Federal Courts' Responses to the Use of Private Attorney Generals in Legal Matters

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Federal Courts' Responses to the Use of Private Attorney Generals in Legal Matters

'Kasky v. Nike, Inc.' is an example of a person acting as a private attorney general. 'Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health and Human Resources' is an example of a corporate actor acting as a private attorney general. Below is an overview of the findings.

Chester Residents Concerned for Quality Living v. Seif

  • Plaintiff Chester Residents Concerned for Quality Living (CRCQL), a Pennsylvania-based nonprofit corporation, in cohort with several Chester residents, brought suit against Defendants James M. Seif and Carol R. Collier in their official capacities as Secretary and Director of Pennsylvania Department of Environmental Protection (DEP). The DEP itself was also named among Defendants.
  • In this case, CRCQL alleged that by issuing a permit to Soil Remediation Services, Inc., for operating a waste facility within Chester City, the DEP had violated the residents' civil rights. CRCQL claimed that the DEP's actions were discriminative against the predominantly African-American community since the department was "concentrating the burden of pollution and the negative health effects it causes within the African-American community in Chester while leaving the white residents of Delaware County essentially free of the pollution their waste caused."
  • The Plaintiffs noted that all of Delaware County's solid waste was incinerated in the City of Chester, and about 85% of sludge and raw sewage was treated there. The city was also home to an infectious waste facility, and most of the plants were located within minority residential areas.
  • CRCQL also alleged that by placing the disparate burden upon a minority community, Defendants had violated Title VI of the EPA's regulations, which states that the EPA "has a responsibility to ensure that its funds are not being used to subsidize discrimination based on race, color, or national origin."
  • Defendants moved for dismissal with the arguments that the Plaintiffs had failed to allege or prove discriminatory intent, and that the Plaintiffs had "failed to state a claim under the EPA regulations because there was no private right of action under them."
  • In their response, Plaintiffs claimed that Defendants granted permits for five waste facilities with a combined capacity of 2 million tons in Chester since 1987, compared to only two 700-tons waste facilities outside Chester. They alleged that the Defendants' actions proved discriminatory intent.
  • However, the court ruled that Plaintiffs had alleged only discriminatory effect and not discriminatory intent, thus failing in their "complaint to allege a violation of Title VI." This claim was dismissed without prejudice. The court dismissed the second claim with prejudice becase it could not find any "private cause of action under the EPA civil rights regulations."
  • The case was first brought before the "U.S. District Court for the Eastern District of Pennsylvania" in 1996, and was later brought before the "United States Court of Appeals, Third Circuit" in 1997. The Court of Appeal overturned the former's decision and stated that "private plaintiffs may maintain an action under discriminatory effect regulations promulgated by federal administrative agencies pursuant to section 602 of Title VI of the Civil Rights Act of 1964." It then reversed the decision and remanded the case for further proceedings.

Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health and Human Resources

  • Petitioners Buckhannon Board and Care Home, Inc., (a West Virginia operator of assisted living facilities) and others (Petitioners) brought suit against the West Virginia Department of Health and Human Resources and other state agencies (Respondents) after the former failed an inspection by the state's Fire Marshall because some of its residents were "incapable of 'self-preservation' as defined by state law." W. Va. Code §§16-5H-1, 16-5H-2 (1998) required all residents board and care homes to be capable of self-preseservation (moving themselves) in case of imminent danger, including fire.
  • Petitioners brought suit against the State and several state officials and agencies after it was ordered to close its residences. The company sought injuctive and declaratory relief that the self-preservation requirement went against the "Fair Housing Amendments Act of 1988 (FHAA) and the Americans with Disabilities Act of 1990 (ADA)."
  • Although Respondents agreed to suspend the closures pending the court's decision, the state's legislature eliminated the 'self-preservation' requirement before the case was resolved. The District Court then granted Respondents' motion to dismiss the case as irrelevant. Thereafter, the Petitioners requested reimbursement for attorney's fees since they claimed to be the 'prevailing party' under ADA and FHAA. They based their entitlement on the 'catalyst theory,' which postulated that "a plaintiff is a 'prevailing party' if it achieves the desired result because the lawsuit brought about a voluntary change in the defendant's conduct." However, the District Court denied the Petitioners' motion because the 'catalyst theory" had been previously rejected by the Fourth Circuit.
  • This case was first brought before the District Court in 1996, and was later brought before the Fourth Circuit Court. After both courts denied the motion for reimbursement, the Petitioners appealed to the U.S. Supreme Court in 2001. The Supreme Court affirmed the decisions of the lower courts.

Kasky v. Nike, Inc.

  • Plaintiff Marc Kasky, a California resident brought suit against Defendant Nike, Inc. and individual defendants on behalf of the general California public under the state's "Business and Professions Code sections 17204 and 17535.1."
  • From 1996 through 1997, Nike was faced with adverse publicity regarding its unfair employment practices against international factory workers. Plaintiff alleged that Nike had responded with misleading and false statements to the California public in order to increase or maintain its profits and sales.
  • Nike and its leadership made the statements in letters to universities and newspapers, press releases, and other public relations documents. The company also purchased full-page newspapers advertisements to publicize the findings of a report that had it had commissioned. The report removed Nike from blame.
  • Plaintiff alleged that Defendants made the misleading and false statements because of their "negligence and carelessness and with knowledge or reckless disregard of the laws of California prohibiting false and misleading statements."
  • During the Superior Court hearings, the Plaintiff sought restitution requiring Nike to "disgorge all the monies acquired by means of any act found to be an unlawful and/or unfair business practice." It also requested an injuction that would require Nike to "undertake a Court-approved public information campaign to correct any false or misleading statement, and to cease misrepresenting the working conditions under which Nike products are made." Also, Plaintiff requested reimbursement of attorney fees and other costs, as well as other reasonable relief.
  • Nike and its co-defendants demurred on grounds that it "failed to state facts sufficient to constitute a cause of action against Nike and that the relief plaintiff was seeking is absolutely barred by the First Amendment to the United States Constitution and Article I, section 2(a) of the California Constitution." The Superior Court sustained the Demurrers.
  • Plaintiff then appealed at the Court of Appeal, which sustained the judgment made by the Superior Court. The appellate court decided that Nike's statements were not commercial.
  • The matter was later brought to the California Supreme Court and decided in May 2002. The Supreme Court reversed the decisions made by the lower courts stating that Nike's messages were commercial because they targeted a commercial audience. However, the court's final verdict was that the case was "still at a preliminary stage, and that whether any false representations were made is a disputed issue that has yet to be resolved."

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