Does 1-98 v. Boies, Schiller & Flexner, LLP
709 F. App'x 684
| 11th Cir. | 2017Background
- Paul Wolf, a U.S. attorney, solicited Colombian clients for suits against Chiquita after Chiquita admitted funding a terrorist group; Wolf says he developed >1,000 cases.
- Boies, Schiller & Flexner LLP (BSF) retained a Colombian firm and obtained representation agreements from many of the same Colombians; at least 88 had previously signed with Wolf.
- Wolf and BSF used a de-duplication process in which BSF agreed Wolf would represent dually-represented clients; the process prevented any client from being left without counsel.
- The Doe plaintiffs (represented by Wolf) sued BSF alleging fraud, malpractice, and invasion of privacy, asserting that disclosure of their names in litigation risked reprisals in Colombia.
- BSF moved to dismiss under Fed. R. Civ. P. 12(b)(1) and 12(b)(6); the district court dismissed for lack of subject-matter jurisdiction (standing). The plaintiffs appealed.
- The Eleventh Circuit affirmed, holding plaintiffs failed to allege an injury in fact sufficiently imminent to confer Article III standing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Article III standing — injury in fact from disclosure of names | Publication of names created a real risk of reprisals and thus imminent injury | Alleged risk is speculative and not certainly impending; no actual harm alleged | No standing; plaintiffs failed to allege a certainly impending injury |
| Interference with attorney-client relationships | Dual representation and BSF’s conduct interfered with plaintiffs’ relationships with Wolf | De-duplication resolved conflicts; some plaintiffs would have lacked counsel absent the process | No injury shown; no client was deprived of representation |
| Claim for costs of de-duplication and litigation | Plaintiffs sought redress for costs caused by BSF’s conduct | Costs are litigation byproducts and cannot create Article III injury | Costs do not confer standing; such suit-for-costs claims fail |
| Jurisdictional dismissal vs. merits resolution | Plaintiffs urged consideration of merits claims (fraud, malpractice, privacy) | Court should dismiss for lack of subject-matter jurisdiction first | Court affirmed dismissal on jurisdictional grounds and did not reach 12(b)(6) merits issues |
Key Cases Cited
- Elend v. Basham, 471 F.3d 1199 (11th Cir. 2006) (standing and jurisdictional facts review standards)
- City of Vestavia Hills v. Gen. Fid. Ins. Co., 676 F.3d 1310 (11th Cir. 2012) (standard for reviewing jurisdictional fact findings)
- Fla. Wildlife Fed’n, Inc. v. S. Fla. Water Mgmt. Dist., 647 F.3d 1296 (11th Cir. 2011) (case-or-controversy and standing principles)
- Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (U.S. 2016) (requirements for injury in fact under Article III)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (U.S. 1992) (three-part standing test)
- Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (U.S. 1998) (injury-in-fact is the foremost standing element; costs of litigation do not alone confer standing)
- Whitmore v. Arkansas, 495 U.S. 149 (U.S. 1990) (threatened injury must be imminent, not speculative)
- Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289 (U.S. 1979) (certainty-imminence standard for threatened injury)