Presenting a live 90-minute webinar with interactive Q&A Article III Standing and Rule 23(b)(3) Certification: Emerging Litigation Trends Strategies for Plaintiff and Defense Counsel to Pursue or Challenge Certification WEDNES DAY, DECEMBER 18, 2013 1pm East ern | 12pm Cent ral | 11am Mount ain | 10am Pacific Today’s faculty features: Jeffrey A. Leon, Part ner, Complex Litigation Group , Highland Park, Ill. Daniel R. Karon, Part ner, Goldman Scarlato Karon & Penny , Cleveland S abrina H. S t rong, Part ner, O’Melveny & Myers , Los Angeles The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
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I Sa Saw her Sta r Standin ing g There re. Understanding Standing in Class Actions Strafford Webinars December 18, 2013 Daniel R. Karon Goldman Scarlato Karon & Penny, P.C. Jeffrey A. Leon Complex Litigation Group, LLC Sabrina H. Strong O’Melveny & Myers LLP
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Introduction to Article III Standing A. Constitutional requirements 1. Injury-in-Fact Plaintiff must have suffered actual or threatened injury as the result of defendant’s alleged illegal conduct that’s concrete and particularized and actual or imminent , not conjectural or hypothetical 7
Introduction to Article III Standing 2. Traceability or Causation Plaintiff’s alleged injury must be traceable to challenged action Indirect injury OK if traceable to defendants’ acts or omissions Plaintiff must show some causal connection between injury and defendant’s conduct. 8
Introduction to Article III Standing 3. Redressability Established when favorable decision would amount to significant increase in likelihood that plaintiff would obtain relief that directly redresses the injury suffered. 9
Introduction to Article III Standing B. Prudential requirements 1. Generalized Grievances Standing not warranted for generalized grievances shared by many Understood to be job of other governmental institutions, like Congress 10
Introduction to Article III Standing 2. Third-Party Standing Litigants must assert their own legal rights and interests and can’t rest claim on the legal rights or interests of third parties. 11
Introduction to Statutory Standing Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998) 12
Introduction to Statutory Standing Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998) - Court can’t decide merits-based or cause-of-action questions first (e.g., does statute allow damages for violations) (Rule 12(b)(6) question) . . . . . . although, “the merits inquiry [such as whether cause of action exists] and the statutory standing inquiry often overlap.” - Article III standing - as opposed to statutory standing – has “ nothing to do with the text of the statute relied upon.” - Because unlike Article III standing, statutory standing involves whether plaintiff comes within “ zone of int erest s ” for which the cause of action is available. 13
Introduction to Statutory Standing Plaintiff’s claimed redressable injuries: Plaintiff’s “right to know about [toxic chemical] releases and [Plaintiff’s] interests in protecting and improving the environment and the health of its members have been, are being, and will be adversely affected by [Defendant’s] actions in failing to provide timely and required information under EPCRA.” But the Court considered Plaintiff’s claimed injury unredressable : “Having found that none of the relief sought by [Plaintiff] would likely remedy its alleged injury in fact, we must conclude that [Plaintiff] lacks standing to maintain this suit, and that we and the lower courts lack jurisdiction to entertain it.” 14
But wait . . . 15
Introduction to Statutory Standing Stevens’ concurrence in judgment: Question : Does the EPCRA “confer[] federal jurisdiction over citizen suits for wholly past violations”? Answer : “[T]he Court should answer the statutory question first . Moreover, because the EPCRA, properly construed, does not confer jurisdiction over citizen suits for wholly past violations , the Court should leave the constitutional question for another day.” 16
Introduction to Statutory Standing “[If the EPCRA] authorizes citizen suits for wholly past violations, the district court has jurisdiction over these actions; if it does not, the court lacks jurisdiction .” The Court’s “inquiry as to standing must begin with a determination of whether the statute in question authorizes review at the behest of the plaintiff.” The Court should “turn[] to the constitutional standing question only after determining that standing exist[s] under the statute.” “[G]iven a choice between two jurisdictional questions – one statutory and the other constitutional – the Court has the power to answer the statutory question first. ” [A]nd if no right of action exists, questions of standing and jurisdiction become immaterial. 17
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Standing challenge # 1 Manifestation of injury to plaintiff (i.e., does “injury-in-fact” to plaintiff exist?) 19
Standing Challenge #1 Manifestation of Injury – standing doesn’t exist In re Barnes & Noble Pin Pad Litig., No. 12-cv-8617, 2013 WL 4759588, at * 3 (N.D. Ill. Sept. 3. 2013) “Nothing in the Complaint indicates Plaintiffs have suffered either a ‘certainly impending’ injury or a ‘substantial risk’ of an injury, and therefore, the increased risk is insufficient to establish standing.” DaimlerChrysler Corp. v. Inman , 252 S.W.3d 299, 305, 307 (Tex. 2008) “[P]laintiffs could accidentally unlatch their Gen-3 seatbelt buckles and subject themselves to harm, though that has never happened . . . .” (“Ripeness” issue here?) “[T]he rights of ten million vehicle owners and lessees across the United States should not be adjudicated in an action brought by three plaintiffs who cannot show more than the merest possibility of injury to themselves.” 20
But . . . 21
Standing Challenge #1 “Premium-Price Theory” May Overcome I No-Manifestation-of-Injury Argument In re Hydroxycut Mktg. & Sales Practices Litig., 801 F. Supp. 2d 993, 1002 (S.D. Cal. 2011) “[T]he injury to Plaintiffs occurred at the time they purchased the Hydroxycut products and did not receive the benefit of their bargain. Plaintiffs have lost the money they paid for the product and have alleged an economic injury.” In re Whirlpool Corp. Front Loading Washer Prods. Liability Litig., 722 F.3d 838, 856 (6th Cir. 2013) “If defective design is ultimately proved, all class members have experienced injury as a result of the decreased value of the product purchased.” (notably, opinion doesn’t discuss standing) 22
Standing Challenge #2 May plaintiffs’ counsel include states where class representatives don’t reside ? 23
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