Thursday, April 17, 2014
The New York Times has an interesting article today When "Liking" a Brand Online Voids the Right to Sue. From the article:
General Mills, the maker of cereals like Cheerios and Chex as well as brands like Bisquick and Betty Crocker, has quietly added language to its website to alert consumers that they give up their right to sue the company if they download coupons, “join” it in online communities like Facebook, enter a company-sponsored sweepstakes or contest or interact with it in a variety of other ways.
Instead, anyone who has received anything that could be construed as a benefit and who then has a dispute with the company over its products will have to use informal negotiation via email or go through arbitration to seek relief, according to the new terms posted on its site.
UNIVERSITY OF AKRON LAW REVIEW
The Class Action After A Decade of Roberts Court Decisions
The Akron Law Review invites academic papers on the reasoning, dimensions, and possible impacts of one or more of the class action or other multi-party action cases decided by the “Roberts Court” (2005-present) We welcome papers of any length and request submission before September 14, 2014. Publication will occur in spring of 2015.
As the Supreme Court of the United States recognized:
The policy at the very core of the class action mechanism is to overcome the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights. A class action solves this problem by aggregating the relatively paltry potential recoveries into something worth someone’s (usually an attorney’s) labor.
Amchem Products, Inc. v. Windsor, 117 S.Ct. 2231, 2246 (1997) (quoting Mace v. Van Ru Credit Corp., 109 F.3d 338, 344 (7th Cir. 1997)). Earlier in 2014, the Court refused to intervene in a class action brought by consumers in “the case of the moldy washing machines” against three large corporations. Sears, Roebuck & Co. v. Butler, 13-430, Whirlpool v. Glazer, 13-431, and BSM Home Appliances v. Cobb, 13-138. Although a victory for consumers, the decision is arguably an anomaly amidst recent pro-business cases restricting plaintiffs’ class certification. See e.g., Comcast v. Berend, 133 S. Ct. 1426 (2013); AT&T Mobility v. Concepcion, 131 S. Ct. 1740 (2011); Wal-Mart v. Dukes, 131 S. Ct. 2541 (2011). Multi-party litigation may well be changing, and the Akron Law Review seeks your contribution to the conversation.
Your contribution to this conversation will be both timely and visible. The Washington and Lee Law Review Rankings ranked the Akron Law Review as a top 55 general, student-edited journal (in combined score based on impact factor and citation). Additionally, Ohio Supreme Court Justices cited the Akron Law Review more times in the past decade than any other journal. See Jared Klaus, Law Reviews: An Undervalued Resource, 26 Ohio Lawyer, May/June 2012, at 28.
You may submit manuscripts by email or regular mail. To submit by email, please forward a copy of your article in Word format to email@example.com. You may submit a hardcopy to: Justin M. Burns, Editor-in-Chief, Akron Law Review, The University of Akron School of Law, 150 University Avenue, Akron, Ohio 44325. If you have any questions, please feel free to contact Justin Burns at firstname.lastname@example.org.
Wednesday, April 16, 2014
We covered earlier the agenda for the Civil Rules Advisory Committee’s April meeting, which took place in Portland, Oregon last week and was an important step for the recently proposed amendments to the Federal Rules of Civil Procedure. Bloomberg BNA’s U.S. Law Week has this report on the result of the meeting.
The Advisory Committee’s recommendations go next to the Standing Committee on the Rules of Practice and Procedure, which will meet in May.
Hat Tip: Tom Rowe
Tuesday, April 15, 2014
Rhonda Wasserman (Pittsburgh) has posted on SSRN a draft of her article, Cy Pres in Class Action Settlements, which will be published in the Southern California Law Review. Here’s the abstract:
Monies reserved to settle class action lawsuits often go unclaimed because absent class members cannot be identified or notified or because the paperwork required is too onerous. Rather than allow the unclaimed funds to revert to the defendant or escheat to the state, courts are experimenting with cy pres distributions – they award the funds to charities whose work ostensibly serves the interests of the class “as nearly as possible.”
