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Date Published: 03/04/2021

Unnamed Class Member Standing: A Circuit-by-Circuit Analysis

Must unnamed class members have standing for a court to certify or enter judgment in a class action? The answer is far from straightforward, as the Supreme Court has not squarely decided the question and circuit courts address this issue in various – and sometimes contradictory – ways.

Generally speaking, there are four broad categories into which circuit court cases fall:

• De minimis or “some uninjured”: the potential presence of more than a small number of class members who lack standing may preclude class certification;
• All-or-nothing: all class members must establish standing at some point in the litigation;
• Standing of named plaintiff only: the standing of unnamed class members is irrelevant once standing of the named plaintiff is shown; and
• No definitive decision: courts expressly state that they have not decided the issue.

This presentation will discuss the various approaches employed by the circuit courts throughout the country so that attorneys can use recent cases to argue for or against class certification or judgment where the standing of unnamed class members may be a determining factor.

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