Standing vs. Typicality in Class Actions: Blurry Lines and a Split of Authority

In general, a litigant cannot sue for another person’s injury. In that circumstance, the litigant has no “standing” to pursue those claims. But Rule 23 — at least in a broad sense — allows a class representative to assert claims for her own injuries and for the injuries experienced by others, at least if the class representative’s claim is “typical” and there are “common questions” at issue.

Analytically, these are different concepts. Standing, at least in federal courts, relates to a court’s constitutional jurisdiction, is most often determined at the outset of a case, and is reviewable de novo as a legal issue. On the other hand, class certification decisions do not implicate a court’s subject matter jurisdiction, may be decided later in a case, and represent the exercise of discretion by the trial court.

So how do courts parse these differences in a putative class action where, although the plaintiff has alleged a clear injury, the members of the class are said to have suffered a variety of not-so-similar injuries? Is that analyzed under Rule 23 or is it a threshold issue of constitutional standing? The answers are not so clear.

Some courts approach this inquiry principally as an issue of standing, and will dismiss a case where the representative’s injury is distinct from members of the class (the “Standing Approach”). But other courts analyze this relationship only in the context of class certification and will decline to dismiss a case on standing grounds so long as the representative has standing to pursue her own claim (the “Class Certification Approach”).

This analytical tension can be traced to four Supreme Court cases. First, in Sosna v. Iowa, 419 U.S. 393 (1975), the Court appeared to embrace the Class Certification Approach, writing that as long as the class representative showed that her injury was real and immediate, the analysis then shifted to whether the representative fairly and adequately protected the interests of the class under Rule 23. In other words, once the claimant established individual standing, the relatedness of the representative’s claims and those asserted by absent members would be analyzed at the class certification stage.

Since Sosna, however, the Supreme Court has issued three opinions that appear to embrace the Standing Approach. See Blum v. Yaretsky, 457 U.S. 991 (1982); Lewis v. Casey, 518 U.S. 343 (1996); Gratz v. Bollinger, 539 U.S. 244 (2003). In Blum, a Medicaid patient’s challenge to a nursing home’s decision to transfer him to a lower level of care was dismissed for lack of standing because the class included patients who had been transferred to a higher level of care. Similarly, in Lewis, the Court dismissed a challenge by prisoners who alleged they were denied access to courts due to their illiteracy because the class members included prisoners denied judicial access for different reasons — namely, their language and lockdown status. Finally, in Gratz, the Court acknowledged the tension in its prior cases between “adequacy or standing,” but upheld the standing of a freshman to challenge race-based admissions on behalf of transfer students because the claims by each group did not raise “a significantly different set of concerns.”

As a result of the contrasting guidance in Sosna, Blum, Lewis, and Gratz, courts across the country apply varying scrutiny as to the relatedness of claims prior to class certification. For example, the Ninth Circuit has suggested that the claims only need to be broadly similar in order for a class representative to have standing: “When determining what constitutes the same type of relief or the same kind of injury, we must be careful not to employ too narrow or technical an approach. … [W]e must reject the temptation to parse too finely, and consider instead the context of the inquiry.” Armstrong v. Davis, 275 F.3d 849, 867 (9th Cir. 2001). Conversely, courts in the Eleventh Circuit apply a stricter analysis, holding that although standing does not require that all members suffer the same injury at the same place on the same day, it does require “that the named plaintiff and class members have the same interest and suffer the ‘same injury.’” Fox v. Ritz-Carlton Hotel Co., LLC, 977 F.3d 1039, 1046 (11th Cir. 2020); see also Barrows v. Becerra, 24 F.4th 116, 129 (2d Cir. 2022) (conduct at issue must “implicate the same set of concerns”). Most recently, the Fifth Circuit encountered this question and declined to create a bright line rule, instead opting to analyze the facts under both the Standing and Class Certification Approaches. See Chavez v. Plan Benefit Servs., 77 F.4th 370 (5th Cir. 2023).

Some circuits, including the Fourth, have not reached this issue. Within the Fourth Circuit, district courts have reached different outcomes. Compare In re Interior Molded Doors Antitrust Litig., 2019 WL 4478734 (E.D. Va. Sept. 18, 2019) (“For the reasons set forth below, the Court agrees with the defendants that standing is ‘a threshold issue that the Court must address.’”) with Jien v. Perdue Farms, Inc., 2021 WL 927456 (D. Md. Mar. 10, 2021) (“Against this murky backdrop, the Court ultimately finds the ‘class certification’ approach most persuasive in the context of this case, where the interests of the named hourly chicken employees are not ‘significantly different’ than those of the salaried and turkey employees.”).

For now, litigants within the Fourth Circuit face uncertainty as to the approach taken by trial courts when a defendant challenges the relatedness of the class representative’s claims and the class members’ claims. This is hardly surprising because “[t]here has yet to be a bright line drawn between the issues of standing and class certification.” Gratz, 539 U.S. at 263 n. 15. When the class representatives’ and absent class members’ injuries do not align, parties may need — depending on the jurisdiction — to persuade the trial court under both the Class Certification and Standing Approaches until the Supreme Court finally puts this question to rest.