Although laudable in theory, cy pres distributions raise a host of problems in practice. They often stray far from the “next best use,” sometimes benefitting the defendant more than the class. Class counsel often lacks a personal financial interest in maximizing direct payments to class members because its fee is just as large if the money is paid cy pres to charity. And if the judge has discretion to select the charitable recipient of the unclaimed funds, she may select her alma mater or another favored charity, thereby creating an appearance of impropriety.
To minimize over-reliance on cy pres distributions and to tailor them to serve the best interests of the class, the Article makes four pragmatic recommendations. First, to align the interests of class counsel and the class, courts should presumptively reduce attorneys’ fees in cases in which cy pres distributions are made. Second, to ensure that class members and courts have the information they need to assess the fairness of a settlement that contemplates a cy pres distribution, class counsel should be required to make a series of disclosures when it presents the settlement for judicial approval. Third, to inject an element of adversarial conflict into the fairness hearing and to ensure that the court receives the information needed to scrutinize the proposed cy pres distribution, the court should appoint a devil’s advocate to oppose it. Finally, the court should be required to make written findings in connection with its review of any class action settlement that contemplates a cy pres distribution.
Jay Tidmarsh (Notre Dame) has posted Resurrecting Trial by Statistics to SSRN.
“Trial by statistics” was a means by which a court could resolve a large number of aggregated claims: a court could try a random sample of claim, and extrapolate the average result to the remainder. In Wal-Mart, Inc. v. Dukes, the Supreme Court seemingly ended the practice at the federal level, thus removing from judges a tool that made mass aggregation more feasible.
After examining the benefits and drawbacks of trial by statistics, this Article suggests an alternative that harnesses many of the positive features of the technique while avoiding its major difficulties. The technique is the “presumptive judgment”: a court conducts trials in a random sample of cases and averages the results, as in trial by statistics. It then presumptively applies the average award to all other cases, but, unlike trial by statistics, any party can reject the presumptive award in favor of individual trial. The Article describes the circumstances in which parties have an incentive to contest the presumption, and explores a series of real-world issues raised by this approach, including problems of outlier verdicts, strategic behavior by parties, and the parties’ risk preferences. It proposes ways to minimize these issues, including a requirement that the party who reject a presumptive judgment must pay both sides’ costs and attorneys’ fees at trial.
The Article concludes by showing that this approach is consonant with important procedural values such as efficiency, the accurate enforcement of individual rights, dignity, and autonomy.
Monday, April 14, 2014
Joan Steinman (Chicago-Kent) has posted The Puzzling Appeal of Summary Judgment Denials: When Are Such Denials Reviewable? to SSRN.
An important aspect of summary judgment law is now in great disorder. The intermediate federal courts of appeals are split both internally and among themselves on the circumstances, if any, under which denials of summary judgment should be appealable after trial and final judgment, and a Supreme Court decision that addressed the contentious issues only in dicta made matters worse. The Court’s approach was off-the-cuff, its thought process superficial and in some respects flatly in error, and its dicta seriously misguided, with the result that the intermediate federal courts of appeals were left in a quandary over whether to follow the dicta. An additional layer of splits among the circuits resulted. This Article describes the circuit splits, analyzes Ortiz v. Jordan, examines how the courts of appeals have handled the issues since Ortiz and, most importantly, addresses the issues so unsatisfactorily treated in Ortiz.
The introduction to the Article explains the importance of the Article to anyone concerned with the workings of our court systems, because it raises significant issues about the appealability of harmful error, the circumstances under which interlocutory rulings are and are not "merged" in a judgment, and the relationship between interlocutory and post-judgment appeals. It raises important questions about the circumstances under which lower federal courts should, and should not, honor Supreme Court dicta. The Introduction also enumerates the multiple insights and contributions that the Article makes.
In its analysis section, the Article argues why interlocutory appeals of summary judgment denials should not be made more freely available, to reduce the occasions for post-judgment review. It argues that when pre-judgment appeals of denials of summary judgment are available, those appeals both are and should be permissive, rather than mandatory. Most significantly, it argues that regardless of whether interlocutory appeals of summary judgment are available, post-trial/post-judgment appeals of the denials should be allowed when the denials were based on conclusions of law, rather than on the existence of genuine issues of material fact. In so arguing, I disagree with the position taken in dicta by the Supreme Court in Ortiz.
