James Sigel and Adam Sorensen authored an article for the Daily Journal discussing the 9th U.S. Circuit Court of Appeals’ recent decision in McGee v. S-L Snacks National, the latest in a line of 9th Circuit opinions clarifying Article III’s standing requirements in consumer-products litigation.
“The decision illustrates an interesting strategic issue,” the authors wrote. “One might think the defendant here got lucky: Diamond [Foods] conceded standing, but the court saved Diamond from itself. Yet the procedural history suggests the story might be more complex: Diamond conceded [plaintiff Jacqueline McGee’s] standing in a Rule 28(j) letter filed shortly before argument – when it had just learned the identity of the panel members. Diamond could have conceivably viewed the composition of the panel as favorable to the plaintiff on this question, and then decided to preserve credibility, and shift the court’s focus, by conceding standing and pressing their alternative arguments. Critically, the downsides of that concession were lower than they might normally be, given the court’s obligation to address McGee’s Article III standing regardless of what Diamond said. While this strategy would undoubtedly be a risky one, Diamond’s ultimate victory here suggests there might be some circumstances in which it could pay off – or at the very least cause no harm.”
Read the full article.