Exhibit A — In re Bank of America California Unemployment Benefits Litigation (Dkt. 491-2, S.D. Cal. No. 3:21-md-02992)

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U.S. District Court for the Southern District of California · No. 3:21-md-02992-GPC-MSB · Doc. 491-2 · 2025-06-05 · Docket on CourtListener

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EXHIBIT A 
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_________________ 
_________________ 
1 
(Slip Opinion) 
Cite as: 605 U. S. ____ (2025) 
Per Curiam 
NOTICE: This opinion is subject to formal revision before publication in the 
United States Reports. Readers are requested to notify the Reporter of 
Decisions, Supreme Court of the United States, Washington, D. C. 20543, 
pio@supremecourt.gov, of any typographical or other formal errors. 
SUPREME COURT OF THE UNITED STATES 
No. 24–304 
LABORATORY CORPORATION OF AMERICA 
HOLDINGS, DBA LABCORP, PETITIONER 
v. LUKE DAVIS, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
APPEALS FOR THE NINTH CIRCUIT 
[June 5, 2025]
 PER CURIAM. 
The writ of certiorari is dismissed as improvidently
granted. 
It is so ordered. 
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_________________ 
_________________ 
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Cite as: 605 U. S. ____ (2025) 
KAVANAUGH, J., dissenting 
SUPREME COURT OF THE UNITED STATES 
No. 24–304 
LABORATORY CORPORATION OF AMERICA 
HOLDINGS, DBA LABCORP, PETITIONER 
v. LUKE DAVIS, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
APPEALS FOR THE NINTH CIRCUIT 
[June 5, 2025]
 JUSTICE KAVANAUGH, dissenting. 
The Court dismisses the case as improvidently granted 
and therefore does not decide the question presented: 
Whether a federal court may certify a damages class
pursuant to Federal Rule of Civil Procedure 23 when the 
class includes both injured and uninjured class members.
The Court presumably dismisses the case because the 
Court does not want to tackle the threshold mootness 
question that plaintiffs have raised. In my view, however, 
plaintiffs’ mootness argument is insubstantial. I would rule 
that the case is not moot and would decide the question 
presented.
On the question presented, I would hold that a federal 
court may not certify a damages class that includes both
injured and uninjured members. Rule 23 requires that
common questions predominate in damages class actions. 
And when a damages class includes both injured and
uninjured 
members, 
common 
questions 
do 
not 
predominate. 
I 
The facts are fairly straightforward.  Labcorp provides
diagnostic laboratory services. In 2017, Labcorp introduced 
self-service kiosks for patients to check in for their 
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LABORATORY CORP. OF AMERICA HOLDINGS v. DAVIS 
KAVANAUGH, J., dissenting 
appointments. 
Although the touchscreen kiosks are 
accessible to most patients, blind and visually impaired 
patients require assistance.  To accommodate those 
patients who cannot use a kiosk without assistance, or who 
prefer not to use one, Labcorp maintained and bolstered its
front-desk services at patient service centers. 
Despite those accommodations, legally blind plaintiffs 
sued Labcorp in the U. S. District Court for the Central 
District of California.  As relevant here, they claimed that 
Labcorp’s new kiosks violated the Americans with 
Disabilities Act (ADA) and California’s Unruh Civil Rights 
Act, which provides for a minimum of $4,000 in state-law 
statutory damages per violation. See Cal. Civ. Code Ann. 
§§51(f ), 52(a) (West 2020).  Plaintiffs sought to certify a 
class with potential damages of up to about $500 million per 
year.
In May 2022, the District Court certified a damages class 
under Federal Rule of Civil Procedure 23. 
The class 
consisted of “[a]ll legally blind individuals in California who
visited a LabCorp patient service center in California
during the applicable limitations period and were denied
full and equal enjoyment of the goods, services, facilities,
privileges, 
advantages, 
or 
accommodations 
due 
to 
LabCorp’s failure to make its e-check-in kiosks accessible to
legally blind individuals.”  No. 2:20–cv–893 (CD Cal., May 
23, 2022), ECF Doc. 97, p. 24. 
Labcorp petitioned for an immediate interlocutory appeal
under the special interlocutory appellate procedure
authorized by Rule 23(f ). 
