The Supreme Court’s recent decision in Trump v. CASA, Inc., –– S. Ct. ––, 2025 WL 1773631 (U.S. June 27, 2025), restricting the use of “universal injunctions” by federal district courts, is receiving extensive attention regarding how it may affect the litigation challenging various executive orders and actions of President Trump. From the perspective of a class action defense lawyer, I wonder how this opinion may drive changes in class action law. It undoubtedly creates pressure for parties challenging executive actions to seek expedited class certification and for lower courts flooded with litigation to grant certification. This could drive courts to lighten the burden to establish class certification and expedite the consideration of it. Such decisions on class certification issues, certainly at the appellate level, potentially would apply not only to government action but also to corporate action.

Justice Barrett’s majority opinion only briefly touches on class actions. The opinion explains how a “bill of peace” in English chancery courts was a predecessor to the modern class action but would bind only members of a small, cohesive group. Justice Barrett concluded that “universal injunctions circumvent Rule 23’s procedural protections and allow courts to ‘create de facto class actions at will,” in other words, “universal injunctions are a class-action workaround.”

Justice Alito’s concurrence, joined by Justice Thomas, highlighted how class certification might be used as a means of enabling universal injunctions. Justice Alito wrote that “today’s decision will have very little value if district courts award relief to broadly defined classes without following ‘Rule 23’s procedural protections’ for class certification.” He expressed a concern that “a hasty application of Rule 23 … can have drastic consequences, creating ‘potential unfairness’ for absent class members and confusion (and pressure to settle) for defendants.” While the Government rarely faces “pressure to settle” in cases like Trump v. CASA, corporate defendants certainly do. Justice Alito was concerned that if class certification requirements are not rigorously followed, “today’s decision will be of little more than minor academic interest” and “class certification would create a potentially significant loophole.”

Justice Kavanaugh’s concurrence only briefly mentioned class actions but seemed more optimistic about the use of Rule 23(b)(2) class actions to enable broad classwide injunctive relief. Rule 23(b)(2) allows class certification where the Rule 23(a) requirements are met, and “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Justice Kavanaugh noted that “[i]f there is no classwide or set-aside relief in [these] kind of nationally significant matters, then one would expect a flood of decisions from lower courts” that “will probably inundate this Court with applications for stays or injunctions.”

Justice Sotomayor’s dissent, joined by Justices Kagan and Jackson, explicitly encouraged the use of class actions as a potential mechanism to enable universal injunctions where appropriate. She wrote that “the majority leaves untouched one important tool to provide broad relief to individuals subject to lawless Government conduct: Rule 23(b)(2) class actions for injunctive relief.” Justice Sotomayor suggested that “[f]or suits challenging policies as blatantly unlawful and harmful as the Citizenship Order, moreover, lower courts would be wise to act swiftly on such requests for relief and to adjudicate the cases as quickly as they can so as to enable this Court’s prompt review.”

The flood of litigation to come and the speed with which lower courts will be pressed to act may drive the development of class action law. Concerns about “drive through” class certification orders in some state trial courts motivated the enactment of the Class Action Fairness Act of 2005. Courts adjudicating the constitutionality of President Trump’s birthright citizenship executive order (and various other executive actions) will be understandably motivated to find a mechanism to reduce the burden on the court system and get the issue quickly back to the Supreme Court to decide the merits. But appellate decisions endorsing “quick and dirty” decisions on class certification could have broader impacts. Undoubtedly plaintiffs’ lawyers will cite them in seeking class certification and defense lawyers will be faced with distinguishing them. While some government actions may be universal in a way that is distinguishable from corporate actions that involve more individualized decisions being made across a widely disparate organization, some government actions may be less easy to distinguish from the corporate context. To the extent that class actions challenging government conduct will be brought under Rule 23(b)(2), that may be somewhat less problematic for corporate defendants that are more concerned with damages classes under Rule 23(b)(3). But corporate class actions are sometimes certified under Rule 23(b)(2) and can result in substantial settlement pressure.

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On a separate note, in follow up to my blog post about Laboratory Corporation of America Holdings v. Davis, the Supreme Court dismissed the writ of certiorari as improvidently granted. Presumably this was based on arguments made by the plaintiffs and some amici that the case was moot due to the district court’s amendment to the class certification order. The question of whether a class may be certified if some proposed class members lack an Article III injury will have to wait for another case, perhaps as soon as the next Term. Only Justice Kavanaugh dissented and would have reached the merits. Laboratory Corp. of Am. Holdings v. Davis, 145 S. Ct. 1608 (2025) (Kavanaugh, J., dissenting). Justice Kavanaugh would have ruled that “[f]ederal courts may not certify a damages class under Rule 23 when, as here, the proposed class includes both injured and uninjured class members.” He reasoned that such a class would not satisfy the predominance requirement. He also noted that “[o]verbroad and incorrectly certified classes threaten massive liability” and through coerced settlements that raise the cost of doing business, “can ultimately harm consumers, retirees, and workers, among others.”