Class Actions

Class actions are an invaluable tool for older adults seeking to enforce their rights under consumer protection, employment discrimination, retirement security, and other laws. Often, bringing an individual lawsuit is impractical given the size of individual losses versus the cost of litigation or other reasons. Class actions fill this gap by allowing one or more named plaintiffs to litigate claims on behalf of a larger group with similar injuries. In such actions, the court—often before discovery begins—must certify that the defined class meets specific requirements under the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 23.

At the class certification stage, issues often arise regarding the plaintiffs’ “standing” to sue. In both individual and class action cases, the named plaintiff must allege personal injury-in-fact that is redressable by the court. But questions abound: What about the dozens, or thousands, of unnamed (or absent) class members? Must the plaintiff, for standing purposes, allege the individualized harm to every such member for the case to proceed to litigation on the merits? 

On these types of threshold questions, there is wide disagreement. For example, a majority of courts have ruled that lawsuits can go forward even if some number of class members lack proof of injury at the certification stage. See, e.g., Huber v. Simon’s Agency, 84 F.4th 132, 155 (3d Cir. 2023); Kohen v. Pacific Inv. Mgt. Co., LLC, 571 F.3d 672, 677 (7th Cir. 2009); J.D. v. Azar, 925 F.3d 1291, 1323-24 (D.C. Cir. 2019). Some courts have tried to further define this rule, stating that the number of non-injured cannot be a “great many,” see Kohen, 571 F.3d at 677, or more than a de minimis number, see In re Asacol Antitrust Litig., 907 F.3d 42, 53-54 (1st Cir. 2018). But the U.S. Courts of Appeals for the Second and Eighth Circuits, by contrast, have held that a class cannot be certified if any class member lacks standing. See Denney v. Deutsche Bank AG, 443 F.3d 253, 264 (2d Cir. 2006) (“class must be … defined in such a way that anyone within it would have standing”); Johannessohn v. Polaris Indus. Inc., 9 F.4th 981, 988 n.3 (8th Cir. 2021) (same).

A further issue is the amount of proof of individualized injury each absent member would need to present if required to prove standing at the class certification stage. This issue recently arose in a petition for certiorari review of a Ninth Circuit decision approving class certification. Davis v. Lab’y Corp. of Am. Holdings, No. 22-55873, 2024 WL 489288 (9th Cir. 2024). Petitioner argued, in part, that individualized proof of all class member standing should be required at this early class certification stage rather than at the “back end” of the litigation. See Pet. for Cert. at 4-5, 25-26, Lab’y. Corp. of Am. Holdings v. Davis, No. 24-304 (2025). AARP and AARP Foundation filed an amicus brief stressing that requiring hundreds or thousands of mini-trials on standing at this early stage had no support in the law and would defeat the very purpose of class actions. While the Court ultimately dismissed the case, asserting that certiorari was improvidently granted, this will not be the last time that parties petition the court to review related class standing issues. Lab’y Corp. of Am. Holdings v. Davis, 605 U.S. 327 (2025).

The continuing uncertainty surrounding absent class member standing has significant implications for older adults, particularly those with low income, and other vulnerable populations who rely on access to the courts to vindicate their rights. Requiring plaintiffs to establish standing for every class member at the class certification stage can impose a significant—and often insurmountable—barrier to proceeding as a class. Demonstrating individual injury for hundreds or thousands of class members can 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 impossible in many (if not most) cases, as few attorneys would be willing to front the substantial expenses required to meet such a heightened evidentiary burden at the class certification stage.