Grayson v. AT & T CORP.

GRAYSON, Appellant, Alan

v. CORPORATION, T

AT & al., Appellees.

et Breakman, Appellant,

Paul M. LLC, Appellee.

AOL 07-CV-1264,

Nos. 08-CV-1089. Appeals.

District of Columbia Court

Argued en banc June 2010.

Decided Jan. Kubli, Vienna, VA, and Walter

Victor Dierks, Cooke, D. with whom Frederick brief, Jr., Fred- was on the and with whom Cooke, Jr., Harris, Jeffrey erick D. Wash- DC, Rooney, Andrew A. ington, Kevin F. Terilli, York, New August, and Giancarlo NY, brief, appel- reply were on the lants. York, NY, Lefkowitz,

Jay P. New with Forman, Portnoy, Aryeh whom Daniel S. Villafranco, Gilbertsen, John E. Thomas E. Williams, Gregory F. L. Skid- Michael DC, more, Arjun Garg, Washington, John Wilburn, Ramana, McLean, D. Anand V. VA, Donovan, Washington, T. and Daniel DC, brief, for appellees. were on whom Robin-Vergeer, Bonnie I. DC, Deepak Gupta, Washington, was brief, Legal for amicus curiae the Aid Columbia, Public Society of the District of Citizen, Inc., in the Center Science Interest, National Association of Public Advocates, National Con- Consumer Center, supporting appellants. sumer Law Rushkoff, Chief Public Advoca- Bennett General, Section, Attorney Office of the cy Columbia, Peter J. District of with whom Kim, Nickles, General, Todd S. Attorney General, Murasky, Donna M. Solicitor General, L. Solicitor and John Da- Deputy General, vie, Attorney Special Assistant Columbia, for amicus curiae the District of supporting appellees. Cullen, Sr., Joyce May- L.

Paul D. DC, ers, filed a brief for ami- Washington, Shaw, REID, supporting appel- Judge: Brit A. Associate cus curiae lants. appellant these consolidated cases1 Grayson appeals Alan trial court’s Zavareei, Williamson, Hassan Melanie judgment granting appellees’2 Super. Ct. Rezvani, Tracy Enright, D. Donald J. 12(b) motion Civ. R. to dismiss his District Marcus, DC, Washington, filed Karen Protection Columbia Consumer Proce- brief for amicus curiae the National Con- (“CPPA”) dures Act claims for unlawful Individual League sumers Consumers practices.3 trade These claims involve the Beck, Reddy, Keerthi and Erin Jarrod telephone calling unused balance on cards appellants. Galloway, supporting (escheated telephone calling prepay- card ments), Grayson and Mr. describes his Parasharami, A. Tager, Evan M. Arehis as “a lawsuit ‘whistleblower’ action” to re- Ranlett, DC, M. Washington, Kevin Scott belonging cover funds to the District. The Noveck, Conrad, and Robin S. Amar D. Grayson’s trial court dismissed Mr. CPPA Sarwal, DC, Washington, filed a brief for ground claim on the that he lacked stand- amicus curiae the Chamber of Commerce (Rule 12(b)(1)), ing and even if he suffered States, supporting appellees. of the United injury, complaint his failed to state a claim Hadzi-Antich, Buffalo, NY, (Rule Theodore relief may granted which Fetra, 12(b)(6)). and Deborah J. La filed a brief for Legal

amicus curiae the Pacific Founda- Appellant appeals Paul M. Breakman tion, supporting appellees. the trial court’s judgment granting the 12(b)(1)

Super. Civ. R. motion of appel- Ct. WASHINGTON, Judge, Before Chief lee, (“AOL”), AOL LLC to dismiss his RUIZ, REID, GLICKMAN, KRAMER, claim for trade practice CPPA unlawful on FISHER, BLACKBURNE-RIGSBY, ground that he does not have standing. THOMPSON, OBERLY, essence, and Associate alleged, He that AOL failed to Judges. existing its current disclose to and mem- Grayson question exceptional 1.Panels of this court considered and on "a tion focused argued Breakman. The en banc court vacated that importance" and "en that banc con- part Grayson panel pertaining decision necessary sideration is to secure or maintain to the District of Columbia Consumer Protec- decisions,” uniformity of the court’s see T, Grayson AT tion Procedures Act. See v. & 35(a)(1) (2) (2010), D.C.App. grant- R. and we (D.C.2010). major 989 A.2d 709 issue in petition. ed the Grayson alleged concerned an violation of the Act; District of Columbia False Claims Corporation, 2. AT T& MCI Worldcom Com- portion opinion was and munications, not vacated Sprint Corporation, Verizon Corp., Grayson remains at v. & T 980 A.2d AT Corporation, corpo- Communications and the (D.C.2009) However, I). (Grayson we (collectively “ap- rations’ chief fiscal officers unpublished vacated the entire memorandum pellees”). purposes Grayson’s For of Mr. AOL, opinion judgment in Breakman v. complaint, Corporation amended AT & T in- D.C.App. A.2d LEXIS 614 AT & T's division and AT cludes SmarTalk & (D.C.2009); upon Breakman relied the CPPA Services, Inc; Sprint Corporation T Wireless portion Grayson opinion. I Sprint Company includes Communications Partnership Sprint Limited International Banc, Rehearing In its Petition for En filed Corporation; Communications and Verizon 1, 2009, Grayson appellees October Corporation Communications includes Veri- asserted, part, "by holding Gray- Washington, Partnership zon DC and Célico bring son can a claim under the CPPA even Verizon Wireless. d/b/a though injury, he suffered no the division’s opinion standing juris- rewrites this Court’s Petition, (2009 seq. prudence." peti- Supp.). at 1. Because the 3. D.C.Code 28-3904 et ing requirement embodied in Article III. option monthly bers the Dial- cheaper Thus, allege “some threat- appellants to new members. must Up charged ISP Service injury resulting ened or actual from in both cases is a funda- Confronting us putatively illegal action”4 in order for standing, which mental threshold issue jurisdiction. “The actual court assume question is not to be confounded with the by Art. Ill injury required or threatened prevail of whether can on the appellants solely by exist virtue of ‘statutes cre- Rather, respective merits of their claims. ating legal rights, the invasion of which trial court we must determine whether the ”5 standing.’ creates claims, in these re- properly dismissed dismiss, the District motions to We hold that the Council of sponse appellees’ standing to did not disturb override appellants because do not have Columbia standing requirement their claims. To answer that our constitutional assert CPPA 2000; amending first on the the CPPA the words question, we focus amendments, in the con- requirement in the District of Columbia. the 2000 viewed Second, drafting history legislative text of the we examine whether Council amendments, of these do not reveal of the District of Columbia intended intent of the to erase the explicit disturb or override this court’s constitu- Council Third, standing requirement6 constitutional standing requirement. tional we de- allegations during in which this court has adhered termine whether the factual Grayson’s respec- past Mr. Mr. Breakman’s several decades.7 complaints tive to enable are sufficient Furthermore, trial we hold that the standing challenge them to survive a on a Mr. Breakman’s properly court dismissed Finally, motion to because the dismiss. 12(b)(1) he complaint under Rule because Grayson’s trial court also dismissed Mr. showing that plead failed to sufficient facts complaint Super. under R. Ct. Civ. re he meets the constitutional 12(b)(6), we consider whether his com- inju an quirement, that is that he suffered plaint the states cause of action within lodge ry in or that he entitled to fact meaning that rule. And, action. we hold that representative standing to though Congress Grayson We conclude that even Mr. has individual other relief under the sys- injunctive created the District of court seek Columbia Constitution, threatened principle tem Article I the “actual or under III, injury required by rather Article court fol- Art. III the Consti [of than this of ‘stat- solely by exist virtue consistently tution] lowed the constitutional stand- that, D., 614, 617, opinion, majority in the believes 4. Linda R.S. v. Richard 410 U.S. 1146, (1973) (citation legislative pronounce- S.Ct. 35 L.Ed.2d 536 explicit absence of omitted). ment, infer the Council’s it is not wise to change striking to our intent to make such a Seldin, 490, 500-01, 5. Warth v. 422 U.S. jurisprudence. 2197, (1975) (citing S.Ct. 45 L.Ed.2d 343 Lin- R.S., supra, da 410 U.S. at 617 n. 93 S.Ct. governmental 7.The Council decided to shift 1146); Shoppe, see also Executive Sandwich Depart- responsibility enforcement from Realty Corp., Inc. v. Carr A.2d Regulatory ment of Consumer and Affairs (D.C.2000). ("DCRA”) Corpora- to the then Office of partially dissenting colleague, Judge 6. Our (now Attorney tion Counsel Office of the Gen- Ruiz, argues that the Council intended to eral, ("OAG”)), injunctions add D.C. and to standing require- eliminate our constitutional disgorgement and as tools to enforce ment when amendments it enacted CPPA. IV(C) explain to the Part CPPA. As we portion prepaid calling invasion of of a card is “break- creating legal rights, the utes ” Warth.8 age,” Howev and defendants have been re- standing.’ “[t]he which creates 1992,” er, Grayson taining breakage failed to since in the we conclude that Mr. dollars, legally viable claims under amount millions of instead of allege (r). (f), (h), 28-3904(a), (e), reporting turning breakage over the District, Mayor of as unclaimed Accordingly, we affirm the trial court’s property. 27-35. Paragraphs As some complaint; dismissal of Mr. Breakman’s time in “each of the[] Defendants Gray- as to Mr. disagree ruling we with its $200,000 held around in communications standing, but affirm its dismissal of son’s prepayments received in 1999 from owners Grayson’s complaint Super. Mr. under Ct. whose last known address was the Dis- 12(b)(6). also amend and reis- Civ. R. We trict”; these sums “had remained dormant Grayson I as an opinion covering only sue during statutory dormancy period,” Grayson’s Mr. claim under the District of but defendants report “[t]he[] failed to (“FCA”). False Act Columbia Claims pay or deliver deposits these and ad- payments Mayor vance by Novem- I. ber 2003.” Paragraph 64. When “the FACTUAL SUMMARY amount of prepayments communications with District addresses in Grayson’s Complaint the[ ] other Amended Mr. 1997,” years since are taken into consider- Complaint Mr. Breakman’s ation, “the total amount of communications 26, 2004, Grayson March Mr. filed an On prepayments that each of the[] [D]efen- complaint in which he set forth a amended dants had from received owners whose last al- cause action under the CPPA. He known address inwas the District that had following, He leged part. brought remained during statutory dormant cause of “this action for the interests of dormancy period, as of June ex- general public.” himself and the Para- $500,000 Verizon, T, ceeded for AT & MCI graph 157. He described himself essen- Sprint.” and These report- sums were not a tially as businessman who had served in District, paid ed or to the and noted “[a]s a 1990 and 1991 as the President of For- above, the ... Plaintiff has obtained and tune 500 international communications District, prepaid used in calling cards assets, company, with billion in over $1 the unused value of which the Defendants “operates variety which a of different have failed to report pay May- and to the markets, including prepaid calling cards.”9 Paragraph or.” 32. prepaid “He has obtained calling and used District, complaint alleged cards the unused value of [the] that their ac- tions, report which the Defendants have failed to engaged Defendants unlawful pay Mayor.” and to the Paragraph practices § 6. Mr. trade under D.C.Code 28-3904 Grayson alleges that (2003).10.Paragraph further unused 165. “The Defendants 28-3904(a), (e), (f), (h), (r) § 8. 422 U.S. at 95 S.Ct. 2197. D.C.Code and provide: 9. As a "member of the International Prepaid It shall be chapter, a violation of this Association, trade Communications asso- whether or not misled, consumer is in fact cards, prepaid calling ciation [h]e edited damaged thereby, deceived or leading industry surveys one of the two any person to: prepaid Paragraph communications.” 6. (a) represent goods that or services have a source, certification, 10. Grayson sponsorship, alleged approval, Mr. violations accessories, 28-3904(a), (e), (f), (h), (r). characteristics, § ingredients, D.C.Code and 28-3904(h). practice § This trade of soli- 167. practice in the trade engaged have the Defendants have is unlawful because pre- citing accepting communications offered communications advertised and failing pay or deliv- payments, and then to the price equal whose is services unused balances of Mayor er to the when the prepayment, amount of the ..., in violation of prepaid calling cards provide intend to Defendants did not Prop- Unclaimed District of Columbia [the equal is price services whose Act, § 41-119 D.C.Code erty particular, fact, prepayment. amount of the (2003) Paragraph Paragraphs 164. ].” services provided Defendants Grayson’s 173 of Mr. through 168 and the amount of price whose is less than that specified for Relief’ “Second Claim Thus the Defendants have prepayment. is unlawful under D.C.Code practice “[t]his or offered services without advertised § reasons”: 28-3904 ... for several (in where the intent to sell them cases 28-3904(a) (e). 166. § & It is unlawful used) or with- calling card is never represent Defendants have because the the intent to sell them as advertised out prepay her to the owner that his or ed or offered. This violates D.C.Code purchase price equals ment 28-3904(h) (2003). § provided Defendants have card. The is less than the price services whose 28-3904(r). § practice Thus the De This trade prepayment.

amount of it, the pursuant unlawful because represented that their is fendants have that, characteristics, uses, property Defendants retain law bene services have § 41-119 they [D.C.Code do have. quantities fits 28-3904(a) (2003)], must be 2-308.14 This violates D.C.Code (2003). to the District. The represen paid or delivered This also constitutes knew at the time of the sale of a material fact which has a Defendants tation common, mislead, their breakage cus- tendency to which violates id. 28-3904(e). to receive sub- tomers would be unable benefits, uses, they receive substantial benefits quantities do not consumer to or have; property from the or services sold leased; (e) misrepresent a material fact which as to (3) gross disparity price between mislead; tendency property sold or leased services (f) fail a material fact if such failure to state property or services and the value of mislead; tends to by price at which similar measured readily obtain- property or services are (h) goods advertise or offer or services buyers by or able in transactions like without the intent to sell them or without lessees; them as advertised or the intent sell (4) person re- that the contracted for or offered; charges separate for insurance ceived respect with the effect to credit sales (r) terms make or enforce unconscionable sales, making considered as leases; applying provisions of or or sales unconscionable; whole, subsection, given shall be consideration knowingly person has taken that the following, to the and other factors: inability advantage of the consum- (1) knowledge by person the time at reasonably protect his interests er credit sales that there are consummated age, infir- physical reasons of or mental probability payment was no reasonable mities, illiteracy, inability ignorance, consumer; obligation full of the language agree- of the to understand the (2) knowledge by person at the time ment, or similar inability factors[.] of the of the sale or lease of the breakage, complaint un- Breakman filed a against benefits from such Mr. stantial January AOL on sought 2008. He “to paid the Defendants or delivered less remedy practice AOL’s unlawful trade Breakage leads to a to the District. charging past its current and members of the gross disparity price between price more than double the offered to new calling card sold and the value prepaid essentially members for the same services received. The Defen- of the services failing ... to disclose to current and advantage knowingly dants have taken past essentially members that the same inability of the customer reason- services are available at less than half the ably protect his interests because of price they are being charged.” Paragraph infirmities, igno- or mental age, physical only 1. He described himself as “a resident rance, illiteracy, inability to under- Columbia,” of the District of Paragraph agreement, all language stand the bringing repre- who was his lawsuit “in a high breakage lead to levels. which capacity sentative on behalf of the inter- 28-3904(r) This violates D.C.Code general public ests of the for unlawful (2003). trade practices under the Para- [CPPA].” graph allege 5. He did not that he is an member, 28-3904(f). AOL or that he has relation- pay The failure to Rather, to AOL. ship Mr. Breakman’s also breakage or deliver District complaint suing states that he ‘is Defen- is unlawful because the Defendants have practices dant AOL for its trade in viola- failed to inform their customers that tion of the laws of the District of Columbia pay Defendants will not or deliver injured which have District of Columbia breakage to the District. This is failure paid consumers who have continue and/or fact, to state a material and such failure pay AOL a month for $23.90 $25.90 customers, tends to mislead the in viola essentially Dial-up the same ISP Service 28-3904(f) (2003). tion of D.C.Code get new members a month be- $9.95 Paragraphs alleged impact 169 to 172 cause AOL has failed to disclose to said practices defendants’ unlawful trade on consumers the material fact that essential- persons. senior citizens and disabled For ly the same service is available for $9.95 example, Paragraph declared that per month.’ Paragraph 12. He demanded persons “senior citizens and disabled are damages,” “actual damages,” “pu- “treble substantially more vulnerable than other damages,” injunction,” nitive “[a]n public members of the to the Defendants’ attorneys’ against fees” AOL “Reasonable age, conduct set forth above because of “for each individual consumer.” poor infirmity, impaired health or under- Appellees’ Motions to Dismiss and the standing, mobility disability. They Rulings of the Trial Court actually suffered substantial economic damage from appellees the Defendants’ conduct.” On March moved “Verizon, Paragraph claims, 177 asserted that: jointly Grayson’s to dismiss Mr. T, Sprint contending AT & and each “complaint MCI have issued that his fails to 100,000 approximately prepaid calling state a claim under the because [CPPA] persons any to whose last known address cannot that he or plaintiff cards show other District, injured.” is which have remained customer was In an oral ruling, during statutory period, Gray- dormant but the trial court determined that Mr. breakage paid for which has not been son standing, noting lacked that “to main- [CPPA], Mayor.” delivered to the tain a plain- claim under the any ... alle- showing Complaint tiff some evidence is devoid produce that is—or ever gations Breakman [Mr.] damage that he has suf- that there’s some dial-up has been—a subscriber of AOL’s fered as a result of the unlawful trade Breakman does not services.... [Mr.] Mr. practice.” The court declared that allege part that he is of the class that he Grayson a of the State of “is resident represents.... allege He does not that and not the District of Columbia.” Florida him, any duty AOL breached that he Furthermore, Mr. the court reasoned that AOL, was mislead or that he sus- property the unclaimed Grayson “has held actual, any consequential, tained or ex- calling possession and still has [his card] damages as a result of AOL’s emplary according complaint.” to his own “He alleged conduct. any he can use it at property has the reviewing applicable After CPPA stat- Hence, “it prop- time.” abandoned utory provisions, governing and case law erty” “there is no violation because he determined, standing, the trial court opportunity has the means and the to use “not- precedent, accordance with cited property any at time he chooses.” The withstanding the broad remedial [CPPA’s] Grayson’s complaint alleges fact that Mr. allege ... provisions, plaintiff must injuries to others and the District Co- standing,” personal injury fact to have irrelevant; lumbia under the CPPA is Mr. juror but that “no reasonable could find Grayson bring cannot a claim under the injury has sustained in fact.” CPPA if “he himself has not suffered addition, injury.” In the trial court con- II. Grayson

