Is D.C. Circuit’s Data-Breach Standing Decision a Tipping Point for High Court Review?

cohen-david-tGuest Commentary by David T. Cohen, Counsel at Ropes & Gray LLP in its New York, NY office.

Article III of the U.S. Constitution requires all private litigants in federal court to establish “standing,” that is, to show that they are proper litigants to raise the defendant’s alleged legal violations with the court. To have standing, a plaintiff must face an actual or sufficiently imminent future injury from the legal violation.  Several recent federal appellate decisions have grappled with the issue of when, if ever, a plaintiff whose personal information was compromised in a data breach—but who has suffered no actual harm from that compromise—faces a sufficiently imminent future harm to have Article III standing.

One such recent case stands out from the pack, both because it hails from the particularly prominent U.S. Court of Appeals for the D.C. Circuit, and because it is the subject of a forthcoming petition for a writ of certiorari, setting the stage for what could become the first-ever ruling by the U.S. Supreme Court on the issue in a data breach matter. Continue reading “Is D.C. Circuit’s Data-Breach Standing Decision a Tipping Point for High Court Review?”

SCOTUS Seeks Solicitor General’s Views on Apple’s Cert. Petition in Antitrust Suit

app storeIn an orders list issued today, the U.S Supreme Court invited the Solicitor General of the United States to file a brief expressing the federal government’s views on the petition for certiorari in Apple, Inc. v. Pepper. The case, in which Washington Legal Foundation filed an amicus brief supporting Apple’s request for review, involves a forty-year old Supreme Court doctrine dictating that only direct purchasers of good or services may file private enforcement actions under federal antitrust laws.

The Court occasionally seeks the federal government’s views on a petition for certiorari in cases in which the government is not directly involved, but that implicate significant federal interests. In Supreme Court-speak, this is known as a CVSG: Calling for the Views of the Solicitor General. Continue reading “SCOTUS Seeks Solicitor General’s Views on Apple’s Cert. Petition in Antitrust Suit”

WLF Webinar, October 11, 1:00 PM: Winning Personal Jurisdiction and Venue Battles

Personal Jurisdiction and Venue Disputes: Succeeding in a Changed Legal Environment
Wednesday, October 11, 2017, 1:00-2:00 pm EST

To view live on WLF’s Ustream channel, click here.

Featuring:

Description: Previously relegated to law-school classroom debate, personal jurisdiction and venue are now front-of-mind issues for civil litigators. Our speakers will address how lower courts, and the plaintiffs’ bar, have responded to the U.S. Supreme Court’s recent rebukes of forum shopping. They will also identify the open questions and possible loopholes in the new jurisprudence, and discuss strategic responses on how to obtain and keep a “home court” advantage.

Pending High Court Case Tests Congress’s Authority to Detain and Deport Criminal Aliens

supreme courtThe US Supreme Court on October 3, 2017 will hear oral arguments for the second time in an important immigration case, Jennings v. Rodriguez.  The Court was unable to reach a decision the first time around, apparently because it divided 4-4 on how to resolve the case.  A key issue in the case is which constitutional body—Congress or the federal courts—gets to make policy governing the treatment of aliens convicted of serious crimes.

An unbroken line of Supreme Court precedent (including 1976’s Mathews v. Diaz) provides a ready answer to that question: immigration policy is “so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference.”  Congress determined that aliens convicted of serious crimes should be deported and should be detained pending final removal; courts should not be second-guessing that determination. Continue reading “Pending High Court Case Tests Congress’s Authority to Detain and Deport Criminal Aliens”

Ambiguity Eclipses Clarity in Two Post-“Spokeo” Standing-to-Sue Decisions

9thCirIn addition to an America-only total solar eclipse, August has brought us a remarkable flurry of significant federal appeals court decisions. Among those decisions were two that addressed a hotly contested procedural issue: plaintiff’s standing to sue for violation of a federal statute.

The rulings, both of which interpreted and applied the 2016 US Supreme Court Spokeo, Inc. v. Robins decision, further clarified that decision’s main holding while also exacerbating the confusion over what constitutes a “concrete and particularized” injury.

We’ve written quite a bit about Spokeo and its progeny here. There, the Court held that plaintiffs alleging a “bare procedural violation” of a federal statute do not meet the “case or controversy” standing requirement of Article III of the US Constitution. Such litigants must also claim an injury-in-fact, i.e. a harm that is concrete and particularized to them. Justice Alito’s opinion offered very little guidance on how courts should make that determination. Continue reading “Ambiguity Eclipses Clarity in Two Post-“Spokeo” Standing-to-Sue Decisions”

WLF Caps off Legal-Studies Series on Commercial Speech with Prof. Martin Redish Interview

CW Summer 2017On July 28, 2017, Washington Legal Foundation published an interview in which Northwestern University Pritzker School of Law Professor Martin H. Redish answered questions on the evolution of commercial-speech protection. This Conversations Withpaper provides a fitting culmination to the series of WLF publications on commercial speech produced in the last six months.

Over the past 46 years, beginning with a 1971 law review article drafted as a Harvard Law School student, Professor Redish’s scholarship has deeply influenced the US Supreme Court’s development of the so-called commercial-speech doctrine. In the Conversations With paper, he discusses the impetus for that article, as well as the High Court’s growing respect for commercial speech.

The WLF publications were meant to provide policy makers at the state and federal levels with a basic understanding of commercial speech and the First Amendment scrutiny courts apply when reviewing restrictions on such speech. The publications, with links to each, are listed below:

 

The Supreme Court’s NOT Top 10: October Term 2016 Cert Petitions the Justices Should Have Granted

supreme courtIn a year when the U.S. Supreme Court heard six(!) cases where Washington Legal Foundation supported grants of certiorari with  amicus curiae briefs (leading all non-profit groups “by quite a large margin,” according to EmpiricalSCOTUS.com), it seems a bit churlish to pick on the Court for rejecting a number of important cases.  Then again, the entire point of this feature is to identify such oversights.  Even though the Court granted some 43 percent of the cases in which WLF supported cert, it still overlooked a host of worthwhile appeals, once again taking on an exceedingly light docket.

One thing stands out in this fourth annual retrospective look at last term’s disappointeds docket: namely, how many so-called business cases the Court granted.  Although many commentators have called this a “boring” term, court watchers who value clarity and certainty couldn’t help but appreciate the Court’s resolving multiple controversies that, while minor in the grand scheme of things, have nonetheless vexed litigants and divided lower courts.  Perhaps because the Court was down a justice and evenly divided for over a year, it took the opportunity to grant cert to cases on lower-profile subjects that might get passed over when meatier fare is desired.  If it did so in a quest for consensus, the happy results are the silver lining of the Court’s unusually long interregnum. Continue reading “The Supreme Court’s NOT Top 10: October Term 2016 Cert Petitions the Justices Should Have Granted”