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Archive for May, 2016

The United States Supreme Court issued its highly-anticipated decision this morning in Spokeo, Inc. v. Robins, No. 13-1339, a case that many commentators have been following as a potential barometer for the Court’s treatment of consumer and class action issues following the death of Justice Antonin Scalia.  As it turns out, Justice Scalia’s absence did not impact the outcome of the case, which was decided by a 6-2 majority (though there is of course no way of knowing how Justice Scalia’s participation might have impacted the rationale).

The Petition for Certiorari had originally been granted to answer the question “whether Congress may confer Article III standing upon a plaintiff who suffers no concrete harm, and who therefore could not otherwise invoke the jurisdiction of a federal court, by authorizing a private right of action based on a bare violation of a federal statute.”  http://www.supremecourt.gov/qp/13-01339qp.pdf (Emphasis added).

The majority opinion, authored by Justice Alito, answered this question in the negative, holding that a plaintiff must establish “concrete” harm in order to have standing to pursue a statutory cause of action in federal court.  However, the interesting part of the opinion is the Court’s analysis of what may suffice as “concrete” harm.  In particular, the Court held, Congress may identify “intangible” harms and elevate those harms to the status of concrete injuries supporting Article III standing.  Examples of these intangible harms cited in the opinion include reputational harms suffered for common law torts, like libel and slander, that are difficult to measure, as well as other intangible public harms, such as voters’ inability to access public information.

After reiterating that a plaintiff seeking relief for a statutory violation must prove a harm that is both particularized and concrete and my not simply rely on a procedural violation of the statute, the Court did not go on to evaluate whether Robins himself had demonstrated a concrete injury flowing from the Fair Credit Reporting Act violations alleged in the case before the Court.  Instead, the Court remanded the case to the Ninth Circuit Court of Appeals to perform that analysis, making clear that “[w]e take no position as to whether the NinthCircuit’s ultimate conclusion—that Robins adequately alleged an injury in fact—was correct.”

My own early take on the decision is that while the opinion does not set definitive rules on the types of intangible injuries that are sufficiently concrete to support Article III standing, the opinion goes a long way towards solidifying and clarifying the analytical framework under which statutory standing issues, and Article III standing issues more generally, should be evaluated.  For the time being, it will be up to the lower courts to apply this analytical framework to specific cases.

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I’m pleased to announce that I will be chairing the ABA’s Western Regional CLE Program on Class Actions and Mass Torts, now in its third year, on May 27.  This year’s program will be held at the Bar Association of San Francisco’s offices at 301 Battery St San Francisco, CA 94111-3236.  The program starts at noon with lunch and concludes with a cocktail hour.  The event is co-sponsored by the BASF and presented by the Class Actions and Derivative Suits, Mass Torts, Insurance Coverage Litigation, and Securities Litigation Committees of the ABA Section of Litigation.  This year’s topics include:

  • Refuse to Defend at Your Own Risk? An Insurer’s Refusal to Defend and Settlement in Class Actions; When is Settlement Collusive?
  • Class Action Settlements: Trends, Lessons Learned, and Creative New Approaches
  • Takeaways on Forum Non Conveniens and Related Issues in Multi-District Litigation After Air France 447.
  • No Big Law? No Problem? How Small Firm Plaintiff and Defense Lawyers are Managing Some of the Largest Class Action Litigation Matters.

To register and to view the program agenda, click the link below.  Hope to see you there!

http://shop.americanbar.org/ebus/ABAEventsCalendar/EventDetails.aspx?productId=238718207&sc_cid=LTCAD15-G1

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