FIRST AMERICAN FINANCIAL CORP. v. EDWARDS

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

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No. 10–708

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FIRST AMERICAN FINANCIAL CORPORATION, SUCCESSOR IN INTEREST TO THE FIRST AMERICAN CORPORATION, et al., PETITIONERS v. DENISE P. EDWARDS

on writ of certiorari to the united states court of appeals for the ninth circuit

[June 28, 2012]

Per Curiam.

The writ of certiorari is dismissed as improvidently granted.

It is so ordered.

Print this transcript Transcript: 

ORAL ARGUMENT OF AARON M. PANNER ON BEHALF OF THE PETITIONERS

Chief Justice John G. Roberts: We will hear argument first this morning in Case 10-708, First American Financial Corporation v. Edwards.

Mr. Panner.

Mr. Panner: Mr. Chief Justice, and may it please the Court:

Article III requires a private plaintiff to show injury in fact, which means at a minimum that the alleged illegal conduct made her worse off.

Factual injury does not automatically follow from violation of a statutory duty owed to the plaintiff, and Ms. Edwards has not alleged the type of harm alleged by plaintiffs in the common law cases that she invokes -- no misappropriation of her property, no loss of desired opportunity or benefit, no injury to reputation.

Justice Stephen G. Breyer: Let me just get -- use an example, a hypothetical based on the next case, really: I was thinking Congress passes a law, says you can't phone people between 7:00 at night and 7:00 in the morning and try to sell them something, okay?

That's the law.

And anyone who gets such a phone call gets $500 in damages automatically if they sue in court if they receive such a call.

The harm was getting the call.

So my grandmother, who is always complaining no one ever calls her, loved the telephone call.

She loved it.

The best thing happened to her in a month, okay?

Now, can she sue?

Mr. Panner: No, Your Honor.

If she does not have actual injury, the fact of the statutory violation would not give rise to standing in that case.

Now, it's -- I think it would be quite unlikely that a plaintiff would come before the Court and say: Actually the statutory violation delighted me; I nevertheless would like my $500.

But if the injury-in-fact requirement means anything, it means that a plaintiff who comes before the Court must have a harm in fact.

Justice Stephen G. Breyer: In other words, if the FDA bans a substance on the ground that 98 percent of the people it hurts, and there is some kind of automatic recovery, $500 anybody who bought the substance because it wasn't supposed to be sold, and she's one of the 2 percent that it helped--

Mr. Panner: Well, Your Honor--

Justice Stephen G. Breyer: --you can't sue?

Mr. Panner: --In the case -- in the case in which someone is exposed to a substance that has -- that is illegal, they might well suffer a harm, and the harm might be the exposure to the substance.

And the -- the sort of inquiry that you are looking into, which is even if the exposure ended up not being harmful, would that be a case?

Justice Stephen G. Breyer: Well, here she was exposed, or the plaintiff was exposed, to the kind of transaction that Congress said was harmful as a general matter, just like the example you gave.

Mr. Panner: I don't think so, Your Honor.

And the reason is that in this case, the violation -- as her complaint makes clear, she paid the only rate for title insurance available in Ohio.

She does not complain of the quality of the insurance or the service she received.

She does not maintain--

Justice Sonia Sotomayor: But, counsel, going back--

Chief Justice John G. Roberts: I'm sorry.

Justice Ginsburg.

Justice Ruth Bader Ginsburg: Because she can't prove it at the early stage, and the problem that Congress was concerned about was that you can't tell until the house is going to be sold in the end how adequate the title insurance was.

So Congress is acting on the potential that these kind of kickbacks can cause harm.

And this does seem to fit the bill of restitution, unjust enrichment cases, where the plaintiff doesn't have to prove any harm, she just gets back what the defendant should not have received.

Mr. Panner: --Your Honor, with respect to unjust enrichment cases, those cases reflect circumstances where there is a benefit received at the expense of the plaintiff.

And in -- in the traditional sorts of cases -- unjust enrichment, of course, is an invention as a category that is relatively recent.

But unjust enrichment cases reflect quasi-contract circumstances, where a benefit was conferred, that injustice should have been compensated, so the plaintiff is made worse off in not receiving the benefit or the compensation for the benefit; or a circumstance of constructive trust, where there was property or other right of the plaintiff that was misappropriated and used without the permission of the plaintiff.

So an opportunity or a property was taken away.

This is not a case like that, and there is no allegation that there is anything lacking in the insurance that was issued.

This is a circumstance in which Congress may believe that a certain practice as a general matter can tend to bring out -- bring about bad -- bad outcomes and can therefore make it unlawful.

But the question here is whether this plaintiff has a harm--

Justice Sonia Sotomayor: --Counsel, are you taking a very broad position that this is an unusual State, it appears, with three or four others, where the States mandate that title insurance be at a fixed price.

But in those States in which there is no such mandate, you seem to be arguing that Congress can't ever presume damages or injury, that even in those cases the plaintiff has to come in and prove that they would have paid less.

Is that the position you are taking?

Mr. Panner: --No, Your Honor.

The type of injury that is incurred doesn't necessarily have to be a financial one and there could be circumstances where a plaintiff would allege an injury -- and I -- it's important to--

Justice Sonia Sotomayor: No, no.

Please tell me, in those States in which insurance is not fixed by the State, what does the plaintiff have to do other than to say,

"they didn't disclose to me that there was a kickback and I want the amount I paid for the service? "

Do they have to show something more?

Mr. Panner: --If the -- I want to -- I'm not sure I understand Your Honor's question, but if the question is, there were various rates available and the Plaintiff alleges an overcharge, that they purchased a -- a policy and there was a cheaper policy available, and as a result of the violation--

Justice Sonia Sotomayor: So you are in fact arguing very broadly that there is no presumption of -- of injury in these cases, that the plaintiff still has to come in and prove--

Mr. Panner: --Your -- Your Honor--

Justice Sonia Sotomayor: --that in fact they would have gotten a cheaper -- a cheaper policy?

Mr. Panner: --Your Honor, the -- the plaintiff would have to allege in the complaint and then eventually show that there was some injury.

It doesn't have to be a financial injury.

Justice Sonia Sotomayor: Same thing with nominal damages and statutory damages?

You're -- you're taking a very broad position now.

