St. Thomas Journal of Complex Litigation
The Supreme Court’s grant of certiorari in Spokeo, Inc. v. Robins and three other cases involving class actions in the October 2015 term could be a bad sign for those who think the class action should remain a viable species of private regulation. The grant of certiorari in Spokeo is also a bad sign for those who think Congress should be able to enact statutes regulating businesses’ behavior for the public good—the petitioner, Spokeo, and its army of business amici are urging the Court to cut the legs out from under many such statutes.
Corporate litigation activists such as the U.S. Chamber Litigation Center continue to press a well-orchestrated attack against the class action and plaintiffs’ class-action lawyers by brilliantly conceiving a new catchphrase: the “no-injury” class. The attack is proceeding in Congress, in the federal Advisory Committee on Civil Rules, and in lower courts nationwide. But corporate-lawyer activists have had the most success against class actions in the Supreme Court, the battlefield where Spokeo is now being fought.
There are two primary manifestations of the “no-injury class” argument. The first is the idea that a class should not be certified if it includes some members who, at the end of the day, turn out not to have suffered the harm that the class representatives are complaining about. This is the second Question Presented (“QP”) in Tyson Foods, Inc. v. Bouaphakeo. Spokeo invokes the second manifestation of the “no-injury class.” that the class representative’s “only” alleged harm is the violation of a regulatory statute, which is not the “injury in fact” required for Article III standing. Petitioner Spokeo phrases the QP in the Supreme Court as, “Whether Congress may confer Article III standing upon a plaintiff who suffers no concrete harm, and who therefore could not otherwise invoke the jurisdiction of a federal court, by authorizing a private right of action based on a bare violation of a federal statute.”
Patricia W. Hatamyar Moore, Spokeo, Inc. v. Robins: The Illusory “No-Injury Class” Reaches the Supreme Court, 2 St. Thomas J. Complex Litig. 1 (2016).