The Lack of Actual Injury Defense: The Landscape Since TransUnion

The 2023 Carlton Fields Class Action Survey found that the second most successful class action defense is the lack of any actual injury suffered by some or all of the class. It also found that this defense made a big jump in effectiveness from the previous year’s survey.

Those findings may be related to the fact that just over two years ago, in TransUnion LLC v. Ramirez, the Supreme Court confirmed that “Article III does not give federal courts the power to order relief to any uninjured plaintiff, class action or not.” For that reason, in a Rule 23(b)(3) class action, it is not enough that a named plaintiff has standing. “Every class member must have Article III standing in order to recover individual damages.”

An issue that TransUnion noted but did not address is “whether every class member must demonstrate standing before a court certifies a class.” In noting the issue, the Supreme Court cited the Eleventh Circuit’s decision in Cordoba v. DirecTV LLC. In Cordoba, the Eleventh Circuit confronted the question “whether a district court should sort out the uninjured class members before granting class certification” or instead “can wait until a later stage in the proceeding to determine which class members have suffered a redressable injury and are entitled to relief and which are not.” It held that while a court is not “required to ensure that the class definition does not include any individuals who do not have standing before certifying a class,” a court “must consider under Rule 23(b)(3) before certification whether the individualized issue of standing will predominate over the common issues in the case.”

In the two years since TransUnion was decided, more circuit court decisions have grappled with the question raised but not resolved by TransUnion: must every class member demonstrate standing before a court certifies a class? Or, put more generally, how does the requirement that every class member must have Article III standing in order to recover individual damages impact the Rule 23(b)(3) class certification analysis?

In the coming weeks, this blog will feature a series of articles surveying those post-TransUnion circuit court decisions. Together, this series of articles will provide an overview of how the increasingly popular lack of actual injury defense to class actions, and in particular to class certification, has been faring since TransUnion.