Mr. Panner: I don't think so, Your Honor, because again the question for purposes of standing, the question for purposes of the ability of a plaintiff to come into court, is to show that they have some injury in fact, that there is some harm, some way in which they were made worse off.

This plaintiff--

Justice Antonin Scalia: That's not so extraordinary.

It is what has to be shown in -- in Sherman Act cases, right?

Contracts and combinations in -- in restraint of trade are unlawful; but in order to recover under the Sherman Act, you have to show not only that it was unlawful, but that you were harmed by it.

Mr. Panner: --That's true.

That's certainly the norm in all sort of tort -- tort cases.

Justice Anthony Kennedy: I was going to ask you, along that line, are there any trust cases that -- that Respondents or the government could cite in which a party can go into court alleging that the market has been distorted, even though that person has no damage?

Anything like that in the antitrust?

What would be their closest case?

Mr. Panner: Well, Your Honor, I'm not sure -- I did not see any of the cases that they cited involving the trust -- the trust circumstance--

Justice Anthony Kennedy: Yes.

Mr. Panner: --where there was that sort of vague allegation.

The trust cases I think actually are a good illustration of the type of injury that is required.

We are talking about trust, not antitrust now.

Justice Anthony Kennedy: Right.

Mr. Panner: But the trust cases involve a circumstance, the -- I think that the plaintiff here kind of gives the game away by, in the -- when talking about the Michoud case, using the phrase "the plaintiff may sue", and of course that's not what the case says.

What the case says is that a -- that a beneficiary can come into court and say: The trust has violated the duty to me; I want to unwind the transaction to get the benefit that I would have gotten had the trustee behaved in the way required.

So in those cases involving trustees, for example, they--

Justice Anthony Kennedy: There is not automatic disgorgement in those--

Mr. Panner: --There could be automatic disgorgement, Your Honor.

But again that reflects the lost value of what was paid for in terms of the -- of the--

Justice Antonin Scalia: Well, but--

Justice Elena Kagan: Mr. Panner, I thought--

Justice Antonin Scalia: --let -- let's assume that a trustee acts on its own interest and -- and sells property.

But let's assume that he gets top dollar for that property, so that the beneficiary hasn't really been deprived of anything.

What is the injury to the beneficiary?

Mr. Panner: --Well, the injury to the beneficiary in that circumstance, Your Honor, is that the trustee would have misappropriated an opportunity that belonged to the beneficiary.

In the cases that are -- in the ordinary case, then, the beneficiary has the option to say, I would like to unwind that or get the benefit that the trustee got, if there was self-dealing.

But in a circumstance where a trustee sells, for example, a piece of property and the -- and the claim is one for restitution to try to unwind the transaction that was done, it's the option of the beneficiary to say: You know what, maybe I am wrong but I think I would be better off if I could undo that transaction.

So it's a very conventional kind of harm where someone believes that their property was -- was taken away from them and used in a way to their detriment, and they are therefore seeking relief.

Justice Sonia Sotomayor: So what more does this plaintiff have to allege other than, if I had been told that this was a prearranged, tied product between the mortgage and the title company, but that I had a right to get an untied product even at the same price, and I would have exercised that right if I had known -- would that be enough?

Mr. Panner: That might be enough, Your Honor.

But that's exactly what she didn't allege.

Justice Sonia Sotomayor: Would that be enough in -- in Justice Breyer's example, of someone who says, I received a call at midnight and it bothered me?

Mr. Panner: Yes, I think that certainly would be enough, absolutely.

The -- the point is that this complaint abstracted away any such particularized claim for a very particular purpose, which was that in order to maintain this case as a class action the basis of harm could not be anything personal or individual to this plaintiff.

Justice Sonia Sotomayor: So you go back to your position that Congress has no power to give a cause of action on the basis of a statutory violation in which it is presuming injury?

Mr. Panner: That is correct, Your Honor.

The -- what Congress cannot do is to confer on a particular plaintiff an injury that is constitutionally sufficient under Article III.

I think this Court has made clear that Congress cannot do that and that the existence of a statutory right by itself, even the invasion, the violation of the statutory right does not create injury for constitutional purposes.

Injury--

Justice Sonia Sotomayor: Well, certainly you couldn't -- you couldn't sue.

But if I paid money that I would have -- and that I'm entitled to get back, then I have been injured, because--

Mr. Panner: --Well, Your Honor, you paid money -- in this case the plaintiff paid money for a title insurance policy which she received.

She paid at -- at the legally required rate, and she makes no complaint about the policy, nor does she claim that it would have mattered to her--

Justice Samuel Alito: Could I ask you to clarify something?

What could a plaintiff who purchases title insurance in Ohio allege that would be sufficient to provide standing?

Mr. Panner: --Well, certainly if a plaintiff said that the -- that the manner in which the title insurance was provided had delayed her closing or that there were procedures that were--

Justice Samuel Alito: No, what could be done -- okay.

Go ahead.

Mr. Panner: --that there was something about the service that she received as a result of the -- the referral to a particular title insurer, again, assuming that this is a violation, which we don't -- we don't think it is.

But -- but assuming that it is, that--

Justice Samuel Alito: So you could -- the plaintiff could allege some kind defective service at the time when the title insurance was purchased?

There really is no service provided at that time, is there?

Mr. Panner: --Actually, most--

Justice Samuel Alito: You get a title insurance policy and that's it; and you don't know whether -- you don't know what will happen if there is some problem alleged with the title at some point down the road.

Mr. Panner: --Well, that's really -- the -- the risk of that is really on the title insurer, which is why the title insurer has no incentive whatsoever to encourage poor service by a title insurance agent.

Justice Anthony Kennedy: --Well, that -- that leads me to this point.

I thought -- I never thought of title insurance companies as being fungible, and some were very, very good about narrowing the exceptions, about working with the seller of the property, if you represented the buyer, to get rid of the exceptions.

And so I'm not sure that it's just a question of a policy versus no policy.

There's a -- there's a quality to the -- to the research they do.

And the next -- and related to that is this: you -- you put the case as if the price is going to be the same for the insurance.

A, I think there is nothing in the -- in the State law that permits the insurance company to get -- to set a lower rate; and second, don't the title companies charge other fees, title search fees and so forth, other fees in addition to the price of the insurance?

