When the High Court Abstains: Laboratory Corp. of America v. Davis and the Unsettled Doctrine of “Mixed-Injury” Class Certification

1. Introduction

On 5 June 2025 the U.S. Supreme Court issued a terse per curiam order in Laboratory Corp. of America Holdings v. Davis, No. 24-304, dismissing the writ of certiorari as “improvidently granted.” The underlying appeal asked the Court to resolve a highly consequential question: May a federal court certify a Rule 23(b)(3) damages class that contains both injured and uninjured members?

The plaintiffs—legally blind patrons of Labcorp’s California facilities—alleged that touchscreen kiosks violated the Americans with Disabilities Act (ADA) and California’s Unruh Civil Rights Act. The district court certified a broad class that, according to Labcorp, swept in many individuals who had suffered no actionable injury. The Ninth Circuit affirmed, invoking its 2022 Olean Wholesale v. Bumble Bee Foods en banc decision, which tolerates classes containing “more than a de minimis number” of uninjured persons.

The Supreme Court’s dismissal leaves the Ninth Circuit’s ruling intact and preserves, at least for now, a pronounced circuit split on the “mixed-injury” question. Justice Kavanaugh’s eight-page dissent argues that certification of such classes violates Rule 23 and warns of coercive settlements and economic fallout. The majority’s silence, however, means no new binding rule emerged; instead, the decision establishes a subtler precedent: the Court’s continuing reluctance to police class definition questions when threshold mootness or procedural complications lurk in the record.

2. Summary of the Judgment

• Disposition: Writ of certiorari dismissed as improvidently granted (DIG).
• Majority Opinion: Unsigned, one-sentence per curiam; no reasoning offered.
• Dissent: Justice Kavanaugh (alone) would (i) find the case not moot, and (ii) hold that Rule 23 prohibits certification of a damages class containing uninjured members.

The practical result: the Ninth Circuit’s approval of the class—and its permissive “> de minimis” test for uninjured members—remains governing law within that circuit. Nationally, the question is still open because other circuits (D.C., First, Fifth, Third, Seventh) demand all or virtually all class members be injured or provide an administratively feasible mechanism to cull the uninjured.

3. Analysis

3.1 Precedents Cited and Their Influence

Justice Kavanaugh’s dissent situated the dispute within a line of Supreme Court authorities requiring tight conformity between class definition, predominance, and actual injury:

  • Comcast Corp. v. Behrend, 569 U.S. 27 (2013) – Predominance fails when individual damages inquiries overwhelm common ones.
  • Wal-Mart v. Dukes, 564 U.S. 338 (2011) – Commonality demands a unifying injury-producing policy.
  • Amchem v. Windsor, 521 U.S. 591 (1997) – Settlement classes still require rigorous Rule 23 analysis.
  • Falcon, 457 U.S. 147 (1982) – Courts must probe the facts behind class allegations.

In the Ninth Circuit, however, Olean Wholesale (2022) controls. That decision endorses certification where uninjured members form more than a trivial fraction, so long as common questions still “predominate.” By refusing to grant relief, the Supreme Court tacitly allowed Olean to propagate, deepening divergence with:

  • D.C. Circuit – Rail Freight Fuel Surcharge (2019): Advocates a “de minimis exception” only if a feasible method exists to excise uninjured members.
  • First Circuit – Asacol (2018): Vacated certification because plaintiffs proposed no administratively manageable way to identify injury.

3.2 Legal Reasoning of the Court (and the Dissent)

Per curiam (majority): The Court offered no analysis and simply DIG-ed the petition. The most plausible basis—teased in Kavanaugh’s dissent—is discomfort with plaintiffs’ “mootness” argument: that Labcorp appealed the wrong order (the May certification order rather than the August “clarification”). Without comment, the Court avoided both the jurisdictional fight and the merits.

Dissent (Kavanaugh): 1) Mootness. The August clarification “did not materially alter” the class and thus did not nullify the May order or the Ninth Circuit’s jurisdiction. Therefore, the petition was live.
2) Merits. Rule 23(b)(3) demands that “common questions predominate.” If a class includes uninjured members, common injury is absent; those individuals cannot establish Article III standing, and predominance fails.
3) Policy. Overbroad classes compel “bet-the-company” settlements that inflate consumer prices, depress wages, and punish shareholders.

While only a dissent, Kavanaugh’s reasoning may influence lower courts inclined toward a stricter stance or invite renewed petitions free from procedural quirks.

3.3 Impact Assessment

• Status Quo Preserved, Uncertainty Extended. The Supreme Court’s abstention maintains a circuit split: Ninth and perhaps Second Circuits tolerate mixed-injury classes; D.C., First, Fifth, Third, and Seventh are skeptical. Forum-shopping incentives intensify, with plaintiffs steering damages actions into circuits embracing Olean.

• Pressure on Congress and the Rules Committee. Absent Supreme Court guidance, stakeholders may lobby the Advisory Committee on Civil Rules to clarify Rule 23 or for legislative intervention, echoing the trajectory that led to the Class Action Fairness Act (CAFA) in 2005.

• Strategic Litigation Behavior. Defense counsel will redouble efforts to craft early standing challenges or to expose administrative infeasibility in identifying injured members. Plaintiffs, conversely, may amplify arguments for aggregated statutory damages (here $4,000 each under Unruh) to raise settlement leverage.

• Re-litigation Prospects. A cleaner vehicle—without mootness shadows—may soon tempt the Court. Justice Kavanaugh signaled a readiness to supply a fifth vote on the merits, and other Justices (e.g., Thomas, Alito, Gorsuch) have previously expressed skepticism of expansive class certifications.

4. Complex Concepts Simplified

  • Dismissed as Improvidently Granted (DIG): The Court occasionally decides, after briefing and argument, that it should not have agreed to hear a case. It dismisses the writ without deciding the merits, leaving lower-court rulings intact.
  • Rule 23(b)(3) “Predominance”: For money-damages classes, common questions must outweigh individual ones. If many members were not injured, individual injury inquiries multiply and commonality collapses.
  • Uninjured Class Members: Individuals entitled to no damages (because they lack statutory or actual harm) but nonetheless counted in the class roster.
  • Rule 23(f) Interlocutory Appeal: A special mechanism allowing immediate appeal from a class-certification order, bypassing the usual “final judgment” rule, given the heavy settlement pressures class orders impose.
  • Article III Standing: The constitutional requirement that a federal plaintiff show concrete injury, causation, and redressability. Uninjured class members lack standing.
  • De minimis Exception: Some circuits tolerate a “tiny, manageable” number of uninjured members if the court can later remove them without individualized mini-trials.

5. Conclusion

Laboratory Corp. v. Davis ultimately teaches less about Rule 23 doctrine than about the Supreme Court’s docket-management philosophy. By DIG-ing, the Court left business litigants, class-action plaintiffs, and lower tribunals without authoritative guidance on a question that profoundly affects class-action leverage and settlement dynamics. Justice Kavanaugh’s dissent, however, stakes a clear position that may shape future litigation and embolden stricter circuits. Until the Court squarely confronts the “mixed-injury” conundrum—or the Rules Committee amends Rule 23—parties must navigate a fragmented legal landscape where the viability of a damages class turns as much on geography as on law.

Practitioners should monitor circuit developments, preserve standing and predominance objections, and, where feasible, craft class definitions or damages models that isolate truly injured members. Only when a case arises unburdened by mootness puzzles might the Supreme Court deliver the clarity that Davis left conspicuously absent.