The analysis section is multi-faceted. It debunks the allegedly problematic nature of relying on a law/fact distinction to distinguish differently based summary judgment denials; undermines the view that adequate alternative remedies exist, with particular focus on Federal Rule of Civil Procedure 50; rejects the argument that post-judgment appeals of law-based summary judgment denials will come as an unfair surprise to the successful litigant in the trial court; considers whether the system should require litigants to offer trial judges an opportunity to reconsider their summary judgment denials and how that might best be done; shows the error of the views that the interlocutory nature of summary judgment denials constitutes a reason to deny post-judgment appeal and that it is necessary to preclude post-judgment appeals of law-based summary judgment denials to avoid greater injustice; and establishes that the fear of wasted trials is not an adequate reason to reject such appeals. The Article also calls for rejection of Supreme Court dicta that is not well-reasoned. The Article recommends what it takes to be the appropriate approach and concludes.
Wednesday, April 9, 2014
Alex Reinert (Cardozo) has published on SSRN a draft of his article, The Burdens of Pleading, which will be published in the University of Pennsylvania Law Review. Here is the abstract:
The changes to pleading doctrine wrought by Bell Atlantic v. Twombly and Ashcroft v. Iqbal have been criticized on many grounds. As many commentators have noted, the plausibility pleading doctrine introduced by these cases is consistent with other procedural reforms that have the effect of limiting access of putative plaintiffs to federal civil adjudication. In this Article, I argue that Twombly and Iqbal are more than just the most recent examples of anti-litigation reforms. Plausibility pleading asks federal courts – for the first time since the advent of the Federal Rules of Civil Procedure – to use their "judicial experience and common sense" to assess the likelihood of a claim’s success prior to discovery. But the very characteristics of the procedural changes leading up to Twombly and Iqbal – fewer trials, an increase in private adjudication such as arbitration, pervasive secrecy, and increased use of summary judgment – also make it far less likely that judges will have the experience necessary to reliably apply plausibility pleading. In the absence of relevant information, judges are likely to fall back on heuristics that will take them farther from an accurate decision on the merits. The result, I contend –one that is confirmed by the empirical data available to date – will be an increased dismissal of cases that is essentially random rather than merit-based.
Tuesday, April 8, 2014
Bernadette Bollas Genetin (University of Akron) has psoted The Supreme Court's New Approach to Personal Jurisdiction to SSRN.
This article provides an analysis of the Court’s two recent personal jurisdiction opinions, Daimler AG v. Bauman, 134 S. Ct. 746 (2014), and Walden v. Fiore, 134 S. Ct. 1115 (2014), and concludes that these cases suggest a new doctrinal approach to personal jurisdiction.
In Daimler AG v. Bauman, the Supreme Court narrowed the scope of general jurisdiction, making it available primarily in a corporation’s states of incorporation and principal place of business and rejecting, in most instances, the prior approach of permitting general jurisdiction based on a defendant’s “continuous and systematic” forum contacts. In Walden v. Fiore, the Court used an interest balancing approach to resolve the specific jurisdiction question at issue, turning away from its longstanding purposeful availment approach.
Together, these cases can be interpreted to reinvigorate the reasonableness analysis of International Shoe, in which the Court focused on the “relation among the defendant, the forum, and the litigation.” The Supreme Court has, famously, reversed course several times on its analysis of personal jurisdiction. The article concludes that the Court should, in the full range of specific jurisdiction cases, return to an analysis that considers all relevant interests, including the interests of the defendant, the plaintiff, and the state.
Joe Seiner (South Carolina) has posted on SSRN a draft of his article The Issue Class, which will be published in the Boston College Law Review. Here’s the abstract:
In Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), the Supreme Court refused to certify a proposed class of one and a half million female workers who had alleged that the nation’s largest private employer had discriminated against them on the basis of their sex. The academic response to the case has been highly critical of the Court’s decision. This paper does not weigh in on the debate of whether the Court missed the mark. Instead, this Article addresses a more fundamental question that has gone completely unexplored. Given that Wal-Mart is detrimental to plaintiffs, what is the best tool currently available for workers to pursue systemic employment discrimination claims?