And those other fees, arguably -- I know she didn't allege any damage -- but those other fees arguably are too high because of this fixed market.

Mr. Panner: Well, Your Honor, that--

Justice Anthony Kennedy: Now, she didn't allege that.

I know that.

Mr. Panner: --She didn't allege it, and I think that's critical, because the -- the issue is not whether it's conceivable that an injury could occur from the violation.

It could.

And what you have indicated about difficulty clearing objections to a title, for example, if there was a problem that she had with respect to that and she believed it was the case, that would actually be the job of the title agent, which -- and there is no allegation that she was improperly referred to the title agent.

So the insurer is issuing -- underwriting the policy and bears the residual risk, but it's the agent that is actually engaged with the -- with the plaintiff here.

And there, the agent's name here was Tower City.

Justice Stephen G. Breyer: Suppose Congress makes a finding; this is the finding: We think that lawyers or whoever is engaged in these who hire title insurance companies should hire the best one on the merits, not on the basis of which one will give them the biggest kickback.

We think that's so because that will help keep people secure.

Everyone in such -- who buys a house will feel more secure knowing that the market worked there.

We can't prove who feels insecure and who doesn't.

We think in general they would, and so we give everybody the right to recover $500 if they are injured, where the injury consists of being engaged in a transaction where the title insurance company was not chosen on the merits, but was chosen in whole or in part on the basis of the kickback.

And they write that right into the statute, so therefore there is no doubt that the plaintiff here suffered the harm that Congress sought to forbid.

That harm was being engaged in a transaction where the title insurance company was not chosen on the merits, but partly in terms of a kickback.

Now, what in the Constitution forbids Congress from doing that?

Mr. Panner: The Constitution, Article III, as this Court has interpreted it, requires that a plaintiff that comes into court must have suffered an injury in fact, and Congress cannot create that injury legislatively.

Otherwise, the Congress can enlist the courts for regulatory purposes that are unrelated to the core function of the Court as this Court has articulated it.

Justice Elena Kagan: --Mr. Panner, suppose there were a contract between Ms. Edwards and Tower and the contract had a no-kickback clause, not one that suggested that Ms. Edwards had to show any kind of injury, greater cost or lesser service, but just you can't have any kickbacks.

Can she sue on that contract?

Mr. Panner: Well, if it was a negotiated agreement and it was -- it was one where the parties had given value for that assurance, then that would represent something that there had been a judgment in advance by this particular individual that that was something that was a performance that she was willing to pay for and a promise that meant something to her, and so that would potentially be a different case.

Justice Elena Kagan: And now suppose that Congress passes a law and says every contract of this kind has to have such a provision in it.

Mr. Panner: Right.

Justice Elena Kagan: Would she now have standing?

Mr. Panner: Most likely not, Your Honor.

And the reason is that it's the difference between a contract that the parties engage in, where there would be a -- if there's a negotiated contract, it would be reasonable for the Court to say, well, there's value attached to the rights that the parties have bargained for here.

But it's different if Congress is using it as a mechanism to create injury legislatively, and in that circumstance the court would still have to determine whether there was injury in fact that would allow the Plaintiff to get into court.

Justice Antonin Scalia: But it's a different case.

Could Congress decree that the agent in this case shall be an agent of the purchaser rather than an agent of the title insurance company, as is done in real estate, I think?

The real estate broker must be an agent of the seller and not of the purchaser.

Can it establish a trust relationship between the purchaser here and the person selecting the title insurance company?

Mr. Panner: Well, I think that Congress could potentially create a trust relationship.

Justice Antonin Scalia: And if it did, would the violation of that trust relationship constitute injury for -- for Article III purposes?

Mr. Panner: Well, it would depend, Your Honor.

Not per se.

It would depend on whether there was some way in which that violation caused an injury in fact.

So, for example -- first of all, to the extent that there was some--

Justice Antonin Scalia: We don't require injury in fact for most breaches of trust, do we?

Mr. Panner: --You do, Your Honor.

That is to say that in the case of any of the examples that the plaintiff has cited there is an underlying interest, an antecedent interest, a concrete interest in property or in an economic opportunity, paid-for services of an agent, and it is that concrete interest which is invaded by the -- by the alleged violation of the responsibility of trust.

But of course here you don't even have that relationship of trust.

As--

Justice Antonin Scalia: Well, I understand, but I'm just saying that that concrete interest can be created by Congress instead of being created by contract.

What difference does it make?

If you become a trustee by contract you get one result, but if you are a trustee by government decree so that you must be a trustee, contract or not, somehow the situation changes?

Mr. Panner: --I don't -- I don't think the situation would change.

I guess what I'm saying is that even -- I don't see any of the common law cases involving trusts, trustees, as involving recoveries or suits in the absence of what this Court would certainly consider to be an injury in fact, that is to say some harm to a concrete interest that exists apart from the statutory duty or the common law duty.

Justice Elena Kagan: Mr. Panner, in response to Justice Scalia's questions and my questions, you are suggesting that there is a difference depending on what the source of the law is.

If the source of the right is a contract, there is one result.

If the source of the right is a statute, there is another result.

And I thought that that was very much -- that is -- that's very much inconsistent with our case law, and specifically with Lujan.

Mr. Panner: I certainly didn't mean to say that, Your Honor, so let me try to clarify.

The question was, there are circumstances in which the legal relationship is such that there could be -- let me back up.

The question is whether there is an injury in fact, that is to say a harm that exists as a factual matter, and those interests certainly can be reflected by the legal duties that are created.

So, for example, there are legal duties in contract that are intended to protect the interests of the contracting parties.

There are legal duties under the law of trust that are intended to protect the beneficiary.

But this Court has frequently reflected the fact that there is the question of the violation, but then there is separately the question of the injury.

And the point that I'm making -- and it should be the same answer with respect to your question and Justice Scalia's -- is if the mere fact of a violation of a duty does not create injury per se, and none of the cases reflect that, and that is the proposition that plaintiff relies on here, precisely because of what she alleged and what she is attempting, the type of case that she is attempting to bring.

She is attempting to bring a case in which the statutory violation is the injury.

No other injury is required.

She very straightforwardly says, it does not matter if there is any economic harm, it does not matter if there is any quality difference, it does not matter if there is any consequential effect on me at all.

