Authors

William G. Beatty

Winnowing the Wheat from the Chaff: The Continuing Controversy over Article III Standing and the Certification of Rule 23(b)(3) Damages Classes Containing "Uninjured" Members

Abstract

The controversy surrounding the inclusion of uninjured class members in Rule 23(b)(3) damages classes has deeply divided the federal circuit courts of appeals and continues to do so. This Article explores the constitutional roots of the issue, beginning with the foundational element of Article III standing, and discusses the question of how many uninjured members, if any, Rule 23 permits in a class seeking certification before problems with commonality and predominance arise.

The Article discusses the details of the Laboratory Corp. of America v. Davis case (LabCorp), which, in the spring of 2025, presented the Supreme Court with an opportunity to resolve this circuit split and provide some guidance on the proper population of Rule 23(b)(3) damage classes, but the opportunity was declined with the dismissal of a writ of certiorari. Since this issue will doubtlessly present itself again, this Article will examine the reasoning employed by the district court in granting class certification in the LabCorp case, as well as the rationale used by the Ninth Circuit in affirming the district court, and, in so doing so, seemingly abandoning the de minimis standard regarding how many uninjured members can participate in a class and still achieve certification.

Also discussed in detail is the aforementioned split among the various circuit courts of appeals on this issue, taking a circuit-by-circuit approach.

Lastly, this Article makes a recommendation for how this divide should be resolved and considers how the Supreme Court’s future decision on the issue of uninjured members in Rule 23(b)(3) damage classes could profoundly impact American businesses and consumers.

Repository Citation

William G. Beatty, Winnowing the Wheat from the Chaff: The Continuing Controversy over Article III Standing and the Certification of Rule 23(b)(3) Damages Classes Containing "Uninjured" Members, 17 Wm. & Mary Bus. L. Rev. 253 (2026), https://scholarship.law.wm.edu/wmblr/vol17/iss2/2