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).
Whether a class can be defined to include members who potentially lack standing has been a contested topic in the Ninth Circuit due to the court’s seemingly contradictory positions at different points in time. In Bates v. United Parcel Serv., Inc., 511 F.3d 974 (9th Cir. 2007), the Ninth Circuit held that the standing requirement is satisfied in the class action context “if at least one named plaintiff meets the requirements.” 511 F.3d at 985. The Ninth Circuit reaffirmed this approach in Stearns v. Ticketmaster Corp., 655 F.3d 1013 (9th Cir. 2011). More recent cases, however, reflect a different standard. In Mazza v. Am. Honda Motor Co., the Ninth Circuit stated: “no class may be certified that contains members lacking Article III standing.” 666 F.3d 581, 594 (9th Cir. 2012) (quoting Denney, 443 F.3d at 264).
Disarray in district court opinions ensued, and the Ninth Circuit then seemed to walk back its directive in Mazza: “the statement taken in context signifies only that it must be possible that class members have suffered injury, not that they did suffer injury, or that they must prove such injury at the certification phase.” Torres v. Mercer Canyons Inc., 835 F.3d 1125, 1137 n.6 (9th Cir. 2016). More recently, the...