cluded that even if Mr. suffered OF STANDARD REVIEW an injury, complaint alleges “Whether the trial court has sub Columbia, “belongs to the District of law ject jurisdiction question matter is a (that is, and not to him” the failure of which this court reviews de novo.”11 We notify defendants “to the District of Co- “a dismissal for failure to state also review they holding lumbia that have been un- accept the alle a claim de novo.”12 “[W]e property”). claimed Mr. Consequently, true, gations complaint and con Grayson “failed to ple[a]d the elements all inferences in favor of strue facts and necessary permit survival under a plaintiff.”13 “Because rules re ‘[o]ur 12(b)(6)motion.” ject approach pleading game is a lodged AOL an amended June misstep of skill in which one motion to dismiss Mr. Breakman’s CPPA ‘manifest a decisive to the outcome’ and 12(b)(1) Super. claim under R. Ct. Civ. on the preference disputes for resolution of (6). merits, AOL asserted that Mr. Breakman pleading,’ not on technicalities of claim, bring lacked his substantial pleadings we construe ”14 ‘as to do stated, only “The issue on review of a part: justice.’ Williams, Murray Fargo Mortg., 11. & 12. v. Wells Home Davis Assocs. v. 892 A.2d (citations (D.C.2008) omitted) and inter- (D.C.2006) (citations A.2d A omitted). quotation nal marks question subject jurisdiction matter under 12(b)(1) Super. Ct. Civ. "concerns the R. Solers, Doe, Inc. v. John 977 A.2d authority adjudicate type court’s Curseen, (D.C.2009) (citing In re Estate of controversy presented by the case under con- 191, (D.C.2006)). 193 A.2d (citations omitted). sideration.” Id. Univ., 23, Clampitt v. 957 A.2d 14. American (D.C.2008) Carter-Obayuwana (quoting v. 29

229 12(b)(6) plaintiffs contention that pursuant particular made to Rule of dismissal Thus, illegal.”18 is conduct the basic func complaint”; legal sufficiency of is the standing tion of the is to inquiry serve as a not be dismissed complaint “a should a plaintiff threshold must surmount not believe that a a court does because before 15 question a court will decide the merits “In- prevail will claim.” plaintiff [his] legal about existence of a claimed on the face of the appear deed it If right. plaintiffs allegations a factual very remote recovery that a is pleadings require are sufficient to a court to consider is not the test.”16 unlikely but that (or plaintiff statutory whether the has a legally protected right), otherwise then the III. standing requirement Article III has IN THE THE STANDING DOCTRINE its purpose; served and the correctness of plaintiffs legal theory OF DISTRICT COLUMBIA under —his of standing the statute on which he re Standing A. Introduction to a question goes lies—is to the merits Question claim, plaintiffs plaintiffs not the juris “Standing is a threshold Thus, standing present during it. question which must be ad dictional inquiry, threshold question “the is whether prior independent to and dressed person standing challenged whose is party’s merits of a claims.” Bochese v. proper party request adjudication long is a Town Ponce Inlet.17 This particular of a issue.” States United v. of standing principle emphasized federal Bearden.19 routinely Federal Circuits Warth, where supra, case law since approached question as a standing that Article III unequivocally Court stated be resolved prior to consideration of the “standing way in no on the merits depends merits the case.20 Univ., 779, (D.C.2001)) 1011, (8th Cir.2003) (cita- Howard 764 A.2d 787 19. 328 F.3d 1013 (other omitted). omitted). citation tions As Warth articulated this proposition: question "In essence the standing (D.C.2008) litigant is whether Murray, is entitled to supra, 15. 953 at A.2d 316 (citations omitted). have the court decide the merits of the dis- pute particular or of .... issues far as [so concerned, is,] Solers, Article III is whether the (citing supra, 16. at 977 A.2d 947 In re Curseen, 'alleged personal 194). such a stake in supra, Estate 890 A.2d at 12(b) controversy’ the outcome as to warrant interpreting generally our own Rule we jurisdiction his invocation of federal-court Supreme follow the Court and other federal justify and to interpretation exercise the court's remedial courts’ of the federal rule. However, powers on his yet behalf.” Id. at this court has not decided S.Ct. 2197. plausibility whether it will follow the facial - Iqbal, standard enunciated in Ashcroft U.S. -, 1949, 1937, Co., S.Ct. 173 L.Ed.2d 20. See Connecticut v. Am. Elec. Power (2009). Inc., (2d Cir.2009) ("In 582 F.3d 339-40 question essence the is whether Cir.2005) (11th (cita- 17. 405 F.3d litigant is entitled to have a court decide omitted); tions see also Media Techns. Licens- dispute particular the merits of the or of is- Co., ing, sues.”) (internal Upper LLC v. The Deck 334 F.3d quotation marks and citation (Fed.Cir.2003) (“standing omitted); Sciarra, is a United States v. 851 F.2d question (3d Cir.1988); threshold that must be resolved be- City Green v. Ra- case”) proceeding fore (4th the merits of Cir.2008) ("[A] leigh, 523 F.3d (citations omitted). plaintiff’s standing bring a case does not depend upon his ultimate success on the mer- Warth, case, underlying 422 U.S. at 95 S.Ct. 2197. its his because otherwise ev-

230 claim, have been inconsistent

Yet, avoid tiffs courts tempted be to a court standing principle legal ques- be- willingness the fundamental in their to resolve (citations cannot plaintiff that a cause of a conviction determining standing”) in tions complaint. the merits of his prevail on omitted); Deposit v. Federal Ins. Taylor always follow does not The Ninth Circuit 52, 66, 132 F.3d Corp., U.S.App.D.C. 328 standing be consid- must principle (1997) (“The 753, treat- appropriate 767 merits, it nev- of the but independent ered standing inqui- in ment of cases which acknowledged general this ertheless has ry overlaps precisely with the merits so principle: clear”). And, of these entirely not both usually, perhaps

Quite frequently, identify circuits have endeavored of the truth of the determination appropriate in which it is type of case not injury of an fact does allegation principle. apply of the merits of require an examination Babbitt, supra, plain v. State Utah of circum- the claim asserted. Under in an sought participate tiffs in essence existing, the issue of frequently stances Depart inventory public lands standing regarded indepen- can be the Interior. The court concluded ment of dent of the merits. whether the Fed that it had to determine v. Federal American Civil Liberties Union Policy Management Act eral Land Comm’n, 1344, 523 F.2d 1348 Commc’ns (FLPMA) granted right partici them a (9th Cir.1975). Liber- In American Civil inventory it could deter pate in the before Union, involving promul- a case rules ties standing to plaintiffs mine whether had by the Federal gated Communications that the FLPMA did sue. It determined Commission, the court concluded in the grant right participate them a “confronted with circumstances was they standing. no inventory; therefore had allegations which the truth However, court in Skull Id. at 1210. only determined examin- fact can v. Niel Valley Band Goshute Indians claim.” Id. ing the merits of the asserted (10th 1223, Cir.2004), son, F.3d Tenth and the District of Colum- Both the overlap principle application limited princi- with this grappled bia Circuits have plaintiffs in which lacked a to situations ple recognizes overlap which between and in which legally protected interest Both of standing inquiries. and merits law, claims had no foundation plaintiffs’ inconsistency these circuits have noted the “plaintiffs proceeded to determine v. application, of its see State Utah legal interests (10th protected have asserted Babbitt, 137 F.3d 1207 n. 20 standing.” Id. at Cir.1988) (“in necessary to establish in- standing when the cases plain- with the merits of the quiry overlaps claim.”) legal her guendo the merits of his or ery plaintiff will have lacked unsuccessful (internal (internal place”) quota omit- quotation in the first marks and citation omitted); citations Covenant ted); tion marks and Party Mississippi Democratic v. State Carolina, City Media South LLC v. The Barbour, (5th Cir.2008); 529 F.3d Charleston, (4th 493 F.3d Cir.

North City, Org. Calumet MainStreet Realtors v. 2007) ("we standing with must not confuse Illinois, (7th Cir.2007) 505 F.3d merits") (internal quotation marks and (stating the merits of the do not reach "[w]e omitted); citation Cole v. General Motors considering questions of con- suit" before Cir.2007) ("The (5th Corp., 484 F.3d standing); prudential Common stitutional Supreme clear that when Court has made Cause/Georgia Billups, 554 F.3d considering III whether a has Art. (11th Cir.2009). standing, ar- a federal court must assume

231 Dep’t v. States District of Circuit stated Citizen United Justice.23 The Columbia There, princi plaintiffs sued to the disclo apparently applied overlap require (“[I]f relating claim has no foun sure of information to an ABA plaintiffs ple law, legally protected prospective ju no committee’s evaluations of dation in he has sue”)21 in standing Department thus no to dicial nominees for the interest and case; They the court concluded that Justice. claimed that the disclo a 1997 standing bring by to her ac sures were mandated the Federal Ad plaintiff had no (FACA), visory Committee Act a law that Advisory the Federal Commit tion under Slater, requires governmental “advisory commit U.S.App 324 Claybrook tee Act. (as defined) (1997). tees” to make certain informa .D.C.145, 148, 111 F.3d 907 public. ultimately tion conclud But, case, Court in later significantly, the D.C. ed that was to the inapplicable FACA Claybrook did not “read to stand Circuit ABA committee and Worth, upheld therefore that we proposition, for the contra dismissal of the lawsuit on the merits be evaluate the existence vel non of must plaintiffs cause the statutory right had no Second Amendment claim as a appellants’ they to the information sought. Never Parker v. standing question.” District of theless, matter, as a threshold the Court Columbia, 140, 148, U.S.App.D.C. 375 478 plaintiffs standing bring held that had (2007). Furthermore, F.3d 378 Thus, point their lawsuit. at the labeled the Ninth reliance court Circuit’s standing inquiry, the court did not look to overlap principle “doctrinally on the as statutory right actually whether the exist quite unsound.”22 ed, only plaintiffs alleged but whether that Par- We believe that the D.C. Circuit’s they potentially were denied information opinion ker states the better view because covered FACA.24 standing principle it is faithful to the enunciated in It also is general Warth. consistent We mention one other case, Supreme principle applicable standing inqui- with another Court Public Assocs., Bush, Arjay 21. See also Inc. v. 23. 491 U.S. 109 S.Ct. 105 L.Ed.2d (Fed.Cir. 1989) (“We (1989). F.2d hold that appellants standing injury lack because the they right assert is to a nonexistent to contin plaintiffs holding standing that had importation Congressionally ued of a exclud lawsuit, bring analogized their the Court nonredressable.”). product ed and is thus case to FOIA claims: 22. The court declared: agency requests As when an for in- denies recently We note that the Ninth Circuit has formation under the Freedom of Informa- Amendment dealt with Second claim Act, permit appellants tion refusal to extensively analyzing provision, first scrutinize the ABACommittee’s activities to determining provide does not the extent FACAallows constitutes a suffi- then, right, only concluding individual ciently provide standing distinct plaintiff that the lacked to chal- interpreting sue. Our decisions the Free- lenge restricting a California statute suggest- dom of Information Act have never use, possession, and transfer of assault requesting ed that those information under weapons. approach We think such an they sought it need show more than that doctrinally Supreme unsound. The Court specific agency and were denied records. considering has made clear that when There is no reason for a different rule here. standing, whether a has Article III (citations 491 U.S. at 109 S.Ct. 2558 arguendo a federal court assume must omitted). plaintiff's standing A FOIA does legal merits of his or her claim. We have Act, correctly not turn on whether the repeatedly recognized proposition. construed, ultimately requires government U.S.App.D.C. at F.3d at 376- (citations omitted). agency being sought. to disclose the records Arguments and Am- B. of the Parties analysis is different “at the

ry. Standing Regarding the District’s ici Thus, stages litigation.”25 successive Standing Doctrine in a case that standing the examination of is not comes to us on a motion to dismiss diverse parties present and amici involving summary in the same as a case standing doctrine arguments regarding the motion; is judgment proof the burden of Grayson in District of Mr. Columbia. demanding standing ques- when the less con- Mr. Breakman contend that “the in motion to dismiss.26 tion is raised prudential standing princi- stitutional federal circuits have determined Some manda- imposed by Article III are not ples disputed court cannot decide “a district courts.” tory respect District’s of credi- questions findings factual or make argue that before this court appellees But bility question standing essential constitu- decides the merits of a case “the paper on the record alone but must hold controversy requirement tional of a case or evidentiary hearing” (emphasis origi- prudential prerequisites and the stand- nal).27 with the practice This is consistent Aid Legal must be satisfied.” The ing Supreme pronouncement Court’s Warth: Society ways notes the different which “justiciability this court has articulated its purposes ruling For on a motion (such mootness, and principles standing, as standing, dismiss for want of both recog- the court “to accept ripeness)” urges must reviewing trial and courts are not explicitly nize that the D.C. courts allegations true all material principles subject justiciability the com to the same complaint, and must construe judicial power of Article plaint party. in favor of the that constrain complaining McKeithen, The District asserts that the E.g., v. 395 U.S. III courts.” Jenkins conclusion, of our articulated in some 421-422 S.Ct. 23 L.Ed.2d [89 (1969). time, cases, governed by we are “not Article At the it is 404] same limitations[,] by Su- well-supported III within the trial to allow or power court’s holdings Congress require supply, by preme Court same the District’s courts” with the complaint amendment to the affi vested davits, exer- type jurisdiction that state courts particularized allegations further cise, that we not read D.C.Code plaintiffs of fact deemed should supportive 11-705, If, and con- which refers cases standing. opportunity, after this troversies, incorporate juris- “to all of the plaintiffs standing adequately not does record, in Article prudence relating to those words appear from all materials of dismissed.[28] complaint must be III of Constitution.”29 12(b)(1) long accept- Lujan proceedings, it has been Wildlife, 25. 504 U.S. Defenders of 555, 561, 'appropriate judiciary may make 112 S.Ct. 119 L.Ed.2d 351 ed that the (1992) (citations omitted). 'satisfy inquiry’ beyond pleadings to itself (cita- ") authority to entertain the case.’ on 2130; Lujan, 26. 504 U.S. at 112 S.Ct. omitted). tions see discussion infra. statement, separate Judge Ruiz dis her 29. In Florida, County, v. Osceola Bischoff 11-705(b) consti and the cusses (11th Cir.2000) (citation omit- F.3d controversy" limitation. tutional “case or ted); see also other circuit authorities refer- we conclude that the CPPA retains our Since enced Bischoff. standing requirement, injury-in-fact we do position we take no need to address and 28. 422 U.S. at 95 S.Ct. 2197. Accord Sessions, 325, 329, Congress by imposed Ar whether statute has U.S.App.D.C. Haase v. (1987) (“In standing requirement on the local ticle Ill's 835 F.2d [Fed.R.Civ.P.] contentions, only in these we first risdiction “cases” and “controver To address sies”, insight historical into the evolution provide although Article III is not the in the District of standing doctrine requirement.... exclusive source of the incorpo- then discuss the States, We Columbia. In Palmore v. United the Su jurisprudence our ration into preme recently Court affirmed the view from federal case law. concepts jurisdiction that the courts of local Columbia, District of established by Background Historical C. I, Congress pursuant to Article are not Historically, began we to articulate our requirements bound the of Article govern- the District standing principles as III. Ad- transitioned from the Federal ment jurisdiction Our extends as far thus (“FAPA”) ministrative Procedure Act Without, Congress granted it. how- District Columbia

