Public Citizen in the Supreme Court

The Supreme Court’s 2015 term begins in October, and Public Citizen attorneys are working on several cases to be argued before the Court this fall.

Campbell-Ewald Co. v. Gomez

Campbell-Ewald is a class action against a marketing company that caused thousands of text messages recruiting for the Navy to be sent to cell phones of people who had not consented to receive them, in violation of the Telephone Consumer Protection Act. The defendant offered to settle the named plaintiff’s individual claim, but not the claims of the class. When the plaintiff rejected the offer, the defendant argued that the offer mooted the case. In this case, the court of appeals held that the unaccepted offer did not moot the case, and the company petitioned the Supreme Court for review. Public Citizen assisted in drafting the opposition to the cert. petition and, after the Court granted the petition, is serving as co-counsel for the respondents. The case will be argued in October.

DIRECTV v. Imburgia

Amy Imburgia brought a class action on behalf of herself and other DIRECTV subcribers claiming that DIRECTV charged early-termination fees in violation of California consumer protection laws. Imburgia’s contract with DIRECTV contained an arbitration clause that purported to ban class actions, but also provided that if the class-action ban was unenforceable under the law of the state where the consumer lived (in this case, California), the arbitration clause would also be unenforceable. DIRECTV moved to compel arbitration. A California appellate court ruled that the language of the contract made California law determinative of whether the arbitration clause could be enforced, even though the state’s law would otherwise be preempted by the federal Arbitration Act. Because California law still would provide that the class-action ban was unenforceable, denying arbitration would properly give effect to the contract’s terms (as required by the FAA itself). DIRECTV sought review in the U.S. Supreme Court, arguing among other things that giving effect to the contract’s language selecting California state law to govern the issue of the enforceability of the class action ban would violate principles of federal preemption. Public Citizen filed an amicus brief on the merits supporting Ms. Imburgia. The brief argues that the case does not raise a genuine issue of federal preemption, but only a question of contract interpretation. The case will be argued in October.

Spokeo v. Robins

Plaintiff Robins sued Spokeo, a company that posts information about consumers on-line, under the Fair Credit Reporting Act for posting false information. Spokeo claims that the Act is unconstitutional because it allows plaintiffs who cannot prove that a defendant’s wrongdoing caused them damages that can be measured in monetary terms to sue for statutory damages—flat sums assessed based on the violation rather than proof of the amount of harm inflicted. Statutory damages are widely used to protect consumers against injuries that may not involve provable or significant monetary losses, and they facilitate effective relief against defendants whose wrongdoing affects large numbers of people. In this case, Spokeo claims that these statutes authorize suits by uninjured plaintiffs, who lack standing to sue. Spokeo’s argument rests on its claim that the false information it published about the plaintiff could not have hurt him because it made him look better than he really is. Public Citizen filed an amicus brief explaining that, in making false credit reporting actionable, Congress acted well within its power to define legal injuries and provide remedies for them, and that the dangers of false credit reports are very real, regardless of whether they make the consumer “look bad.” The case was argued in November.

In May, 2016, the Court vacated and remanded the case. The majority held that a statute creating a remedy for violations and conferring a right of action on an individual to obtain that remedy is not by itself sufficient to support Article III standing: a concrete and particularized injury is still required. The Court explained, however, that the injury need not be tangible. The injury may arise from the violation of a procedural right, and a risk of injury may suffice. 

Tyson Foods v. Bouaphakeo

In this case, workers at a Tyson Foods meat processing plant in Iowa alleged that the company had underpaid them for the time they spent walking to their worksite and putting on and taking off protective gear. The workers brought a class action, and the jury returned a verdict for the class and awarded damages. After the court of appeals affirmed, Tyson Foods petitioned the Supreme Court for review, arguing that a class cannot be certified if any of its members may not have been injured. The issue raised by Tyson Foods is one currently being pushed by defendants in a variety of class actions cases. Public Citizen is serving as co-counsel for the respondents. The case will be argued in November.