Justice Elena Kagan: I'm not sure that that's the right understanding of her complaint.

She is saying: I don't have to prove those things because there's been a judgment made that these kinds of practices tend to decrease service and tend to increase price and therefore I don't have to prove those matters.

And that's the exact same judgment that is made in the trust cases, for example.

Mr. Panner: Again, I don't think that the trust cases can be fairly read to say that, Your Honor.

But the key point is that there is a distinction between what Congress -- the statutory duties that Congress can impose and the manner in which Congress can choose to have those enforced -- well--

Justice Ruth Bader Ginsburg: Suppose she appended to her complaint an affidavit by a well-respected economist that says: Congress was right; these kind of arrangements will have an adverse effect on the people who are purchasing title insurance, and goes through all kinds of analyses that show that.

Would that be adequate then?

Mr. Panner: --Well, at the pleading stage it might be, Your Honor.

That is to say that if the question were whether there was an allegation, certainly it's possible that there could be a sufficiently concrete allegation in a complaint that there was that sort of an impact, but -- and this is critical -- not only was that not alleged here, but the mere fact that there is a statutory duty does not reflect that's the judgment or, you know, the fact that there's been any sort of many systemic effect.

Congress has broadly prohibited practices involving kickbacks and the paradigm case has nothing to do with a situation in which a title insurance agent is issuing a title insurance policy for an underwriter.

Now, it's not to say that Congress can't pass a broader prohibition and -- you know, and require that it be enforced.

Well, Congress can pass a broader prohibition and then the executive could enforce it.

But what Congress cannot do is to dictate in advance that a particular practice has caused injury to a particular plaintiff.

Justice Elena Kagan: Counsel, I'm still having problems.

Justice Anthony Kennedy: Just following up Justice Ginsburg's hypothetical, suppose the Congress works with economists and concludes there is a reasonable probability that if there were no kickbacks there would be a more competitive market, there would be lower prices for some of the escrow fees, some of the collateral fees in addition to the title insurance.

And the plaintiff then alleges that there is this reasonable probability that there would be a more efficient market, resulting in cost savings.

Would that be enough?

Mr. Panner: Well, Your Honor, there has to be a connection between the violation alleged and the harm that ensues, and so a general understanding that--

Justice Anthony Kennedy: Well, the person alleges: And I was in this market and I might have -- there is a reasonable probability that I could have had a lower price, according to economic theory.

Mr. Panner: --Well -- well, again, that wasn't alleged here.

So the question--

Justice Anthony Kennedy: I'm assuming it's alleged.

Mr. Panner: --I understand that, Your Honor.

So the question would be particular to the allegations that were made.

In a case like this one, it's in all likelihood a generic allegation that there had been -- that there was some sort of systemic effect is -- it would be insufficient.

That would be a speculative sort of claim of harm and that would be really something where if it's a general systemic effect with no traceability between the violation that's alleged and any supposed harm to the plaintiff, that that would be something for the executive.

Mr. Chief Justice, if I can reserve--

Justice Samuel Alito: If the plaintiff went further and alleged some harm particular to her, wouldn't that be even more speculative, some economic harm particular to her?

I don't want to take up your rebuttal time, but--

Mr. Panner: --Thank you, Your Honor.

I think it would depend.

I mean, certainly there are all sorts of circumstances where there is broad systemic harm, but yet the harm to the plaintiff is very clear, if you think about, for example, about price-fixing.

If I could reserve the remainder.

Chief Justice John G. Roberts: Thank you, Mr. Panner.

Mr. Lamken.

ORAL ARGUMENT OF JEFFREY A. LAMKEN ON BEHALF OF THE RESPONDENT

Mr. Lamken: Thank you, Mr. Chief Justice.

And may it please the Court:

For at least 280 years the law has been clear that when someone breaches a duty of loyalty owed to you by taking a kickback or otherwise introducing a conflict into a transaction, you can sue on the basis of that alone, without showing a further harm in terms of economic loss.

The invasion of your right to conflict-free service was itself a sufficiently concrete and particularized injury in fact, not an abstract and undifferentiated--

Justice Antonin Scalia: You speak of a duty of loyalty.

There is no duty of loyalty owed here.

It was just a law that said you cannot get -- and I'm not even sure it's proper to call it a kickback.

It's a commission.

These people are agents for the title insurance company and they get a commission on -- on every sale of title insurance that they make.

You can call it a kickback, I suppose.

I don't know why the other side does.

But, but -- but it seems to me a commission.

There is no duty of loyalty.

Isn't the -- isn't the seller here the agent of the title insurance company?

Mr. Lamken: --Congress could have made them, the agent, could have, as you pointed out, could have made them a full-fledged fiduciary.

Elevating your interest in having no conflicts whatsoever in the transaction to establish--

Justice Antonin Scalia: We'd have a different -- we'd have a different case then.

But they didn't do that, did they?

Mr. Lamken: --Congress actually elevated one component of that by giving you a right to -- freedom from a particular conflict of interest, and that is the kickbacks that undermine their incentive to serve your best interest, that undermine their incentive to choose the insurer that provides the best quality and the best service.

Justice Samuel Alito: Well, this is where I have problems with your argument, because this doesn't seem to me to be a fiduciary relationship and I don't see where the duty of loyalty comes from.

And to say that Congress can just impose some attributes of a fiduciary relationship wherever it wants seems rather strange.

Let me give you this example.

I take my car to an auto dealer to have -- because it's making a strange sound.

And I say: Call me up when you figure out what you think is the problem.

And they call me up and they say: Well, there are certain things wrong with it, and it's going to cost you $1,000.

And I say: Okay, now, thanks for diagnosing the problem; where should I have it fixed?

Should I have it fixed at your shop or should I go to another place and have it fixed?

And they say: Well, have it fixed at our shop.

Now, is there a breach of a duty of loyalty there?

Mr. Lamken: Well, you might have an interest in getting an honest opinion.

It's just not protected by law.

They are allowed to tell you what they want to tell you because you have no protected interest in their opinion.

Justice Samuel Alito: I know.

But we are looking for whether there is an injury in fact.

Put aside the question of whether there is a breach of the duty in law.

There is allegedly here.

