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Joseph M. McLaughlin and Shannon K. McGovern. Courtesy photos Joseph M. McLaughlin and Shannon K. McGovern. Courtesy photos

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).

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