Surveying the case law and federal rules, this paper identifies one little used procedural tool that offers substantial potential to workplace plaintiffs seeking to pursue systemic claims — issue class certification. Rule 23(c)(4)(A) of the Federal Rules of Civil Procedure permits the issue class, allowing common issues in a class case to be certified while the remaining issues are litigated separately. The issue class is typically used where a case has a common set of facts but the plaintiffs have suffered varying degrees of harm. This is precisely the situation presented by many workplace class action claims.
This paper explains how the issue class is particularly useful for systemic discrimination claims. The paper further examines why traditional class treatment often fails in workplace cases, and addresses how the plaintiffs in Wal-Mart could have benefited from issue class certification. Finally, this Article discusses some of the implications of using the issue class in employment cases, and situates the paper in the context of the broader academic scholarship. This paper seeks to fill the current void in the academic scholarship by identifying one overlooked way for plaintiffs to navigate around the Supreme Court’s decision.
Monday, April 7, 2014
Today the Supreme Court granted certiorari in Dart Cherokee Basin Operating Co. v. Owens (No. 13-719). Here is the question presented that appears in the cert. petition (like many cert. petitions these days, it includes a few paragraphs of prologue before the “question” is “presented”)…
A defendant seeking removal of a case to federal court must file a notice of removal containing “a short and plain statement of the grounds for removal” and attach only the state court filings served on such defendant. 28 U.S.C. § 1446(a). Consistent with that statutory pleading requirement, the First, Fourth, Fifth, Seventh, Eighth, Ninth, and Eleventh Circuits require only that a notice of removal contain allegations of the jurisdictional facts supporting removal; those courts do not require the defendant to attach evidence supporting federal jurisdiction to the notice of removal. District courts in those Circuits may consider evidence supporting removal even if it comes later in response to a motion to remand.
Here, in a clean break from Section 1446(a)’s language and its sister Circuits’ decisions, the Tenth Circuit let stand an order remanding a class action to state court based upon the district court’s refusal to consider evidence establishing federal jurisdiction under the Class Action Fairness Act (CAFA) because that evidence was not attached to the notice of removal. (That evidence, which was not disputed, came later in response to the motion to remand.)
The question presented is:
Whether a defendant seeking removal to federal court is required to include evidence supporting federal jurisdiction in the notice of removal, or is alleging the required “short and plain statement of the grounds for removal” enough?
More information about the case is available at SCOTUSblog.
Thursday, April 3, 2014
As we’ve been covering, the Judicial Conference Committee on Rules of Practice and Procedure (a.k.a. the Standing Committee) has proposed a significant batch of amendments to the Federal Rules of Civil Procedure. The public comment period on that proposal ended in February, with over 2,300 comments submitted.
The next step in the process is a meeting of the Civil Rules Advisory Committee that will take place on April 10-11 in Portland, Oregon. As covered earlier, the agenda book for that meeting has now been posted on the US Courts website and is available here. At this meeting, the Civil Rules Committee will make recommendations to the Standing Committee, which will meet at the end of May.
The materials in the 580-page agenda book suggest that there could be some important changes to the original package of amendments that was circulated last August. Most significantly, the Duke Conference Subcommittee (named for a conference convened by the Civil Rules Advisory Committee in May 2010) recommends withdrawal of amendments that would have (1) lowered the presumptive numbers of depositions and interrogatories, (2) limited the presumptive number of requests to admit, and (3) reduced the presumptive length of depositions.
Abandoning these proposals is certainly a step in the right direction. Unfortunately, the subcommittees recommend moving forward with other troubling changes, including (1) amendments to the scope of discovery under Rule 26(b), and (2) the abrogation of Rule 84 and the Forms that appear in the Civil Rules Appendix (which are especially significant with regard to pleading standards).
