Last year, in TransUnion LLC v. Ramirez, 141 S.Ct. 2190 (2021), the Supreme Court confirmed that every class member must have Article III standing to recover damages in a class action. As we have previously written, the Court’s decision – summed up as “[n]o concrete harm, no standing” – presents major obstacles to plaintiffs asserting class claims based on “bare procedural violation[s]” of statutes. But Ramirez left unanswered some important questions about class action standing, and we offer some thoughts here on what the answers are likely to be.
The Court granted review in Ramirez to consider “[w]hether either Article III or Rule 23 permits a damages class action where the vast majority of the class suffered no actual injury, let alone an injury anything like what the class representative suffered.” But the Court did not answer that question, instead leaving it to the Ninth Circuit to evaluate on remand. Similarly, the Court in a footnote declined to “address the distinct question whether every class member must demonstrate standing before a court certifies a class.”
Ramirez nevertheless strongly suggests that a class should not be certified absent a showing that substantially all members suffered actual (and comparable) injury. That conclusion arguably is compelled by the “preliminar[y]” principles set forth in Ramirez that “[e]very class member must have Article III standing in order to recover individual damages” and “[p]laintiffs must maintain their personal interest in the dispute at all stages of litigation.” Notably, there was no dispute in Ramirez that the named plaintiff suffered a concrete harm sufficient to establish individual standing, so the Court’s instruction that the Ninth Circuit consider on remand “whether class certification is appropriate in light of our conclusion about standing” made clear that the standing of unnamed class members should be the focal point of the class certification analysis.
As we have observed, a direct standing challenge is not the only way to oppose class certification in the presence of uninjured class members. Often the best way to present such arguments will be under the Rule 23 framework of typicality, adequacy, and/or predominance. Indeed, Ramirez itself suggested that typicality can be affected by the standing (or lack thereof) of unnamed class members. The strength of such arguments, however, will depend on the evidentiary record at the class certification stage. In Ramirez it was clear-cut that the named plaintiff did have standing but a significant proportion of the class did not. That will not always be the case.
Trial courts in some early post-Ramirez decisions have resisted the idea that Ramirez creates any kind of sea change requiring reexamination of already-certified classes for standing or predominance. See, e.g., In re EpiPen (Epinephrine Injection, USP) Mktg., Sales Pracs. & Antitrust Litig., 2021 WL 5918912, at *9 (D. Kan. Dec. 15, 2021) (concluding that Ramirez “doesn’t require decertification” because it “never holds or even implies that class certification requires every class member to demonstrate standing”). But Ramirez did confirm that uninjured class members cannot recover damages, which at a minimum requires parties and courts to confront the standing issue in a meaningful way.
EpiPen is illustrative. The defendants there sought to decertify the class, either because uninjured class members lacked standing under Ramirez or because identifying uninjured class members would require individualized inquiries that would defeat predominance. The plaintiffs successfully fended off this argument by presenting new opinions from their expert stating that injury could be proven for all class members with common evidence. The court, relying on the plaintiffs’ new evidence, declined to decertify the class. The court also observed, however, that a jury might ultimately reject that evidence – in which case Ramirez would preclude uninjured class members from recovering damages. The court then announced that it would require a specific jury finding on that point. It is unclear what such an instruction would look like or how it would be manageable at trial, and to the extent EpiPen suggested that the jury should decide in the first instance whether plaintiffs’ evidence sufficed to establish classwide injury, it is difficult to see how that could be squared with the court’s obligation to find predominance at the Rule 23 stage.
Nevertheless, to satisfy Ramirez’s standing requirements, some will seek to copy the EpiPen plaintiffs in presenting expert opinions or other evidence that injury can be shown for all class members through common proof, and perhaps in urging courts to punt the issue. They will do so at their peril, however, in cases where that evidence is ultimately insufficient for at least some members of the class, and courts are likely to scrutinize such evidence closely at the class certification stage. In other instances, plaintiffs will attempt to avoid the problem by gerrymandering their class definitions to exclude uninjured persons. That approach has its own risks, however, including potentially running afoul of the rule against “failsafe” classes.
Some upcoming appellate decisions may further clarify the significance of Ramirez. For example, as we previously reported, Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC, a high-profile case pending en banc review in the Ninth Circuit, will decide if a class with more than a de minimis number of uninjured members can satisfy predominance. Similarly, in In re Visa Inc., the D.C. Circuit accepted an interlocutory appeal to review the district court’s “questionable” decision to certify a class before determining whether the class contained uninjured members. In these and similar cases, Ramirez may soon help shape more stringent standards for certifying classes that may include significant numbers of uninjured members.