Class Action

Class actions are a powerful tool for holding corporations and institutions accountable, and an essential mechanism for older adults to vindicate their rights in cases involving consumer fraud, retirement security, or access to benefits. By consolidating many smaller claims into a single cohesive action, class actions make it possible to pursue justice where individual lawsuits would be impractical or prohibitively expensive, particularly in cases where the damages sustained by each class member are modest. The class mechanism is often the only realistic pathway under many statutes to recover losses from business practices harming older consumers and retirees.

Ordinarily, a plaintiff may not pursue a lawsuit in federal court absent “standing”—namely, an injury-in-fact that is redressable by the court. To bring a class action, plaintiffs must meet certain requirements. Fed. R. Civ. P. 23(a)-(b). But an important question remains unresolved: Whether, at the class certification stage, plaintiffs must establish that every proposed class member has standing under Article III of the U.S. Constitution. While the Supreme Court has long held that class representatives must have Article III standing, e.g., Sosna v. Iowa, 419 U.S. 393, 402-03 (1975), it has not yet resolved whether unnamed, or “absent,” class members must also demonstrate Article III standing at the class certification stage.

Federal courts of appeal are sharply divided on this issue. Most circuits have rejected the notion that Article III standing must be demonstrated for all absent class members at the class certification stage. E.g., Huber v. Simon’s Agency, 84 F.4th 132, 155 (3d Cir. 2023); Mims v. Stewart Title Guar. Co., 590 F.3d 298, 308 (5th Cir. 2009); Kohen v. Pacific Inv. Mgmt. Co., LLC, 571 F.3d 672, 677 (7th Cir. 2009); Olean Wholesale Grocery v. Bumble Bee Foods LLC, 31 F.4th 651, 682 (9th Cir. 2022) (en banc); DG v. DeVaughn, 594 F.3d 1188, 1198 (10th Cir. 2010). In contrast, the U.S. Courts of Appeals for the Second and Eighth Circuits have taken a strict and contrary view, holding that a class cannot be certified under Rule 23(b)(3) if any class members lack standing. E.g., Denney v. Deutsche Bank AG, 443 F.3d 253, 264 (2d Cir. 2006); Johannessohn v. Polaris Indus. Inc., 9 F.4th 981, 987 (8th Cir. 2021).

This split among the circuits recently came into sharp focus in Laboratory Corporation of America Holdings v. Davis, where the Supreme Court granted LabCorp’s petition for certiorari in 2024, signaling its willingness to resolve the broader standing question: Whether a class may be certified under Rule 23(b)(3) when not all class members have an Article III injury. But, on June 5, 2025, the Court dismissed the case as improvidently granted, leaving the issue unresolved. AARP and AARP Foundation filed an amicus brief urging the Supreme Court to affirm the Ninth Circuit’s more expansive view of Article III standing in class actions.

This unanswered question of the standing of absent class members has profound implications for civil litigation—particularly for older adults with low income and other vulnerable populations. If courts require plaintiffs to establish standing for every class member at the class certification stage, it could impose a significant—and often insurmountable—barrier to the class action mechanism. Demonstrating individual injury for hundreds or thousands of class members as a prerequisite to class certification would likely require extensive early discovery, expert analysis, and fact-specific evidence, all before the case proceeds to the merits. This would make class actions cost prohibitive and practically infeasible in most cases, as few attorneys would be willing to front the substantial expenses required to meet such a heightened evidentiary burden at the certification stage. 

The Supreme Court has acknowledged this economic reality: “a plaintiff’s suit proceeds as a class action or not at all.” Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 161 (1974). Although the Court declined to decide LabCorp, it is likely only a matter of time before the issue of absent class members’ standing is before the Court in another case. One likely candidate is Speerly v. General Motors, LLC, a consumer class action involving alleged transmission defects where the district court certified 26 state-wide subclasses, composing about 800,000 car buyers. 2025 WL 1775640, at *1 (6th Cir. June 27, 2025). Defendants appealed, arguing that “the district court’s opinion cannot be squared” with existing class action jurisprudence. Brief for Petitioner at 5, Speerly v. General Motors, 115 F.4th 680 (6th Cir. 2024). The Sixth Circuit, sitting en banc, vacated the district court’s grant of class certification on commonality and predominance grounds. Speerly, 2025 WL 1775640, at *7, *20. Although the Sixth Circuit found that “[t]he standing of absent class members becomes immaterial once a court” declines to certify, concurring opinions flagged the unresolved standing issue. Id. at *3, *22, *31. AARP and AARP Foundation filed an amicus brief urging the en banc Sixth Circuit to find that the Plaintiffs-Appellees have standing.

With clear disagreement among the circuits and increasing advocacy efforts by corporations, the Supreme Court is likely to revisit this issue soon. When it does, its decision will shape the future of class action practice and determine whether consumers, retirees, and other vulnerable plaintiffs can meaningfully access justice in the federal courts. 

Rachel N. Lokken, RLokken@aarp.org

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