In February, some colleagues and I submitted a joint comment opposing these changes. That comment was submitted by myself, Helen Hershkoff (NYU), Lonny Hoffman (Houston), Alex Reinert (Cardozo), Elizabeth Schneider (Brooklyn), and David Shapiro (Harvard) [Direct link to the pdf available here]. Thereafter, Janet Alexander (Stanford), Judith Resnik (Yale), and Steve Yeazell (UCLA) submitted a letter – on behalf of themselves and 168 other law professors – supporting our comments in opposition to these changes [direct link to the pdf available here]. Numerous other law professors have also submitted critical comments (e.g., here, here, here, here, here, here, here, and here).
I hope these critiques will prompt the various committees to reconsider these problematic proposals. As we stated in the introduction to our joint comment:
As in 1993 and in 2000, evidence of system-wide, cost-multiplying abuse does not exist, and the proposed amendments are not designed to address the small subset of problematic cases that appear to be driving the Rule changes. We anticipate that, as with past Rule changes, untargeted amendments will fail to eliminate complaints about the small segment of high-cost litigation that elicits headlines about litigation gone wild; instead they will create unnecessary barriers to relief in meritorious cases, waste judicial resources, and drive up the cost of civil justice. The amendments are unnecessary, unwarranted, and counterproductive.*** In our view, the amendments are likely to spawn confusion and create incentives for wasteful discovery disputes. Even more troubling, by increasing costs and decreasing information flow, the proposed amendments are likely to undermine meaningful access to the courts and to impede enforcement of federal- and state-recognized substantive rights.
Wednesday, April 2, 2014
Lost in today's coverage of the campaign finance case might be the fact that SCOTUS has ruled on a preemption issue. In Northwest, Inc. v. Ginsberg, the Court found that the Airline Deregulation Act preempts state common law contract claims for breach of the implied covenant of good faith and fair dealing.
So, in case anyone was ever under the impression that they had any contract rights against an airline for frequent flyer status...now you know.
As for me, I'll just take my privilege in boarding in Group 1. Which, on most airlines, apparently comes third or fourth after several other privileged groups. [sigh.]
Tuesday, April 1, 2014
Rule 52(a) of the Federal Rules of Civil Procedure provides that in matters tried to a district court, the court’s “[f]indings of fact ... must not be set aside unless clearly erroneous.”
The question presented is as follows:
Whether a district court's factual finding in support of its construction of a patent claim term may be reviewed de novo, as the Federal Circuit requires (and as the panel explicitly did in this case), or only for clear error, as Rule 52(a) requires.
More info available at SCOTUSblog.
Friday, March 28, 2014
Dana Remus (North Carolina) and Adam Zimmerman (Loyola Los Angeles) have posted The Corporate Settlement Mill to SSRN.
From cases involving “robo-signed” mortgages to catastrophic oil spills, the United States legal system increasingly encourages corporate wrongdoers to design and implement their own high-volume settlement programs to compensate thousands of unrepresented victims. These private settlement systems rely on corporate economies of scale to resolve massive disputes as comprehensively as a class action, but entirely outside of the court system. We call these systems “corporate settlement mills.”
Like class action settlements and “no fault” insurance options, corporate settlement mills may ameliorate many of the most commonly criticized features of individualized litigation. They offer redress to people who often cannot afford counsel, handle large volumes of claims quickly and predictably, and reduce court congestion. For those reasons such programs are increasingly required by federal laws, regulatory bodies and as a matter of complex litigation practice.
But corporate settlement mills also have a dark side. When sophisticated corporate actors quietly settle large numbers of cases in assembly-line fashion, they threaten transparency, fair dealing, and the rule of law. We argue that this new category of dispute resolution is more dangerous than others because a single, self-interested party—the prospective defendant itself—designs and oversees the entire determination process. Corporate settlement mills thus raise fundamental questions about how far policymakers may go to privatize our public, and historically neutral, system of adjudication.
Drawing lessons from other movements to privatize government, we argue that corporate settlement mills can provide an appropriate alternative to public adjudication as long as they remain answerable to the regulators, courts, and claimants that rely on them. We therefore offer specific suggestions to make them more accountable—including targeted prospective regulation, judicial review, stakeholder participation, and ethical reform. In so doing, we broaden the debate over what constitutes mass litigation, in the hope that lawmakers realize the benefits of large private settlements, without frustrating administrative regulation or the judiciary’s authority to “say what the law is.”
