News & Analysis as of

SEC ALJs Face Free Enterprise Challenge

Several years ago, I testified as an expert witness in an administrative proceeding brought by the Securities and Exchange Commission. The hearing was held in what looked like a courtroom before what appeared to be a judge...more

U.S. Supreme Court Invites Solicitor General’s Views On Whether Certiorari Should Be Granted In Case Involving Standing To Recover...

Yesterday, the U.S. Supreme Court invited the Solicitor General to file a brief to express the Obama administration’s views on whether certiorari should be granted in a consumer case involving an important issue of statutory...more

Illinois Federal Court Grants Neiman Marcus’ Motion to Dismiss Data Breach Action on Article III Standing

Once again, a court finds that data breach plaintiffs do not have the requisite Article III constitutional standing to pursue civil action against a retailer – itself the victim of a cyber attack. Last week, the United...more

Oxfam America Takes A Stand, But Does It Have Standing?

Recently, I wrote about Oxfam America’s new lawsuit against the Securities and Exchange Commission for failing to adopt a final rule implementing Section 1504 of the Dodd-Frank Wall Street Reform and Consumer Protection Act. ...more

Will the Supreme Court Take a Stand on Standing in BP Case?

It is axiomatic that to certify a class, plaintiffs must show all members satisfy Article III standing and Rule 23 requirements. While federal courts "do not require each member of a class to submit evidence of personal...more

Mind the Statutory Gap (aka A Jurisdictional Mess)

As we all know, on June 9 of this year, the Supreme Court issued its long awaited decision in Executive Benefits Ins. Agency vs. Arkison, 134 S. Ct. 2165, 189 L. Ed. 2d 83 (2014), which we had hoped would resolve the open...more

Statutory Right to Appeal Does Not Bypass Article III Standing Requirements

Consumer Watchdog v. Wisconsin Alumni Research Foundation - The U.S. Court of Appeals for the Federal Circuit dismissed an appeal from the Patent Trial and Appeal Board (the Board) on the grounds that the appellant, a...more

Court Dismisses Data Breach Class Action for Lack of Article III Standing

Last month in its decision in In re Sci. Applications Int’l Corp. (SAIC) Backup Tape Data Theft Litigation, 2014 U.S. Dist. LEXIS 64125, the United States District Court for the District of Columbia dismissed all but two...more

Supreme Court Decides Susan B. Anthony List v. Driehaus

On June 16, 2014, the United States Supreme Court decided Susan B. Anthony List v. Driehaus, No. 13-193, holding that a credible threat of enforcement of a law is sufficient to establish an Article III injury in fact....more

Consumer Watchdog v. Wisconsin Alumni Research Foundation (Fed. Cir. 2014) - Appellant's Opposition to Board Decision Not Enough...

Yesterday, the Federal Circuit dismissed an appeal by Consumer Watchdog from a decision of the Patent Trial and Appeal Board affirming the patentability of claims 1-4 of U.S. Patent No. 7,029,913. In dismissing the appeal,...more

Federal Court Rejects Controversial Attempt To Expand Class Action Liability

In a putative class action in federal court, the U.S. District Court for the District of New Jersey quickly put to rest a controversial theory advanced by the plaintiffs to allow them to sue defendants who admittedly caused...more

Stern Revisited, Testing the Jurisdictional Authority of the Bankruptcy Courts and Beyond

In January, the Supreme Court heard oral argument in Executive Benefits Insurance Agency v. Arkison. Executive Benefits is viewed by many as the sequel to Stern v. Marshall, 131 S. Ct. 2594, 180 L. Ed. 2d 475 (2011). In...more

Supreme Court Denies Certiorari for Standing to Sue under the Electronic Fund Transfers Act

The United States Supreme Court declined to grant certiorari to decide whether Congress had the authority to confer Article III standing to sue when the plaintiff suffers no concrete harm and alleges as an injury based on a...more

The Labors of Hercules: Federal District Court in Washington Rejects Free Removability of General Maritime Law Claims Under 28...

As reported in two prior posts (The Removal of the Ancient Mariner - The Developing Jurisprudence Allowing Removal of General Maritime Law Claims under the Recent Amendments to 28 U.S.C. §1441(b) and The Removal of the...more

Cert Petition Asks Supreme Court To Decide Whether Congress Can Allow Uninjured Plaintiffs To Sue In Federal Court

For years, defendants have argued that federal courts may not entertain class-action lawsuits when the plaintiff does not allege that he or she suffered any concrete personal harm and instead relies solely on an “injury in...more

Willful Fair Credit Reporting Act Violation Confers Article III Standing

Whether they would admit it or not, most people have probably at some point searched for their own name in a search engine. Often the results illustrate how much personal information has been scraped and aggregated by...more

Once Again, Clapper Defeats Data Breach Class Action

Article III standing has once again proved to be an insurmountable hurdle for data breach class action plaintiffs whose personal information hasn’t been misused. In Galaria v. Nationwide Mutual Insurance Co., an Ohio federal...more

Consumer Watchdog Replies to United States Brief on Standing Issue

In December, the Federal Circuit invited the United States to address the issue of whether Consumer Watchdog had Article III standing to pursue an appeal of a decision by the Board of Patent Appeals and Interferences...more

Revisiting the Concept of Prudential Standing: In re Ampal-American Israel Corp.

It is well recognized that there are penalties for violating the automatic stay. It does not follow, however, that any entity may seek to enforce the automatic stay. Recently, the United States Bankruptcy Court for the...more

United States Argues That Consumer Watchdog Lacks Standing to Appeal Board Decision on WARF Patent

In December, the Federal Circuit invited the United States to address the issue of whether Consumer Watchdog had Article III standing to pursue an appeal of a decision by the Board of Patent Appeals and Interferences...more

CFPB files second amicus brief in First American RESPA case

Last year, many observers were disappointed when the U.S. Supreme Court dismissed the appeal in First American Financial Corp. v. Edwards, the case that presented the issue of whether a plaintiff who brings a RESPA claim has...more

Ninth Circuit Rules That Plaintiffs Lack Standing To Compel State Agencies To Regulate Greenhouse Gas Emissions

In a case seeking to compel the Washington State Department of Ecology and two regional agencies in the State of Washington to regulate greenhouse gases under the Clean Air Act, the Ninth Circuit ruled that the environmental...more

Supreme Court's New Ruling May Bolster Defense of Data Breach and Privacy Cases

In Clapper v. Amnesty International, 568 U.S. 2013, the United States Supreme Court upheld the strict requirements under Article III for a plaintiff to have standing to sue in privacy cases. Rejecting Respondents' arguments...more

In Clapper v. Amnesty International, Supreme Court Dismisses Privacy Suit for Lack of Article III Standing: Poses a Clear and...

In 2008, the Foreign Intelligence Surveillance Act (FISA) was amended, broadening the surveillance powers of the federal government with respect to communications outside of the United States. In Clapper v. Amnesty...more

In Fontainebleau Appeal, Eleventh Circuit Confirms That Term Lenders Lack Standing To Enforce Revolving Lenders’ Commitments

Last week, the Eleventh Circuit Court of Appeals held that lenders in syndicated credit facilities do not have standing to enforce the funding commitment that other lenders owe to the borrower in the absence of specific...more

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