This case presents the issue whether Article III of the United States Constitution, which limits the federal court’s jurisdiction to “cases and controversies,” confers standing on a plaintiff who alleges a statutory violation but who cannot establish that the alleged violation caused any concrete injury. The statute at issue, the anti-kickback section of the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. §§ 2601 et seq., provides a private right of action for any homebuyer who merely establishes a violation of the statute, regardless of whether the homebuyer has been harmed by the alleged violation. In this case, in fact, the plaintiff homebuyer Edwards has conceded that she suffered no economic or other injury from the alleged statutory violation for which she has brought the action. After the Ninth Circuit ruled that, although Edwards had suffered no economic injury from the alleged violation of RESPA, she nevertheless had Article III standing to sue in federal court, First American Financial Corp.’s petition for certiorari was granted. In its amicus brief on the merits in support of First American, NELF, on behalf of itself and co-amici United States Chamber of Commerce and Associated Industries of Massachusetts, analyzed judicial precedent (including the landmark Marbury v. Madison), and statutory and constitutional history to argue that the Court should reject any attempt by Congress to allow individuals who have not suffered a concrete, personal harm to sue in federal court.
Despite the fact that the Supreme Court had granted certiorari and notwithstanding the importance of the issue raised and the fact that the argument had been held, on June 29, 2012, the Court, without explanation, dismissed the writ of certiorari as improvidently granted.