USA – NEW YORK Law and Practice Contributed by: Sam Lieberman, Claiborne Hane and Ben Hutman, Sadis & Goldberg LLP
crete harm” cannot satisfy the constitutional stand- ing requirement (id at 341). In short, the injury-in-fact requirement serves as a fundamental separation-of- powers safeguard by ensuring that federal courts do not render advisory opinions but instead adjudicate genuine disputes involving real-world harm. More recently, the Supreme Court’s recent decision to dismiss the writ of certiorari in Laboratory Corporation of America Holdings v Davis , No 24-304 (U.S. June 5, 2025) leaves unresolved a pivotal issue in class action jurisprudence: whether federal courts may certify damages classes under Rule 23 that include uninjured class members. This uncertainty continues to fuel a split among the federal courts of appeals. The Ninth and Eleventh Circuits generally permit certification of such classes, even if they contain uninjured members, while the Second, Fourth and Eighth Circuits typi- cally reject certification under these circumstances. The Supreme Court’s dismissal of the writ of certio- rari, without addressing the merits, effectively leaves standing the Ninth Circuit’s approach in that particu- lar case, thereby perpetuating this divide. Supreme Court Justice Kavanaugh’s dissent from the denial of certiorari, advocating for a more restrictive interpreta- tion, underscores the potential for future clarification. Until the Court provides definitive guidance, the pre- vailing uncertainty complicates standing analyses in class actions regarding the inclusion of uninjured class members in a class. 3.4 Class Members, Size and Mechanism – Opting In or Out In federal class action litigation, the treatment of class members and opt-out rights depends on the type of class certified under Rule 23 (b). For damages actions certified under Rule 23 (b)(3), class members are automatically included within the class unless they affirmatively opt out after receiving notice. This ability to “opt out” is rooted in due process principles, which require that absent class members be given a mean- ingful choice before being bound by a judgment for monetary relief. By contrast, Rule 23 (b)(1) and (b)(2) classes – typically involving injunctive or declaratory relief – are generally mandatory, meaning that mem- bers do not have a right to opt out. Federal courts also require that the class be defined in a way that is ascertainable, and courts typically view a class of
50 or more as sufficiently numerous to justify a class action. New York’s CPLR Article 9 adopts a more flexible and uniform approach. Unlike the federal rule, Arti- cle 9 does not divide class actions into categories, and courts generally treat all certified classes as opt- out actions, regardless of whether the relief sought is monetary or injunctive. Notice is discretionary, and courts may dispense with it altogether if the stakes are minimal or individualised notice is impracticable. New York courts also reject rigid formulations of ascertain- ability, allowing classes to be defined broadly, even through self-identification, so long as there is a rea- sonable method for determining membership at some later point. As a result, the default presumption in New York favours inclusion, with the burden placed on dis- senting members to affirmatively remove themselves from the class. 3.5 Joinder The joinder of overlapping claims is an inherent fea- ture of the class action. Because of the class action’s status as a vehicle that “enables a federal court to adjudicate claims of multiple parties at once, instead of in separate suits”, joinder is rarely a difficulty in class action ( Shady Grove Orthopedic Assocs., P.A. v Allstate Ins. Co ., 559 U.S. 393, 408 (2010)). Claims common to the class are litigated as one, on behalf of the entire class, without the need for formal joinder. 3.6 Case Management Powers of Courts In both federal and New York state courts, judges have broad case management authority over class actions to ensure efficiency, fairness and protection of absent class members. Under Rule 23 (d), federal courts may issue orders to define or amend the class, regulate notice to the absent class members, control the presentation of evidence, set discovery sequenc- ing or require subclasses or bellwether proceedings. They may also decertify or modify a class at any time before final judgment under Rule 23 (c)(1)(C). Federal judges frequently use phased discovery, bifurcation between certification and merits, and trial plans to manage complex or individualised issues. Settlements and dismissals require court approval under Rule 23 (e), and the court may appoint or remove class coun- sel under Rule 23 (g).
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