The business of suing: determining when a professional plaintiff should have standing to bring a private enforcement action.

• Author: Murrill, Brandon

TABLE OF CONTENTS INTRODUCTION I. THE PROBLEM: IDENTIFYING A PROFESSIONAL PLAINTIFF AMONG ORDINARY PLAINTIFFS A. Defining the Professional Plaintiff B. Difficulties in Distinguishing Professional Plaintiffs 1. The Plaintiff's Role in the Injury 2. Litigiousness 3. Motivation II. THE EVOLUTION OF PRIVATE ENFORCEMENT ACTIONS: THE MOVEMENT TOWARD A PERSONALIZED INJURY REQUIREMENT A. The Early Professional Plaintiffs: English "Common Informers" and Qui Tam Suits B. Taming the Professional Plaintiff." The Introduction of the Personalized Injury Requirement C. How Modern Professional Plaintiffs Have Defeated the Personalized Injury Requirement III. CLASSIFYING STANDING RESTRICTIONS IN PRIVATE ENFORCEMENT ACTIONS POPULAR WITH PROFESSIONAL PLAINTIFFS A. Narrowing the Injury B. Narrowing the Plaintiff C. Classifying Other Standing Requirements IV. RECOMMENDATION: GUIDELINES FOR BETTER PERSONALIZED INJURY STANDING REQUIREMENTS IN CITIZEN SUIT STATUTES A. Scope B. Proper and Improper Bases for Citizen Suit Standing C. Guidelines for Drafting Statutes and Their Application 1. Guidelines for Plaintiff Standing Requirements 2. Guidelines for Injury Standing Requirements D. Concerns with Overreaching CONCLUSION INTRODUCTION

Among the characters that occupy the modern legal landscape, the professional plaintiff is one of the most despised. Such plaintiffs are, in the words of one judge, "rapacious jackals whose declared concern for the corporate well-being camouflages their unwholesome appetite for corporate dollars." (1) They have been denigrated as "bounty hunters" (2) and cast as the punchline in at least one joke. (3)

But despite decades of abuse lobbed at them by the press (4) and members of Congress, (5) professional plaintiffs continue to inhabit the realm of civil litigation. Perhaps their longevity stems from a characteristic that Judge Easterbrook identified in Murray v. GMAC Mortgage Corp. (6) In refusing to affirm the denial of class treatment to a family bringing more than fifty lawsuits under the Fair Credit Reporting Act, Easterbrook stated that "the district judge did not explain ... why 'professional' is a dirty word. It implies experience, if not expertise." (7)

Thus, from a different perspective, the professional plaintiff is more akin to a misunderstood hero---the battle-tested "private attorney general" who shoulders the burden of enforcing regulatory violations for the good of society. (8)

In the recently decided case of Gordon v. Virtumundo, Inc., the Ninth Circuit brought new attention to the professional-plaintiff controversy. (9) In Gordon, the plaintiff set up his e-mail account so that he would be spammed for the purpose of bringing lawsuits under the Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act of 2003. (10) Just as Article III of the Constitution requires that a plaintiff suffer an injury in order to bring a lawsuit, (11) the CAN-SPAM Act has a statutory standing requirement that asks whether a plaintiff has been "adversely affected by a violation." (12) The court, in declining to find that the plaintiff had standing, emphasized the nature of the litigant:

As Gordon concedes, he is a professional plaintiff. Since at least 2004, Gordon has held no employment. He has never been compensated for any of his purported Internet services, and his only income source has come from monetary settlements from his anti-spam litigation campaign.... Gordon's status is uniquely relevant to the statutory standing question here. (13) The Ninth Circuit decided that the plaintiff in Gordon failed to meet the statutory standing requirement, in part because he was not a true injured party, but rather a professional plaintiff running a "litigation mill." (14)

In a concurring opinion, Judge Gould noted that private causes of action, such as the one that Congress provided to citizens in the CAN-SPAM Act, are the descendants of a long line of remedies provided by common law to fight "perceived injustice [s]." (15) However, the common law "did not develop remedies for people who gratuitously created circumstances that would support a legal claim and acted with the chief aim of collecting a damage award." (16) Because Congress did not intend that the CAN-SPAM Act grant standing to "all persons," but limited standing to those who had suffered true injuries, the Gordon plaintiff could not maintain an action because the alleged harm did not "proximately cause[ ]" the damages. (17)

As the use of statutes allowing citizens to sue to enforce the law continues to grow, (18) legislatures and courts will be faced with an important dilemma: in private enforcement actions in which plaintiffs have taken significant steps to inflict legal injuries upon themselves for the purpose of earning money, should the law give them statutory standing to sue?

