Seventh Circuit decision bearing on standing: Kohen v. Pacific Inv. Management Co.

In Kohen v. Pacific Investment Management Co., ___ F.3d ___, 2009 WL 1919013 (7th Cir. Jul. 7, 2009), Judge Posner had this to say about whether, under federal law, unnamed class members' standing must be proven at the class certification stage:

PIMCO argues that before certifying a class the district judge was required to determine which class members had suffered damages. But putting the cart before the horse in that way would vitiate the economies of class action procedure; in effect the trial would precede the certification. It is true that injury is a prerequisite to standing. But as long as one member of a certified class has a plausible claim to have suffered damages, the requirement of standing is satisfied. United States Parole Commission v. Geraghty, 445 U.S. 388, 404, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980); Wiesmueller v. Kosobucki, 513 F.3d 784, 785-86 (7th Cir.2008). This is true even if the named plaintiff (the class representative) lacks standing, provided that he can be replaced by a class member who has standing. “The named plaintiff who no longer has a stake may not be a suitable class representative, but that is not a matter of jurisdiction and would not disqualify him from continuing as class representative until a more suitable member of the class was found to replace him.” Id. at 786.

Before a class is certified, it is true, the named plaintiff must have standing, because at that stage no one else has a legally protected interest in maintaining the suit. Id.; Sosna v. Iowa, 419 U.S. 393, 402, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975); Walters v. Edgar, 163 F.3d 430, 432-33 (7th Cir.1998); Murray v. Auslander, 244 F.3d 807, 810 (11th Cir.2001). And while ordinarily an unchallenged allegation of standing suffices, a colorable challenge requires the plaintiff to meet it rather than stand mute. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). PIMCO tried to show in the district court that two of the named plaintiffs could not have been injured by the alleged corner. We need not decide whether it succeeded in doing so, because even if it did, that left one named plaintiff with standing, and one is all that is necessary.

Slip op. at 7-8, 2009 WL 1919013 at *3-*4 (bold added).

This issue, of course, may come up in some UCL cases pending in federal court as a result of CAFA. Some defendants have argued that Tobacco's clear holding that only the named class representative must meet Prop. 64's standing requirement (which, by its plain language, applies only to "the claimant"), would not govern UCL cases in federal court, because Article III standing rules would require more. At least one federal judge, however, had no problem applying this part of Tobacco in a federal case, and the Seventh Circuit opinion also supports the conclusion that only the named plaintiff need prove standing in class actions generally, whether in federal court under Article III or in California state court.

Many thanks to Scott Leviant for bringing this opinion to my attention. 

Comments

[The Complex Litigator]

My pleasure. I'm glad somebody wrote about it. I've been tired ever since Blawg Review #221.