A couple of weeks ago, SCOTUSblog featured as its “Petition of the Day” a very interesting cert petition from some colleagues of mine at Mayer Brown LLP. Here’s the question presented (obviously, the petitioner’s statement of the matter):

Whether Congress may confer Article III standing upon a plaintiff who suffers no concrete harm, and who therefore could not otherwise invoke the jurisdiction of a federal court, by authorizing a private right of action based on a bare violation of a federal statute.

The issue had come up before in First American Financial Corp. v. Edwards (2010), in which the court heard arguments, but which the court then dismissed as “improvidently granted” — here’s an excerpt from a post by Kevin Russell (SCOTUSblog) on the subject:

Lost in the hubbub of the health care decision is the Court’s surprise punt in a case that many (including myself) thought would be the sleeper case of the Term. In First American Financial Corp. v. Edwards, No. 10-708, the Court was set to decide what limits Article III of the Constitution places on Congress’s power to create statutory rights enforceable through a private right of action.

The specific question before the Court in Edwards was whether a plaintiff alleging that her title insurance company violated the Real Estate Settlement Procedures Act (RESPA) must show that she suffered an injury from the insurance company’s unlawful conduct beyond the violation of her legal rights under the statute…. [In RESPA,] Congress provided that a consumer who discovers an illegal kickback related to her closing can sue to recover statutory damages (and attorney’s fees) without having to prove that the violation caused her any financial injury or any diminution in the quality of the services she received. All she has to show is that the defendant violated her statutory right to have her closing free of the conflicts of interests that arise when the participating companies are paying each other kickbacks.

The defendant, First American, argued that the plaintiff had suffered no discernible injury from the alleged illegal kickback. Because the rates charged the plaintiff were set by state law, she suffered no financial injury. And she did not show that the quality of the services had been reduced by the kickback. In these circumstances, First American argued, Congress was forbidden by Article III from authorizing suit against the insurance company, even if the plaintiff could prove a violation of her statutory rights….

The Court may yet end up confronting those questions in a future case. If, in fact, the Court simply decided that this was not the right case for resolving the Article III question, it could grant cert. on the same question in a future case. But if, instead, the Court dismissed the case because it could not reach agreement on a workable constitutional test, then revisiting the question may be on hold for some time — or at least until the current membership of the Court changes.

Spokeo deals with a very similar issue under the Fair Credit Reporting Act; it will be interesting to see whether the court does indeed see this case as a better vehicle for considering the underlying constitutional question. For whatever it’s worth, there are, count them, 10 amicus briefs supporting review, from the Chamber of Commerce, from eBay, Facebook, Google and Yahoo, and from many more companies and groups. You can read all the briefs except for the reply brief here, and the reply brief here.