Thursday, March 27, 2014
I have recently posted on SSRN a draft of my paper, The Civil Caseload of the Federal District Courts, which is forthcoming in the University of Illinois Law Review. The paper examines many of the statistics available from the Administrative Office of the United States Courts, and at the time of finishing the draft, the latest available annual statistics were from fiscal year 2012.
Naturally, within a week of my submitting the draft, the AO came out with the FY2013 statistics. I will be revising this draft to incorporate the latest figures, but for now, I would like to share the draft with the community. I welcome any comments, and feel free to email me (email@example.com) rather than commenting here on the blog.
In the fractious debate about the civil justice system, the dominant narrative of the Civil Rules Advisory Committee is that federal civil litigation takes too long and costs too much and that pretrial discovery is largely to blame. After repeatedly narrowing the federal discovery rules over the last thirty years, the Advisory Committee has recently proposed yet another round of rules amendments designed to limit discovery. These proposals have generated an unprecedented amount of passionate (and largely negative) public comment.
Strangely, to justify its position that civil litigation is subject to unacceptable delays, the Advisory Committee has not used the government's own caseload statistics – even those statistics that were instituted in 1990 for the very purpose of measuring "delay." Nor has the Advisory Committee examined caseload statistics to see whether the proportions of different types of civil cases have changed over time, or how those changes might be relevant to its proposed restrictions on discovery.
This article fills in those gaps. Examining the voluminous publicly-available statistics on the federal courts, I offer a radical interpretation: since 1986, instead of an "explosion" of the civil docket, the opposite has occurred: if not quite an implosion, at least stagnation. For example, the number of new civil cases filed since 1986 has increased a mere 1%, and the number of weighted civil filings per authorized district court judge has actually declined 1% since 1986. It is the criminal docket that has overwhelmed the civil docket, but it is civil litigation that has been the target of endless "reform" efforts.
Moreover, five of the six largest categories of federal civil case types today are those that are typically brought by the "have-nots" of society: individuals pressing tort, prisoner, civil rights, labor, and Social Security claims. Contract cases, the only large category primarily brought by organizations, have fallen to only 9% of civil case filings. Of all litigants in the top three categories of cases, civil rights litigants have the most to fear from the proposed discovery amendments: most federal tort litigation is already under coordinated pretrial discovery in conjunction with multidistrict litigation, and there is little discovery in prisoner litigation. Policy discussions about civil litigation should explicitly consider how proposals would impact the majority of individuals seeking relief in the federal courts.
Adam Zimmerman (Loyola Los Angeles) has posted Presidential Settlements to SSRN.
Large groups repeatedly turn to the White House to collectively resolve complex disputes, much like a class action. Such presidential settlements go back at least as far as the early republic, as well as the Progressive Era, when Teddy Roosevelt famously brokered settlements among private groups following a rash of accidental injuries and deaths in mining, rail, and even, football. More modern variants include mass compensation schemes like the Holocaust Victim Settlement, Pan Am Flight 103 Settlement, and the BP Oil Spill Settlement brokered by Presidents Clinton, Bush and Obama. In each case, the President helped resolve a sprawling class action-like dispute among warring parties, while also advancing a broader executive agenda. Just as the President has extended power over the administrative state, presidential settlements demonstrate the growth of executive authority in mass dispute resolution to provide restitution for widespread harm.
But this use of executive power creates problems for victims purportedly served by presidential settlements. When the President settles massive private disputes, he resolves them like other forms of complex litigation, but without the judicial review, transparency, and participation thought necessary to resolve potential conflicts of interests among the victims. The Presidents’ other duties as the Chief Executive also aggravate conflicts with groups who may rely entirely on such settlements for relief.
This Article recommends that the President adopt complex litigation principles to reduce conflicts of interests, to increase transparency, and to improve public participation in White House driven settlements. Envisioning the President as the “Settler-In-Chief,” this Article also raises new questions about how the coordinate branches of government, as well as actors inside the White House, may regulate executive settlement practice consistent with the Separation of Powers.
