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September 09, 2015 Articles

Resolving the Dispute over Injunctive Relief Classes

A minority of courts have created a "public policy" exception to Article III standing

by Steven N. Feldman and Ellen C. Kenney

In the years since the Supreme Court’s decision in Comcast v. Behrend, 133 S. Ct. 1426 (2013), which made it harder for plaintiffs to certify damages classes under Federal Rule of Civil Procedure 23(b)(3), plaintiffs in putative federal class actions have increasingly sought to certify injunctive relief classes under Rule 23(b)(2). To have standing to pursue injunctive relief under Article III, however, a plaintiff must personally face a “real and immediate threat” that he or she will be harmed again. A commonsense reading of this rule, therefore, would preclude consumers from seeking injunctive relief in false-advertising cases because plaintiffs who detail in their complaint how they were allegedly deceived cannot credibly claim that they face the threat of being deceived in the same way again. For example, a plaintiff who purchases a food labeled “All Natural” but later sues alleging that it contains artificial ingredients will not be misled about the food’s contents again.

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