(The opinions expressed here are those of the author, a

columnist for Reuters.)

By Jenna Greene

June 23 (Reuters) - When the U.S. Supreme Court earlier

this year agreed to take up medical testing company Laboratory

Corporation of America's appeal of a class certification order,

it was one of the buzziest cases of the term.

The parties, along with amici in 19 friend-of-the-court

briefs and the legal press - me included - cast it as a

potentially monumental matter, one that could upend class action

litigation by making it more difficult for plaintiffs to bring

cases.

What we got instead was ... nothing. A little over a month

after oral argument, the high court on June 5 dismissed the case

as improvidently granted, though Justice Brett Kavanaugh

dissented from the majority's one sentence order.

In issuing the so-called dismiss as improvidently or DIG,

the justices tacitly admitted that it was a mistake to grant

certiorari in the first place, though presumably not because of

the question presented.

The question that remains unanswered is whether a class be

certified if it contains uninjured members - an issue that the

high court circled in two prior class certification

decisions, Tyson Foods ( TSN ) v. Bouaphakeo in 2016 and TransUnion ( TRU ) v.

Ramirez in 2021, but left open.

Why instead of a firecracker did Labcorp v Davis turn out to

be a dud? The most likely answer is procedurally nuanced,

involving a tangle of superseding district court orders.

Still, how the case unspooled offers a window into when and

why the justices DIG a case, a rare move where the court takes

no action, instead leaving the appellate decision in place.

Here, it meant a win for a class of blind plaintiffs suing

Labcorp for violations of the Americans with Disabilities Act,

allowing them to proceed with their suit in Los Angeles federal

court. An unconventional move by Deepak Gupta, who represented

the class action plaintiffs, could also provide a model for

advocates looking to DIG a case - but more on that later.

Labcorp did not respond to requests for comment, and the

company's outside counsel, Jones Day partner Noel Francisco,

declined to comment through a firm spokesperson.

A bit of context: Legal scholars say that from 1955 to 2005,

the justices disposed of an average of two to three cases per

term via DIGs, a move that typically requires agreement from at

least six justices. There was one such dismissal in 2023-2024

and a total of three this term. (The other two were both

securities class actions, with Gupta also getting a DIG in

litigation against chipmaker Nvidia ( NVDA ). The other case involved

Meta's Facebook.)

The court often declines to offer an explanation for DIG-ing

a case, leaving onlookers to speculate on what went awry, said

Michael Solimine, a professor at the University of Cincinnati

College of Law and co-author of the DIG study, via email.

For example, after oral argument the justices might realize

there was a jurisdictional issue, or they might identify another

problem that made the case a poor vehicle to address the

question at hand, Solimine said. "Or it could simply be that

there was no majority that could decide the case."

In Labcorp, according to Kavanaugh's dissent, the obstacle

that kept the court from deciding the case was mootness -

meaning, technically, that the class certification order that

Labcorp appealed was no longer in effect and had been supplanted

by subsequent district court orders. Kavanaugh, however, deemed

the concern "insubstantial" and wrote that he would have ruled

in favor of the company on the merits.

Originally filed in 2020, the suit against Labcorp was

brought on behalf of visually impaired people who were unable to

use check-in kiosks when arriving for blood draws or other

medical tests.

Labcorp argued that thousands of class members were

uninterested in using the kiosks, preferring to check in with a

person at the front desk. That meant they sustained no injury

and lacked standing to sue under Article III of the U.S.

Constitution, Labcorp said.

U.S. District Court Judge Fernando Olguin in May of 2022

certified a damages class. Labcorp had appealed the order, and

the 9th U.S. Circuit Court of Appeals last year in an 8-page,

unpublished opinion had upheld Olguin's decision.

But there was a wrinkle. While Labcorp's interlocutory

appeal was pending, the district court modified the class

certification order two times to tweak how the class was

defined.

That meant the order before the Supreme Court was

inoperative, Gupta argued for the class action plaintiffs. With

no live controversy, any decision by the high court would be

nothing more than an advisory opinion, the Gupta Wessler

co-founder said.

This jurisdictional argument wasn't something the class

action plaintiffs initially flagged in opposing Labcorp's cert

petition (though they raised it in their respondent's brief when

they suggested that the court DIG the case, as did seven law

professors in an amicus brief).

In an unusual step, Gupta, who was hired after cert was

granted, filed a letter with the court on April 23, six days

before oral argument and after briefing was complete, to

reiterate the jurisdictional problems and again ask the court to

DIG the case.

Sending the letter felt like "waving a red flag in front of

a bull," Gupta told me, drawing the focus on procedural

questions rather than the merits. "I wanted to make sure the

court understood the problem here."

Writing in response, Francisco called the letter "nothing

more than an improper surreply," and said the arguments were

meritless.

The justices' interest was piqued. During oral arguments in

April, Justice Clarence Thomas asked why the court had

jurisdiction to rule on a lower court's "inoperative" order.

Later, Justice Sonia Sotomayor said, "I still don't see how this

is not an advisory opinion."

And Justice Elena Kagan remarked, "We're staring at the

wrong order."

Little wonder the court opted for a DIG.