Risto V. Screen Actors Guild: A Look At Article III Standing Of Absent Class Members In The Ninth Circuit

• Published date: 10 December 2020
• Subject Matter: Litigation, Mediation & Arbitration, Class Actions, Trials & Appeals & Compensation, Personal Injury
• Law Firm: Foley & Lardner
• Author: Mr Jaikaran Singh and Kelsey C. Boehm

Article III standing is a threshold jurisdictional requirement in all cases, including putative class actions. It is well settled that a named plaintiff must have constitutional standing throughout a case for subject matter jurisdiction to exist. The federal circuit courts, however, are split on whether unnamed class members must have standing at the class certification stage'or whether the standing requirement is satisfied so long as the class representative has standing. The Second, Eighth, and D.C. Circuits hold that a class action lawsuit cannot be certified under Federal Rule of Civil Procedure 23 if the class contains members who lack standing. See Denney v. Deutsche Bank, 443 F.3d 253, 263-64 (2d Cir. 2006); Halvorson v. Auto-Owners Ins. Co., 718 F.3d 773, 779 (8th Cir. 2013); In re Rail Freight Fuel Surcharge Antitrust Litig.-MDL. No. 1869, 725 F.3d 244, 252 (D.C. Cir. 2013). The First, Third, and Seventh Circuits take the latter approach, holding that absent class members are not required to show Article III standing at the class certification stage. See AB v. UFCW (In re Nexium Antitrust Litig.), 777 F.3d 9, 32 (1st. Circ. 2015); Neale v. Volvo Cars of N. Am., LLC, 794 F.3d 353, 363 (3d Cir. 2015); Kohen v. Pacific Inv. Mgmt Co., LLC, 571 F.3d 672, 676 (7th Cir. 2009).

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Whether a class can be defined to include...