the of Administrative ever, examining grant, the limits of this (“DCAPA”). Relying Act Procedure principles this court has followed of DCAPA, history of the we legislative standing, justiciability and mootness to three-part the identical test for adopted judicial promote economy sound and has in the courts un- standing followed federal recognized adversary system that an can As we confronted the der the FAPA.30 real, abstract, adjudicate best con- cases, standing issue in non-APA after [, ], Basiliko supra flicts. 283 A.2d [at] Congress enacted the District of Columbia 818; States, Atkins v. United 283 A.2d Reform and Criminal Procedure Act Court (D.C.1971). 204, 205 (“Court Act”),31 of 1970 Reform we took District v. Columbia Walters.32 we are an into consideration the fact that Constitution, I Article court under Incorporation Standing D. Princi- court; rather than an Article III and in ples from Federal Court Cases early following adop- one of our cases Act, though court, tion of the Reform we said: Even we are I Court an Article Supreme we have followed develop- Court requirement that a have party standing ments in constitutional jurispru- “standing” judicial power invoke respect plain- dence with to “whether the designed of the United States is to en- controversy III of tiff has made out a case or force mandate of Article him(7her] ju- Constitution that federal courts have between and the defendant with- through ple, courts of the District of Columbia Miller v. District Bd. Columbia Zon 1-705(b). 571, (D.C. Adjustment, ing D.C.Code 1 948 A.2d 574-75 2008) (After test, articulating we decided standing Columbia, proper to assume because the reso v. 30. See Basiliko District 283 clear); 816, Dupont lution of the merits (D.C.1971) was Circle (citing A.2d 818 Ballerina Pen 417, Barry, Ass’n v. 98, 455 A.2d 421 Citizens Kunzig, U.S.App.D.C. Co. v. 140 433 F.2d (D.C. 1983); Lee v. District Columbia Bd. (other (D.C.Cir.1970)) omitted). citations Review, 210, Appeals and 423 A.2d 215-17 adopted The FAPAtest was in Association of (D.C. 1980). Processing Orgs., Camp, Data Serv. Inc. v. U.S. S.Ct. 25 L.Ed.2d 184 (1970), seq. 31. D.C.Code et consistent with our adherence to standing principles, FAPA we added a fourth (D.C.1974) (other prong Supreme after the Court decided Si 32. 319 A.2d 337 n. 13 omitted). Kentucky Rights Org., mon v. Eastern Key Doyle, citations See also Welfare 26, 42-46, 59, 62-68, 426 U.S. 96 S.Ct. L.Ed.2d U.S. 98 S.Ct. 54 L.Ed.2d 238 (1976). (1977) (discussing We have continued to follow the analogy Palmore and “the See, courts”). FAPAtest in our DCAPAcases. exam- of the local D.C. courts to state (1962). III,” judi The Art. Ill and we L.Ed.2d meaning 663] of Article only to redress or oth power cial exists prudential limita- generally applied protect against injury to the erwise to jurisdiction.33 on the exercise of our tions though even complaining party, that “when Con- recognized We also have col judgment may court’s benefit others standing to the full intends to extend gress jurisdiction A laterally. federal court’s III, requirement the sole limit of Article only can be invoked when the therefore minima of [is a] himself has suffered “some circumstance,] fact, courts under this [and injury resulting threatened or actual authority prudential create bar- lack the ” action.... putatively illegal from the Warth, often cite standing.”34 riers to We D., Linda v. Richard 410 U.S. R.S. the “minimum supra. articulated Warth 1146, 35 L.Ed.2d 536] 617 S.Ct. [93 mandate”35 as follows: constitutional (1973). v. Processing See Data Service dimension, standing In its constitutional 150, Camp, 397 U.S. 151-154 S.Ct. [90 plain- the imports justiciability: whether (1970).[36] 827, 25L.Ed.2d 184] tiff made out a “case or controver- has injury and the defendant in fact is the sy” between himself One manifestation by statute. meaning legal rights of Art. III. This is violation of created within the threshold, As declared: question every the federal Warth case, power of the court determining injury required The actual or threatened aspect suit. As an to entertain the solely by virtue of by may Art. Ill exist justiciability, standing question the inva- creating legal rights, “statutes “alleged such a plaintiff whether the has See standing....” sion of which creates D., stake in the outcome of the personal supra, v. Richard at 617 Linda R.S. 1146]; controversy” as to warrant his invoca- v. n. 3 S.Ct. Sierra Club [93 Morton, 727, 1361, jurisdiction tion of federal-court and to 405 U.S. 732 S.Ct. [92 (1972).Moreover, justify of the court’s remedial 636] exercise 31 L.Ed.2d Carr, Congress may grant express right v. an powers on his behalf. Baker 691, 186, who otherwise would persons 204 7 action to [82 369 U.S. S.Ct. Morton, Co., 2197]; Upjohn S.Ct. Sierra Club v. 405 U.S. 33. Consumer Fed’n America v. 1361, 727, 740-41, 725, (D.C.1975). 16 31 [92 n. S.Ct. 727 346 A.2d (1972); (b) “actual or L.Ed.2d 636] imminent, 'hypotheti 'conjectural' not Inc., Shoppe, supra, 34. Executive Sandwich ” Arkansas, cal,' 495 U.S. [v. Whitmore (internal quotation marks 749 A.2d at 731 1717, 149,] 109 L.Ed.2d 135 [110 155 S.Ct. omitted). (1990)] Angeles Lyons, (quoting Los v. 461 95, 1660, 75 L.Ed.2d [103 U.S. 102 S.Ct. 422 at 95 S.Ct. 2197. 35. U.S. Second, (1983)). must be a there 675] injury causal connection between 498-99, Lujan, 422 at 95 S.Ct. 2197. U.S. injury complained has the conduct of—the supra, elaborated on this "minimum constitu- “fairly ... to the chal trace[able] to be tional mandate”: defendant, lenged not ... action of the years, Over the our cases have established independent action of [of] the result minimum party that the irreducible constitutional before the court.” Si some third First, standing Org., contains three elements. Ky. Rights 426 mon v. Eastern Welfare “injury plaintiff must have suffered an 48 L.Ed.2d U.S. 41-42 S.Ct. [96 Third, (1976). legally protected "likely,” as in fact”—an invasion of a it must be 450] (a) particu- merely "speculative,” that the opposed interest which is concrete and 737,] larized, by Wright, injury a favorable see v. 468 U.S. will be "redressed [Allen Id., S.Ct. [96 1917]. decision.” at S.Ct. 82 L.Ed.2d 556 [104 (1984)]; [], 112 S.Ct. 2130. Id. at [at] [95 Warth U.S. standing mentioning rules. by prudential decisions Allen v. be barred Warth, Wright, supra, supra, we said: course, requirement Art. III’s re Of plaintiff allege still must a Constitutional under Article III mains: himself, requires “allege personal injury to palpable distinct and injury fairly traceable to the defendant’s by large if it is shared even likely unlawful conduct and to be re litigants. E.g., possible class of other dressed requested relief.” SCRAP, v. United States U.S. Wright, 468 U.S. at 751 [104 S.Ct. 3315]. (1973). S.Ct. 37 L.Ed.2d [93 254] concerns, prudential “standing Out of requirement is satis long But so as this doctrine embraces judicially several self- fied, persons Congress to whom imposed limits on the exercise ... of action, granted right express either jurisdiction, general prohibi such as the may ly implication, clear litigant’s tion on a raising per another standing to seek relief on the basis of son’s legal rights require and the others, legal rights and interests of plaintiffs complaint ment that a fall and, indeed, general invoke the protected by within the zone of interests public support interest of their claim. However, the law invoked.” Id. when Morton, at E.g., supra, Sierra Club Congress intends to standing extend 1361]; 737 S.Ct. FCC v. Sanders [92 III, the full limit of Article the “sole Station, 470, Radio 309 U.S. 477 [Bros.] requirement standing mini- [is a] (1940).[37] 693, 84L.Ed. [60 869] S.Ct. in ma of fact.” Havens Realty Coleman, Through years consistently 363, 372, cases Corp. our v. 455 U.S. 1114, (1982). have followed the minimum S.Ct. 71 L.Ed.2d 214 constitutional Thus, standing permissible when is standing of in articulated Warth III, the limit of Article courts “lack the Lujan.38 And in Executive Sandwich authority to create prudential barriers Inc., Shoppe, recognized supra, we that a Id.[39] standing.” plaintiff may required only to meet requirement minimum constitutional question The next we confront is whether gain standing bring enacting his action. After in the 2000 amendments to the quirements 37. 422 U.S. at 95 S.Ct. 2197. concerns the of doctrine moot- See, example, ness. v. Brown United States, 184, (D.C.2006) (reach- 900 A.2d parties point 38. The out that there amici ing though appellant the merits even had have been variations in our articulation of sentence); “long ago” completed jail his standing requirements. Hosp. See Riverside Inc., Solutions, Recycling Health, Francis v. 695 A.2d Dep’t District Columbia 944 A.2d 63, (D.C.1997) 1098, (D.C.2008); (stating that we "will not 1103-04 Friends Tilden Park, normally questions decide which have be- Inc. v. District Columbia and Clark LLC, concluding come moot” but that the "case Realty Capital, 806 A.2d 1206-07 controversy” though (D.C.2002); remains a live even con- Randolph v. ING Ins. Life cancelled); Co., (D.C. tract had been Atchison v. District Annuity 973 A.2d 706 n. Columbia, (D.C.1991) Co., 2009); 585 A.2d Emps. Fisher v. Government Ins. ("[T]he (D.C.2000). Supreme decisions of the Court on the Regardless 762 A.2d n. 7 mootness, issue of which arise in the context of the words used in different cases to articu- however, controversy requirement of the case or standing requirement, late our we Constitution, III binding Article are not have said since the creation of the current court.”) (internal quotation on this marks and system District of will Columbia court that we omitted). citation standing follow the federal constitutional re- quirement. The one area in which we have strictly justiciability not followed federal re- 39. 749 A.2d at 730-31.

CPPA, any ter who in- prevent person intended to disturb or shall Council jured by practice doctrine of a trade in violation of a override the constitutional law of the District of Columbia within applied we have for dec- which from jurisdiction Department ades. any right any rem- exercising seeking IV. edy person might to which the be enti- any complaint from filing tled or THE YEAR 2000 CPPA any agency. other AMENDMENTS in Prior amendments in At issue in these cases is whether 28-3905(k) (1981) (1996 Repl.) 28-3905(k) amending D.C.Code provided: to eliminate con the Council intended any Any consumer who suffers dam- standing requirement to which stitutional age employment as a result of the use or 28- this court adhered. D.C.Code by any person practice of a trade 3905(k) (2001) specifies: now violation of a law of the District of Co- (k)(l) person, acting A whether for the jurisdiction lumbia within the of the De- itself, members, interests of its or the partment may bring an action un- general public, may bring an action Superior of the District of Colum- Court chapter Superior der this Court bia to recover or obtain of the fol- seeking relief the District of Columbia lowing: of a trade by any person from the use (A) damages; treble practice in violation of a law of the Dis- (B) fees; attorneys’ reasonable trict of Columbia and recover or (C) damages; punitive following obtain the remedies: (D) the court Any other relief which (A) $1,500 damages, per treble or viola- proper. deems tion, greater, payable whichever to the is (2) Nothing chapter prevent in this shall consumer; any person injured by who is a trade (B) fees; attorney’s reasonable practice in violation of a law of Dis- (C) punitive damages; jurisdiction trict of within the Columbia (D) injunction against the use of the exercising any from Department practice; unlawful trade any remedy to which right seeking or (E) actions, in representative additional or from person might be entitled may necessary relief as to restore to filing any complaint other money property, the consumer or real or agency.

personal, acquired which have been 28-3905(k)(1) in part The amendment to practice; means of the unlawful trade language in resulted elimination “[a]ny damage”40 consumer who suffers (F) any other relief which the court person, and the insertion instead “[a] proper. deems itself, acting in the its whether interests members, general public seek penalties provided The remedies or ” add chapter ing this are cumulative and in relief from.... The Council also (k)(1) additional remedies. penalties addition to other remedies or ed subsection (k)(2) speei- in The amendment to subsection provided by Nothing chap- law. Co., commenting pre-amendment lan- Goodyear 40. See Beard on this Tire & Rubber (D.C.1991) (referencing guage). 587 A.2d 203-04 amendments, remedies a person may bring the cumulative nature of the fied general action on behalf of the in the CPPA statute. CPPA public, person whether or not that Arguments of the Parties and Am- A. injury. suffered an Regarding Intent ici the Council’s Columbia, But the District of as amicus who parties, pre- and amici curiae support appellees, curiae in declares: disagree on how to argument, sented oral in nothing explicit, There either enacting intent in determine Council’s in legislative CPPA as amended or They also reach amendments CPPA. amendments, history of the CPPA conclusions as to whether different demonstrates an affirmative intent by to eliminate this court’s intended Council to displace the Council the usual stand- standing requirement. Ap- constitutional ing requirement a plaintiff contend that “the issue for this —unless pellants asserting associational on be- simple question statutory is a [c]ourt half of its members —be injured either of the 2000 meaning construction of the injury. or threatened with imminent Al- CPPA,” amendments to the and that when though the Division this court in the [of amendments, “the it enacted those Council panel’s Grayson decision] had a reason- deliberately specifically eliminated [] able basis to conclude that the CPPA as requirements fact and amended does not incorporate that re- actions.”41 representative causation quirement, the en banc should [c]ourt reject they what describe as Appellees rule, evidence, absent clearer plain language” argument appel- “the such was the Council’sintent. lants; argue that is no lan- they “there guage in the amended statute that states next set forth the principles We of statuto- jettison that the intended to well- Council ry construction guide analy- that will our settled District law and allow—for the first sis, and then we examine the Council’s bring time ever—a an action enacting year intent 2000 CPPA alleging injury-in-fact” (emphasis without amendments. original). sup- its amici curiae brief Principles Statutory B. of Construc- porting appellants, Society the Legal Aid tion of the District of Columbia asserts: statutes, prudential limits In interpreting judi