I just don't see where there is an injury in fact, because I know -- I'm an idiot if I don't realize -- that they have a strong economic incentive to say: Come have it fixed at my place.

Mr. Lamken: Well, in fact, Your Honor, Congress is entitled to elevate your interest in obtaining honest judgments or conflict-free advice to legal protection.

Whether you would be an idiot in accepting it or expecting it in the first instance, they can take that relationship and make it confidential and make it an honest one, even if you hadn't expected that in the first place.

Justice Antonin Scalia: Well, the issue isn't whether they can afford it legal protection.

They certainly can.

And there can be suits by -- by the Federal government or I think under this statute even by State, State attorneys general.

The issue isn't whether Congress can achieve that result.

It's whether they can achieve it by permitting private suits.

Mr. Lamken: Right.

But the common law was absolutely clear that when someone invaded your right to a conflict-free transaction, invaded your right not to have kickbacks in your transactions, you didn't have to prove that there was an economic consequence.

The invasion of your right not to have conflicts invade that transaction was sufficient.

Justice Anthony Kennedy: Could you tell me, just with Justice Alito's automobile hypothetical, just as a matter of agency law -- I'm a little rusty on this one.

If the auto repair people phone and say, and you need two parts and we will purchase those parts for you, and they then purchase parts from a company that they own, under standard agency law could the vehicle owner get disgorgement?

Mr. Lamken: If they are acting--

Justice Anthony Kennedy: And he doesn't know, they haven't been informed--

Mr. Lamken: --If that is an agency duty, and we assume that that's an agent; they are acting as agent for the person with the broken car -- the answer is absolutely, without having to show any loss.

And this Court's case in Magruder v. Drury was that type of case, where it was absolutely clear that the plaintiff would not have paid a cent more, the estate would not have paid a cent more if that -- if they had gone elsewhere to make the purchase.

Justice Antonin Scalia: If I take my car to an auto mechanic, he's not my agent.

He's an independent contractor doing business.

He's not my agent.

Mr. Lamken: That's exactly why I said--

Justice Antonin Scalia: And it's not an agency relation here, either.

It's a customer going to somebody who is an independent contractor.

Mr. Lamken: --Congress imposed one component of the duty that applies to agents and fiduciaries across the board and that is: Don't take kickbacks that undermine the incentive to obtain the best deal offered a consumer.

Justice Antonin Scalia: It wasn't agents and fiduciaries across the board.

He is neither an agent nor a fiduciary.

And what's the closest case you have to a situation where there is neither an agency relationship nor a trust relationship, and yet this kind of a right to sue without showing damage exists?

What's your -- what's your best shot?

Mr. Lamken: Well, the law has a number of contexts where you don't have to show financial losses.

If somebody defames you, you don't have to -- in your business, you don't have to show that you are financially injured.

That's injury in fact in and of itself.

Chief Justice John G. Roberts: Well, that gets to a point that I am having trouble getting my arms around.

It seems to me what your position is, what you want us to focus on, there are three possible arguments.

One is that there is injury in fact in this case.

I see some of that argument in your briefs.

Two, that Congress presumes injury in fact.

Injury in fact is still required, but that is presumed.

I read that to be perhaps what the trust cases say.

Or three, that injury in fact is not required at all.

Now, which are you arguing?

One, two or three?

Mr. Lamken: I think our argument is that the invasion of your statutory right to a conflict-free service is itself an injury in fact--

Chief Justice John G. Roberts: Okay, statutory right.

Mr. Lamken: --But it also has--

Chief Justice John G. Roberts: Could I?

I'm sorry to interrupt you, but I want to pause on that question.

You said violation of a statute is injury in fact.

I would have thought that would be called injury in law.

And when we say, as all our standing cases have, is that what is required is injury in fact, I understand that to be in contradistinction to injury in law.

And when you tell me all that you've got or all that you want to plead is violation of the statute, that doesn't sound like injury in fact.

Mr. Lamken: --It's injury in fact in the following two senses, Judge -- Mr. Chief Justice.

First, all you have to do -- getting a conflict-free referral is itself substantively more valuable than getting one laden by conflict.

Chief Justice John G. Roberts: Okay.

Now, that goes back to the first proposition.

That is an argument that there is injury in fact here.

So it seems to me that -- I don't mean this in a pejorative sense, but it seems to me that you slide back and forth between one, two, and three, which makes it hard for us to get a decision.

Mr. Lamken: I think the answer is so long as Congress has entitled you to something of potential value that isn't being denied to every other member of the public in an undifferentiated way, that is sufficient to be injury in fact.

Chief Justice John G. Roberts: Potential value.

Mr. Lamken: Potential value.

And it's more valuable--

Chief Justice John G. Roberts: Now, we said in the Whitmore case, and this is a quote:

"Allegations of possible future injury do not satisfy the requirements of Article III. "

Potential value sounds to me like possible future injury.

Mr. Lamken: --In this sense, Your Honor.

All you received is substantively less valuable.

What you have to do is ask yourself: Would I value more advice from somebody who is playing it straight on the financial side or someone who is taking kickbacks from the--

Chief Justice John G. Roberts: So that is injury in fact?

Mr. Lamken: --That is injury in fact, and there is another way in which it's injury in fact.

Chief Justice John G. Roberts: So if you tell me what this case is about is whether or not you've shown injury in fact, it's not a significant -- significant case, and your client has to prove that at trial.

Mr. Lamken: Well, she proved that she got something less valuable.

She got something she was entitled to--

Chief Justice John G. Roberts: But I thought -- and maybe it's a unique circumstance in this case, but Ohio says this is going to cost you the same no matter what you do.

Mr. Lamken: --That is actually quite incorrect, Your Honor.

Chief Justice John G. Roberts: Okay.

But then again, that's an argument about was there or was there not injury in fact.

Mr. Lamken: Well, the injury in fact is getting something that is potentially -- not getting something to which the law entitles you, which has potential value to you.

And a conflict-free referral is much more valuable than one laden by conflict.

And there is another thing.

We haven't disclaimed the notion entirely.

We haven't -- in fact we believe it is very likely that -- that quality or price suffered as a result of these -- of these conflicts.

But--

Chief Justice John G. Roberts: That sounds, again to use a word that we have said is inadequate to support standing, that sounds conjectural.

