Two cases to be heard by the Supreme Court next term—as well as a bill currently being considered in Congress—have the potential to significantly change the legal landscape for class action lawsuits.

In early June, the Supreme Court agreed to hear an appeal in Tyson Food v. Bouaphakeo, a litigated class action judgment out of the Eighth Circuit. Tyson puts two important class action issues in front of the Court: (1) whether statistical extrapolations that presume all class members are identical to an "average" class member can be used to establish liability and damages; and (2) whether a class can be certified when it contains hundreds of members who suffered no injury and have no legal right to damages. In April, the Court also granted certiorari in Spokeo, Inc. v. Robins, raising a similar question of whether Congress can confer constitutional standing on otherwise uninjured class members by providing a right to recover statutory damages for violating the Fair Credit Reporting Act.

Perhaps a further indication of how hot these issues are, Congress is also weighing in on the class action injury requirement. The House Judiciary Committee recently addressed H.R. 1927, the Fairness in Class Action Litigation Act. The bill, introduced in the House in April, would amend the judicial code to prohibit federal courts from certifying any proposed class unless the party seeking to maintain the class action "affirmatively demonstrates through admissible evidentiary proof that each proposed class member suffered an injury of the same type and extent as the injury of the named class representative or representatives." The Judiciary Committee, in a 15-10 vote on June 24, reported the bill favorably to the House.