[WJhatever [cjourt may choose to adopt for lawsuits cial tribunals seek to discern the intent of and, asserting legislature common-law or constitutional as necessary, whether action, legislature may causes of over- that intent is consistent with fundamental prudential by granting principles ride such limits of law: “In construing a statute express right persons primary an of action to rule give is to ascertain and by pru- legislative who otherwise would be barred effect to give legis intent and to dential standing rules. The Council lative words their meaning; [] natural precisely did that when it enacted the effort [s]hould be made to broaden the meaning statutory 2000 amendments to the CPPA: After language by mere Appellants rely ing 41. on the federal District on The us. Wells court observed that Co., Court's decision in Wells v. Allstate Ins. "[t]he [CPPA] as amended eliminates [the] (D.D.C.2002), causation,” requirements 210 F.R.D. 1 to buttress their in fact and that, amended, contention as the current but that observation was without the advan- require injury-in-fact. tage briefing legislative CPPA does not an But of full on the and drafting history the decision of the District Court is not bind- of the amendments. Id. at 8. 238 The Intent we C. Council’s speculation, or surmise or

inference in- [legislative] well defeat true might reviewing present After the issue “a a statute are The words of tent.”42 regarding intent ed to us—the Council’s but not the sole index index primary require standing this court’s constitutional intent”; pre- the words “cannot legislative 2000 amendments to the ment and its in the contrary indications strong vail over widely varying interpreta CPPA —and And, history....”43 legislative “[words] presented those amendments tions of that rea- at best and for are inexact tools amici, are and the cited we parties of law forbid- wisely is no rule son there amendments, the 2000 persuaded legislative histo- ding explanatory resort to legislative in the context of the viewed the words ry no matter how clear amendments, history of those do drafting examination.”44 appear superficial explicit reveal an intent of Council not “presume[ legis- regard, ] [that we constitutional re to erase the reasonably,” rationally acted lature] court has adhered quirement to which this interpretations that lead and we “eschew past several decades. during “Statutory in- results.”45 to unreasonable are statutory provisions alone words endeavor, and, at a holistic terpretation ascertaining is tools” for the Coun “inexact minimum, intent; for a statute’s requiring must account this is a situation cil’s text, punctuation, well as language legislative history.” full explanatory “resort to structure, “A subject understanding matter.”46 basic gain can We statutory interpretation] 2000 amendments ex principle meaning of the [of and external provision amining of the statute should both the internal that each statute, is, amended effect to all of the context48 of the give construed so as to legislative drafting rendering any pro- the words and provisions, statute’s amendments.49 history of the superfluous.”47 vision (citations States, 8, word.”) quo- and internal than the United 359 A.2d 10 42. Banks v. omitted). 1976) (D.C. Accep marks tation (quoting General Motors Sedan, Corp. 191 tance v. One 1962 Chevrolet 140, (D.C.1963)). Edgewood Mgmt. Corp., 142 825 A.2d A.2d v. 46. Cook 939, (D.C.2003) (quoting States United Oregon Independent Ins. Bank v. Zoning Nat'l Georgetown v. 43. Ass’n Citizens Am., Inc., Columbia, Agents 508 U.S. A.2d the District Comm'n (1993)). (D.C.1978) 124 L.Ed.2d 402 S.Ct. (quoting Lange v. Unit 305, 307-08, States, U.S.App.D.C. ed (1971) (footnotes omitted)); Tangoren Stephenson, F.2d 722-23 977 A.2d (D.C.2009) v. Co (quoting also Columbia Tenants Ass'n v. District see 12 Thomas Plaza n. L.P., 329, Servs., (D.C. Dep’t Employment 869 A.2d 332 547 lumbia Columbia Plaza of of 2005) (Words 1034, (D.C.1988)). given "are a sensible to A.2d 1037 an and one that would work construction (citations injustice.”) and internal obvious and external 48. For a discussion of internal omitted). quotations general- statutory interpretation, see context Legislation: ly William D. Popkin, Materials on Co., Language (quoting v. Northern Trust 44. Id. Harrison the Process Political Political 479, 361, 476, ed.2001). (3d 407 317 U.S. 63 S.Ct. 87 L.Ed. omitted)). (internal quotation marks States, 72, 417 U.S. 94 S.Ct. 49. Cass v. United 992, 2167, (1974), C.L.M., (D.C.2001); required the 668 766 A.2d 996 40 L.Ed.2d 45. In re States, pertain- statutory provision interpretation of a Jeffrey v. United 892 A.2d see also (We (D.C.2006) reserve "required] ing entitlement of armed forces are to the 1128 officers, involuntarily from active released purpose to the more faithful [to] remain[]

239 Protection, understanding legislative our of Consumer the starting point The Department of predecessor the District’s is the essential pur- intent of the Council’s Regulatory of Consumer and Affairs CPPA, which has remained pose of the (“DCRA”), initially responsibility had the history. the CPPA’s unchanged throughout evaluating of complaints against consumer The was enacted to “assure that CPPA taking legal vendors and action on behalf remedy all im- just mechanism exists to addition, of the consumers.52 In consumer proper practices.”50 trade While practices victims of unlawful trade could purpose has remained CPPA’s essential directly against allegedly file a lawsuit an through years, funding constant offending merchant.53 When DCRA was problems compelled change fiscal established, the functions of the Office of The nature of that enforcement scheme.51 Consumer Protection were transferred to change also is critical to our determination DCRA.54DCRA created an Office of Com- legislative regarding intent the 2000 pliance investigate complaints consumer amendments. practices, about unlawful trade and to re- legislative history According fer appropriate complaints agen- other CPPA, the District of Office cies for prosecution.55 experi- Columbia The District duty, readjustment payment. continuing prac to a Petitioners “and deter the use of such 28-3901(b)(1) (2000). meaning argued that the of the statute was tices.” D.C.Code legislative history “that clear and resort to secondary purpose A51. of the CPPA is to improper.” unnecessary and Id. at [was] enforcement, "promote, through effective fair Supreme response 94 S.Ct. 2167. The Court’s practices throughout the communi- business petitioners’ argument is instructive: ty.” change The 2000 amendments made no [statutory] argu provision [at issue] is secondary purpose. in this See D.C.Code ably subject interpretation given by 28-3901(b)(2) (2001). Congress petitioners, but did intend that 52. See Columbia, provision explicit require Council District to override its years Committee on Public Services and Consumer ment of "at least” five of service? We Report on Bill "the District Affairs, question think the answer is suffi Columbia Consumer Protection Procedures ciently to warrant our resort to doubtful Act,” ("the Report”), March at extrinsic aids to determine the intent of 10-11, 15-17. which, course, Congress, is the control ling resolving consideration issue be declares, Report part, 53. The 1976 Moreover, previous fore us. the Court has 6(k)(1) "permits section of the CPPA a con ly stated that "when aid to construction of go injured directly sumer to to court when words, meaning as used in the stat practice, going through a trade without ute, available, certainly there can be no first”; 6(k)(2) office and section "states that use, law’ 'rule of which forbids its however injured may bring type consumer another may appear 'superficial clear the words complaint of action or lile a with another ” examination,' United States v. American agency appropri if he or she deems that to be Assns., Inc., Trucking 310 U.S. 543- ate.” Id. at 23. (1940); S.Ct. L.Ed. [60 1345] Harrison[, supra,] [at] [63 317 U.S. Reorganization 54. See Plan No. S.Ct. Such aid is available in this 361]. Department District of Columbia of Consum- ignore clearly we case and decline to D.C.Code, Affairs, Regulatory er (1991 vol. history statutory provision]. relevant of Tthe Repl.), Reorganization at 316-19. The 77, Id. at 94 S.Ct. 2167. See also District Plan was transmitted to on of the Council Janu- Place, Columbia v. Edison 892 A.2d 1108 3, 1983, ary and it became effective on March (D.C.2006). 31, 1983. 28-3901(b)(1) (1996 Repl.). codify 50. 55. The Council did not seek to the change change only The the the Office of Council made from Consumer Protec- words, Compliance in add the tion to its subsection 2000 was to DCRA and Office of (2) public problems ously by “provide in and DCRA enced severe fiscal consequence, suspended the as a Council organizations private interest and attor- protection consumer enforcement DCRA’s injunctive neys ability the to seek relief role, 1, 1998, by eliminating until October disgorgement ill-gotten gains and of the Dis- funding, its order to “balance (3) interest”; and “reestablish a sin- public general operating budget trict’s and fund entry of for consumer com- gle point to alleviate cash shortfalls.”56 These recommendations plaints.” Antitrust, Regulation The Trade proposed legislation formed the nucleus of of the District of Consumer Affairs Section by the committee of developed legislative (“D.C. Section”) Bar recom- Columbia Bar Group on Working the Public-Private changes protec- mended in the consumer Affairs.59 The D.C. Bar Section Consumer April tion enforcement mechanism in to the proposed legislation sent the Coun- Report 1999.57 The Bar served as a D.C. Regula- cil’s Committee on Consumer and road for the 2000 amend- map Council’s tory Affairs.60 CPPA; ments to the there were three pro for the explaining the rationale major recommendations: “extend to § 28- posed amendments to D.C.Code Corporation the Office of the Counsel [now 3905(k)(1),61 appeared the drafters to focus General, Attorney the Office of the District preventive through injunc- on enforcement range of enforcement au- Columbia] action, of unlawful thority comparable previ- disgorgement to that exercised tive Verheyden Hilliard until late 1990. See Council of the District 60. Letter from Mara Regulatory the Committee on Consumer and Affairs, Regulato- Columbia, Committee on Consumer 8-111, March 2000. Affairs, Report Bill “District ry of Columbia Consumer Protection Procedures proposed 61. The drafters that D.C.Code 28- 8-271, Amendment Act of 1989” and 3905(k)(1) changed read: be "Consumer Protection Procedures Act chapter seeking Actions for relief under this 1989,” Amendment Act of October 1990. remedy employment by any for the use or 8-234, legislation, D.C. Law took effect person practice a trade in violation of a on March 1991. may law of the District of Columbia be brought by any acting person, whether 56. Council of the District Columbia, Commit- itself, members, or the the interests of its Report on Bill Whole, tee general public, Superior Court of the 1995,” Budget April Support "Omnibus Act of District of Columbia to recover or obtain 18, 1995, at 19. following: any $1,500 (a) damages, per treble viola- Messineo, al., 57. Carl et Protection Consumer tion, greater, payable whichever to the Following in the District of Columbia the Sus consumer; pension of the Consumer Protection Proce fees; (b) attorney's reasonable Report dures Act: With Recommendations (c) punitive damages; and Antitrust, Regulation, Trade and Consum (d) injunction against continuing Bar, April er Affairs Section of the D.C. practice; of an unlawful trade use ("D.C. Report”), Bar at 1. actions, (e) representative in addition above, provided relief such orders or Report 58. D.C. Bar at 9-12. judgments may necessary to restore any any money proper- person in interest Working ty, personal, been Group "repre- 59. The real or consisted which acquired by trade Corporation sentatives from means of such unlawful [the Office of Counsel,] DCRA, non-profit practice; sector and the (f) private Verheyden which the court deems bar.” Letter from Mara other relief Justice, Inc.) (Partnership proper. Hilliard for Civil (Office Verheyden Corporation Bennett Rushkoff Attachment to Letter from Mara Rushkoff, Counsel), April supra, at 2. Hilliard to Bennett

241 They gov- ill-gotten actions, envisioned in gains by gain representative merchants. public coordination with interest respectively. Although, injunctive ernment relief funding as an additional organizations presumably is available under current funds”) (“private 3905(k)(1)(e), § donated pursuant source and law to this 28 — protection consumer enforcement. The presumption amendment codifies this to stated, in explanatory drafters’ rationale any statutory ambiguity. eliminate Dis part: gorgement recognized has been as an essential element of consumer possible bring protection to a

Currently it is not law.[62] stop illegal action to conduct consumer injury.

