Justice Kavanaugh Signals Conservative Vote Toward Imposing a Pre-Certification Standing Requirement Under FRCP 23

On June 5, 2025, the Supreme Court declined to decide the question, certified in Laboratory Corp. of America Holdings v. Davis, as to “[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.” The Court instead dismissed the case as improvidently granted, due to apparent procedural complexities in how the case was presented on appeal.

Justice Kavanaugh nonetheless weighed in. In a lone dissenting opinion, Kavanaugh made clear where he stands, concluding that “Rule 23 and this Court’s precedents make this a straightforward case” requiring standing questions to be decided at the pre-certification stage of class proceedings. Specifically, “a federal court may not certify a damages class that includes both injured and uninjured members. Rule 23 requires that common questions predominate in damages class actions. And when a damages class includes both injured and uninjured members, common questions do not predominate.”

Kavanaugh’s dissenting opinion separately laments the “serious real-world consequences” and undue pressure that inflated, overbroad classes place on defendants—often “coerc[ing] businesses into costly settlements that they sometimes must reluctantly swallow rather than betting the company on the uncertainties of trial.”

While Kavanaugh’s position presumably conforms with many of the other conservative justices, the Court’s per curiam order dismissing the case leaves a current circuit split intact for now as to the proper resolution of standing questions at the pre-certification stage. The question should soon be presented to the Court again on a cleaner procedural vehicle rising through the appellate courts.