Posted in Supreme Court Decisions, tagged alito, article III, article III standing, class action, concrete, edelson, fair credit reporting act, fcra, intangible, particularized, robins, scalia, spokeo, standing on May 16, 2016|
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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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Posted in Class Action Decisions, Supreme Court Decisions, tagged article III, campbell-ewald, class action, genesis healthcare, ginsburg, gomez, kennedy, moot, mootness, offer of judgment, offer of settlement, offers of judgment, registry of the court, rule 68, Supreme Court, symczyk, thomas on January 20, 2016|
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The Supreme Court issued its opinion today in the first of what will be several class-action-related decisions this term. As noted in my Supreme Court preview post, the primary issue in Campbell-Ewald Co. v. Gomez, No. 14-857 was whether an unaccepted offer of complete relief to a named plaintiff in a class action had the effect of mooting the plaintiff’s claim, depriving a federal court of Article III jurisdiction. The Court said no, agreeing with the now unanimous view of the Circuit Courts of Appeals. Click this link for a copy of the slip opinion. Justice Kennedy sided with the liberal wing of the Court in supporting Justice Ginsburg’s majority opinion, with Justice Thomas concurring in the judgment. Perhaps the most interesting thing about the opinion from a practitioner’s point of view is the issue that the majority expressly decline to address despite having been discussed at some length during oral argument:
We need not, and do not, now decide whether the result would be different if a defendant deposits the full amount of the plaintiff ’s individual claim in an account payable to the plaintiff, and the court then enters judgment for the plaintiff in that amount. That question is appropriately reserved for a case in which it is not hypothetical.
So, just as we were left with a cliffhanger when the Court decided its previous case involving offers of judgment, Genesis Healthcare Corp. v. Symczyk, we’ll have to stay tuned for the third chapter of the trilogy to find out whether paying the full amount of a plaintiff’s claim into the registry of the Court moots a class action. Be on the lookout for a preview of this issue at a District Court near you.
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Posted in Data Privacy Class Actions, tagged article III, clapper, class action, credit monitoring, data breach, data privacy, hannaford, iapp, identity theft, privacy class action, wiretapping on April 24, 2013|
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Data breach cases are popular targets for class actions these days because a single incident of hacking or theft can expose the sensitive personal or financial information of millions of people at a time. However, a key hurdle in these cases has been proof of harm sufficient to satisfy the Article III injury-in-fact standard for cases filed in the federal courts (or in state courts that apply a similar injury-in-fact standard). Recently, plaintiffs have been attempting to get around the standing problem by alleging that they had to incur credit monitoring fees or other out-of-pocket expenses due to a fear of identity theft.
Shannon Tan, associate corporate counsel for Raymond James Financial, Inc., in St. Petersburg, FL, recently authored an insightful article for the IAPP newsletter The Privacy Advisor, titled Supreme Court Wiretap Ruling Upholds Stringent Standing-To-Sue Requirements. Tan’s article discusses the potential impact of the Supreme Court’s decision in Clapper v. Amnesty International USA on the question of Article III standing in civil data breach cases. Tan points out that while Clapper is case involving alleged wiretapping by the government, it is likely to make it more difficult for plaintiffs to meet the Article III standing requirements in civil data breach cases because data breaches often don’t result in any immediate harm but only a threat of potential future harm. A threat of harm must be “certainly impending” to satisfy the Article III standard set forth in Clapper. This issue is exacerbated in the class action context, because even if some members of the class can prove actual harm, such as identity theft, it is a rare case where the plaintiff would have some common proof that identity theft occurred for all class members, a problem that recently doomed certification of a class action in In re Hannaford Bros. Co. Customer Data Security Breach Litigation.
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Posted in Class Action Decisions, Class Action Trends, Federal Court Decisions, tagged article III, class certification, holding company, juridical link, juridically linked, mahon, second circuit, sister company, standing, ticor on July 6, 2012|
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For those who practice in the area of insurance-related class actions, I highly recommend an article posted yesterday by Robinson and Cole Partner Wystan Ackerman, who is the primary contributor to his firm’s Insurance Class Actions Insider blog. The article, Standing to Sue in Insurance Class Action Addressed By Second Circuit, summarizes the Second Circuit Court of Appeals decision late last month in Mahon v. Ticor Title Ins. Co., No. 10-3005-cv, 2012 U.S. App. LEXIS 12947 (2d Cir. Jun. 25, 2012), which held that the “juridical link” doctrine could not be used to give a plaintiff who bought insurance from one insurance company standing to represent a class of insureds who purchased policies from the defendant’s sister companies.
The Mahon decision is an important development in the area of insurance class action law. Insurance companies are commonly organized into holding company systems. (The primary reason for this is not to make it more difficult to sue them, but rather so that they can comply with individual states’ domicile, risk-based capital, rate filing, and other regulatory requirements, as well as to allow the introduction of new products without disrupting the expectations of existing policyholders.) As a result, the same insurance brand can be sold through a number of different underwriting companies. At the risk of grossly oversimplifying the concept, the “juridical link” argument, as it has been raised in the insurance class action context, is that companies that are linked together through common ownership, brand, business practices, or sharing of resources can be sued in the same lawsuit by a representative plaintiff that has a claim against any one of them.
Those who prosecute or defend insurance class actions on a regular basis will recognize that the juridical link argument is nothing new. Use of the juridical doctrine as a tactic to sue multiple, related defendants in a single class action hit its peak in the middle part of the last decade. However, the tactic has waned in recent years as plaintiffs’ lawyers realized that it was much more efficient to simply round up a separate class representative for each underwriting company than to spend their time and effort briefing the complex procedural and constitutional issues implicated by the juridical link doctrine.
Even so, as the recentness of the Mahon decision suggests, the argument has not gone away for good, and practical considerations in any given case can make it a tactic worth pursuing. And, if the doctrine is on the comeback trail as a litigation tactic, Mahon provides an arrow in the quiver of defense attorneys for defeating it.
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