A plaintiff’s standing to bring a claim is a threshold justiciability inquiry in all actions, including class actions. The Supreme Court has instructed that “[i]n an era of frequent litigation [and] class actions, … courts must be more careful to insist on the formal rules of standing, not less so.” Ariz. Christian Sch. Tuition Org. v. Winn, 131 S.Ct. 1436, 1449 (2011). The interplay of constitutional standing principles and class certification, however, has occasioned a circuit-level conflict. Courts have wrestled extensively but inconclusively with the standing and Rule 23 (and related Seventh Amendment, Rules Enabling Act and due process) questions presented when certification of a proposed class risks allowing uninjured class members to participate in a class action. The Supreme Court has acknowledged the “great importance” of these questions, but to date has declined to answer them. Tyson Foods v. Bouaphakeo, 136 S.Ct. 1036, 1050 (2016).
The most recent circuit-level pronouncements, from the Ninth and Eleventh Circuits, frame class member standing as a question of not if it must be shown, but when it must be shown. The Eleventh Circuit held that “whether absent class members can establish standing may be exceedingly relevant to the class certification analysis,” and that district courts must evaluate whether individualized questions about which members have standing predominate over questions susceptible to class-wide proof. The Ninth Circuit held that each member of a certified class must establish Article III standing “at the final judgment stage” of the class action in order to recover money damages. While the Ninth Circuit did not require proof of class member standing at the class certification stage, it cautioned that “district courts and parties should keep in mind that they will need a mechanism for identifying class members who lack standing at the damages phase” when they consider class certification. Ramirez v. TransUnion, 951 F.3d 1008 (9th Cir. 2020); Cordoba v. DIRECTV, 942 F.3d 1259, 1269–70 (11th Cir. 2019).
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