until after a victim suffers This The drafters’ rationale for the changes to allows, for an or- example, amendment 28-3905(k)(1) § D.C.Code referenced the against monitors ganization that fraud protection gener California consumer law stop the court a elderly petition to ally, by citing first to “California Business mailing misleading and fraudulent and Professions Code Sections 17200 et public waiting interest without for a seq.” any explicit without reference to the senior citizen to lose his or her life sav- statutory provision California [§ 17535] .... ings reportedly eliminated the constitution allow the government This will also al standing injury requirement;63 or in fact with the and non-profit pri- coordinate by citing and Bank Superior West v. efficiently.... Public vate sectors more Court, 10 Cal.Rptr.2d Cal.4th organizations interest will be able to 547, (1992) (en banc) 833 P.2d 545 (quoting bring additional to consumer resources Bank, Security Fletcher v. Pac. Nat’l District, protection enforcement in the 442, 451, Cal.Rptr. Cal.3d 591 P.2d contributing private and donated funds (1979)).64 Another California case was public will advance priorities with- cited the drafters in the rationale for causing expenditure out of additional part of the recommended amendment government resources. 3901(b); § D.C.Code recom 28 — (d) (e) Proposed provide subsections and mended implicitly amendment is now part 28-3905(k)(1).65 injunctive disgorgement § relief and D.C.Code Signifi- Enters., Ltd., Verhey- 62. Attachment to Letter from Cal.App.4th Mara Threshold Ruskoff, den Hilliard to Bennett Cal.Rptr.3d (2007) at 3. (explaining 552-53 change statutory the reasons for the in the referendum, as a result of a sec- provisions). by replacing tion 17535 was amended itself, language, "acting for the interests of its excerpts 64. The cited from these cases ad- general public,” members or the with the disgorgement dressed the remedies of following language: injury "who has suffered restitution. money property in fact and has lost aas chapter.” result of a violation this See 65. The Council chose not to include recom- notes to Cal. Bus. & Prof.Code 17535. Sec- disgorgement language mended in the CPPA tion 17203 of the Cal. Bus. & Prof.Code now purpose provision, language but to add provides, part: "Any person may pursue 28-3905(D) (E) which could representative claims or relief on behalf of disgorgement remedy injunc- include the only if others the claimant meets the legislative tive relief. The committee of the 17204”; requirements of Section and section Working Group recommended that D.C.Code states, part: pur- "Actions for relief 28-3901(b) be amended to read: chapter prosecuted suant shall be person who has purposes chapter suffered fact of this are to: money property just and has lost as a result of assure that a mechanism exists to competition.” remedy the unfair improper practices See also Buckland v. all trade budget support legislation, statutory comprehensive lan- interpret eantly, we by any range subjects, the use “seeking relief from which covered a wide guage, of a practice violation person including compen- of a trade victims of violent crime Columbia,” consis- sation, law of the District reorganiza- preservation historic constitutional long-enduring our tent with tion, matters, housing, rental public school no since we discern standing requirement repairs, and Medicaid water and sewer part on the of the or intent explicit clear budget The 2000 act reimbursement.67 require- or override Council to disturb “defunding” of con- continued the DCRA ment. protection sumer under the CPPA. Committee Con- Both the Council’s pro- in the key The CPPA amendments Affairs and the Regulatory sumer and support act were the follow- posed budget of the Whole considered Committee ing: response drafted proposed legislation 28-3901(c): (1) chap- § “This D.C.Code Report. Bar While Commit- the D.C. applied construed and lib- ter shall be Affairs Regulatory tee on Consumer erally promote purpose.” its provisions recom- adopted many of (2) §§ 28- Amendments to D.C.Code Section, the Bar Com- by mended the D.C. (2). 3905(k)(1) and to the lan- changes made several mittee § Amendments to 28-3909 prior to proposed legislation guage en protection to reflect the consumer by the for consideration submitting authority forcement of the Office proposed The of the Whole.66 Committee Counsel.[68] Corporation proposed folded into legislation was CPPA practices continuing by any per- seeking bia relief from the use of such deter the use things, requiring by, among practice busi- a law other son a trade in violation of unjust gains by disgorge obtained nesses to of Columbia.... of the District practices, acts or the use of such assessing damages penalties. and civil 67. See Council of the District Columbia, (Recommended language under- additional Regulatory Affairs, on Consumer and Committee lined). Only the words "and deter the con- Year Report on Bill "Fiscal 13-679, tinuing practices” were included use of such April Budget Support Act of 2000,” 28-3901(b). § in the amendment ("the Report”); Committee Ambrose Council including rationale for the omitted drafters’ Columbia, Committee of of the District disgorgement language a citation to included Report "Fiscal Year on Bill Whole, 13-679, Fletcher. Bank the Westand May Budget Support Act of 2000,” ("the Report”). Cropp Committee proposed 28- The D.C. Bar Section’s 3905(k)(1)began with: was amended des- seeking 68. D.C.Code 28-3909 chapter Actions for relief under by any remedy employment ignating existing provision as subsection for the use or (b) (c): (a) practice in violation of a person by adding of a trade new subsections of Columbia law of the District (a) Notwithstanding any provision law to acting brought by any person, whether Attorney contrary, if the General has itself, members, the interests of its or using any person or to believe that reason general public.... method, act, practice or intends to use Vanderhey- from Mara Attachment to Letter 28-3805, 28-3803, in violation of section Rushkoff, In to Bennett at 2. den-Hilliard 28-3807, 28-3810, 28-3811, 28- language adopting stead of the recommended 28-3817, 28-3818, 28-3819, 28- however, verbatim, modified the Council interest, public and if it is in the 28-3905(k)(1) part: pertinent to read General, Attorney in the name of the Dis- acting person, for the interests of A itself, whether Columbia, may Superior petition the members, trict of general public, its or the Columbia to issue a Court of the District of chapter in may bring an under this action injunction against temporary permanent Superior Court of the District of Colum- that Report Ambrose merits convinces us the Council ex- Committee Neither Report pressed made no intent to override or Cropp Committee disturb nor constitutional mention of this court’s any standing require- this court’s constitutional ment; The Ambrose requirement. and light history, Report generally repeated words, focusing solely statutory Committee on cf. in the draft Beard, rationale set forth explanatory supra, may which at first blush April on legislation clear, transmitted OCC appear crystal produce to be would Report The ba- Cropp 1999.69 Committee overturning the unintended result of our proposed CPPA sically summarized long-enduring legal principles governing impact fiscal amendments and included a standing; open constitutional also would hearings for the Tapes statement. any person anywhere our courts to from readings budget first and second lodge complaint who decides to labeled act reveal no discussion of the support “representative as a action” under the court’s constitu- amendments or CPPA CPPA, though person even has suf- standing requirement.70 tional no injury-in-fact fered related to a District sum, of Columbia merchant’s unlawful trade legislative In our review of the and practice.71 drafting history of the 2000 CPPA amend- Elimination of our constitution- method, act, provisions practice. chapter, or In the use of the of this and with the section, Attorney Attorney parens patriae, action under this General’s role as required prove may necessary appropriate shall not be dam- which or General ages injunction protect promote and the shall be issued and the welfare of consum- ers; Attorney may General without bond. The (6) negotiate agreements property and enter into lost or dam- recover restitution for compliance by consequence provi- merchants ages as a with the consumers suffered chapter; practice. (Emphasis sions act or unlawful (7) added) publicize its own actions taken in the addition, (b) interests of action under this sec- consumers. in an tion, Attorney may D.C.Code 28-3910 also was added: General recover a $1,000 investigation In the penalty course to deter- civil of not more than violation, action, mine whether to relief under section each the costs of the and seek Attorney attorney’s may subpoe- General reasonable fees. witnesses, oaths, (c) na Attorney administer examine an The General also: oath, (1) compel produc- represent individual under and the interests of consumers be- records, books, contracts, regulatory agencies papers, tion of fore administrative and bodies; legislative and other documents. Information ob- and (2) assist, advise, cooperate pri- tained under this section is not admissible and with vate, local, proceeding against agencies in a later criminal and federal and offi- person provides protect promote who the evidence. cials to consumers; the interests of recording 69. There is no available of a mark- (3) assist, develop, programs and conduct 2000; up April session on the available of consumer education and information recording day public for that reflects a hear- through meetings, public hearings, publica- ing pertaining to nominations for a Board tions, prepared or other materials for distri- and a Commission. consumers; bution to encourage undertake activities to local reading place May 70. The first took on high industry business to maintain reading and the second on June honesty, prac- standards of fair business 2000. tices, public responsibility pro- in the Beard, Relying duction, heavily supra, in which promotion, sale of consumer 3905(k)(1), terpreted Judge goods and services and in the extension of 28 — credit; Ruiz maintains that: consumer (5) perform legislature presumed other functions and duties to enact laws purposes knowledge which are consistent with the of relevant decisional law. give authority be so un- OAG to “recover restitu standing requirement al would lightly property damages infer such tion for lost or suffered usual that we will not Thus, a by consequence the consumers as part intent the Council. addition, or the by practice.” a clear of an intent unlawful act expression without a empowered OAG to “recover the Council to eliminate our constitutional Council penalty” that a civil for “each violation” standing requirement, [CPPA] we conclude (D.C.Code 3909(b)); § and it author does not relieve a lawsuit under the CPPA 28 — OAG to take seven other actions plaintiff requirement to show a con- ized (D.C.Code 28-3909(c)), including “repre § injury-in-fact crete to himself. before sent[ing] the interests of consumers Having decided that the Council ex- agencies regulatory administrative and pressed no intent to override disturb bodies,” “negotiating] and legislative and standing requirement, our constitutional entering] agreements compli into and discerning what we now turn to the task by provisions ance merchants with [ ] [of adopting the did intend in the 2000 Council the CPPA].” First, it is ab- amendments to the CPPA. Second, expressed the its intent solutely clear that the Council intended to Council OCC, OAG, give the the District’s a the CPPA be considered a remedial now stating that larger protection explicitly “[t]his role in consumer enforce- statute Thus, applied and lib- replace chapter ment in order to DCRA. the shall be construed 28-3909(a) § erally promote purpose,” to its D.C.Code Council amended D.C.Code designed ing amendments were Now that the CPPAstat- that the 2000 [citation omitted]. respond interpretation ute been eliminate the lan- to to our in 1991 of the amended to 28-3905(k)(1). guage existing § quoted imposing we then version Beard as Moreover, Judge presumption argu injury requirement, logical Ruiz's it is to con- impact contrary— ignores ment the of D.C.Code 28- clude—absent evidence to 3905(k)(2) concept dispense injury that the Council intended to with a which retains (”[n]othing chapter prevent any requirement injury prerequisite a in this shall to suit, person injured by practice in particularly a valid who is a trade conclusion that is legislature amending very of a law of the District of Columbia when the violation language subject judi- seeking any remedy which the that has been the ... from ... to filing person might a com interpretation. cial be entitled or from logic. any agency”). Finally, in Judge plaint We do When other not share Ruiz’s Beard, nothing this court discerned in the Council intends to override this court’s interpretation protection regulation and statutory its enact- consumer at issue of one of ments, (CPPA) underlying supported identify statute that has not hesitated to the case See, question explicitly. example, provision either made a reme K.R. the notion that C.N., (D.C.2009), dy party which available to a who could "demon A.2d 257 refer- enced no whatever.” 587 A.2d at 203. the District of Columbia Safe and Sta- strate amendments to the CPPA are con ble Homes for Children and Youth Act of (1) legislative history explicit- possibility 2007 and its which sistent with the that the Council name) requirement ly (by intended to eliminate the that a addressed this court’s decision C.S.M., (D.C.2006) plaintiff layperson what would W.D. v. 906 A.2d 317 CPPA assert a explained legislative injury, intent enactment describe as actual but had no K.R., supra, would suits a who can achieve a different result. to allow CPPA statutory injury. Significantly, 969 A.2d at 259 & n. we have assert neither actual nor AOL, a been unable to find mention of Beard in Mr. Breakman as non-subscriber drafting legislative injury, depriva history of the 2000 can assert neither actual nor amendments, Report anything to which he is entitled under either in the D.C. Bar tion of statute, alleged which CPPA from AOL’s failure contained a draft of the 2000 amend- ments, Report, cus or in the Ambrose Committee to disclose material facts established therefore, tomers, bring a Cropp or in the the Whole he could not Committee of Hence, Report. presum- we basis for CPPAsuit. see no is, 3901(c); purpose standing requirement. of “as The unchanged 28 — mechanism exists to suring] just pertains that a sentence “right” another practices trade remedy improper “remedy” all “any person to which who is continuing practices.” use of such deter the injured by practice trade a[n unlawful] 28-3901(b)(1). In interpreting A might be entitled.” reasonable interpre- liberally ap construe and the mandate language tation of this is that person who provisions, spec we do ply CPPA’s brings CPPA enforcement action must sought infer that the Council ulate and have suffered or must be in imminent dan- injury-in-fact requirement. eliminate our suffering Thus, an ger injury-in-fact. Rather, reading legislative our of the and (k)(l) together, when read subsection iden- drafting history indicates that the Council may bring tifies those who a en- CPPA augment expressly sought action, (k)(2) remedies forcement and subsection fo- enforce the under a available to CPPA cuses on the nature of the remedies 28-3905(k)(1) § by providing revised chapter rights CPPA and other and reme- disgorge and merchant injunctive relief chapter dies outside the might which see, ill-gotten gains, e.g., ment of person injured available to a who is or in 28-3905(k)(1)(D)-(E) (2001), by § and ex danger being injured by imminent an authority. OAG’s panding CPPA practice. unlawful trade statutory interpre We are mindful that V.

tation is a “holistic endeavor”72 and that provision we should construe “each of the THE DISTINCTION BETWEEN give statute ... so as to effect to all of the REQUIREMENTS STANDING AT provisions, rendering any pro statute’s THE MOTION TO DISMISS AND regard, vision In that superfluous.”73 we THE SUMMARY JUDGMENT 28-3905(k)(1) 28-3905(k)(2) § § read STAGE together to discern the Council’s intent regarding our constitutional standing properly re To assess whether quirement. We conclude that while the the respective allegations of Mr. Break- 28-3905(k)(1) enlarges amendment man Grayson and Mr. are sufficient to category persons authorized to demonstrate constitutional standing, we action, bring a enforcement CPPA the must first determine what inquiry en 28-3905(k)(2) § during stages modification focuses on tails the various of litigation. the cumulative of the pleading stage nature CPPA remed At the facing and when ies,74 dismiss, key language but leaves intact motion to complaint that con that, which buttresses our conclusion read tains “general allegations factual of injury light legislative drafting resulting his from the defendant’s conduct suffice”; tory, the 2000 amendments to the CPPA a motion “pre to dismiss by do not an general evidence intent the Council to allegations sume^] embrace override or disturb our constitutional specific those facts that are necessary to Cook,supra, following 825 A.2d at 946. sentence to D.C.Code 72. 28- 3905(k)(2): penalties pro- "The remedies or Tangoren, supra, 977 A.2d at 361 n. 12. chapter vided this are cumulative and penalties pro- addition to other remedies or chapter 74. To make the CPPA consistent with vided law.” D.C.Code 28-4514 of the chapter, accepted the antitrust the Council chapter specifies: antitrust "The remedies legislative the recommendation of the com- provided chapter this are cumulative.” Working Group, mittee of the that it add the complained of—the must be purposes “For of duct the claim.”75 support action of fairly challenged traceable to the for want of on a motion to dismiss ruling defendant, and not ... the result [of] standing, both the trial and constitutional party action of some third independent accept must as true all reviewing courts court”; a likeli- not before the complaint, [and] allegations material hood, opposed speculation, to mere in favor of the complaint construe the must by a favorable “injury will be redressed ruling Before party.”76 complaining appellants’ lawsuits were dismiss, decision.”79 As “it is within the trial the motion to we re- pleading stages, at the dismissed require to allow or to power court’s pleadings view the substance of their supply, by amendment allega- affidavits, “general whether factual particu- further determine complaint byor require- these satisfying tions” each of support- fact allegations larized deemed “[i]f, ments have been averred. after plaintiffs standing”; ive of plaintiffs standing opportunity, VI. mate- adequately appear from all does not record, must be dis- complaint rials of AND MR. COMPLAINT BREAKMAN’S 77 missed.” THE ISSUE STANDING a lawsuit reaches the sum When Breakman complaint, his Mr. stage, allega the “mere mary judgment that AOL violated the CPPA proclaims pleadings tions” of the become insufficient. to current District by failing to disclose standing must be shown Constitutional dial-up users that new dial- of Columbia “by affi through “specific facts” set forth the same essentially members receive up to survive a mo davit or other evidence” month significantly service for a smaller summary judgment.78 tion for Paragraph 12. He does ly payment. burdens, personally injured claim to have been meet these varied a not To AOL, solely in a brings but his suit allege showing must facts the fol (1) on behalf of the injury “representative capacity ... lowing: plaintiff[’s] “the general public....”80 legally protected interests fact—an invasion of a (a) sum, Breakman’s Paragraph 5. In Mr. particu interest which is concrete and (b) imminent, by resting his complaint self-defeating; is actual or larized (2) rights or in entirely legal claim “on the conjectural hypothetical”; “a causal he cannot dem- parties”; terests of third connection between the and the con- Lujan, supra, 504 U.S. at 112 S.Ct. Lujan, supra, 112 S.Ct. 78. 75. 504 U.S. at (citations (citations quotation and internal marks quotation marks 2130 2130 and internal omitted). omitted); Spear, U.S. see also Bennett v. 520 154, 168, 117 S.Ct. 137 L.Ed.2d 560-61, (citations (determining "allege[d] petitioner 79. Id. at S.Ct. omitted). requisite injury complaint in fact" and quotation marks As and internal not have been dismissed for lack of supra, should Council's 2000 amend- discussed allegation standing; petitioners’ abrogate ... "Given these to the CPPA did not ments easy presume specific facts under which requirements. ”) petitioners injured.... will be we that Mr. Breakman 80. Since conclude Warth, supra, standing, position at 95 S.Ct. U.S. we take no does not (citation omitted). Judge analysis Mr. Ruiz’s of whether legally complaint states a viable Breakman’s claim. 95 S.Ct. 2197. 77. Id. at injury-in-fact for dismissed Mr. Breakman’s claim for want requisite onstrate By stating standing subject jurisdiction.85 in our courts.81 matter wholly represen- his claim in a brings he essentially capacity, Mr. Breakman

