• August 9, 2013
Photo by Justin Henry

Photo by Justin Henry

The judicial doctrine of “standing” means that our courts may not be used by plaintiffs who bring claims when they have suffered no injury.

But what about civil rights groups or public interest groups?  Can’t they bring claims in their own names and vindicate all of our rights in court?  The answer is complicated.  “Standing” is and for many years has been an ideological battle-ground at the U.S. Supreme Court (here’s a nice splintered 2009 U.S. Supreme Court standing 5-4 decision).

Sometimes, in some cases, courts have invoked the concept of “informational injury” whereby a plaintiff is deemed to have been injured simply by not having been given information to which the plaintiff was entitled under the law.  So, for example, if I were entitled to some kind of disclosure in connection with a mortgage home loan and I did not get that disclosure, the fact that I would not have changed anything if I had been given the information might not preclude me from bringing a case under the Truth-in-Lending Act, which provides for “statutory damages” (damages prescribed by statute rather as opposed to actual damages or losses that  plaintiff must prove with evidence).

The notion of an informational injury serving as an injury-in-fact sufficient for standing can be traced to the U.S. Supreme Court decision of Federal Election Commission v. Akins, 524 U.S. 11 (1998). In that case, a group of voters challenged the Federal Election Commission’s refusal to treat the American Israel Public Affairs Committee [(AIPAC)] as a ‘political committee,’ thus requiring disclosure of certain information about campaign-related activities under the Federal Election Campaign Act.  The Supreme Court held that the group of voters/plaintiffs had suffered an injury sufficiently concrete and particularized to give them standing [because] they were denied information that the Federal Election Campaign Act of 1971 required be made public. Although this informational injury was quite general and widely shared, because ‘the informational injury at issue [was] directly related to voting, the most basic of political rights, [it wa]s sufficiently concrete and specific such that the fact that it [wa]s widely shared [did] not deprive Congress of constitutional power to authorize its vindication in the federal courts.’ Id. at 24-25, 118 S.Ct. 1777.

Wilderness Soc., Inc. v. Rey, 622 F.3d 1251, 1258 (9th Cir. 2010).

I get that.  But what about this: what about Jarek Charvat’s using a bank ATM, being told on the ATM screen that the transaction would cost him $2.00, going forward with the transaction with that knowledge when federal law also required Charvat to have been informed by means of a sticker-notice on the ATM as well.  Does Mr. Charvat have any injury, any standing, even though he knowingly/willingly paid the $2.00?  Yes, the U.S. Court of Appeals for the Eighth Circuit held recently.  Mr. Charvat suffered “informational injury.”

As I understand the Eighth Circuit panel’s analysis, the federal law requires the sticker notice and so, by definition, Mr. Charvat has been injured by its absence even if it would have made no difference his use of the ATM and his willingness to pay the $2.00 fee.

I have made no secret of my dislike of these EFTA class actions.  It seems clear to me that Congress bears the ultimate responsibility for creating these beasts.  Our courts are being used to “vindicate” supposed wrongs where this has been a minuscule or even no harm to anyone.  I think most of us will agree that some disclosure of ATM fees seems an appropriate requirement but requiring double disclosure every time on threat of class action?  (I have heard stories of plaintiff’s lawyers caught peeling off the ATM stickers and then suing the ATM owner for not having them.)  Allowing class actions (and attorneys fees etc.) when it is possible that there was literally never a single person who suffered any injury of any kind?

Though I think Congress gets the bulk of the blame for this utterly unproductive use of our courts, I am also troubled by the decision in Charvat finding an “informational injury” sufficient to confer standing on Mr. Charvat.

The Court reasoned that “informational injury” was deemed sufficient in the Akins case, discussed above, and the Court pointed to an Eighth Circuit decision under the Truth-in-Lending Act (“TILA”) (Dryden, 630 F.2d 641 (8th Cir. 1980)).  Akins, however, dealt with information related to voting, the most basic of political rights and I believe it may fairly be viewed as limited to that context.  The cited TILA case was not a class action as Charvat is, which could make a difference in terms of statutory interpretation.  In both the TILA and the EFTA civil liability provisions, the statutes provide, “in the case of a class action, such amount as the court may allow, except that as to each member of the class no minimum recovery shall be applicable…” (emphasis added).

Is it possible to read this to mean that Congress expressly delegated discretion to the courts to prevent meritless “no injury”/”informational injury” class actions under the TILA and EFTA?

Ultimately, I conclude that the U.S. Court of Appeals for the Eighth Circuit probably got this decision right.  This decision may be an example of judicial restraint which sometimes means a faithful adherence to applicable law notwithstanding an outcome with which the decider might not agree.  (I have no knowledge of the personal beliefs of the deciders in this case but I have to infer that they, like the rest of us, see this as a legislative lapse rather than a lawsuit with any economic, social, political, or moral value.)

Leave a Reply

Your email address will not be published.