Monkey Selfie Update: 9th Circuit Judge Calls for En Banc Rehearing Vote on Ruling

1525792504758-naruto2Two weeks ago, we posted a commentary on the so-called monkey selfie case decided by the U.S. Court of Appeals for the Ninth Circuit, Naruto v. Slater. The court unanimously held that Naruto, a photogenic Indonesian macaque, did not have statutory standing to sue the owner of the selfie-taking camera for copyright infringement. The majority opinion did find that Naruto had Article III standing, a conclusion strongly criticized in a concurring opinion.

Law360 reported yesterday that “an unnamed Ninth Circuit judge had requested sua sponte that the full court vote on whether to rehear the case.” The article speculated that Judge N. Randy Smith, who authored the concurrence in the three-judge-panel opinion, may have made the request. Judge Smith had written that once the court found People for the Ethical Treatment of Animals could not act as a “next friend” to Naruto and prosecute the suit on his behalf, the standing inquiry should have ceased.

A second possibility is that the author of the Slater majority opinion, Judge Carlos Bea, called for the en banc vote. His opinion explicitly called for the Ninth Circuit to reconsider its 2004 decision, Cetacean Cmty. v. Bush, which held that non-humans represented by “competent counsel” can have Article III standing to sue without a “next friend.” The court “wrongly decided” Cetacean, Judge Bea wrote in Slater.

The May 25 Slater docket filing called for new briefs on the rehearing issue, which are due on June 15.

“Monkey Selfie” Copyright Ruling Reflects Key Appeals Court’s Wayward Standing-to-Sue Jurisprudence

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Photo via Wikimedia Commons

We’ve been on a bit of a standing-to-sue kick in this space lately (here, and here, for instance) and in Washington Legal Foundation’s publishing program (here and here). Article III’s standing requirement, the U.S. Supreme Court has explained, is “built on separation-of-powers principles” and “serves to prevent the judicial process from being used to usurp the powers of the political branches.” From a more practical vantage, a predictable body of law that confines courts’ jurisdiction to lawsuits alleging actual, redressable harms helps to limit defendants’—especially business defendants’—litigation costs by facilitating early dismissal of questionable claims.

Two WLF publications referenced above criticize the U.S. Court of Appeals for the Ninth Circuit for issuing decisions that significantly relax the standing requirement of “injury in fact.” While reaching the right result, another recent Ninth Circuit decision, in the famed “monkey selfie” copyright case, exemplifies how truly off course the court’s standing jurisprudence has wandered. Continue reading ““Monkey Selfie” Copyright Ruling Reflects Key Appeals Court’s Wayward Standing-to-Sue Jurisprudence”

No Matter the Cause, “Public Interest” Groups Merit No Shortcuts on Standing to Sue

DC District CourtTo bring a lawsuit, a plaintiff must, before all else, demonstrate standing under the Constitution. Article III requires a plaintiff have “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). Lujan and other U.S. Supreme Court decisions have clarified that cause-oriented organizations get no shortcuts; they must meet roughly the same standing requirements as individuals to bring lawsuits in federal court. A recent U.S. District Court for the District of Columbia decision, Environmental Working Group et al. v. Food and Drug Administration, exactingly applied those requirements to deny two environmental groups standing to sue, while at the same time signaling that D.C. Circuit organizational standing precedents should perhaps be reconsidered. Continue reading “No Matter the Cause, “Public Interest” Groups Merit No Shortcuts on Standing to Sue”

Decision’s Permissive Standing Analysis Tags Ninth Circuit as Favorable Forum for Data-Related Suits

Cruz-Alvarez_FFeatured Expert Contributor—Civil Justice/Class Actions

By Frank Cruz-Alvarez, a Partner with Shook, Hardy & Bacon L.L.P. in the firm’s Miami, FL office, with Erica E. McCabe, an Associate in the firm’s Kansas City, MO office.

On February 26, 2018, the U.S. District Court for the Northern District of California tracked the U.S. Court of Appeals for the Ninth Circuit’s permissive approach to Article III standing when it denied Facebook Inc.’s (Facebook) renewed motion to dismiss for lack of subject matter jurisdiction in Patel, et al. v. Facebook Inc., ___F. Supp. 3d ___, 2018 WL 1050154 (N.D. Cal. Feb. 26, 2018).  In rejecting Facebook’s motion, the court held that the putative class properly alleged a concrete injury in fact, consistent with the U.S. Supreme Court’s ruling in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) (Spokeo I). Continue reading “Decision’s Permissive Standing Analysis Tags Ninth Circuit as Favorable Forum for Data-Related Suits”

A River Runs to Court: Environmental Activists Circumvent Democracy to Impose Agenda

colorado river gorgeThis is a frustrating time for environmental special-interest activists. Their cause is not one the public rates as a national priority. Their allies are no longer in leadership positions in federal agencies. And though they still have friends at the state and local levels, shrinking budgets prevent those regulators and elected officials from pursuing the activists’ agenda. With waning influence in other branches, many environmental organizations now increasingly look to a long-standing and reliable tool of advocacy—the lawsuit—to achieve their ends.

Some groups have gone well beyond such traditional environmental litigation as citizen suits under state or federal laws, and are instead seeking judicial injunctions that would force government regulators to implement activists’ preferred policies. These lawsuits suffer from a number of infirmities, not the least of which is they turn the entire democratic process on its head. Continue reading “A River Runs to Court: Environmental Activists Circumvent Democracy to Impose Agenda”

Eighth Circuit Finds Standing, but Ultimately Rejects Claims, in Data-Breach Suit

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Featured Expert Contributor—Civil Justice/Class Actions

Frank Cruz-Alvarez, Shook, Hardy & Bacon L.L.P., with Rachel Forman, Shook, Hardy & Bacon L.L.P.

On August 21, 2017, the U.S. Court of Appeals for the Eighth Circuit, in Kuhns v. Scottrade, Inc., 868 F.3d 711 (8th Cir. 2017), affirmed the district court’s dismissal of a consolidated class action complaint.  The Eighth Circuit disagreed with the district court and held that the plaintiff had Article III standing for the contract-related claims, but nonetheless affirmed the dismissal of the complaint because it failed to state a claim upon which relief could be granted. Continue reading “Eighth Circuit Finds Standing, but Ultimately Rejects Claims, in Data-Breach Suit”

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?”