Comment   |   Volume 164, Issue 6

How to Avoid the Standing Problem in Floyd: A Relaxed Approach to Standing in Class Actions

By
164 U. Pa. L. Rev. 1509 (2016)

July 2016












David Ourlicht, a black Manhattan man in his twenties, was stopped and frisked by New York City police officers three separate times in 2008. That same year, Ourlicht and three other black men who had similarly been stopped and frisked filed a federal lawsuit against the City of New York, alleging that the New York City Police Department’s stop‐and‐frisk program violated their Fourth and Fourteenth Amendment rights. The plaintiffs brought a class action suit in the Southern District of New York on behalf of themselves and all others similarly situated, and they sought an injunction mandating an overhaul of the City’s stop‐and‐frisk program. The case, Floyd v. City of New York, was heard by Judge Shira Scheindlin, who, in 2013, found that the City’s stop‐and‐frisk program was unconstitutional and ordered sweeping changes to the program. The plaintiffs got results: in 2011, NYPD officers stopped 686,000 individuals, or on average more than 13,000 per week; by the end of 2013, such stops had fallen by more than 90% to fewer than 2000 per week.

But an even more consequential decision in the case may have been an earlier, overlooked one: in 2012, the Floyd court found that the plaintiffs had standing to seek an injunction. More specifically, the court found that David Ourlicht had standing, and since he was a class representative, his standing satisfied Article III’s case or controversy requirement. In so holding, however, the court appeared to run afoul of two Supreme Court precedents: one that requires a plaintiff seeking injunctive relief to “establish a real and immediate threat that he [will] again” suffer the alleged harm, and another that holds “[t]hat a suit may be a class action . . . adds nothing to the question of standing.” Was there actually a real and immediate threat that David Ourlicht would again be stopped and frisked by NYPD officers? That seems doubtful.

And yet the district court’s finding that the plaintiffs had standing was correct, under both class action theory and Supreme Court precedent. This Comment articulates the reasons why it was correct. Part I begins by giving a brief overview of standing generally. Part II shows how theory and precedent justify a relaxed approach to standing in class actions. Finally, Part III explains the Floyd court’s standing analysis and shows that, below the surface, the court was actually using a justifiably relaxed approach.

How to Avoid the Standing Problem in <i>Floyd</i>: A Relaxed Approach to Standing in Class Actions - PennLawReview.com

 Previous Article

Cybercrime Litigation

Jonathan Mayer