tative VII. “party seeking as the re- implies that view,” in- among “himself [is not] he MR. GRAYSON’S COMPLAINT AND jured.” THE STANDING ISSUE recognize principles justiciability Our We now review the trial court’s conclu requirement can be injury-in-fact that the Grayson standing sion that Mr. lacks be of ‘statutes cre- “solely by satisfied virtue any he cause “cannot show that he or ating legal rights, the invasion of which injured.” other customer was This task ”83 standing.’ any creates But without requires us to determine whether Mr. statutorily invasion of conferred claimed Grayson alleged facts sufficient to demon other rights and without “distinct strate standing the context of a motion to Mr. Break- palpable injury” personal Grayson’s to dismiss. We consider Mr. man, we cannot the invocation of justify present his claim as a CPPA jurisdiction our and the “exercise of inquiry, independent threshold of the mer powers” on his behalf. Mr. remedial interpretation its of his See CPPA. only Breakman’s connection to the affected Citizen, Warth, supra,86 supra,87 Public in the AOL customers is residence Dis- Parker, supra.88 trict; position he is in no different a majority Grayson’s of Mr. CPPA bring this claim than other unaffected allegations, partially which share a factual Paragraph citizen. 14. Mr. Breakman’s I, claim, Grayson base with his FCA see alleged interest” in the “mere unlawfulness concerning consist of intricate elaborations AOL’s practices, business “no matter appellees’ practices, prac- and how such longstanding how the interest and no mat- tices constitute unlawful conduct in viola- qualified evaluating ter how is [he] Grayson tion of the Mr. is not itself to ren- CPPA. describes problem, sufficient appellees’ withholding breakage adversely aggrieved der affected or [him] detail, great including millions of dollars standing purposes.”84 Because he 1992, retention, since and the allege requisite injury-in-fact, failed to as of June 30, 2003, $500,000 we conclude that the trial properly exceeding court of sums ERISA, See, Warth, 499, 1132, e.g., ficiary supra, § 81. 422 U.S. 95 29 at under U.S.C. who might bring representative S.Ct. 2197. be able to a action against plan fiduciary having without suf- See, any injury. Keystone- fered See Lujan, Horvath e.g., supra, U.S. 82. at 112 Inc., E., (3d Health Plan 333 F.3d S.Ct. 2130. Cir.2003). McCullough But see v. AEGON USA, Inc., (8th Warth, 585 F.3d 1087 n. 3 E.g., supra, 83. 422 U.S. at Cir.2009) 2197; (holding party that a who suffers no Lujan, supra, S.Ct. accord 504 U.S. at necessarily does not have 578, 112 S.Ct. 2130. bring representative an action as a of an actions). injured third-party in ERISA See, Park, e.g., supra, 84. Tilden Friends A.2d at 1207. 86. U.S. at 109 S.Ct. 2558. only allege 85. Not does Mr. Breakman fail to 87. 422 U.S. at S.Ct. 2197. any theory organizational or associational standing, analogize but we also cannot his representational plan claim to that of a 88. 478 at 376-77. bene- F.3d violates prepayments ing the full value of services dormant communications (3) 28-3904(h); by persons appellees’ § made with District of Columbia re D.C.Code addresses; alleged these sums are to have breakage knowing tention of that “custom Sig- profits. been recorded as revenues or substantial ers would be unable to receive nificantly, Grayson Mr. states that he demon breakage” benefits from such call- prepaid obtained and used “[Plaintiff] appellees “knowingly [took] strates District, the unused value ing cards advantage inability of the customer [appellees] report of which have failed to interests” due to reasonably protect his 32, and pay Mayor,” Paragraph and illiteracy, in age, infirmity, ignorance, or ie., “pocketed, that at least one defendant 28-3904(r); violation of and D.C.Code recognized [prepaid calling card balances] or to dis appellees’ failure to inform offsetting liability, as revenue without an who obtained their call close to consumers whenever a card has been ‘dormant’ for they ing cards in the District the fact that (whether more than twelve months or not profit, rather breakage have retained as date’ or ‘expiration the card has an is reporting turning than and over to alleg- rechargeable).” Paragraph 64. He District, law, required by constitutes offering despite advertising es that mislead, fact that tends to in vio material price “communications services whose is 28-3904(f). lation of D.C.Code equal prepayment,” to the amount of the Grayson injunctive Mr. seeks part, provided defendants have not these ser- alleged violations of appellees’ relief Paragraph vices in the District. (h) (r): 28-3904(a), (e), (f), Furthermore, Grayson Mr. asserts that judgments necessary pre- “[o]rders inform their defendants have failed to cus- employment use or vent the Defendants’ they pro- tomers in the District that practice failing report the trade vided services “whose than the price less communi- pay prepaid or deliver escheated prepayment”; they amount of the and that breakage Mayor.” cations to the As one breakage have failed to turn over to the respect injunctive court has said with District for the benefit of those who ob- setting, relief in the ERISA “it is well calling tained defendants’ cards in the Dis- that actual or threatened ‘[t]he established trict, including elderly and the dis- Art. Ill exist sole- injury required by 168, 169-178, Paragraphs abled. 177. creating legal ly by virtue of statutes Thus, claims, Grayson part: Mr. in rights, the invasion of which creates stand- (1) appellees’ representation prepay that ”89 ing.’ equaled ment purchase price “cause of action Grayson brings Mr. his misrepresentation card is a of material fact 28-3904(a) general and the for the interests of himself § in of violation D.C.Code (2) In terms of 28-3904(e); public.” Paragraph 157. appellees’ advertise case, injury standing Grayson’s in this Mr. ments that customers would receive ser equal solely vices to the from a violation or an prepayment amount of is derived statutory legal rights creat- appellees provid- when had no intention of invasion of his Thus, Horvath, (other supra, 89. Horvath need not demonstrate actual 333 F.3d at 456 omitted). standing citations Horvath further stated: in order to have to seek harm Here, injunctive requiring [appellee] requirements and fidu- relief disclosure ciary statutorily-created duties contained in ERISA create in satisfy its disclosure or rights, including rights Horvath certain fiduciary responsibilities. particular to receive and to information omitted). (citation Id. [appellee] fiduciary capacity. in a act analysis injury sue of of “deprivation Our because information ed CPPA.90 aligns opinion with the v. under CPPA FEC housing availability,” about v. Marriott Int’l Shaw in the D.C. Circuit Akins.95 Akins also declared that “[t]he Inc.,91 observed that “[t]he where the court ‘injury respondents in fact’ that have suf statutory right ... a deprivation [to Akins fered consists of their inability [in ] practices’] may trade improper ‘free from information,” to obtain based on a statuto injury-in-fact sufficient to es- constitute an ry provision conferring rights respon though standing, tablish even Moreover, in Shays v. FEC dents. judicially cogniza- have suffered no ‘would court concluded that appellee/cross-appel- in stat- injury [the] ble the absence “injury lant’s fact is the denial infor ”92 See also United States Students mation he believes the law entitles him ute.’ Agency Proce- Challenging Regulatory to.”96 (SCRAP).93 dures Grayson alleges personal injury Mr. Grayson’s standing Mr. The basis for himself, fact, based on the alleged injury of his

and the manifestation defendants’ violation of his statutory right Havens, supra. in fact is similar to that (derived 28-3904) from D.C.Code 804(d) There, determined that Court disclosure information about their fail- Housing of the Fair Act94 “established an to report ure and turn over to the District right enforceable to truthful information government breakage for the benefit of id. concerning availability housing,” thus, those obtain plaintiffs calling at who cards in the Dis- S.Ct. Havens, Akins, trict.97 See Shays, supra. injured were fact and had Warth, 804(d) supra, 422 provided 90. See U.S. at 95 S.Ct. 94. Section that "it shall be (noting injury required by represent Article unlawful ... any person [t]o be- race, color, sex, ‘‘may solely by III religion, exist virtue of 'statutes cause of or national creating legal rights, origin any dwelling the invasion of which is not available for ”). sale, standing’ inspection, creates dwelling or rental when such is in fact so available.” U.S.App.D.C. 91. 390 605 F.3d 1039 11, 21, 95. 524 U.S. 118 S.Ct. (2010). Havens, (citing supra, L.Ed.2d 10 1114). Id., Warth, U.S. at 102 S.Ct. (citing supra, 605 F.3d at 1042 514, 2197; Zivotofsky 422 U.S. at 95 S.Ct. ex State, 296, 305, 914, Secretary U.S.App. rel. Ari Z. U.S.App.D.C. 96. 381 528 F.3d 274, (2006)). (2008). D.C. 444 F.3d Citizen, 93. 412 U.S. 93 S.Ct. supra, Grayson's 37 L.Ed.2d 97. As in Public Mr. (1973). Supreme allegations Court made clear factual require are sufficient to interpreting ‘injury "in in fact' ... stand- court to consider whether he is correct that ing not confined to those right [is] [can] who show the CPPA endows a consumer with a many ‘economic harm' nor is “the fact that alleged such information: he has a sufficient (he persons injury ... ‘personal personally share[ ] the same sufficient stake’ obtained call- disqualify person] seeking [judicial] ing [a from cards consumer transactions in which disclosed) breakage review....” Id. at 93 S.Ct. 2405. More- information was not over, person's oblige a “direct stake in the outcome the court to determine whether his litigation [may legal theory of a small” but the applicability be] about the Therefore, important Court has "allowed interests to be CPPA is correct. as in Public Citi- zen, by plaintiffs Grayson vindicated with no standing more at stake Mr. has Article III in the outcome of an action than the question, fraction have the court answer the merits vote, $5 of a [or] a fine and costs.” Id. at 689 even if nega- the court would answer init (citations omitted). n. 93 S.Ct. 2405 tive. that he ground vidual claim on the relief authorized CPPA Among other standing.99 lacked personally CPPA, un- enjoin alleged he seeks to practice. lawful VIII remaining prongs of As for the two AND MR. GRAYSON’S COMPLAINT Grayson’s pleading meets standing, Mr. 12(b)(6) THE RULE ISSUE describing appel- requirements. these the second Finally, we turn to detail, great Gray- Mr. conduct with lees’ on which the trial court dismissed ground be- a “causal connection” amply son draws Grayson’s complaint Mr. to state he suffered as defined —failure tween the may granted a claim which relief allegedly how appellees’ CPPA (b)(6)). R. 12 “All that is (Super. Ct. Civ. or threatened such unlawful conduct led to sufficiency we required when consider respect to the third Lu- injury. With 12(b)(6) Rule is a pleading ] [under jan prong, redressability by a favorable of the claim plain short and statement decision, very design of the CPPA’s showing pleader is entitled to sufficiently re- injunctive remedy serves to Solers, Nevertheless, supra. we relief.” statutory threatened in- alleged dress the Rule complaint dismiss a under remedy also seeks “a jury, and he 12(b)(6) al complaint “where the fails to violation, damages treble or for each $1500 a claim.” lege legally the elements of viable greater.” Grayson Since Mr. whichever is v. American Honda Fin. Chamberlain prongs three as satisfies the Corp.100 that, Lujan, we conclude enumerated exception Grayson’s of defendant Verizon Mr. lawsuit focuses on affiliates,98 which addresses un Corp. and its Communications vio- practices.101 alleges trade He dismissing the trial court erred his indi- lawful (a) goods represent that Paragraph complaint, Mr. services 98. In 23 of his source, Grayson sponsorship, approval, lists retail chains at which defen- certifica- characteristics, tion, accessories, prepaid calling ingredi- distributed cards and dants cards, benefits, ents, uses, purchased including quantities they from which he have; in the District. He does not include locations do not Verizon, although he notes that 'Radio Shack calling also has distributed cards for Defen- (e) misrepresent to a material fact as Paragraph mislead; We infer from dant Verizon.’ tendency which has a accompanying Mr. and the footnote 5 that (f) fail to state a material fact if such calling Grayson purchase mislead; did not a Verizon failure tends to District, hence, card in the he is in the posture as Mr. Breakman is with re- same (h) goods advertise or offer or services short, spect he not have to AOL. In does the intent to sell them or without without standing as to and its affiliates. Verizon intent to sell them advertised or the offered; Lujan, supra, 112 99. See 504 U.S. at (r) make or enforce unconscionable S.Ct. 2130. leases; provisions or terms or of sales subsection, applying this consideration (D.C.2007) (citation 1023 100. 931 A.2d given following, and other shall omitted). factors: 28-3904(a), (e), (f), (h), §§ and 101. D.C.Code (r) provide pertinent part: (2) knowledge by person at the time inability ... of the con- chapter, of the sale It shall be a violation of this any to receive substantial benefits from or not is in fact sumer whether consumer leased; misled, property or damaged thereby, or services sold deceived or any person to: 28-3904(a) state a if involving “repre- a lead and to material fact fail[ure] lation ... have goods benefits that sent[ation] such failure tends to mislead.”103 Even they problem do not have.” that though Grayson Mr. does not have to al- is it Grayson’s complaint Mr. lege misrepresentation that a or failure to identify representation by a de- does not intentional, is to disclose survive the Rule calling cards that fits about their fendants 12(b)(6) motion to dismiss his subsections example, For there within this subsection. (e) (f) claims, allege he must a materi- averment that defendants affixed a is no fact to A al tends mislead. close calling indicating card notice to the reading complaint of his amended reveals could talk for 30 more minutes customers any that he has not identified material fact (when they paid reality they than that defendants either stated or failed to not), they failed to could or that if use all calling disclose about the that he cards one, two or of their minutes within three others obtained the District of Colum- years, remaining go amount would to a bia; without the identification of a material charity government District or the District obviously fact he any cannot demonstrate (but they remaining instead counted the tendency of the defendants to mislead con- Thus, profit). Grayson Mr. has minutes through sumers. He makes no showing legally not stated a viable claim under allegations his or reasonable inferences 28-3904(a). from them that the telephone companies’ §§ respect have said with 28- We breakage deprives treatment of him or 3904(e) (f) person bringing that a suit other consumers of the full value of their allege these “need not or under sections cards, calling nor showing that a rea- prove misrepresentation intentional or fail sonable consumer would consider informa- prevail disclose to on a claimed ure to phone tion about how a company treats Ass’n, violation....” Fort Lincoln Civic breakage to be material to the decision to Corp.102 Inc v. Fort Lincoln New Town We purchase calling compa- card from that 28-3904(e) (f) “§ explained that de short, ny.104 construing Gray- after Mr. simple misrepresent[ation] scribe as to a tendency complaint light material fact which has a to mis- son’s in the most favorable person knowingly subject liability pecuniary that the taken to the other for advantage inability by of the consumer justifiable loss caused himto his reliance reasonably by protect his interests rea- upon misrepresentation, though even infirmities, age, physical sons of or mental fraudulently negligently. is not made or ignorance, illiteracy, inability to under- §Id. 552C. agreement, language stand the similar factors.... Chung, 104. See Pearson v. 961 A.2d (D.C.2008) ("a claim of an unfair trade (D.C.2008) (citing A.2d 102. practice properly considered in terms of The Chelsea Condo. Unit Owners Ass'n v. 1815 practice how the would be viewed and under- LLC, Grp., F.Supp.2d A St. Condo. consumer”); stood a reasonable Fort Lin- (D.D.C.2007) ("distinguishing plain- 142 n. 6 Ass’n, (a supra, coln Civic 944 A.2d at 1071 claims”)). CPPA tiff's fraud claims from their material fact was the failure disclose obli- gations Disposition Agreement, under a Land Id. at 1073. The Restatement of the Law including obligation and fund establish misrepresentation: defines (Second) Torts non-profit corporation controlled resi- Stark, dents); who, sale, A.2d exchange One in a rental or Caulfield reference, (D.C.2006) (doctor’s another, in a small misrep- transaction with makes a form, space billing on the to pur- diarrhea one resentation of a material fact for the pose inducing symptoms of the other to act or to of other did not amount to a failure it, fact). acting upon refrain from in reliance is to state a material elderly and the him, population say alleged that he has District’s to we cannot —the complaint is de- Grayson’s fact” that defendants have “a material disabled —Mr. demonstrating to mislead.105 even allegations made that tends void of have issued call- innuendo defendants Grayson that Mr. unpersuaded areWe enable them ing cards in the District that elements of viable claims alleged advantage segments of these to take 2904(h); § his averments under under 28 — population. 28-3904(h) identify any § do not advertise calling appellees ment of cards sum, are con- on this record we District; they provide nor do made in the Grayson’s to conclude that Mr. strained the unlawful intent of any facts that show to complaint legally insufficient amended selling in the cards. appellees 12(b)(6) R. Super. Ct. Civ. withstand 28-8904(r) under regard motion with to his claims § claim under re A viable (h) 28-3904(a), (e), (f), § that a trade D.C.Code quires allegations showing (r)(2) (r)(5). as measured practice is “unconscionable” in statutory factors set forth by several reasons, Accordingly, foregoing for the (5). 8904(r)(1) Hughes See through 28 — the trial court judgment we affirm the allegations makes Grayson v. Abell.106Mr. (No. 08-CV-1089); case in Mr. Breakman’s 28-3904(r)(2) “knowledge respect with — ruling disagree with the trial court’s we of the sale ... of by the at the time [seller] (No. Grayson’s complaint that Mr. 07-CV- inability of the consumer to receive 1264) requirements failed to meet the services substantial benefits from the 12(b)(1) standing as to his individual Rule But he has identified no statement sold.” relief, we injunctive or other but to seek complaint made practice or amended his complaint of his under affirm its dismissal by any of the defendants employed or 12(b)(6). Rule directly through which or reasonable infer ordered. So ence shows that the defendants knew that consumers would receive substantial RUIZ, Judge, concurring Associate calling benefits from their cards. Mr part: part dissenting Grayson alleges a claim under 28- appellants I that both Although conclude 3904(r)(5) who pertains persons which suit, bring agree I “hafye] had knowingly advantage taken Grayson’s com- the court’s conclusion that inability reasonably consumer for failure to plaint properly was dismissed age, protect his interests reasons of action under the CPPA. state a cause infirmities, ignorance, physical or mental complaint does state a cause Breakman’s illiteracy, inability to understand the action, however, I would reverse agreement, or similar fac language proceed- further and remand his case for conclusory allegations Other than tors.” ings. pertaining to vulnerable members of regard regards likely the matter as or is

