Posts Tagged ‘injury-in-fact’

I’m very pleased to be chairing the ABA Section of Litigation’s Sixth Annual Regional CLE Program on Class Actions and Mass Torts this year.  The program will be held at the offices of the Bar Association of San Francisco.  Breakfast begins at 8:00 a.m., and the presentation begins at 8:45 a.m. on June 21, 2019.

Click here for more information and to register.

This year’s program will kick off with a panel discussing the recent amendments to Rule 23 as well as the Procedural Guidance for Class Action Settlements issued by the U.S. District Court for the Northern District of California.  Other topics include the use of virtual law firms in class action and mass tort litigation, developments in injury-in-fact and Article III standing, and developments in how courts are dealing with variations in injury and causation in addressing the predominance factor in Rule 23(b).


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There have been a variety of recent news reports about a trial that began today in a “class action” lawsuit against the United States Department of Veterans Affairs, or VA.

The case, now captioned Veterans for Common Sense v. Peake, was filed by two nonprofit groups on behalf of veterans of the Iraq and Afganistan wars and earlier conflicts alleging systemic problems in the VA’s system of providing healthcare services and admistering benefits for veterans with Post Traumatic Stress Disorder (PTSD) and other mental illnesses.  Among the allegations is that delays in the processing of claims and other problems with claims handling and appeals of the denials of those claims have contributed to an “epidemic of suicides” among affected veterans.  A two-week trial to the court began today before Judge Samuel Conti of the United States District Court for the Northern District of California in San Fransisco.  The plaintiffs seek injunctive relief including supervision over VA healthcare services and the administration of VA benefits, including the appointment of a special master to oversee the handling of claims.  The claims appear to include constitutional due process claims and statutory claims under specific federal laws providing for veterans’ medical benefits.  Trial is to the court rather than to a jury because the plaintiffs are seeking an injunction and not money damages.

From a class action practitioner’s perspective, perhaps the most interesting aspect of the case is the fact that it is not a class action at all.  According to a report on Law.com (click here), the case was originally filed as a class action but the plaintiffs’ attorneys ultimately made a strategic decision not to seek class certification.  Rather than seeking certification on behalf of a class of veterans, plaintiffs’ counsel decided to proceed solely on behalf of two nonprofit veterans’ advocacy groups, Veterans for Common Sense and Veterans United for Truth.  In an order dated January 10, 2008, Judge Conti had previously denied the government’s motion to dismiss on the ground that the two groups lacked standing to sue.  (Copy of January 10, 2008 Order).  Rejecting the government’s argument that the two groups were mere advocacy groups who could not sue by themselves without the participation of individual veterans, the court held that the two groups had organizational standing under the principles outlined by the United States Supreme Court in Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 181 (2000) and Warth v. Seldin, 422 U.S. 490, 511 (1975).  Under these principles, an association may sue on behalf of its individual members if

its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization’s purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.

Friends of the Earth, 528 U.S. at 181.  In turn, the participation of individual members is not required when its members face “immediate or threatened injury” as a result of the challenged action and “the nature of the claim and of the relief sought does not make the individual participation of each injured party indispensable to proper resolution of the cause.”  Warth, 422 U.S. at 511.  In applying these standards, the court concluded that

[g]iven the nature of Plaintiffs’ claims, especially in regard to the allegations of systemic legal violations, the Court, at this stage, is not convinced that the individual participation of each injured party will be indispensable to the present action. Plaintiffs’ due process claim will depend largely on the claims adjudication procedures enacted under the VJRA, and not necessarily on individual veteran’s claims. The same is true regarding Plaintiffs’ access to the courts claim. Plaintiffs’ claim for denial of statutorily mandated health care can satisfy this standing requirement if, for example, Plaintiffs demonstrate that the current system under the VJRA leads to system-wide denials of this health care or if the VA fails to recognize and treat PTSD within this two-year period.

January 10, 2008 Order at 6.  However, the Court also suggested that this decision might be subject to later change should future events make clear that the participation of individual veterans would be required.  Presumably, this means that the representative nature of the lawsuit is subject to additional argument and evidence at trial, in addition to the merits of the plaintiffs’ claims.

Copies of the various pleadings, orders, and other filings in the case are available at a website provided by the plaintiff organizations (click here).

Other various articles discussing the case are listed below:









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