I could see a panel being hostile to this putative class action -- especially a panel that might personally like to snack on Pop Secret popcorn. Personally, I don't think that the lawsuit has much of a chance of success.
But the panel's seemingly relentless desire to immediately dismiss the suit on constitutional standing grounds strikes me as a bit overly aggressive.
Plaintiff says that Pop Secret contains trans fat and that, as a result, it's physically harmful and worth nothing, so she lost the benefit of her bargain (and was physically injured) when she bought it. The manufacturer of Pop Secret expressly concedes before oral argument that plaintiff has standing to sue.
But the panel refuses to accept this concession, and dismisses the case for lack of constitutioanl standing.
Judge Tashima's principal argument is that the plaintiff has not "plausibly alleged" that she suffered various harms -- a phrase that he repeats around a dozen times in the opinion. In particular, Judge Tashima examines at the studies that plaintiff cites and says that they don't "really" establish that eating Pop Secret's trans fat every month or two causes any physical harm.
But, first, I'm not certain that's true. It might well cause harm. That seems to me a factual issue, and one that can't be decided on the pleadings -- especially when plaintiff expressly alleges that such a trans-fat intake does indeed cause harm. That's a factual dispute; and one that seems especially inappropriate to decide at the pleading stage given that the defendant CONCEDES standing on the basis of these alleged harms.
Second, doctrinally, I'm not at all sure that the Twiqbal "plausible allegation" standard actually applies to the factual existence of constitutional standing in any event. I've always thought of constitutional standing as a factual issue -- one that you decide on the factual merits -- not one of pure pleading. The "plausibility" standard of Twiqbal surely applies to the factual allegations underlying the causes of action, but I never recall seeing the Supreme Court previously apply it to the existence or nonexistence of constitutional standing. And I'd think it wouldn't apply; whether the Constitution authorizes federal adjudication relies on the fact of standing, not any particular pleading (pro or con). Just like the federal court can raise constitutional standing sua sponte -- as, indeed, the panel does here -- and find it (in an appropriate case) lacking notwithstanding the consent of the parties, so too does this issue seem one of actual fact and not sufficient (or allegedly insufficient) pleading.
So get rid of the case if you don't like it; on the merits, on summary judgment, on class certification, or whatever. But I'm a little bit dubious about the "no constitutional standing because it's implausibly pled because we read your studies to say something different than you claim" point. That seems perhaps a bit overly strong.