105. The Restatement Torts defines (Second) determining important [or her] “material”: his action, although a reasonable choice of The matter is material is (a) regard it. would not so [or woman] a reasonable man would man [or woman] 538(2). importance attach to its existence or nonex- Id. determining istence in his choice of [or her] (D.D.C.2009); F.Supp.2d question; action in the transaction in Loan, (b) v. Fremont Inv. & see also Carroll representation knows maker of the (D.D.C.2009). F.Supp.2d recipient or has reason to know that its require injury-in- presents three issues for I. Does the appeal This CPPA prerequisite fact aas to suit? consideration: and, me, The for principal, difficult issue 1) standing to have plaintiff, Must a presented appeal in this is whether the CPPA, allege injury-in- under the sue permits person CPPA statute a to sue for fact? against practices relief unlawful trade re 2) impose gardless person Even if the does not of whether that CPPA can show injury-in-fact. Appellants and amici1 requirement, a are the District of such present strong argument a textual that the bound to Columbia courts nonetheless Council of the District of Columbia intend adjudicate only “cases or controversies”? just ed that when it amended the statute 3) ques- If answer to the first two language 2000 to delete that permitted no, appellants therefore tions is by “[a]ny suit consumer who any suffers sue, standing appellants’ did damage as a result of a trade practice” complaints law, state a cause of action under by made unlawful D.C. in favor of language that now allows suit by per “[a] the CPPA? son, acting whether for the interests of questions I answer the first two itself, members, its general public third, I negative. although As to the dis- seeking relief from by any the use agree majority opinion appel- with the person practice” of a trade unlawful under injury-in-fact lants had to show to sue Compare D.C. law. 28- D.C.Code 3905(k)(1) (1981) (1996 CPPA, agree Grayson’s I Repl.) under with 28-3905(k)(1) (2001). D.C.Code complaint allege any did not unlawful “person” statute defines including “an CPPA; practice cognizable trade under the individual, firm, corporation, partnership, therefore, I agree with the court’s affir- association, cooperative, any other or mance of the trial court’s dismissal of his ganization, legal entity, or group of individ complaint failure to state a cause of uals however organized.” 28- action. Because I believe that Breakman 3901(a)(1) (2001). It is undeniable that the alleging inju- sue without expansive combination of the definition of ry-in-fact, I must address whether his “person” is difficult to conceive of a —it complaint states a cause of action and con- grant broader definition—with the to a does; therefore, clude that it I re- would “person” of the right to sue “whether act complaint verse the dismissal of his itself, members, ing for the interests of its would remand his case for pro- further is, face, general public” or the on its ceedings. sweeping scope.2 supporting provides “any person injured 1. Three amicus briefs were by filed who is ” (1) appellants, Legal Society on behalf of Aid practice trade made unlawful D.C. law Columbia, Citizen, of the District of Public DCRA, jurisdiction and within the is not Inc., Interest, Center for Science in the Public precluded “exercising any right from or seek- Advocates, National Association of Consumer ing any remedy person might to which the Center; (2) and National Consumer Law Na- filing any complaint entitled or from League, tional Consumers and individual con- added). agency.” (Emphasis other Subsec- Beck, Reddy sumers Jarrod Keerthi and Erin (k)(2) tion states that the remedies in Galloway; and Brit A. Shaw. CPPA are “cumulative and in addition to oth- penalties provided er remedies and law.” (k)(2)provides helpful 2. Subsection contrast The reservation of these additional remedies standing language. in the statute’s use of Un- "injured” persons underscores the Coun- right like the of action created in subsection language imposing cil's use of re- (k)(l) text, (k)(2) discussed in the subsection 254 presumed is to legislature Id. at 204. The sweep of the 2000 amend

The broad of relevant de knowledge enact laws with language compared ments is to be with People’s law. See Coun cisional suffers replaced: “any consumer who Office of Comm’n, 1079, v. Public Serv. 477 A.2d sel unlawful as a result of’ an any damage (D.C.1984). that the CPPA 1091 Now 28-3905(k)(1) practice. trade eliminate the statute has been amended to (1996 legislative Repl.). change “[A] imposing in Beard as language quoted we gives presumption rise to language logical it is to con injury requirement, in legislative was intended change that a contrary— clude—absent evidence to the Brown, 422 A.2d States v. result.” United dispense to that the Council intended (D.C.1980). important It is to 1284 prerequisite as a requirement a not a case where the note that this is suit, particularly that is a conclusion solely language omitted that legislature amending the legislature valid when the is statute, re parallel in a as we appeared subject that has been the very language cently in Gause v. United considered judicial interpretation.3 (D.C.2010). States, appel As 6 A.3d 1247 one, courts, see Although including out, language that was de point lants States, 681 A.2d Burgess v. United subject judicial inter leted has been (D.C.1996), go been reluctant to by this court on the same issue pretation ap- beyond language consideration of us, gives standing that is before which face, plain clear on its the effect of a pears presumption weight added usual meaning interpretation of the 2000 amend- In in which change foreign was intended. ments is so to the manner substantive applied principles we have understood and Co., Tire & Rubber Goodyear Beard v. object to the standing, that I do not (D.C.1991), lan A.2d 195 we relied on the history majority’s legislative recourse eliminated in the 2000 guage was in- legislative a further tool to ascertain concluding amendments in that: States, 526 U.S. tent. See Jones v. United [sjuffering damage prece- is a condition L.Ed.2d 311 S.Ct. suit, one who has not been dent intend (“Congress unlikely is this statute -for injured cannot sue under with- departures past practice radical from Nothing in the any relief whatever. so.”). saying making point out a regulations purports to extend the statu- apply presump- we declined to Gause relief, or, indeed, tory right to such past from departure tion that a “radical any remedy, change to an individual who has a was intended practice” history legislative because the injury. language no suffered interpretation, disagreed with the court's here quirement "other” to enforce laws, but not the CPPA. not to overturn the Council’s motivation was prior opinion of the court but to amend undermined, majori- logic as the 3. This changed budgetary light con- statute in ty argues, by the fact that the Council has language by adopting statutory entire- straints change of a sometimes seen fit to the result ly court had from that which the different judicial disagrees by decision with which it interpreted. point here is that previously legislation, doing subsequent and in so has amended the CPPA 2000 when Council legisla- judicial opinion in the mentioned private enhance enforcement of in order to See, Daly, history. e.g., Tippett tive 10 A.3d CPPA, eliminating language it did so (D.C.2010). 1136-37 Unlike in K.R. v. judi- particular that had received a the statute C.N., (D.C.2009), A.2d & n. 2 construction, legisla- a construction the cial cites, majority where the Council which presumed to know. ture is judicial change because it intended to result money property, the and the to the consumer real absolutely silent on issue was personal, may acquired it. See or which have been purpose support did not statute’s case, Gause, by practice”). n. 5. In this means of the unlawful trade 6 A.3d at 1260 & (k)(1)(D) (E). legislative history of Id. at & consideration purpose and the of the CPPA amendments majority recognizes pur The the however, statute, does not lead me to the pose of the 2000 amendments was to en majority reaches that the conclusion the hance the tools available to enforce the ante the amendments quo the status CPPA, interpretation but its concludes standing. in terms of Rath prevail should way the in which it only sought to do er, confirm that the broad tends to by “augmenting] so was the remedies should be sweep language of the amended available to enforce the CPPA under a given effect. 28-3905(k)(1) § by revised providing for relief opinion injunctive disgorge As the for the court describes and merchant detail, ill-gotten gains.” the 2000 amendments to the CPPA ment of See ante at 245.4 budgetary I no product were the of constraints. doubt that the Council intended suffering majority says The District was from serious to do what the in terms of and, result, remedies, only part revenue shortfalls as a its ex but that is of what the intended, had to be reduced. One of the Council must have for enhance penses entirely funding expenses way that was cut was ment of remedies in no accounts for Reg change language in the Department describing for the Consumer who suit, responsi may bring arm from “a ulatory Affairs enforcement consumer who has enforcing amending injury,” “person, ble for the CPPA. In suffered to a whether 28-390600(1), itself, acting § sec for CPPA the interests of its mem D.C.Code action, bers, right private general public.” tion that creates a or the D.C.Code 28-3905(k)(1). § attempting supplement, Although majority was to Council efforts, private gap public appears recognize en that the was CPPA the bud to “enlarge[] category forcement that would result from amended bring a get private public persons cuts. Substitution of for authorized to CPPA en action,” by accomplished enforcement was to be forcement see ante at it does how, expanding categories plaintiffs explain interpretation, who not under its category “enlarged.” sue to enforce the law. Elimination could been Be injury-in-fact prerequi “person” of traditional as a cause the definition of was un amendments, by “per changed by site to in favor of suit the 2000 the only defined) (broadly acting “enlargement” “category per son” “whether in the itself, members, interests its or the sons”—as opposed to remedies —has been general public” fully “any consistent with this effectuated the elimination of the 28-3905(k)(1). goal. any damage” D.C.Code Also consumer who suffers lan purpose guage imposing consistent with this was the clari we relied on in Beard as fication, section, injury requirement precondition the remedies as a availability injunctive equita and other suit and its substitution with the more (“in actions, representative language. Although ble relief addi liberal it does not so, may necessary quite say majority opinion implies tional relief as to restore notes, however, majority specifi- provides) "any 4. As the still other relief which the injunctive cation of relief and restitution proper.” court deems 28- consumers was more a than a clarification 3905(k)(1)(F). (and change, already provided as the statute embedded in the is that certain enti- the CPPA. first is “enlargement” that the itself and was added the 2000 statute “representative” ties now ac- bring chapter shall be con consumers, amendments: “This see prevent injury tions to applied liberally promote its strued subject injury- ante at but still 28-3901(c). One of purpose.” D.C.Code But even before the requirement. in-fact purposes, majority the statute’s as the amendments, had organization an in- notes, just that a mechanism is to “assure to if it was itself a jury-in-fact standing sue remedy prac trade improper exists to all injured or “consumer”5 that had been continuing prac tices and the use of such its consumer representative sued as a 28-3901(b)(1) § (empha tices.” D.C.Code injured. Ha- members who had been See added). purpose sis Another stated Coleman, Realty v. 455 U.S. Corp. vens “promote, through is to effective CPPA 379, 102 71 L.Ed.2d 214 S.Ct. enforcement, practices fair business (1982) (noting that “concrete and demon- (b)(2). throughout community.” Id. at organization’s activi- strable to [an] The legislative “construe[ ] mandate ties” suffices to establish [constitutional] appl[y] liberally” promote pur these “whether the standing organization supports further that the court poses non-economic”) injury is economic or giving language should not shrink from Tilden Park v. Dis (quoted in Friends of (k)(1) meaning. plain of subsection its Columbia, trict 806 A.2d man Even without the 2000 amendments (D.C.2002)). purpose If the was Council’s that the “construed date CPPA should be majority’s interpretation as limited as the applied liberally,” we had commented implies, simply changed it should is, least, say that “the ‘to an CPPA (rather say “person” statute to that a than piece legislation,’ ambitious with broad “consumer”), “any ... which includes purposes.” DeBerry remedial v. First organization, legal entity group, or howev Corp., & Mortgage Gov’t Investors er, organized,” any damage “who suffers (D.C.1999) (quoting Howard A.2d practice” as a result of an unlawful trade Bank, Nat’l 432 A.2d Riggs Instead, could sue. the Council went fur (D.C.1981)); 10 A.3d at 1135- cf., Tippett, ther, and deleted dam “who suffers (Ruiz, J., that dissenting) (concluding age,” acting substituting it with “whether ap statutory provision ambiguous is itself, members, for the interests of its or plying statutory ambiguities mandate that general public.” My disagreement “strengthen are to be resolved in favor of majority’s with the analysis textual is that ing legal rights of tenants and tenant give any it not that does content to sub organizations”). change statutory language,

stantive ren Secondly, the initial drafters used dering wholly superfluous. Competition cited the Unfair California There are two additional aids to statuto- amend- Law as a model for the CPPA ry interpretation interpre- an support Legislative ments. See Committee tation that longer injury-in- Working Group there is no an Public-Private Con- Affairs, requirement fact sumer Protection sue under Consumer " person practice; adjective, 'consumer' de- means a who does or '[CJonsumer’ (from), purchase, would lease or receive con- anything, exception, which scribes without services, goods including sumer or a co-obli- household, family primarily personal, or gor surety, person or a who does or would 28-3901(a)(2). D.C.Code use[.]” provide the demand trade economic for a (citing constituting Act of 1999 at 3 Cal. actions unlawful prac Amendment trade CPPA, tices violation of the “whether seq.); & Prof.Code 17200 et see Bus. misled, Manual, any consumer is in fact de also District of Columbia Practice (2009) (“The damaged thereby....” ceived or Protection, 8-1 Consumer statutory 28-3904. This definition ‘private attorney general’ provision [of stands in contrast to our observation in provision is modeled after a CPPA] Beard, nothing regulations Law.”). Competition California’s Unfair brought the suit sought under CPPA statute, very which contains The California to enforce “purports to extend the statuto language similar the CPPA’s subsection ry right to such relief ... to an individual (k)(1) action,6 creating private cause of injury.” who has suffered no 587 A.2d at had at the time that the enacted Council Here, 204. practice, trade to be unlawful by interpreted the amendments been CPPA, and a violation of the need not Supreme permitting as “a California Court injury. cause actual This is the reason private plaintiff who has himself suffered why, damages, even with no a consumer injury all [to] no at sue obtain relief may statutory recover a penalty civil Stop Lucky others.” Youth Addiction per § violation. See D.C.Code 28- $1500 Stores, 553, 731, 17 71 Cal.Rptr.2d Cal.4th 3905(k)(1)(A). Similarly, the D.C. Attor (1998) 1086, (citing 950 P.2d 1091 Comm. ney General has authority enjoin to sue to Television, on Children’s Inc. v. Gen. practices unlawful trade without being “re 197, Foods 35 Corp., Cal.Rptr. Cal.3d 197 ” quired prove damages.... D.C.Code 783, 660, (“Allegations 673 P.2d 668 28-3909(a); addition, § govern the D.C. deception, of actual reasonable reliance may ment recover “a penalty civil of not damage unnecessary.”)), supersed are more than for each violation.” $1000 Id. at by by Proposition ed statute initiated (b). 28-3903(a) § D.C.Code (providing Cf. § recog Cal. Bus. & Prof.Code as DCRA, that “the principal pro consumer Court, by nized Arias v. Superior 46 tection agency of the District of Columbia Cal.Rptr.3d Cal.4th 95 209 P.3d government,” 28-3902(a), § (2009). true, 923 Although it is as the investigate complaints consumer and initi notes, majority that this interpretation was (i) investigations ate its own “where the reports, referred to in the Council it more; amount in controversy totals or $250 significant remains that the Su California (ii) case, cases, or pattern or indicates a or preme gave Court effect to the mean plain practice of abuse on the part of a business ing very language similar in a consumer A industry.”). plain-meaning interpre protection statute —an indication that tation of the 2000 amendments with re nothing inherently there is “absurd” or spect right to the private parties, to sue even expansive “unreasonable” such an words, in other is in line with the statute’s approach to enforcement of pro consumer pre-existing provisions that no damages tection laws. are required injunctive actions That this also would have been the Attorney General and that damage actual Council’s intent in the 2000 amendments is to consumers is not an element of an un supported by provisions other practice lawful trade that otherwise meets example, CPPA. For CPPA defines the definition of 28-3904. That these itself, acting At time of the 2000 CPPA amendments in the interests of its members Competition California Unfair general public.” Cal. Bus. & Prof.Code provided "any Law pursuant relief to this 17204(2000). chapter prosecuted by any person shall be Addiction, Inc., Stop Youth Cal.Rptr.2d been injury” “no would have concepts of Inter- ABC acting as by persons (quoting to actions P.2d at 1102 extended Traders, at a time when v. Matsushita Electric attorneys general nal Inc. private seeking supplement was Council 1247, Cal.Rptr.2d Corp., Cal.4th is not at all un- public strained resources (1997)). P.2d 290 reasonable. Finally, I see no inherent unfairness unsympathetic I am not While should statutory scheme such that we the Council majority’s preference be reluctant to assume that Council in the unequivocally itself expressed give it meant what it said or refuse that it history and demonstrated legislative virtually anyone, regardless effect. That standing require- our usual understood to enforce the law injury, bring can suit recognized significant ments common, emphasizing but it bears is not language would change the amendment who not mean that a does about, case where bring I know of no other recover no individualized can suffers an additional bur- imposed we have such claim for damages, such windfall statutory legislature den where the proof. damages would fail for failure language is otherwise clear and consistent terms, statute, that by provides its purpose. with statute’s broad remedial damages statutory penalty and the trebled by and their expressed appellees Concerns violation) ($1500 “payable are per for abuse and potential amici7 about the 28-3905(k)(1)(A), consumer,” a might that be creat- procedural difficulties category “person” that is narrower than a far-reaching private at- by ed the CPPA’s attorney may bring private suit as a who poli- are based on torney general provision supra, the intend see note general, such, they As should be cy, not law.8 The relief that beneficiary of the CPPA. ed not the court legislature, addressed to the plaintiff for a who has permits the statute charged implementing a statute that not a injured and is personally not been enacted. As the Cali- legislature dam injunction, punitive is an consumer rejecting in a Supreme fornia Court stated “any other relief which the court ages, and challenge plain-meaning to a inter- similar (D) (F). (k)(1)(C), & Id. at proper.” deems attorney pretation private general of the penalties civil damages, statutory Trebled provision Competi- in Unfair California’s action, additional representative and “in a Law, courts, ... tion “it is not for the may necessary be to restore relief as a policy determine whether or not the money property, real or the consumer or beneficial. economically statute is sound acquired have been solely legislature.” personal, That for the which is a matter employed in that have been point, briefs al mechanisms 7. On this two amicus curiae appellees rights support litigation safeguard were filed on behalf of of absent Legal Pacific Foundation and United States parties. third of Co- Chamber of Commerce. The District lumbia, which also filed a brief amicus curiae argues that the of Commerce 8. The Chamber support appellees, disagreed that due meaning given plain not a CPPA should properly be ad- process concerns could not eliminating injury-in-fact interpretation as dressed, noting process con- due “[t]he in- in order to avoid "constitutional binding parties cerns associated with absent section, explained in the next firmities.” As brought by plaintiff private in CPPAaction a a infirmity, because there is no constitutional general public in the interests of the are simi- by "case or are not bound the D.C. courts process lar to the due concerns that can arise applicable arti- controversy” requirement brought by Attorney in a CPPA action cle III courts. suggests General.” The District’s brief sever- may go remains whether the Council be- practice,” the unlawful trade means of by limits, Id. at yond removing prudential benefit of consumers. and elimi- are for the (E). (k)(1)(A) the statute injury-in-fact requirement. & All the relief nate the basic words, can, and, is either intended in other provides, I conclude that it as discussed in or within the discretion section, for consumers it did so in creat- previous to fashion with the CPPA’s judge the trial ing private a cause of action the CPPA. in mind. protection purpose consumer notes, majority As the since when right of the possible exception theWith Congress reorganization enacted court attorney’s fees” a case “reasonable the current struc- legislation that created by self-represented plaintiff-at a brought courts, we ture District Columbia committed to torney determination also —a adopted “case or Constitutional uninjured the trial court’s discretion —an controversy” requirement limits the brings capacity who suit in the jurisdiction by Congress of courts created “in the interests private attorney general pursuant to article III of the States United if general public,” even success Constitution. The first cases arose under ful, personally benefit from relief does Act, the D.C. Administrative Procedure by the court. There is no reason awarded by Congress, by enacted which terms its authorized statute at to thwart claims only petitions us to “entertain permits specu early pleading stage, based brought by ‘[a]ny person suffering legal Superior judges lative concern that wrong, adversely aggrieved, affected or manage litigation will be unable to Court Mayor an order or decision of the or an brought by private attorneys general on agency in a contested Lee v. case....’” in an public orderly behalf of the interest Appeals District Columbia Bd. & process manner and consistent with due of Of (D.C.1980) Review, 210, 423 A.2d 215 See, Giral, e.g., Boyle v. 820 concerns. (1978 (quoting Supp.)). 1-1510 (D.C.2003) 561, (interpret 570 n. 11 A.2d standing We have extended that basic re- 28-3911(a) permitting cy as ing CPPA quirement expressly even when not re- pres distributions into D.C. Consumer Pro (as quired by statutory language in the Fund); Trinity tection see also Kraus v. Act), D.C. Administrative Procedure but as Services, Inc., 23 Management Cal.4th clear, a number of our cases make that has 485, 718, 116, Cal.Rptr.2d 96 999 P.2d 733 been choice that the court has made— (2000) (noting procedural several mecha not a must mandate we follow—because litigants nisms available to and the courts by Congress the D.C. courts were created multiple liability repetitive avoid Constitution, actions). pursuant to article I of the 11-101(2). not article III. See D.C.Code Congress II. Did the bind the Dis- result, although have for As we the most trict of Columbia courts to the part jurisprudence followed federal as to controversy” article III “case or “injury-in-fact” what constitutes sufficient requirement standing? for satisfy controversy require- the case or Seldin, ment, 490, 422 see Warth v. U.S. 95 questions authority No one the Council’s 2197, (1975), S.Ct. 45 L.Ed.2d 343 we have prudential to remove limits on liberty diverge also on felt at occasion and we have decided that Council has so, standing juris- from Supreme Court’s example, done in the D.C. Human circumstances, limited prudence certain Rights law. See Executive Sandwich Realty Corp., dealing primarily, example, with the Shoppe, Inc. v. Carr 749 (D.C.2000). 724, question applicable 733 mootness doctrine to cases that A.2d 260 Park, Inc., Columbia, review v. District 806 capable repetition yet are of avoid of (D.C.2002). 1201, A.2d 1206 Neverthe Tyler

