Class actions and the separation of powers: a Spokeo debate

September 1, 2015

Today is one of those days when I am really glad not to be a justice of the U.S. Supreme Court. They only get the tough cases.

Lawyers for Thomas Robins – the name plaintiff in a Fair Credit Reporting Act class action against the search engine Spokeo – filed his Supreme Court brief Monday night. Robins’ counsel of record, William Consovoy of Consovoy McCarthy Park, and his supporting cast from the class action firm Edelson are carrying a very heavy load. As I’ve been saying for months, Spokeo v. Robins could profoundly reshape class actions. It presents the question of whether Congress can confer constitutional standing on plaintiffs who have not suffered a concrete harm by authorizing a private right of action to enforce a federal law. In practical terms, Spokeo and the cadre of pro-business groups backing its arguments to the justices want the Supreme Court to eliminate class actions based on federal laws that grant consumers statutory damages.

So in a way, Consovoy and the Edelson lawyers aren’t just defending the 9th U.S. Circuit Court of Appeals decision that Robins’ case satisfies Article III of the U.S. Constitution. They are advocating for the survival of a big category of class actions – and the law firms that bring them.

The brief filed Monday doesn’t say that, of course. In fact, the Robins filing explicitly asks the justices to remove policy considerations about class action litigation from their consideration of this case. Spokeo and its supporters have said class actions based on statutory damages are a blight. The Robins brief predicts plenty of amici will surface to hail the cases. That’s not of consequence, according to Robins’ lawyers. “The fact that Spokeo thinks the Court would not only choose sides in this policy dispute, but would then allow whatever policy judgment it reached to pervade its legal reasoning, is disconcerting,” the brief said. “Neutral principles – not policy disputes – are the only solid footing for interpreting the constitution and laws of the United States.”

But the Robins legal team has to be well aware of the potentially disastrous consequences for class action plaintiffs and their lawyers if the court sides with Spokeo. The new brief makes strong arguments that centuries of British case law and the framers’ own interpretation of a “case or controversy” – the constitution’s language on standing – includes “suits asserting invasion of a private legal right, irrespective of consequential harm.” As examples, the Robins brief cited trespass cases in which the trespasser hasn’t hurt the property or its owner, defamation suits in which no real harm results, voter interference cases when one vote would not have changed the election’s outcome, and contract cases in which the plaintiff can’t show damages.

The brief points to modern-day Supreme Court precedent in Public Citizen v. U.S. Department of Justice, a 1989 case in which the justices ruled Public Citizen had standing to sue over the Freedom of Information Act based on the injury of being denied access to records; and Havens Realty v. Coleman, a 1982 decision in which the court said Sylvia Coleman could sue the owner of an apartment complex for discrimination even though, as a “tester” for a civil rights group, she had no intention of actually renting an apartment.

“In both cases, the court found Article III standing only because the plaintiffs’ statutory rights had been invaded,” the Robins brief said. “In neither case did the court require an allegation or proof of consequential harm. Those claims could be heard because Congress had created a statutory entitlement to information whose violation could be remedied through a private right of action to obtain monetary or equitable relief.” (Spokeo’s merits brief, by counsel of record Andrew Pincus of Mayer Brown, cites seemingly contradictory precedent on “concrete injury” and Article III standing in such rulings as Lujan v. Defenders of Wildlife in 1992.)

My favorite debate between the two merits briefs, though, was more theoretical: How does separation of powers doctrine inform the issue of Congress’s power to grant plaintiffs constitutional standing?

Spokeo argued that the drafters of the Constitution intended to limit the power of the court by restricting its authority to “the traditional role of Anglo-American courts, which is to redress or prevent actual or imminently threatened injury to persons caused by private or official violation of law.” That’s a pretty basic position but there’s an additional wrinkle in Spokeo’s argument. The ultimate responsibility to uphold the law rests with the executive branch under the “take care” clause of Article II of the Constitution, Spokeo pointed out. If Congress could simply authorize private plaintiffs to sue over violations that have not caused them actual injuries, it is interfering with the power of the executive branch.

“It matters a great deal – on a practical as well as a constitutional level – whether public prosecutors, as opposed to self-interested private parties, may enforce the laws in the absence of concrete harm,” Spokeo’s brief said. “The executive branch’s duty under the Take Care Clause includes the attendant discretion to decide which cases warrant prosecution – a choice for which the executive is politically accountable.”

The Robins brief takes a different approach to whose power is at stake in this case. According to Robins, if the Supreme Court were to adopt Spokeo’s position on Article III standing, the judicial branch would be stepping on legislative toes. “The only threat to separation of powers here is if the court asserts broad authority to revisit Congress’s determination that certain concrete interests are worthy of legal protection, or if the court assumes for itself the authority to hold that a statutory-damages remedy is categorically off-limits for certain violations of federal law,” the brief said. “Either would be an unprecedented expansion of judicial power at Congress’s expense.”

The Supreme Court can decide this case without figuring out which branch’s turf it should be worried about protecting. But it’s a mark of just how big a case this is that the power of all three branches is supposedly under threat.

It’s enough to make my head hurt.

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