Labcorp contended that 
plaintiffs’ class definition was overbroad and would sweep 
in many uninjured members, including blind patients who
would not use kiosks anyway because they dislike kiosks or
prefer to speak with a front-desk employee when checking 
in for appointments.
In August 2022, while Labcorp’s petition for interlocutory 
appeal was still pending in the Ninth Circuit, the District 
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Cite as: 605 U. S. ___ (2025) 
KAVANAUGH, J., dissenting 
Court clarified plaintiffs’ class definition.  The District 
Court explained that the class included “[a]ll legally blind
individuals who . . . , due to their disability, were unable to
use” Labcorp kiosks in California. App. 387. Importantly,
the court stated that, “in refining the class definition, this
Order does not materially alter the composition of the class 
or materially change in any manner” the original May class 
certification order. Id., at 386, n. 10. 
In September 2022, the Ninth Circuit granted Labcorp’s
Rule 23(f ) petition and authorized an interlocutory appeal 
of the May order. After receiving briefing and hearing oral
argument, the Court of Appeals ultimately approved the
May 2022 class certification. 
Applying Ninth Circuit 
precedent, the court reasoned that Rule 23 permits 
certification of a class even when the class “‘potentially 
includes more than a de minimis number of uninjured class
members.’”  Id., at 397, n. 1 (quoting Olean Wholesale 
Grocery Cooperative, Inc. v. Bumble Bee Foods LLC, 31 F. 
4th 651, 669 (2022) (en banc)). 
After the Ninth Circuit denied rehearing en banc, 
Labcorp sought review in this Court.  We granted certiorari
to decide whether federal courts may certify a Rule 23
damages class that includes both injured and uninjured
members. 604 U. S. ___ (2025). 
II 
Instead of resolving that important merits question, the 
Court dismisses this case as improvidently granted. That 
is presumably because the Court does not want to deal with
plaintiffs’ threshold mootness argument. To be clear, the 
Court does not hold that the case is moot. Rather, the Court 
simply declines to decide either the threshold mootness
question or the important class-action question on which we
granted certiorari.  Unlike the Court, I would resolve those 
questions.
In arguing that the case is moot, plaintiffs contend that 
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LABORATORY CORP. OF AMERICA HOLDINGS v. DAVIS 
KAVANAUGH, J., dissenting 
Labcorp appealed the wrong class-certification order.  That 
is incorrect. Recall the sequence of events. In May 2022,
the District Court certified plaintiffs’ damages class, and 
Labcorp then filed a Rule 23(f ) petition in order to challenge
that certification order in the Ninth Circuit.  In August 
2022, the District Court clarified the class definition. But 
in the August order, the District Court stated that the order 
did “not materially alter the composition of the class or 
materially change in any manner” the original May class
certification order. App. 386, n. 10.  The August order did
not purport to certify a new class. 
The Ninth Circuit subsequently reviewed and ruled on
the May certification order.  The Ninth Circuit did not treat 
Labcorp’s appeal of the May order as moot.  In September
2022, after the District Court had issued the August order,
the Ninth Circuit authorized Labcorp’s Rule 23(f ) 
interlocutory appeal of the May order. The Ninth Circuit 
later addressed the merits of Labcorp’s appeal with respect
to the May order and ruled in plaintiffs’ favor.  In doing so,
the Ninth Circuit issued a judgment adverse to Labcorp,
and Labcorp properly sought certiorari to reverse that 
judgment.
Still, plaintiffs seem to think that the May order was no
longer in effect and was superseded by the August order. 
According to plaintiffs, Labcorp should have somehow
appealed the August order. Under Ninth Circuit precedent, 
however, Labcorp could not have appealed the August order 
because only orders “that materially change the original
certification order” qualify as “appealable under Rule
23(f ).”  Walker v. Life Ins. Co. of Southwest, 953 F. 3d 624, 
636 (2020) (emphasis added).  And the District Court had 
explicitly stated that the August order did not make any 
material changes. Moreover, under the text of Rule 23(f ),
a party may appeal only “an order granting or denying 
class-action certification.”  The August order did not grant 
or deny class certification, as the District Court indicated. 
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Cite as: 605 U. S. ___ (2025) 
KAVANAUGH, J., dissenting 
So to challenge the class definition under Ninth Circuit 
law, Labcorp could appeal only the May 2022 certification
order. Labcorp did so. Labcorp has proceeded reasonably
in the District Court, the Court of Appeals, and this Court.