Mr. Lamken: --No, it is not, It's not conjectural at all.

Congress specifically found that these are the consequences.

But the reason--

Chief Justice John G. Roberts: No, no, no.

We are talking about not what Congress found; but what the injury in fact is.

Mr. Lamken: --Your Honor, so--

Chief Justice John G. Roberts: You will agree, won't you, that the idea that it's certainly possible or whatever your formulation was, that the quality here wasn't good enough or that the entire quality across the board might be better, that's conjectural, right?

Mr. Lamken: --No.

Well, Your Honor, it is very hard to prove.

And it was for that exact reason that--

Chief Justice John G. Roberts: Now we in point -- now we are at level two: It's hard to prove.

So is that your argument, that Congress presumed injury?

Mr. Lamken: --No, Your Honor.

Chief Justice John G. Roberts: Okay.

Mr. Lamken: That's why the common law elevated the right to conflict-free services from not being legally protected to legal protection, because it was so hard to figure out, for the judge--

Justice Stephen G. Breyer: What is the -- I think this is very interesting and informative to me.

Go back to the middle category.

As I am now seeing it, have you a version of the middle category that the Chief Justice was asking.

And -- and call it Congress sometimes passes a statute that creates a pariah.

It could be a substance, it could be a form of behavior, it could be a structure of an industry.

And then once it does that, it makes that unlawful.

And now what it's done, it is more unusual than I ever thought.

It comes up in the loyalty context, fiduciary, but we are not talking about fiduciary.

It says it is a harm and you will earn money if you deal with a pariah, assuming it wasn't your fault.

Now, that's -- that's where I have ended up with your answers to the Chief, and now, having put it that way, I can find loads of examples in my mind where there is a trustee or fiduciary involved.

I can think of an example in the qui tam context, but to think of one right on point is a little hard, though I thought there must be some.

Mr. Lamken: --Justice Breyer, the breach of contract, in some sense, is precisely that pariah.

Justice Stephen G. Breyer: The what?

Mr. Lamken: A breach of contract.

If somebody breaches -- a contractual duty owed to me, I don't have to prove that I suffered economic injury.

The breach of the promise itself gives me a grievance sufficient to entitle me to sue for nominal damages and--

Justice Stephen G. Breyer: You mean you can sue in court even if what you come in and you say, they breached my contract, and as a result, I made $10,000 I wouldn't have otherwise made?

And when the judge says

"And what damages do you seek. "

you say?

Mr. Lamken: --I would like $1 more, Your Your Honor.

I want nominal damages or--

Justice Stephen G. Breyer: And you can do that?

Mr. Lamken: --Or -- or -- so, if there are stipulated liquidated damages, you are entitled to those as well.

That is the common law rule for years--

Justice Stephen G. Breyer: No liquidated--

MR. LAMKEN -- and that is the majority rule today.

Okay.

Mr. Lamken: --So that is -- that is precisely the context.

But if I--

Justice Sonia Sotomayor: Counsel--

Chief Justice John G. Roberts: So you would accept $1 in this case?

Mr. Lamken: --Well, Your Honor, we are in -- I think that that is--

[Laughter]

We are hoping to do better, Your Honor.

But that actually illustrates--

Chief Justice John G. Roberts: Well, no, that -- that gets -- I didn't mean to be facetious, but it gets to the question of whether or not you have to actually show injury-in-fact.

Your allegation in this case is for damages, not just nominal damages but damages.

Mr. Lamken: --Your Honor, if the injury is sufficient to get you in court to get $1--

Justice Ruth Bader Ginsburg: Is that--

Mr. Lamken: --it doesn't evaporate just because you want to get--

Justice Ruth Bader Ginsburg: --Mr. Lamken, you are not seeking damages.

You are seeking what the statute says you can get which is your money back treble?

Mr. Lamken: --Exactly, Your Honor.

We are seeking precisely what the statute and title does when there is the breach of this duty owed to us--

Justice Ruth Bader Ginsburg: So it's not that you have to prove--

Mr. Lamken: --for our protection.

Justice Ruth Bader Ginsburg: --any other damages because the statute has specified what the recovery is.

Mr. Lamken: Exactly right.

Chief Justice John G. Roberts: Do you want -- I'm sorry.

Mr. Lamken: One injury not to, one injury-in-fact, a violation of a duty owed to us for our protection, not an additional injury in the form of having suffered an economic loss.

Chief Justice John G. Roberts: Do you want to get out of this contract?

Mr. Lamken: Pardon?

Chief Justice John G. Roberts: Do you want to get out of this deal?

Mr. Lamken: Your Honor, I don't know whether or not Ms. Edwards would want to get out of the deal or not.

But the statute says that she doesn't have to give up her insurance which protects her home in order to obtain the benefits of -- that Congress guaranteed her which were--

Chief Justice John G. Roberts: I didn't see -- I didn't see an allegation for a decision or -- or -- so you are perfectly happy as far as we know from the complaint with this deal, you just want the extra $500 per class member without showing any injury--

Mr. Lamken: --I think this -- I think this brings me back to the question you were asking me before, which is indeed, we think it's like that there is -- that there are diminution in quality and paying excessive price, but the law says we don't have to prove that because the law's elevated our right to a conflict-free transaction to legally protect its status.

The very reason the common law said in the fiduciary and the trust and all the other confidential issues in context said we are not going to ask about the economics, we are not going to regulate the economics here, because that's too hard.

What we are going to do is we are going to protect your right to receive the best advice possible.

And at that--

Justice Sonia Sotomayor: --Counsel, maybe I'm just looking at this too simply.

You pay -- your client paid $455 for title insurance, correct?

Mr. Lamken: --Yes.

Justice Sonia Sotomayor: She is claiming that she paid that money on the statutory assumption that the agent would disclose to her any kickbacks, correct?

Mr. Lamken: It's not a disclosure duty but on the statutory basis that she was entitled to a conflict-free referral.

That they were not directing her purchase on the basis of complex that is so--

Justice Sonia Sotomayor: She said I didn't receive what I paid for, correct?

Mr. Lamken: --Exactly, Your Honor.

Justice Sonia Sotomayor: I paid money, I lost the money, I have it back because what I've bought was a conflict-free--

Mr. Lamken: That's exactly right.

