Sullo & Bobbitt P.L.L.C. v. Greg Abbott
536 F. App'x 473
5th Cir.2013Background
- Attorney Barry L. Bobbitt (and his firm) regularly sent direct-mail solicitations to misdemeanor arrestees within 31 days of arrest, which he acknowledged violated a then-existing Texas criminal barratry provision.
- Texas enacted a 2011 civil barratry statute creating a private cause of action that permits solicited persons to recover $10,000 per solicitation plus damages and fees when solicitation violates state law or disciplinary rules.
- Bobbitt sued the Texas Attorney General under 42 U.S.C. § 1983 seeking a declaratory judgment that the civil barratry statute unconstitutionally restricts commercial speech.
- The Attorney General moved to dismiss for lack of standing and on sovereign-immunity grounds; the district court dismissed for lack of standing and entered final judgment under Rule 54(b).
- The Fifth Circuit affirmed, holding Bobbitt failed to establish an injury in fact because the threat of private suits under the civil statute was speculative given prior judicial and Attorney General opinions casting doubt on the underlying criminal prohibition and the absence of any actual civil suits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to challenge civil barratry statute | Bobbitt said the statute chills his commercial speech and exposes him to >$1B in statutory penalties, so injury is concrete and imminent | AG said injury is speculative because enforcement is by private plaintiffs, not the State, and past authority casts doubt on liability | No standing: injury-in-fact not established (speculative, not certainly impending) |
| Causation / Redressability | Declaration against AG would discourage private suits and reduce liability | AG argued declaration would not stop private litigants or bind state courts; AG cannot cause the alleged injury | Not reached substantively because injury absent; court found AG could not cause the alleged injury |
| Applicability of prior invalidation of criminal provision | Bobbitt argued civil statute creates risk despite prior opinions | AG pointed to Moore and AG opinion undermining the criminal prohibition that civil liability depends on | Court relied on prior invalidating statements as weakening likelihood of successful private suits against Bobbitt |
| Chill on commercial speech | Bobbitt claimed his advertising chilled by potential civil exposure | AG said absence of credible threat means no practical chilling effect | Held: alleged chilling is unsupported because no real, imminent threat of successful suit |
Key Cases Cited
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (standing requires concrete, particularized, actual or imminent injury)
- McKinley v. Abbott, 643 F.3d 403 (5th Cir.) (criminal barratry enforcement created imminent injury when statute actively enforceable)
- Clapper v. Amnesty Int'l USA, 133 S. Ct. 1138 (speculative fear of government action insufficient for standing)
- Roark & Hardee LP v. City of Austin, 522 F.3d 533 (5th Cir.) (declaratory action requires actual present harm or significant, immediate possibility of future harm)