There is no barrier to this Court’s deciding the class-action 
question presented in the context of reviewing the Ninth 
Circuit’s judgment. 
III 
On the merits, I agree with Labcorp and the United
States as amicus curiae: Federal courts may not certify a 
damages class under Rule 23 when, as here, the proposed 
class includes both injured and uninjured class members.
Rule 23 and this Court’s precedents make this a
straightforward case. Rule 23 authorizes damages class
certification only when common questions of law and fact
predominate. A damages class consisting of both injured 
and uninjured members does not meet that requirement.
As the Government succinctly and correctly stated at oral 
argument, “if there are members of a class that aren’t even 
injured, they can’t share the same injury with the other
class members.” Tr. of Oral Arg. 83; see generally Comcast 
Corp. v. Behrend, 569 U. S. 27 (2013); Wal-Mart Stores, Inc. 
v. Dukes, 564 U. S. 338 (2011); Amchem Products, Inc. v.
Windsor, 521 U. S. 591 (1997); General Telephone Co. of
Southwest v. Falcon, 457 U. S. 147 (1982).
The Ninth Circuit nonetheless approved plaintiffs’ class. 
Relying on Circuit precedent, the court concluded that Rule 
23 permits certification even when the class “‘potentially 
includes more than a de minimis number of uninjured class
members.’”  App. 397, n. 1 (quoting Olean Wholesale 
Grocery Cooperative, Inc. v. Bumble Bee Foods LLC, 31 F. 
4th 651, 669 (2022) (en banc)).1 
—————— 
1Some courts have suggested that a “de minimis exception” might exist 
when there is a de minimis number of uninjured class members, at least 
so long as some identified mechanism exists to manageably remove those 
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LABORATORY CORP. OF AMERICA HOLDINGS v. DAVIS 
KAVANAUGH, J., dissenting 
The Ninth Circuit’s decision is incorrect under Rule 23 
and this Court’s precedents, and it will generate serious
real-world consequences.  Classes that are overinflated 
with uninjured members raise the stakes for businesses 
that are the targets of class actions.  Overbroad and 
incorrectly certified classes threaten massive liability—
here, with potential damages up to about $500 million per 
year. That reality in turn can coerce businesses into costly
settlements that they sometimes must reluctantly swallow 
rather than betting the company on the uncertainties of 
trial. Indeed, the Advisory Committee Notes to Rule 23(f ) 
warn: “An order granting certification . . . may force a 
defendant to settle rather than incur the costs of defending
a class action and run the risk of potentially ruinous
liability.” 
Advisory 
Committee’s 
Notes 
on 
1998 
Amendments to Fed. Rule Civ. Proc. 23, 28 U. S. C. App.,
p. 815 (1994 ed.); cf. Nutraceutical Corp. v. Lambert, 586
U. S. 188, 196 (2019). That is one reason why Rule 23(f )’s
interlocutory appeal procedure was established in 1998.
Importantly, the coerced settlements substantially raise
the costs of doing business.  And companies in turn pass on 
those costs to consumers in the form of higher prices; to 
retirement account holders in the form of lower returns; 
and to workers in the form of lower salaries and lesser 
benefits. So overbroad and incorrectly certified classes can 
ultimately harm consumers, retirees, and workers, among 
others. Simply put, the consequences of overbroad and 
incorrectly certified damages class actions can be 
widespread and significant. 
—————— 
uninjured members from the class.  In re Rail Freight Fuel Surcharge 
Antitrust Litigation–MDL No. 1869, 934 F. 3d 619, 624 (CADC 2019); see 
id., at 625–626; In re Asacol Antitrust Litigation, 907 F. 3d 42, 53–54 
(CA1 2018).  This case does not raise that question because the Ninth 
Circuit ruled that a class may be certified even when the class 
“ ‘potentially includes more than a de minimis number of uninjured class 
members.’ ”  App. 397, n. 1 (emphasis added). 
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Cite as: 605 U. S. ___ (2025) 
KAVANAUGH, J., dissenting 
*
* 
*
I would resolve the question presented and reverse the
judgment of the Ninth Circuit.  I would hold that federal 
courts may not certify a damages class pursuant to Rule 23
when the class includes both injured and uninjured class 
members. I respectfully dissent from the Court’s order 
dismissing the writ of certiorari as improvidently granted. 
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