Justice Sonia Sotomayor: --referral, and that's not what I got?

Mr. Lamken: Like an aggrieved trust beneficiary, she is seeking to get back something that belonged to her, $455 that she parted company with in a conflicted transaction.

Chief Justice John G. Roberts: --You -- you don't want the conflict-free transaction because you don't want to get out of this contract.

You are perfectly happy with the contract.

You want $500.

You don't want a conflict-free transaction because even if it was a -- were a conflict-free transaction, the price would be the same, in Ohio.

Mr. Lamken: Not necessarily so, Your Honor, because Ohio does not preclude price competition.

You can file for--

Chief Justice John G. Roberts: Okay.

Now there the answer to my question, and I don't mean to focus on a peculiar structure but your answer was on part 1.

You said no, not necessarily.

Here there was an injury-in-fact, she might have gotten a better deal.

Mr. Lamken: --She has been exposed -- it's impossible to tell whether or not Fidelity would have been better because of financial settlements or another company would have been better because it has better clean paneling down the road.

Justice Antonin Scalia: And you don't want to have to prove that, because if you proved any damage, there goes your class action--

Mr. Lamken: Absolutely not.

Justice Antonin Scalia: --because you don't have commonality.

Mr. Lamken: The reason we're not -- we did not allege it is because the statute doesn't require it and for 280 years when somebody takes a -- takes a kickback that interferes with your obtaining the best deal possible, that itself was actionable without proving any further--

Justice Antonin Scalia: How does it -- how does it harm her to get a title insurance policy for the price of $453 from what you call a kickback-free seller, as opposed to getting the same title insurance for $453 from a non-kickback-free seller?

Is that an injury-in-fact?

Mr. Lamken: --Yes.

Justice Antonin Scalia: The -- the -- the vague notion of -- of buying it from -- from -- I don't know, a white knight?

Is -- is that the kind of injury-in-fact that our cases talk about?

Mr. Lamken: Your Honor--

Justice Antonin Scalia: It seems to me purely -- I don't know, philosophical.

Mr. Lamken: --It's not philosophical at all because that exact right, ensuring that she gets her -- her purchase in a kickback-free transaction is for her benefit.

And when she is denied that right, she has been denied something of potential value that hasn't been denied to everybody else in the universe.

For her protection, she was entitled to have them -- the very fact of the kickback undermines the incentive to pursue her best interest.

Like a trust beneficiary, a home buyer spending her money to insure title on her home as a concrete and particularized interest in insuring that those who direct the purchase are not doing it based on kickbacks, which is so undermining -- incentive to seek her best interest.

It may be very hard to prove in individual cases that, you know, fidelity is more financially sound or another has better claims handling.

But it was precisely for that reason that Congress got out of the business and courts got out of the business of trying to regulate the underlying economics.

They are not going to regulate price.

They are not going to regulate quality.

And instead, we are going to give you a right to get the referral from somebody who has expertise and who doesn't have a conflict created by a conflict -- by a kickback that so undermines their incentive--

Justice Antonin Scalia: That is Congress wanted to get out of the business.

But the issue here is whether Congress can get out of the business, whether it is the function of courts to provide relief to people who haven't been injured.

I mean, that's -- that's -- that's the whole issue.

Mr. Lamken: --Justice Scalia, the Constitution, statutes, the common law regularly create bright line across the board rights to protect underlying financial or other economic interests.

Where the right may sweep more broadly or may apply in cases where those underlying inputs are defected.

But we don't go look backwards at the purpose of the right, abstract the right to its purpose and say, well, unless it's purpose was -- was achieved in this particular purpose, we're not going to--

Justice Samuel Alito: Would there be injury-in-fact if the plaintiff knew everything that was relevant to this had -- had -- was an economist who had studied the effect of these things on title insurance price and quality, and in fact, had -- was aware of every single transaction that had ever occurred between the title insurance company and the title agent?

Would there be injury, in fact, in that situation?

Mr. Lamken: --Yes.

Justice Samuel Alito: And nevertheless said, okay, I understand this is what I'm getting into, but I'm going ahead.

Mr. Lamken: Yes.

There's -- there's injury--

Justice Samuel Alito: There would be injury, in fact?

Mr. Lamken: --Yes, because he has been denied something he is entitled to, which is another expert's untainted referral, which is not affected by any way by kickbacks, which we know is entirely corrosive in interest to pursue his best interest.

You might--

Justice Anthony Kennedy: --But -- but it's circular for you to say he was denied something that he is entitled to.

The question is whether there is an injury.

The Constitution requires an injury.

Mr. Lamken: --Right.

Justice Anthony Kennedy: If you were to say he was entitled to it and therefore, there is an injury, that's just -- that's just circular.

That gives no substance at all to the -- to the meaning of the term "injury".

Mr. Lamken: Yes, but the -- the invasion of a statutory right itself can be injury in fact so long as it is sufficiently concrete and -- and particularized.

That you are not just asserting another -- an interest of the public at large.

The Court has protected interests as divorced from property interest, as the right to obtain information from the government through FOIA or FACA, and it can protect your -- your non-property interest in not being defamed.

All of these things are protected.

Your rights to performance under contract.

All of these things are protected whether or not there is further economic harm that results.

And the no further inquiry world that is applied in the trust and fiduciary contracts sphere is just another example where the law elevates your interest in not having conflict--

Chief Justice John G. Roberts: Can I ask you, just to follow up.

You said whether or not there is further economic harm.

So you say economic harm is required--

Mr. Lamken: --No, I--

Chief Justice John G. Roberts: --because there can't be further economic harm if there isn't economic harm in the first place.

Mr. Lamken: --Further, comma, economic harm.

Further harm of the economic sort, Your Honor.

Chief Justice John G. Roberts: Further harm that happens to be economic, not further economic harm.

Mr. Lamken: Exactly.

But I view it to be further harm, much less further economic harm.

Thank you, Your Honor.

Chief Justice John G. Roberts: Thank you, Mr. Lamken.

Mr. Yang?

