Summary. Every step, and the question that should come before all of them.

Phase 0 — The strategic question (defendants, before anything)

  • If we win, where does the case go?
  • Was the case removed? If so, the remedy is remand, not dismissal.
  • Does the relevant state apply an analogous standing requirement, or has it declined to?
  • Will this plaintiff's counsel refile in state court?
  • Is the claim exclusively federal, with nowhere else to go?
  • What is the actual objective: end the individual claim, defeat a nationwide class, or narrow the class?
  • Is a merits defense with preclusive effect available instead?

Defendants lose more value by winning standing motions that relocate cases than they gain from motions that end them.

Phase 1 — The three elements

Injury in fact

  • Concrete — an actual harm, not a bare statutory violation
  • Particularized — affecting this plaintiff personally
  • Actual or imminent, not conjectural

Traceability

  • Fairly traceable to the challenged conduct
  • Not the independent action of a third party not before the court
  • Each link in the causal chain identified

Redressability

  • A favorable decision is likely to remedy the injury
  • The relief sought is available
  • Removing this cause would actually change the outcome

Phase 2 — Concreteness analysis

  • Is the harm tangible (physical or monetary)? If so, the analysis is straightforward.
  • If intangible, identify the close historical analogue:
    • Defamation (false statement published to a third party)
    • Public disclosure of private facts
    • Intrusion upon seclusion
    • Conversion
    • Fraud
    • Nuisance
    • First Amendment injury
    • Informational injury (contested; requires purpose and consequence)
  • Does the analogy hold element by element, or does it stretch?
  • For risk of future harm: is damages or injunctive relief sought? Risk supports injunctions, not damages.
  • Were mitigation costs incurred against a non-imminent risk? Clapper forecloses manufacturing standing that way.
  • Is the theory one courts have rejected — "loss of value" of information with no market, anxiety, a technical omission nobody read?

Phase 3 — Pleading it (plaintiffs)

  • Plead the harm, not the statutory violation.
  • Name the historical analogue expressly, with the resemblance explained.
  • Plead the downstream consequence: money paid or lost, transaction declined, time spent, benefit denied, opportunity forgone.
  • For risk-based claims, plead materialization — or reframe as prospective relief.
  • Plead traceability link by link where third parties are in the chain.
  • Plead redressability where the relief's effect is not obvious.
  • For classes, define the class around the injury.
  • Do not overplead consequences discovery will not support.

Phase 4 — Attacking it (defendants)

Choose the form

  • Facial — accepts allegations, argues legal insufficiency; standard resembles Rule 12(b)(6); produces amendment
  • Factual — contests the truth of jurisdictional allegations; evidence considered; no presumption of truthfulness; plaintiff must come forward with evidence

Draft it

  • Quote the complaint's silence — cite the paragraphs where the missing allegations would appear
  • Address the historical analogue affirmatively; do not wait for the opposition
  • Anticipate informational injury, risk theories, and the congressional-judgment argument
  • Concede any plaintiff who plainly has standing
  • Keep it to 15–20 pages
  • For a factual attack, attach declarations from custodians and the underlying records
  • Brief alternative merits grounds — courts often prefer narrower holdings

Phase 5 — Standing discovery

  • Documents concerning the plaintiff's receipt of the communication
  • Whether the plaintiff read or saw the disclosure
  • Any action taken in response
  • Payments made and what was received
  • Evidence of misuse of the plaintiff's information
  • When and how the plaintiff learned of the conduct
  • Communications with any investigator or scanning service before retaining counsel
  • Your own records: delivery logs, access records, forensic reports
  • Deposition: what happened, what changed, what it cost

Phase 6 — Class certification

  • Every class member must have standing to recover individual damages.
  • Does the proposed class include uninjured members?
  • Does identifying injured members require individualized inquiry?
  • Build the record: sample the class list and quantify the proportion actually harmed.
  • Support with a custodian declaration describing the data and its limits.
  • Argue predominance under Rule 23(b)(3).
  • Anticipate the narrowed class — decide in advance whether you can live with it.
  • Note: injunctive classes may proceed where damages classes cannot.
  • Settlement classes: consider whether relief may be approved for members who could not have sued.

Phase 7 — Mootness

  • Has anything happened during the litigation that ends the plaintiff's personal stake?
  • Voluntary cessation: the burden is on the party asserting mootness to show it is "absolutely clear the wrongful behavior could not reasonably be expected to recur" — Laidlaw.
  • To achieve mootness, a defendant needs a binding, irrevocable, broad covenant — Already, LLC v. Nike, Inc. — not merely stopping.
  • Picking off the named plaintiff does not work: Campbell-Ewald Co. v. Gomez.
  • Nominal damages preserve the controversy for a completed violation — Uzuegbunam. Plead them where a policy may be withdrawn.
  • Exceptions available: capable of repetition yet evading review; class action relation-back; collateral consequences.

Phase 8 — Ripeness and declaratory judgment

  • Is the dispute mature, or contingent on events that may not occur?
  • Is the threatened injury "certainly impending"?
  • For 28 U.S.C. § 2201 actions: is there a substantial controversy of sufficient immediacy and reality?
  • Has the plaintiff manufactured standing by incurring costs against a speculative risk?

Phase 9 — Organizational, associational, and third-party standing

Organizational

  • Injury to the organization itself, not merely to its mission
  • Note that an organization cannot "spend its way into standing" by expending resources to oppose a policy — FDA v. Alliance for Hippocratic Medicine

Associational

  • Members would have standing individually
  • Interests germane to the organization's purpose
  • Neither the claim nor the relief requires individual member participation — generally bars damages

Third-party

  • Close relationship with the right holder
  • Hindrance to the right holder's own suit
  • Not a generalized grievance — Warth v. Seldin

Phase 10 — Practice-area checkpoints

  • Data breach: actual misuse, or exposure only? Forensic evidence obtained?
  • Consumer statutory: was the communication received, read, relied on? Delivery record checked?
  • Environmental: specific use of the affected area pleaded? Traceability through third parties?
  • Competitor: competitive injury, or general interest in lawful government? Would vacatur redress it?
  • IP: licensee holds all substantial rights? DJ controversy sufficiently immediate under MedImmune? Lanham Act zone of interests under Lexmark?
  • Employment: former employee seeking prospective relief?
  • Civil rights: real and immediate threat of repetition? Nominal damages pleaded?

Phase 11 — Preservation and appeal

  • Standing may be raised at any time, including first on appeal, and considered sua sponte.
  • The burden escalates: allegations at pleading, specific facts at summary judgment, proof at trial.
  • Re-raise at summary judgment on the developed record.
  • The appellate record cannot be supplemented — build it below.
  • Confirm appellate standing: is your client aggrieved by the judgment?
  • Address jurisdiction affirmatively in the jurisdictional statement.
  • A party discovering a defect in its own case must bring it to the court's attention.

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