This Note explores that question. Part I defines professional plaintiffs with three criteria: their motivation to make money, their role in bringing about their injury, and the frequency with which they sue. Courts typically look to these factors when determining whether the plaintiff is a professional who should be denied standing. (19) In contrast to the Gordon court's opinion, this Part argues that none of these criteria appropriately separates professional litigants from ordinary plaintiffs for the purpose of denying professional plaintiffs statutory standing.

Part II follows the evolution of private enforcement actions from the historical qui tam suit that any citizen could bring to the modern statutes that grant remedies only to those who suffer personalized injuries. (20) If Congress introduced the personalized injury standing requirement into citizen suit statutes to address problems with "bounty hunters" who would repeatedly bring suit under qui tam provisions for monetary gain, (21) then that purpose has been frustrated. This Part argues that modern professional plaintiffs have adapted to the personalized injury requirement by "manufactur[ing]" (22) injuries to escape the standing requirement and return to the era in which qui tam actions predominated. A personalized injury standing requirement is meaningless when its definition is so broad that it can easily be "manufactured" by anyone. (23)

Part III examines efforts by Congress and judges to bar professional plaintiffs from the courthouse by narrowing the injury standing requirements of private enforcement action statutes. The goal of this narrowing is to find an optimal level of permissiveness that will exclude professional plaintiffs from the justice system (24) while at the same time leaving the courthouse door open to plaintiffs with legitimate grievances. (25) Although standing requirements vary among statutes, legislatures and judges generally make it more difficult for professional plaintiffs to "manufacture" injuries by (1) narrowing the definition of the injury, or (2) narrowing the definition of the plaintiff. Because many citizen suit statutes have similar standing provisions, legislatures should draft or amend these statutes to specify characteristics of injuries or plaintiffs that serve as good proxies for when plaintiffs are professional. Such careful lawmaking will ultimately save judicial time and effort.

Part IV proposes guidelines for legislatures to use when formulating these modified personalized injury standing requirements. In statutes in which the legislature wants to deny standing to professional plaintiffs, (26) lawmakers should make the personalized injury standing requirements meaningful by adhering to general rules for each of the two types of standing restrictions. (27) For those restrictions that narrow the definition of the plaintiff, the legislature should ensure that the required characteristics of the plaintiff are (1) consistent with the goals of the statute, (2) costly or undesirable for the average person to adopt, (3) easy and noncontroversial for courts to determine, and (4) capable of separating the professional plaintiff from the ordinary plaintiff. Restrictions that narrow the definition of the injury should meet the same factors, except that the word "manufacture" should be substituted for the word "adopt" in factor (2).

1. THE PROBLEM: IDENTIFYING A PROFESSIONAL PLAINTIFF AMONG ORDINARY PLAINTIFFS

   1. Defining the Professional Plaintiff

      Professional plaintiffs are the chameleons of civil litigation, in that the statutory provision under which they sue often dictates their nature. (28) Stereotypical images that define professional plaintiffs and their attorneys in the popular imagination arise from these different contexts: the wheelchair-using litigant demanding hundreds of thousands of dollars in attorneys' fees because a hotel bathroom was allegedly in violation of the Americans with Disabilities Act (ADA); (29) a family gleefully awaiting the arrival of credit offers in the mail to look for potential violations of the Fair Credit Reporting Act; (30) and the investor who owns "a few shares of stock in each of a large number of companies," (31) ready to "race to the courthouse" (32) the moment a company's stock price plummets.

      For example, the Gordon plaintiff, James S. Gordon, Jr., made a business out of catching and suing spammers. (33) A technological wizard operating behind a digital curtain, (34) he oversaw his Internet domain, subscribing to hundreds of "online promotions" and "prize giveaways." (35) A flood of commercial e-mails poured forth from businesses and marketers, including the defendant Virtumundo, landing in Gordon's intentionally unfiltered inboxes. (36) Gordon, who referred to his efforts as "research," sued the companies behind the e-mails, seeking "injunctive relief, several millions of dollars in statutory and treble damages, and his attorney's fees and costs." (37) Other people, known as "clients," helped Gordon in his efforts, feeding his litigation with tens of thousands of additional e-mails. Gordon rewarded...