,000 per violation under the Act—potentially $500 million per year. The proposed class was defined to include any legally blind person who walked into a facility that had a kiosk and was unable to use it, regardless of whether they were aware of it or desired to use it. The district court certified the class and the Ninth Circuit affirmed in an unpublished opinion with little analysis because prior Ninth Circuit decisions had held that only the named plaintiff must establish Article III standing. Here, a named plaintiff walked into the facility, inquired about a kiosk and then was assisted by an employee at the front desk. According to the petition for certiorari, many putative class members were not aware of the kiosks and used the front desk, and the plaintiffs did not identify anyone who was unable to receive services due to the kiosks.  

Circuits are split on whether or what extent class members must have standing (i.e., a “concrete and particularized” “invasion of a legally protected interest” that is “actual or imminent, not conjectural or hypothetical”) at the class certification stage, or at some other stage in the case. Under Ninth Circuit precedent, it was sufficient for the named plaintiff to have sustained an injury, even if many other putative class members did not. The Second and Eighth Circuits have articulated a relatively strict approach that all class members must have standing. The First and D.C. Circuits appear to have required that a class contain no more than a “de minimus” number of proposed class members who lack standing. The Seventh Circuit has found that a class may be certified unless a “great many” class members lack standing. Finally, the Eleventh Circuit appears to have agreed with the Ninth Circuit that only a named plaintiff must have standing. I say “appears to have” because there is some debate about how to properly interpret some of these circuits’ case law, and in some circuits the cases are not entirely consistent.

This is an issue the Supreme Court was expected to decide in Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442 (2016), but did not reach in that case.

Defendants will be hoping that the Court’s conservative majority will rein in this type of class action and require that all proposed class members have standing for a class to be certified, while the plaintiffs’ bar will be hoping the Court, if it does not affirm the Ninth Circuit, adopts more of a “middle ground” approach. Briefing is scheduled for March and April, to put the case in line for decision by the end of June. Stay tuned.

Photo of Wystan Ackerman Wystan Ackerman

I am a partner at the law firm of Robinson+Cole in Hartford, Connecticut, USA.  My contact information is on the contact page of my blog.  I really enjoy receiving questions, comments, suggestions and even criticism from readers.  So please e-mail me if you…

I am a partner at the law firm of Robinson+Cole in Hartford, Connecticut, USA.  My contact information is on the contact page of my blog.  I really enjoy receiving questions, comments, suggestions and even criticism from readers.  So please e-mail me if you have something to say.  For those looking for my detailed law firm bio, click here.  If you want a more light-hearted and hopefully more interesting summary, read on:

People often ask about my unusual first name, Wystan.  It’s pronounced WISS-ten.  It’s not Winston.  There is no “n” in the middle.  It comes from my father’s favorite poet, W.H. (Wystan Hugh) Auden.  I’ve grown to like the fact that because my name is unusual people tend to remember it better, even if they don’t pronounce it right (and there is no need for anyone to use my last name because I’m always the only Wystan).

I grew up in Deep River, Connecticut, a small town on the west side of the Connecticut River in the south central part of the state.  I’ve always had strong interests in history, politics and baseball.  My heroes growing up were Abraham Lincoln and Wade Boggs (at that time the third baseman for the Boston Red Sox).  I think it was my early fascination with Lincoln that drove me to practice law.  I went to high school at The Williams School in New London, Connecticut, where I edited the school newspaper, played baseball, and was primarily responsible for the installation of a flag pole near the school entrance (it seemed like every other school had one but until my class raised the money and bought one at my urging, Williams had no flag pole).  As a high school senior, my interest in history and politics led me to score high enough on a test of those subjects to be chosen as one of Connecticut’s two delegates to the U.S. Senate Youth Program, which further solidified my interest in law and government.  One of my mentors at Williams was of the view that there were far too many lawyers and I should find something more useful to do, but if I really had to be a lawyer there was always room for one more.  I eventually decided to be that “one more.”  I went on to Bowdoin College, where I wrote for the Bowdoin Orient and majored in government, but took a lot of math classes because I found college math interesting and challenging.  I then went to Columbia Law School, where I was lucky enough to be selected as one of the minions who spent their time fastidiously cite-checking and Blue booking hundred-plus-page articles in the Columbia Law Review.  I also interned in the chambers of then-Judge Sonia Sotomayor when she was a relatively new judge on the Second Circuit, my only connection to someone who now has one-ninth of the last word on what constitutes the law of our land.  I graduated from Columbia in 2001, then worked at Skadden Arps in Boston before returning to Connecticut and joining Robinson+Cole, one of the largest Connecticut-based law firms.  At the end of 2008, I was elected a partner at Robinson+Cole.

I’ve worked on class actions since the start of my career.  Being in the insurance capital of Hartford, we have a national insurance litigation practice and most of the class actions I’ve defended have been brought against insurance companies. I’ve also handled some involving products liability, managed care, health care, utilities, financial services, higher education and environmental issues.

My insurance class action practice usually takes me outside of Connecticut.  I’ve had the pleasure of working on cases in various federal and state courts and collaborating with great lawyers across the country.  While class actions are an increasingly large part of my practice, I don’t do exclusively class action work.  The rest of my practice involves litigating insurance coverage cases, often at the appellate level.  That also frequently takes me outside of Connecticut.  A highlight of my career thus far was working on Standard Fire Ins. Co. v. Knowles, the U.S. Supreme Court’s first Class Action Fairness Act case.  I was Counsel of Record for Standard Fire on the cert petition, and had the pleasure of working with Ted Boutrous on the merits briefing and oral argument.

I started this blog because writing is one of my favorite things to do and I enjoy following developments in class action law, writing about them and engaging in discussion with others who have an in interest in this area.  It’s a welcome break from day-to-day practice, keeps me current, broadens my network and results in some new business.

When I’m not at work, you might find me running lines or watching a musical with my teenage daughter who hopes to be a Broadway star (or taking her to voice or dance lessons) or reading a good book.