Retail Litigation Center Urges Supreme Court to Hear Class Certification Case with Significant Implications for Retailers

The Retail Litigation Center (RLC) has filed an amicus brief in The Kroger Co. v. Solano, urging the U.S. Supreme Court to review whether federal courts may certify damages class actions that include members who have suffered no injury.   

The RLC argues that both Article III of the U.S. Constitution and Federal Rule of Civil Procedure 23 prohibit such certification.  It asks the Court to reverse the U.S. Court of Appeals for the Ninth Circuit’s contrary rule and resolve an important and recurring conflict among the federal courts of appeals.

“This is an important issue for retailers because class actions can involve thousands if not millions of consumers and enormous potential liability,” said Monica Welt, RLC President. “When a class includes people who have suffered no injury, the size of the class can become disconnected from the actual harm at issue. That has very real consequences for retailers, particularly at the point when companies are evaluating whether to settle or continue defending a case, regardless of the case’s facts,” said Monica Welt, RLC President.  

Class certification is a pivotal point in class-action litigation because the size of a certified class can significantly increase a defendant’s potential exposure and litigation costs, creating substantial pressure to settle. The RLC’s brief explains that those dynamics are particularly consequential for retailers, which are frequent targets of large class actions and often do not maintain individualized records of every customer’s purchases or refunds.

Retailers serve millions of consumers through physical stores and online channels and regularly face class actions involving a broad range of claims, including antitrust, products liability, consumer protection and data privacy. Because many retail claims may turn on individualized questions about what a consumer purchased, saw, understood or experienced, including uninjured consumers in a class can also create significant costs and complexity in determining who actually suffered an injury.

“The practical question is whether the size of a class accurately reflects the people who actually have a claim,” said Welt. “A clear holding from the Supreme Court that uninjured individuals cannot be included in a certified damages class would provide greater certainty for courts and businesses and help ensure that the economic stakes of a case reflect the actual claims being litigated,” said Welt.

The RLC’s brief notes that excluding uninjured individuals before class certification would ensure that class size is accurately measured from the outset, reducing the risk of undue settlement pressure and excessive litigation costs.

“No business should have to make litigation decisions based on an exaggerated class that includes people who cannot establish an injury,” Welt said. “We hope the Court will grant review and provide clarity on an issue that has significant implications not only for retailers, but for businesses across the economy.”

The RLC’s brief was drafted by Ephraim A. McDowell and Anna M. Stapleton of Cooley LLP.

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Media Contact: press@rila.org