Kavanaugh Dissent Invites More Cases With Uninjured Class Members

The US Supreme Court’s dismissal of Laboratory Corp. of America Holdings v. Davis represents a missed opportunity to resolve a fundamental question in class action litigation. The 8-1 dismissal as “improvidently granted” left unaddressed whether federal courts can certify Rule 23 damages classes that sweep in both injured and uninjured members—a question with significant implications for class action practice nationwide.

Justice Brett Kavanaugh disagreed with the dismissal, echoing concerns his fellow conservative justices voiced during oral arguments, but that he made by himself in his dissent.

The court’s dismissal leaves unresolved a significant circuit split on class certification standards. The US Courts of Appeals for the Ninth and Eleventh Circuits have indicated they may allow Rule 23(b)(3) certification with potentially uninjured class members, while the Second, Fourth, and Eighth Circuits bar certifications where members lack standing. Kavanaugh’s dissent reflects broader concerns about expansive class action liability and its economic effects.

By insisting on the application of Article III rigor to Rule 23’s predominance requirement, Kavanaugh would make it harder for plaintiffs to bring large-scale claims based on abstract or intangible alleged harms.

The underlying dispute centered on LabCorp’s self-service check-in kiosks at its diagnostic facilities, which legally blind patients alleged violated accessibility requirements under federal and California law. The proposed class definition potentially encompassed all legally blind individuals who visited LabCorp centers in California, creating exposure of approximately $500 million annually.

After the district court certified the class and the Ninth Circuit affirmed under precedent allowing certification despite “more than a de minimis number of uninjured class members,” the Supreme Court granted review but ultimately declined to decide the merits.

The April 29, 2025, oral argument suggested the court’s reluctance, with multiple justices expressing concerns about the case’s procedural posture and expressing, or implying, a wide variety of views concerning the intersection of Article III and Rule 23.

Kavanaugh argued the court abdicated its responsibility to provide clarity on this critical class certification issue. His dissent makes both procedural and substantive arguments.

Procedurally, he criticized the majority for avoiding the legal question by dismissing the case rather than addressing what he called plaintiffs’ “insubstantial” mootness argument.

On the merits, Kavanaugh argued that “federal courts may not certify a damages class under Rule 23 when, as here, the proposed class includes both injured and uninjured class members.”

He reasoned that “Rule 23 authorizes damages class certification only when common questions of law and fact predominate” and “a damages class consisting of both injured and uninjured members does not meet that requirement.” Supporting this position, he quoted the government’s argument that “if there are members of a class that aren’t even injured, they can’t share the same injury with the other class members.”

Beyond the legal technicalities, Kavanaugh emphasized the real economic consequences of overbroad class certification. He noted that “classes that are overinflated with uninjured members raise the stakes for businesses” and create coercive pressure because “overbroad and incorrectly certified classes threaten massive liability.”

This dynamic “can coerce businesses into costly settlements that they sometimes must reluctantly swallow rather than betting the company on the uncertainties of trial.” Ultimately, he warned, these “coerced settlements substantially raise the costs of doing business” and “companies in turn pass on those costs to consumers in the form of higher prices; to retirement account holders in the form of lower returns; and to workers in the form of lower salaries and lesser benefits.”

The uncertainty, created by the courts of appeal and left unresolved by the broader court’s judicial punt, threatens to leave in place the coercive settlement pressure that Kavanaugh warned against, leaving both businesses and plaintiffs to navigate an inconsistent legal landscape, until perhaps a more procedurally ripe case presents itself to the Supreme Court.

An observer can reasonably infer that the mootness of the appeal led Kavanaugh’s fellow conservative justices to abstain from participation in the dissent.

National businesses, often subject to suit around the country, face sharply divergent rules depending on where class action plaintiffs choose to sue. Virtually the entire defense bar, as friends of the court, had urged the court to provide urgently needed uniform guidance.

Given that instead this appeal failed due to hypertechnical appellate issues, we can expect business and industry to be searching for the right case to put the issue squarely before the court again.

The case is Laboratory Corp. of America Holdings v. Davis, U.S., No. 24-304, dismissed as improvidentially granted 6/5/25

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Paul Bond is partner and litigation attorney at Holland & Knight focused on data security and privacy.

Madeline Schonberger is an associate and litigation attorney in Holland & Knight’s Philadelphia office, focused on labor, employment, and data privacy.

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