Presenting a live 90-minute webinar with interactive Q&A Article III Standing and Rule 23(b)(3) Certification: Latest Litigation Trends Strategies for Plaintiff and Defense Counsel to Pursue or Challenge Certification THURSDAY, APRIL 9, 2015 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: Molly M. Donovan, Partner, Winston & Strawn , New York Jordan Elias, Of Counsel, Lieff Cabraser Heimann & Bernstein , San Francisco 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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Molly M. Donovan mmdonovan@winston.com 5
What is Article III Standing? • Constitutional standing is a threshold requirement to sue in federal court. • The requirement is in Article III, Section 2, which limits the judiciary to act only in “cases” and “controversies”. • One way to ensure the existence of an actual case or controversy is standing, i.e. , the plaintiff must have some personal stake in the dispute and not be a mere advocate. 6
Elements of Article III Standing • Plaintiff must have suffered: – an “injury in fact”; – that is “fairly traceable” to the challenged conduct of the defendant; – and, likely to be redressed by a favorable decision. • See, e.g., Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. , Inc. , 528 U.S. 167, 180-81 (2000). • This is the “irreducible constitutional minimum” for standing. Lujan v. Defenders of Wildlife , 504 U.S. 555, 560-61 (1992). 7
What Is Injury In Fact? • The injury suffered must be: – concrete and particularized – actual or imminent, not conjectural or hypothetical • See, e.g., Friends of the Earth , 528 U.S. at 180. 8
Injury In Fact – Is an Alleged Violation of “Public Right” Sufficient? • In 1970, the Supreme Court said “yes”, so long as the plaintiff alleges that the challenged action “has caused him injury in fact, economic or otherwise.” – Assoc. of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 152 (1970) (emphasis added). 9
Injury In Fact – Is an Alleged Violation of “Public Right” Sufficient Without A Concrete Injury? • Warth v. Seldon has been cited for the proposition that the injury required may exist “solely by virtue of statutes creating legal rights” even if no concrete or actual harm is alleged. 422 U.S. 490, 500 (1975). 10
Injury In Fact – What Happened in Warth ? • Persons of low to moderate income? – No standing, “the fact that these petitioners share attributes common to persons who may have been excluded” is insufficient. Plaintiffs themselves must be injured. Id. at 502. • Home builders? – No standing, there are no specific or current plans to build in the affected area. Id. at 516. • Non-profit association? – No standing, while it’s true that “Congress may create a statutory right…which can confer standing to sue even where the plaintiff would have suffered no judicially cognizable injury in the absence of statute,” there is no such statute here. Id. at 514. 11
Injury in Fact – How did Lujan Clarify Warth? • In Lujan v. Defenders of Wildlife , the Court seems to have taken a stricter approach in this area. 504 U.S. 555 (1992). 12
Lujan – The Claims to Injury In Fact • A particular plaintiff’s desire to return to a particular place to see the species at issue – This is a cognizable interest (even if only for aesthetics), but the party seeking review must be “himself among the injured”. Id. at 563. – “ Some day ” intentions are not good enough without concrete plans. Id. at 564. 13
Lujan – The Claims to Injury In Fact • Any person who uses any part of a “contiguous ecosystem” and is adversely affected by the conduct “even if the activity is located a great distance away ”? – No, plaintiff must use the area actually affected by the conduct. Id. at 565-66. • Any person who has an interest in studying the animals anywhere on the globe and/or any person with a professional interest in the animals, i.e., “anyone who goes to see Asian elephants at the Bronx Zoo ”? – No, this is “beyond all reason”; “anyone…anywhere in the world” goes too far. Id. at 566-67. 14
Lujan – The Claims to Injury In Fact • A “citizen - suit” provision allowing anyone to file suit to enjoin a violation? – No, injury in fact cannot be satisfied by “congressional conferral upon all persons of an abstract, self-contained, non- instrumental ‘right’”. Id. at 573. – The judiciary may participate in law enforcement entrusted to administrative bodies only to protect “individual rights”, i.e. , not “public rights that have been legislatively pronounced to belong to each individual who forms part of the public.” Id. at 578. 15
Lujan – How to Reconcile with Warth ? BUT, it’s true that Article III injury may exist solely by virtue of statutes creating legal rights. This means only that Congress can elevate to the status of a legally cognizable injury concrete, de facto injuries previously inadequate in law. Congress cannot manufacture an injury wholesale. – Example: Congress can elevate an individual’s personal interest in living in a racially integrated community to a legally cognizable injury. 16
Jordan Elias Lieff Cabraser Heimann & Bernstein LLP jelias@lchb.com
Clapper v. Amnesty International USA 133 S. Ct. 1138 (2013) • Suit by U.S. citizens who engage in sensitive international communications with individuals whom they believe may be the targets of American surveillance under the 2008 Amendments to the Foreign Intelligence Surveillance Act (“FISA”). • Action for declaration that FISA was unconstitutional. • Claimed to have suffered injury in fact because of a reasonable likelihood that their communications with foreign contacts would be intercepted, and • because the risk of surveillance requires them to take costly and burdensome actions to protect confidentiality of their communications. 18
Clapper v. Amnesty Int’l, cont. • In a 5-4 decision, Court held that the plaintiffs did not have standing under Article III. • To establish standing, injury must be: – Concrete, particularized, and actual or imminent, – Fairly traceable to the challenged action, and – Redressable by a favorable ruling. – Threatened injury must be “certainly impending” to constitute injury in fact. – Allegations of possible future injury are not sufficient. 19
Clapper v. Amnesty Int’l, cont. • Speculative whether government will imminently target communications to which respondents are parties. • Speculative whether government will seek to use FISA authorized surveillance methods, will be granted authority to do so, and will be successful. • Causal chain too attenuated, majority finds. • Majority says it is declining to abandon the usual reluctance to endorse standing theories that depend on speculation about decisions of independent actors. • It was no answer to point to costs presently incurred to avoid a harm that was neither certainly impending nor fairly traceable to action under the FISA Amendments. 20
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