Wednesday, March 26, 2014
Here’s the transcript of today’s Supreme Court oral argument in Wood v. Moss. It’s a Bivens case brought by plaintiffs who had been protesting against President George W. Bush during his visit to a restaurant in Oregon. They allege that the defendants, who were secret service agents, engaged in unconstitutional viewpoint discrimination by moving them farther away from the President than a similar group that was expressing support for the President.
The crux of the defendants’ position is that they are protected by qualified immunity, but the case could have ramifications for pleading standards more generally. The argument included quite a bit on Iqbal, and there were several questions about the discovery that would likely ensue if the claims were allowed to move forward.
PS: Here is an analysis of the oral argument by Lyle Denniston (SCOTUSblog).
Tuesday, March 25, 2014
Expanding their earlier map of SCOTUS pleading cases, Scott Dodson and Colin Starger have now produced a seven-minute video visually demonstrating the relationship between the cases. You can watch this interesting endeavor here.
A more traditional form of the paper will appear this spring in the Federal Courts Law Review.
The Supreme Court issued a unanimous decision today in Lexmark International, Inc. v. Static Control Components, Inc. It’s principally a Lanham Act case, but Justice Scalia’s opinion has some interesting discussion on Article III standing, prudential standing, and whether Congress has (or has not) authorized a cause of action [See Part II, pp.6-9]. Justice Scalia recognized that the plaintiff in Lexmark had Article III standing based on its “allegations of lost sales and damages to its business reputation.” [p.6] Although the parties had “treat[ed] the question on which we granted certiorari as one of ‘prudential standing,’” he found this “misleading.” [p.6] Instead, he explained [p.9]:
[T]he question this case presents is whether Static Control falls within the class of plaintiffs whom Congress has authorized to sue under §1125(a). In other words, we ask whether Static Control has a cause of action under the statute.4 That question requires us to determine the meaning of the congressionally enacted provision creating a cause of action. In doing so, we apply traditional principles of statutory interpretation. We do not ask whether in our judgment Congress should have authorized Static Control’s suit, but whether Congress in fact did so. Just as a court cannot apply its independent policy judgment to recognize a cause of action that Congress has denied, see Alexander v. Sandoval, 532 U.S. 275, 286–287 (2001), it cannot limit a cause of action that Congress has created merely because “prudence” dictates.
Footnote 4 states:
We have on occasion referred to this inquiry as “statutory standing” and treated it as effectively jurisdictional. See, e.g., Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 97, and n. 2 (1998); cases cited id., at 114–117 (Stevens, J., concurring in judgment). That label is an improvement over the language of “prudential standing,” since it correctly places the focus on the statute. But it, too, is misleading, since “the absence of a valid (as opposed to arguable) cause of action does not implicate subject-matter jurisdiction, i.e., the court’s statutory or constitutional power to adjudicate the case.’ ” Verizon Md. Inc. v. Public Serv. Comm’n of Md., 535 U.S. 635, 642–643 (2002) (quoting Steel Co., supra, at 89); see also Grocery Mfrs. Assn. v. EPA, 693 F.3d 169, 183–185 (Kavanaugh, J., dissenting), and cases cited therein; Pathak, Statutory Standing and the Tyranny of Labels, 62 Okla. L. Rev. 89, 106 (2009).
There’s also a footnote that mentions Iqbal [footnote 6, on p.15]:
Proximate causation is not a requirement of Article III standing, which requires only that the plaintiff ’s injury be fairly traceable to the defendant’s conduct. Like the zone-of-interests test, see supra, at 8–9, and nn. 3–4, it is an element of the cause of action under the statute, and so is subject to the rule that “the absence of a valid (as opposed to arguable) cause of action does not implicate subject-matter jurisdiction.” Steel Co., 523 U.S., at 89. But like any other element of a cause of action, it must be adequately alleged at the pleading stage in order for the case to proceed. See Ashcroft v. Iqbal, 556 U.S. 662, 678–679 (2009). If a plaintiff ’s allegations, taken as true, are insufficient to establish proximate causation, then the complaint must be dismissed; if they are sufficient, then the plaintiff is entitled to an opportunity to prove them.