WLF Asks Supreme Court ‘Eye Drop’ Case Review
Washington Legal Foundation (WLF) is asking the Supreme Court to hear Alcon’s appeal of a 3rd Circuit Court of Appeals decision granting standing to sue to consumers who claim they paid too much for eye drops because of the size of the tip of the bottle containing the drops. The WLF amicus brief says it is concerned that the split appeals court decision to grant standing on plaintiffs who speculate that they might have paid less for medical products if the products had been packaged differently “dramatically expands the judicial power by assigning to federal courts the power to enforce state statutes in contexts far removed from what has traditionally been understood to constitute an adversarial judicial proceeding.”
The brief notes that the appeals court decision has created a sharp inter-circuit split and conflicts with the Supreme Court’s standing case law.
According to WLF, litigants seeking standing in federal court must prove, among other things, that they have suffered an injury fairly traceable to the allegedly wrongful conduct. It says the injury claimed by the plaintiffs in the suit “hinges on demonstrating that [Alcon] would charge the same price for their products if they were redesigned to reduce the size of the bottle dropper tip, thereby substantially increasing the number of doses in each bottle. The 3rd Circuit held that [plaintiff’s] same price assertion should not be deemed speculative for Article III standing purposes because (it contended) there is nothing speculative about assuming that an independent actor will maintain the ‘status quo’ in the face of changed circumstances. But nothing in this court’s case law supports the 3rd Circuit’s contention that whether a complaint’s assertion about the responses of independent actors are overly speculative (and thus insufficient to establish Article III standing) is dependent on whether the independent actor’s projected response entails a change from the status quo.”
WLF references a dissenting 3rd Circuit opinion saying that allegations that a plaintiff has suffered injury in fact suffice at the pleading stage only if they are based on facts that are “susceptible to proof at trial.”