in the detention area. See pretrial (D.C. less, 270, this court is not bound the case States, v. 705 A.2d 273 United 1997) (en banc) Article controversy requirement v. (citing Lynch United See, States, e.g., III. Palmore v. States, 580, (D.C.1989), United 557 A.2d 582 389, 397, 93 S.Ct. 36 Hunt, U.S. distinguishing Murphy v. 455 U.S. (1973); v. L.Ed.2d 342 see also Atchison 478, 482, 1181, 71 L.Ed.2d 353 102 S.Ct. Columbia, District 585 A.2d (1982)); cf., Hardesty Draper, v. 687 A.2d (D.C.1991) that “this court ... (stating (D.C.1997) 1368, 1373 (concluding that case flexibility in case enjoys regard [the “capable was not was moot where issue pos controversy requirement] yet evading review” even repetition as courts”). by the federal This is sessed I litigant). regard, agree another In this especially true when Council opinion for the Judge Reid’s division: See DeGroot provided a cause of action. prudential constitutional [T]he (D.C.2008) DeGroot, v. 939 A.2d standing principles imposes this court (“the gener ‘a Superior Court is court mandatory. principles are not Those jurisdiction,’” jurisdiction al and “‘has a mechanism to “originally evolved as (at civil action or other matter any enforce the mandate of Article III of the equity) brought law or the District ju Constitution that federal courts have ”). of Columbia.’ only risdiction in ‘cases’ and ‘controver ” AT T 980 A.2d Grayson Corp., v. Bd. v. & sies.’ Lee District Columbia (D.C.2009), Review, reh’g grant n. 78 en banc Appeals & 423 A.2d 216 1155 (D.C. ed, vacated, Seldin, opinion 989 A.2d (citing n. 13 Warth 2010).9 490, 498-99, U.S. S.Ct. (1975)) (other

L.Ed.2d 343 citation omit overrule contrary interpretation A would ted). “In court creating this Con in which we opinions number of we, gress provided that like the federal that, consistently come to the conclusion courts, only should hear ‘[cases] courts, Superior article I Court of the ” (citing controversies.’ Id. D.C.Code District of and the District of Columbia 705(b); § v. United States Cum Appeals of are not bound Columbia Court 11 — (D.C.1973) 229, mings, 301 (per A.2d 231 limita by controversy article Ill’s case or curiam)). Thus, generally we have ad is interpretation tion. That consistent requirement hered to that in determin well-supported by express Congressional ing party whether a before intent, the District of Columbia’s this Hosp. court. See Riverside v. Dis “comparable to be to those system court Health, trict Columbia Dep’t large municipalities.” and other of states of of (D.C.2008) 1098, (citing Realty, A.2d 1103-04 Per nell v. Southall U.S. 1147, 363, 367, 1723, Speyer Barry, v. A.2d 40 L.Ed.2d 198 S.Ct. 11-705(b) (1974) (D.C.1991); 91-907, § at 23 (quoting H.R.Rep. D.C.Code No. (2001)); (1970)); 91-405, at 18 S.Rep. see also Friends Tilden see No. of ”). standing’ opinions 'prerequisites 9. Our But Friends have not all adhered to the distinction between what is mandated and read in Tilden Park and similar cases must be we, choice, See, by require. e.g., what facts, Friends which did not in- the context of their Park, Inc., (D.C. Tilden 806 A.2d at 1206 volve issues of mootness or suit under stat- 2002) (suggesting every apply that we "in purported to eliminate the usual re- ute that requirement case” "constitutional” of a standing. quirements for controversy" "prudential "case or and the creating the local law (stating “[b]y enforcement authorities on a continu- 113, ing basis.” authority granted by article I Id. at 103 S.Ct. courts under Constitution, the local District of Notwithstanding express statements by court is not bound structure Columbia by both of Congress houses and our sus III of the provisions found article tained interpretive history of the source Constitution”). said, Thus, we have unlike authority and reach of the of the D.C. courts, Superior the federal Court is a courts, § appellees point to D.C.Code 11- general jurisdiction court of and courts of 705(b) did, indicating Congress af “powers the District of Columbia have all, impose ter mean to the constitutional analogous to those of state courts.” Dis- controversy” “case or ju limitation on the Group trict Columbia v. Insurance Ad- power so, dicial of the D.C. courts. If (D.C.1993) ministration, 633 A.2d jurisdictional would be a limitation that the (quoting Reichman v. Franklin Simon Council not alter. See D.C.Code 1- (D.C.1978)). 9, 12 This Corp., 392 A.2d 206.02(a)(4).10 I disagree that the Con Supreme is to be to a state court “similar gress intended to indirectly, introduce via H.R.Rep. court.” No. at 23. 11-705(b), a limitation that it expressly creating disclaimed when the D.C. courts. controversy” Constitution’s “case or 11-705(b) provides: Section limitation is a crucial between distinction Cases and controversies shall be heard example, federal and state courts. For by determined divisions of the plaintiff alleged the case of a who had no Appeals] hearing [Court unless a or a “personal stake in the outcome” of the rehearing before the court en banc is case, proceed pri- could as a ordered. Each division of the court attorney general vate under the state shall consist of judges. three California, courts in which are not bound 11-705(b). controversy requirement, the case or Nike, but not the federal courts. Inc. v. note, first, It is interesting to that this Kasky, 539 U.S. 661 & n. 123 S.Ct. provision has never been deemed (2003). 156 L.Ed.2d 580 The distinc- court to present impediment to our tion is rooted in powers the limited decision, in the limited cases mentioned government federal and the historical role above, diverge Supreme from the of state courts. In City Angeles Los jurisprudence Court’s interpreting the in Lyons, 461 U.S. 103 S.Ct. 75 jury-in-fact requirement inherent in (1983), Supreme L.Ed.2d 675 Court controversy case or limitation. Nor has it explained that whereas federal mootness been cited as adoption a reason for our principles precluded a federal court from article Ill’s injury-in-fact requirement. granting injunctive relief to a man who That we have voluntarily done “to promote the subject had been on an unlawful choke judicial sound economy” recognition and in by police hold likely because he was not to of the concept “that an adversary system imminently similarly injured, id. at real, adjudicate can best not abstract con 103 S.Ct. the states had no similar Walters, flicts.” District Columbia v. of disability “may permit (D.C.), their courts to denied, 319 A.2d 338 n. 13 cert. injunctions use to oversee the conduct of 419 U.S. S.Ct. L.Ed.2d 661 1-206.02(a)(4) 10. D.C.Code § provides respect any provision in rel with to of Title 11 part: evant organization (relating jurisdiction to of (a) courts)!..] authority The Council shall have no to: District of Columbia (4) act, Enact resolution or rule 11-705, § “the order and (1974). Moreover, which deal with import the substantive sit, (a); at judges shall id. times” when into have us read appellees that would selecting and hear procedures and the 705(b)’s controversy” § use of “case or 11 — consideration, id. at ing cases for en banc I by the article language supported is not (c) (d). are procedural provisions & These authority express of source Constitutional in contrasted with those D.C.Code to be creating in ly by Congress cited “jurisdiction” § which set out to the D.C. granting “judicial power”, To read Appeals. of the D.C. Court of courts: 11-705(b) a case or contro imposing § in the District of judicial power The Ap on the versy limitation D.C. Court following in the is vested Columbia truly lead to anomalous and peals would courts: light juris in indeed absurd results (1) courts estab- following The federal clearly Congress intended diction article III of the Con- pursuant lished to provision § there no with 11-721. As stitution: controversy” language compara “case or (A) Supreme The of the United Court 11-705(b) § applicable Superi- ble to States. Court, or it would mean that Court (B) Ap- The States Court United significant limi Appeals operates under Cir- peals for the District of Columbia power adjudicate on its that does tation cuit. trial court over similarly constrain the

(C) The States District Court “all appellate United review of which we judgments.” D.C.Code District Columbia. final orders and 11-721(a)(1) added); (emphasis see (2) District of Columbia following The 11-721(b) (providing that “a D.C.Code article I pursuant courts established judgment” party aggrieved an order of the Constitution: right ap has a Superior Court (A) The District of Columbia Court 11-705(b) Alternatively, could be peal). Appeals. Appeals read to mean Court (B) the Dis- Superior Court of present cases that a “case only need decide trict of Columbia. three, but controversy” divisions of § 11-101. wrong mean that we have been that would aim of the [court Consistent “[t]he thinking adjudication along all Act ... ‘a Fed reorganization] establish be done appeal the merits of an must District of system eral-State court in all comprised judges of three divisions systems in analogous Columbia to court (other by the full than those heard cases States,’” Doyle, Key court). the several I that the court has do not believe 59, 64, 280, 54 L.Ed.2d 238 rather, U.S. 98 S.Ct. correctly it has misguided; been 91-907, at (quoting H.R.Rep. No. that, appel as is the norm for understood 35), Congres I and the article source of throughout country, at least late courts the Dis power sional invoked to create consider the merits of judges three should 11-705(b) courts, properly leg § read no Unfortunately, trict’s there is appeal. directing provision history light Congress’s as an administrative to islative shed “case or controver composition of divisions of Court one-off use of the term 11-705(b) those that in with the Appeals sy” in all cases other than connection likely expla The Appeals. en court. This are heard banc D.C. Court inad Congressional drafters nation is that proce is consistent with the interpretation analo- this term from an vertently copied dural nature of the other subsections quest change plans price, federal to to a lower it is applies that to the gous provision required by the CPPA to inform its courts, or used the term appellate price customers of the The differential. realizing “appeal” without “shorthand” trial court dismissed Breakman’s com- term of as a constitutional implications its plaint ground on the that he lacked stand- art. reversed, ing relying sue and this court conclude that the D.C. courts I therefore now-vacated opinion on the division statutory impedi or have no constitutional Neither Grayson. the trial court nor the hearing deciding their cases ment appellate division of this court addressed has said legislature existing AOL’s failure to whether inform acting for brought by person “whether price violates customers differential itself, members, or the the interests of its they appellee the CPPA. Nor did address 28-3905(k)(1), general public,” D.C.Code argument, citing AOL’s alternative Forrest inju if not suffered even Communications, Inc., v. Verizon 805 A.2d ry-in-fact. (D.C.2002), that Breakman’s complaint must be dismissed because appellants’ complaints III. Did state bring Breakman is bound to his claim in a cause of action under Virginia by an “online forum-selection CPPA? clause.”11 These were not the issues for Grayson I Although conclude that granted rehearing which the court en sue, agree I standing Breakman have early At pleading stage, banc. we are majority’s analysis Grayson’s with the the viability bound to assess of Break- action complaint did not state a cause of 12(b)(6) man’s claim under Rule within the and need not belabor the under the CPPA complaint four corners of the and assume sufficiency here. As to the of Break- point alleged the facts are true. In the complaint, majority man’s which the does any controlling authority absence of estab- not reach because it concludes that Break- lishing provide that AOL’s failure to infor- sue, man has no I come to a mation about a material pricing differential different Breakman’s com conclusion. to its customers does not violate the CPPA plaint alleged Paragraph that AOL evidence that agreed Breakman has clause, charged existing customers double what it to AOL’s forum-selection the com- charged plaint new customers for certain ser cannot be dismissed on either of therefore, would, I arguments. AOL’s re- pricing vices and had failed to disclose the verse the dismissal of Breakman’s com- to its existing differential customers. plaint and remand his case for further complaint alleged that AOL violated the Court, proceedings Superior without it a mate CPPA because to state “fail[ed] prejudice filing to the of a motion for rial fact if such failure tends to mislead.” summary judgment once the is fur- record 3904(f). If the ex proven, 28 — developed. ther mag of a price istence differential such nitude for the same service would be mate

rial; claims, appellee citing AOL without

controlling authority, though that even existing

would honor an customer’s re- appears important 11. There to be an factual a subscriber who was held to be bound case, by having Break- distinction between this where forum selection clause clicked allege “Agreed” man does not that he subscribes to AOL an online subscriber contract. services, Forrest, where the was 805 A.2d at 1015.

Case Details

Case Name: Grayson v. AT & T CORP.

Court Name: District of Columbia Court of Appeals

Date Published: Jan 20, 2011

Citation: 15 A.3d 219

Docket Number: 07-CV-1264, 08-CV-1089

Court Abbreviation: D.C.