In 2006, the Second Circuit held that “no class may be certified that contains members lacking Article III standing … . The class must therefore be defined in such a way that anyone within it would have standing.” Denney v. Deutsche Bank AG, 443 F.3d 253, 264 (2d Cir. 2006). “To meet the Article III standing requirement, a plaintiff must have suffered an ‘injury in fact’ that is ‘distinct and palpable’; the injury must be fairly traceable to the challenged action; and the injury must be likely redressable by a favorable decision.” Id. at 263.
Following Denny, the majority of district courts in the Second Circuit “have narrowed class definitions to exclude putative class members without standing, rather than outright denying a motion for class certification.” Tomassini v. FCA US, 326 F.R.D. 375, 387 (N.D.N.Y. 2018). However, where redefining the class is impossible or would create additional problems, certification should be denied. Id. Moreover, Tomassini noted that it is not clear how class members who “did not suffer an inflated-price injury[, when they bought a car] … could provide standing[.]” Id. at 386.
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