COLUMN - Labcorp was the blockbuster Supreme Court case that wasn’t

By Jenna Greene

June 23 (Reuters) - When the U.S. Supreme Court earlier this year agreed to take up medical testing company Laboratory Corporation of America’s appeal of a class certification order, it was one of the buzziest cases of the term.

The parties, along with amici in 19 friend-of-the-court briefs and the legal press – me included – cast it as a potentially monumental matter, one that could upend class action litigation by making it more difficult for plaintiffs to bring cases.

What we got instead was … nothing. A little over a month after oral argument, the high court on June 5 dismissed the case as improvidently granted, though Justice Brett Kavanaugh dissented from the majority’s one sentence order.

In issuing the so-called dismiss as improvidently or DIG, the justices tacitly admitted that it was a mistake to grant certiorari in the first place, though presumably not because of the question presented.

The question that remains unanswered is whether a class be certified if it contains uninjured members – an issue that the high court circled in two prior class certification decisions, Tyson Foods v. Bouaphakeo in 2016 and TransUnion v. Ramirez in 2021, but left open.

Why instead of a firecracker did Labcorp v Davis turn out to be a dud? The most likely answer is procedurally nuanced, involving a tangle of superseding district court orders.

Still, how the case unspooled offers a window into when and why the justices DIG a case, a rare move where the court takes no action, instead leaving the appellate decision in place.

Here, it meant a win for a class of blind plaintiffs suing Labcorp for violations of the Americans with Disabilities Act, allowing them to proceed with their suit in Los Angeles federal court. An unconventional move by Deepak Gupta, who represented the class action plaintiffs, could also provide a model for advocates looking to DIG a case – but more on that later.

Labcorp did not respond to requests for comment, and the company’s outside counsel, Jones Day partner Noel Francisco, declined to comment through a firm spokesperson.

A bit of context: Legal scholars say that from 1955 to 2005, the justices disposed of an average of two to three cases per term via DIGs, a move that typically requires agreement from at least six justices. There was one such dismissal in 2023-2024 and a total of three this term. (The other two were both securities class actions, with Gupta also getting a DIG in litigation against chipmaker Nvidia. The other case involved Meta’s Facebook.)

The court often declines to offer an explanation for DIG-ing a case, leaving onlookers to speculate on what went awry, said Michael Solimine, a professor at the University of Cincinnati College of Law and co-author of the DIG study, via email.

For example, after oral argument the justices might realize there was a jurisdictional issue, or they might identify another problem that made the case a poor vehicle to address the question at hand, Solimine said. “Or it could simply be that there was no majority that could decide the case.”

In Labcorp, according to Kavanaugh’s dissent, the obstacle that kept the court from deciding the case was mootness – meaning, technically, that the class certification order that Labcorp appealed was no longer in effect and had been supplanted by subsequent district court orders. Kavanaugh, however, deemed the concern “insubstantial” and wrote that he would have ruled in favor of the company on the merits.

Originally filed in 2020, the suit against Labcorp was brought on behalf of visually impaired people who were unable to use check-in kiosks when arriving for blood draws or other medical tests.

Labcorp argued that thousands of class members were uninterested in using the kiosks, preferring to check in with a person at the front desk. That meant they sustained no injury and lacked standing to sue under Article III of the U.S. Constitution, Labcorp said.

U.S. District Court Judge Fernando Olguin in May of 2022 certified a damages class. Labcorp had appealed the order, and the 9th U.S. Circuit Court of Appeals last year in an 8-page, unpublished opinion had upheld Olguin’s decision.

But there was a wrinkle. While Labcorp’s interlocutory appeal was pending, the district court modified the class certification order two times to tweak how the class was defined.

That meant the order before the Supreme Court was inoperative, Gupta argued for the class action plaintiffs. With no live controversy, any decision by the high court would be nothing more than an advisory opinion, the Gupta Wessler co-founder said.

This jurisdictional argument wasn’t something the class action plaintiffs initially flagged in opposing Labcorp’s cert petition (though they raised it in their respondent’s brief when they suggested that the court DIG the case, as did seven law professors in an amicus brief).

In an unusual step, Gupta, who was hired after cert was granted, filed a letter with the court on April 23, six days before oral argument and after briefing was complete, to reiterate the jurisdictional problems and again ask the court to DIG the case.

Sending the letter felt like “waving a red flag in front of a bull,” Gupta told me, drawing the focus on procedural questions rather than the merits. “I wanted to make sure the court understood the problem here.”

Writing in response, Francisco called the letter “nothing more than an improper surreply,” and said the arguments were meritless.

The justices’ interest was piqued. During oral arguments in April, Justice Clarence Thomas asked why the court had jurisdiction to rule on a lower court's "inoperative" order. Later, Justice Sonia Sotomayor said, “I still don’t see how this is not an advisory opinion.”

And Justice Elena Kagan remarked, “We’re staring at the wrong order.”

Little wonder the court opted for a DIG.