Presenting a live 90-minute webinar with interactive Q&A Class Certification and Article III Standing After Spokeo: One Year Later THURSDAY, OCTOBER 5, 2017 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: Robert J. Herrington, Co-Chair , National Products Liability and Mass Torts Practice, Greenberg Traurig , Los Angeles Jeffrey A. Leon, Partner, Quantum Legal , Highland Park, Ill. Andrew C. Nichols, Partner, Winston & Strawn , Washington, D.C. 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 Saw her Standing There. Article III Standing and Class Certification After Spokeo Strafford Webinars October 5, 2017 Jeffrey A. Leon Quantum Legal LLC jeff@qulegal.com
TYPES OF STANDING Article III (or Constitutional) Standing • Statutory (or Zone of Interest) Standing • 6
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ARTICLE III STANDING The source of much litigation: Section 2 of Article III of the United States Constitution “The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States…to controversies…between citizens of different states” “Cases” or “Controversies” = Article III Standing 8
Article III Standing The “Case or Controversy” Inquiry has two levels: Constitutional Requirements Prudential Requirements 9
Article III Standing Constitutional Requirements: Injury-In-Fact Traceability (Causation) Redressability 10
Article III Standing Injury-in-Fact Plaintiff must have suffered actual or threatened injury as the result of defendant’s alleged illegal c onduct that’s concrete and particularized and actual or imminent , not conjectural or hypothetical. No advisory opinions. 11
Article III Standing 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. 12
Introduction to Article III Standing Redressability Established when favorable decision would amount to significant increase in likelihood that plaintiff would obtain relief that directly redresses the injury suffered. 13
ARTICLE III STANDING Prudential Requirements Generalized Grievances No Third Party Standing 14
Article III Standing Generalized Grievances Standing not warranted for generalized grievances shared by many. Understood to be job of other governmental institutions, like Congress. 15
Article III Standing No 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. 16
Statutory Standing Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998) 17
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 interests ” for which the cause of action is available. 18
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.” 19
But wait . . . 20
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.” 21
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. 22
SPOKEO, INC. V. ROBINS , 136 S. Ct. 1540 (May 24, 2016): What it Says, What It Means 23
What Spokeo Was About • An alleged violation of FCRA (Fair Credit Reporting Act) • Spokeo was alleged to have published false info about the plaintiff in its people search engine that misstated his age and education, etc. • 9 th Circuit had held that the alleged FCRA violation was of a statutory right belonging to the Plaintiff and that the Plaintiff had “personal interests in the handling of his credit information [that] are individualized rather than collective.” Accordingly, the Plaintiff was found to have standing. 24
The Spokeo Result: Vacated and Remanded, 6-2 • Held that the Ninth Circuit’s “analysis [of plaintiff’s Article III standing] was incomplete” because a plaintiff must “allege an injury that is both ‘concrete and particularized’” and that “the Ninth Circuit’s analysis focused on the second characteristic (particularity), but it overlooked the first (concreteness).” • “Particularization is necessary to establish injury in fact, but it is not sufficient. An injury in fact must also be ‘concrete’. Under the Ninth circuit’s analysis, however, that independent requirement was elided” • “’Concrete’ is not, however, necessarily synonymous with ‘tangible’ …. We have confirmed in many of our previous cases that intangible injuries can nevertheless be concrete.” 25
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