I am always reminding my students that there is more than one way to make an argument, and if you are foreclosed from one route, you can always take another. For example, how do you defend against class claims brought by people who have not suffered any real injury? Most people initially would say “challenge standing.” That certainly can work.

For example, in Ruskiewicz v. Oklahoma City University, 2023 WL 6471716 (W.D. Okla. Oct. 4, 2023), the court dismissed a data breach class action without prejudice because the plaintiff did not plead a concrete injury. Citing TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021) and Spokeo, Inc. v. Robbins, 478 U.S. 330 (2016), the Western District of Oklahoma found that plaintiff “failed to allege any facts that might suggest a misuse of her personal information from [defendant’s] data breach occurred.” Rather, the complaint pled fear of a risk of future misuse of the data. That, the court held, was not enough to establish a concrete injury. The court distinguished cases in which courts had found that the data actually had been posted for sale on the “Dark Web.” Here, plaintiff pled merely the fact of the data breach. Thus, the court dismissed the complaint for lack of jurisdiction.

See also Valenzuela v. Keurig Green Mountain, Inc., 2023 WL 6609351 (N.D. Cal. Oct. 10, 2023) (dismissing without prejudice for lack of standing a class action complaint alleging that defendant’s chat feature on its website allowed a third party to effectively eavesdrop on a user’s conversation with defendant’s agent; the complaint failed to allege any information at all about the nature of the information communicated and whether it was private under the California Invasion of Privacy Act, so there was no concrete injury); Hicks v. L’Oreal U.S.A., Inc., 2023 WL 6386847 (S.D.N.Y. Sept. 30, 2023) (putative class action alleging mascara contained PFAS was dismissed for lack of standing because neither the published study identified in the complaint nor the private study performed for plaintiffs were alleged to establish that the products plaintiffs bought actually contained PFAS; this was determined to be a failure to plead a concrete injury that would confer standing on the court, although the court gave plaintiffs an opportunity to amend).

But as I mentioned above, there are other ways to cast a no-injury argument. Typicality and adequacy of representation, to name a few. A recent decision illustrates this point well.

In Gur-Ravantab v. Georgetown University, 2023 WL 6479255 (D.D.C. Oct. 5, 2023), the son of a Georgetown professor brought a class action against the school for having moved to virtual instruction because of the pandemic in 2020. He purported to represent a class of undergraduate students who paid tuition and mandatory fees for in-person, face-to-face instruction that spring semester, but got Zoom classes instead, which he pled were worth less than in-person instruction.

Plaintiff moved for class certification, and the Court denied his motion. First, it held that he was not even a member of the class because he had not actually paid any tuition or mandatory fees; instead, he received scholarships. Thus, the court concluded, “he lacks the kind of concrete stake in the outcome of the litigation necessary to be the vigorous advocate the class is entitled to.”

Second, he had a conflict of interest with other class members because his mother—a Georgetown employee—admittedly exerts “a ‘pretty major’ influence over his decisions,” making the independence of his judgment suspect.

As a result of his inability to claim damages and his questionable independence, the court concluded plaintiff was not an adequate class representative.

And it never once mentioned “standing” or Article III. So if at first you don’t succeed, try, try again.

Another important point raised by an August First Circuit decision is that you evaluate standing based on the relief sought. Often that is damages. However, it is entirely possible that someone may have suffered a past harm, but because of a change in circumstances, she has no standing to sue for prospective injunctive or declaratory relief. That was the case in Roe v. Healey, 78 F.4th 11 (1st Cir. 2023). There, parents of children with disabilities brought a putative class action against Massachusetts and its school districts seeking a declaration that the closure of in-person education during the pandemic violated the Individuals with Disabilities Education Act. Applying TransUnion, the court held that the future harm pled was too speculative to confer standing because it was not “certainly impending” and there was no “substantial risk” the harm would recur because the governor’s executive order declaring the state of emergency had expired in 2021. Accordingly, “plaintiffs’ past injury cannot support standing to seek an injunction against future harm,” and “the request for forward-looking declaratory relief [cannot] survive the absence of any live case or controversy.”