November 10, 2015 Practice Points

No Threat of Future Harm

By Kara L. McCall and Jessica B. Beringer

A plaintiff must have Article III standing to seek relief in federal court. Injunctive relief, when sought in federal court, therefore requires that the plaintiff face a personal threat of future injury "likely" to be "redressed by a favorable decision." Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). Article III standing issues frequently arise in consumer fraud class actions where (i) a named plaintiff claims that a product does not provide the promised benefits and seeks injunctive relief (usually, a label change or discontinuation of the product at issue) on behalf of a class, but also (ii) testifies or asserts in a complaint that she will not buy the product in the future. In these instances, there is no threat that the named plaintiff will be harmed in the future by the product or its labeling, and therefore, the plaintiff clearly lacks Article III standing. However, not all courts have dismissed for lack of standing. Courts reach different results, and take three general approaches.

No standing. A majority of courts have held that where named plaintiffs do not plead intent to purchase the product in the future (or where they expressly disavow such intent), they lack standing to seek injunctive relief because there is no risk of future harm and no basis for such relief. Gershman v. Bayer HealthCare, LLC, No. 14-CV-05332, 2015 WL 2170214, at *8 (N.D. Cal. May 8, 2015). These courts correctly reason that Article III standing cannot be disregarded in the name of public policy. See, e.g., In re 5-Hour Energy Mktg. & Sales Practices Litig., No. 13-2438, 2014 WL 5311272, at *11 (C.D. Cal. Sept. 4, 2014) ("[t]he federal courts are not empowered to set aside the standing requirements of Article III in the name of public policy"). See also, e.g., Garrison v. Whole Foods Mkt. Grp., Inc., No. 13-CV-05222, 2014 WL 2451290, at *5 (N.D. Cal. June 2, 2014); Delarosa v. Boiron, Inc., No. SACV 10-1569, 2012 WL 8716658, at *5 (C.D. Cal. Dec. 28, 2012).

No standing, but can proceed in federal court. Citing public policy, courts have allowed named plaintiffs to proceed with claims for injunctive relief despite their inability to establish Article III standing. See, e.g., Shahinian v. Kimberly-Clark Corp., No. CV 14-8390, 2015 WL 4264638, at *4 (C.D. Cal. July 10, 2015); Dean v. Colgate-Palmolive Co., No. CV 15-0107, 2015 WL 3999313, at *8 (C.D. Cal. June 17, 2015); Lanovaz v. Twinings N. Am. Inc., No. C-12-02646, 2014 WL 46822, at *10 (N.D. Cal. Jan. 6, 2014). For instance, in Henderson v. Gruma Corp., No. CV 10-04173, 2011 WL 1362188, at *8 (C.D. Cal. Apr. 11, 2011), the court allowed plaintiffs who had no intent to purchase the relevant product to proceed with their injunctive relief claims because "to prevent [plaintiffs] from bringing suit on behalf of a class in federal court [because they are now aware of the true content of the products] would surely thwart the objective of California's consumer protection laws." Courts adopting this approach reason that adherence to Article III's requirements would preclude consumer fraud class actions seeking injunctive relief in federal court, which they find undesirable as a matter of policy. See also, e.g., Lilly v. Jamba Juice Co., No. 13-CV-02998, 2015 WL 1248027, at *3 (N.D. Cal. Mar. 18, 2015); Larsen v. Trader Joe's Co., No. C 11-05188, 2012 WL 5458396, at *4 (N.D. Cal. June 14, 2012).

No standing, remand to state court. Some courts have remanded injunctive claims to state court, where Article III standing is not necessarily required. See, e.g., Jenkins v. Apple, Inc., No. 11-CV-01828, 2011 WL 2619094, at *2 (N.D. Cal. July 1, 2011). For example, in Machlan v. Procter & Gamble Co., 77 F. Supp. 3d 954, 961 (N.D. Cal. 2015), the court found that a plaintiff's claims for injunctive relief under the California consumer protection laws were "not justiciable—and will never be justiciable—by [the federal] court," but remanded those claims to state court rather than outright dismiss them. The court reasoned that "[i]njunctive relief is an important remedy under California's consumer protection laws . . . . [so] [a] California state court ought to decide whether injunctive relief is appropriate for plaintiff's claims." Id.

Although activity on this issue has centered in California federal courts, it is an argument that can arise in any federal court. This fall the Supreme Court will decide whether Congress can confer Article III standing on a plaintiff who suffers violation of a federal statute without any resulting concrete harm, in Spoke, Inc. v. Robins, No. 13-1339 (U.S. filed May 1, 2014). While Spokeo involves Article III's injury-in-fact requirement (rather than threat of future injury), the Court's decision will likely clarify that Article III constitutional requirements cannot be overcome by public policy—a result that will presumably impact Article III's standing requirements in class actions.

Practice Pointers

  • Do not be fooled by claims for injunctive relief brought in federal court under state statutes that specifically provide for such relief; state statutes, and even federal statutes, should not override Article III requirements.
  • For state court actions, check the state constitution for an Article III equivalent.
  • Where a plaintiff's complaint includes a barebones allegation of future injury, look for other allegations asserted in the complaint that are inconsistent with that position (e.g., "would not have purchased it had she known that the claims were false").

Keywords: products liability, litigation, injunctive relief; article III; consumer fraud; class action; standing

Kara L. McCall and Jessica B. Beringer are with Sidley Austin LLP in Chicago, Illinois.

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