ORAL ARGUMENT OF ANTHONY A. YANG, ON BEHALF OF THE UNITED STATES, AS AMICUS CURIE, SUPPORTING THE RESPONDENT

Mr. Yang: Mr. Chief Justice, and may it please the Court:

When an individual has a statutory right to a kickback-free referral in a financial transaction, she participates in a particular financial transaction in which her right is violated and she pays money for the service unlawfully referred, she has sustained an Article III injury in fact based on, as this Court in its repeatedly explained test, an invasion of a legally protected interest.

That is--

Justice Antonin Scalia: Suppose -- Mr. Yang, let me -- me give -- give you a hypothetical.

Suppose Congress did this to spare the Attorney General the necessity of suing to enforce these requirements.

Suppose Congress wants to take the burden off the back of the Internal Revenue Service.

So it says that anybody who buys any product from a company that has not paid its taxes is entitled to $500, okay?

What that person is entitled to is a -- a tax-observant seller -- given a national right to a tax-observant seller.

Would every person who buys from some -- some company that hasn't paid its taxes have a cause of action?

Mr. Yang: --No.

Justice Antonin Scalia: Why not?

Mr. Yang: This Court has explained, I think principally in your opinion in Lujan v. Defenders of Wildlife, that Congress cannot convert an undifferentiated public interest in enforcement of the law--

Justice Antonin Scalia: But this is differentiated.

You have to have bought from one of these companies.

It's not everybody.

Not everybody has bought from these tax cheats.

Mr. Yang: --I understand.

Justice Antonin Scalia: It's only the people who bought from tax cheats.

Mr. Yang: There is also a threshold.

Obviously, Congress can't simply narrow the class of -- of plaintiffs to say people with college degrees, or people who were born on a Monday.

There needs to be a sufficient connection between the--

Justice Antonin Scalia: A nexus, right?

Your brief is full of nexus.

Mr. Yang: --Would you -- would you--

Justice Antonin Scalia: Legal jargon for "connection".

Mr. Yang: --We'll use "connection" here.

Justice Antonin Scalia: Lovely.

Say connection, I might add.

I love it.

[Laughter]

Mr. Yang: We'll say "connection".

But what -- in our view, there needs to be a reasonable connection between the proscribed conduct: here, the paying of taxes, and the class of persons--

Justice Antonin Scalia: Okay.

Mr. Yang: --to which the Congress has conferred the right, and that has to be such that the first class is reasonably regarded as victims of the conduct.

Justice Antonin Scalia: How much of a connection is -- is necessary?

Suppose you -- you have a law that requires all machine parts produced by companies to -- to contain a certain feature, and anyone who buys one that doesn't contain that feature gets $500.

I purchase one.

That feature is of no use to me at all.

That product would be just as good for me for the purposes for which I am using it had it not had that feature.

Would that be okay?

Would I have a cause of--

Mr. Yang: It's unclear.

Let me -- let me try to figure out the hypothetical a little bit further.

If Congress -- for instance, if the machine part was a safety harness in your car and you purchased a car with a safety harness but you happen simply, you know, to not use the safety harness, Congress might well be able to, say -- provide for a protection for all purchasers of this particular vehicle or any kind of vehicle, must -- those types of vehicles must have that safety equipment in order to protect the consumers who purchase it.

And in that instance, Congress could well provide for a statutory damage provision to protect such an individual generally.

Justice Antonin Scalia: --So even though I've installed my own safety harness, which I always do when I buy a car, I can sue because this car that they sold me didn't have the safety harness.

500 bucks.

Mr. Yang: That's correct.

And let me -- let me throw out some historical analogues to explain why the focus has to be on the invasion of the legally protected interest.

You have things like trespass.

At common law -- and this was well known to the framers -- at common law, if you simply step across a boundary line, a line defined in law and the rights that are defined in law that are associated with that line, if you simply step across this and step back, that is a trespass.

You can bring an action in court, and you could have no -- no impact whatsoever except the invasion of your legal right, and you would get nominal damages.

And that type -- similarly, if you have a contract, you could have a breach of the contract.

Justice Stephen G. Breyer: But Justice Scalia has a point.

I mean, as I heard it, he was reiterating what used to be called a prudential rule of standing.

It wasn't constitutional, but you looked to see if the statute is meant to protect this kind of person against that kind of harm, all right?

And if not, there is lack of prudential standing.

Well, if that's the test, his case would fall outside it, because the tax law is not meant to protect the plaintiff there, but this case would fall within it.

Mr. Yang: I think it's more than prudential standing.

It goes to what is an injury in fact, which the Court has again repeatedly explained is an invasion of a legally protected interest that is sufficiently concrete and particularized.

No, we don't think that Congress can, through the guise of a right, convert a generalized interest in enforcement of the law into something that an individual can come into--

Chief Justice John G. Roberts: Why do--

Justice Antonin Scalia: What is the specific -- I'm sorry, Chief, go ahead.

Chief Justice John G. Roberts: --What -- why do we always say injury in fact then?

You say so long as the harm is a violation of the law in legally protected interest.

Our standing cases always say injury in fact as opposed to injury in law.

And you are saying if you violate the law, you have sufficient injury.

Mr. Yang: --Well, your cases actually say an injury in fact.

And then you go on to explain.

For instance, in Defenders of Wildlife, that that is invasion of a legally protected interest.

I'm not saying it's any invasion of a law, but when Congress confers a right--

Chief Justice John G. Roberts: Because -- they also go on to say that it has to be concrete.

Mr. Yang: --Right.

Chief Justice John G. Roberts: Real and immediate, not conjectural or hypothetical.

Mr. Yang: That's right.

It can't be an abstract type of a thing; it has to be in a specific factual context that is amenable to judicial -- a realistic judicial appreciation of the consequences--

Chief Justice John G. Roberts: So that all of our cases, we could have left "in fact" out of all of them.

None of them come out differently because we insist on injury in fact.

Mr. Yang: --Well, I -- I don't know if you could have left it out.

You could have called it anything.

It is a legal label that the Court has applied to--

Chief Justice John G. Roberts: The difference between legal harm, though -- isn't that -- I guess I'm just repeating myself.

Injury in fact.

How do you understand that to be different than any other kind of injury?

Mr. Yang: --Well, an injury in fact is not simply a legal injury in the sense of any violation of the law, it is an invasion of a legally protected interest with respect to this particular individual, the particular plaintiff.

Chief Justice John G. Roberts: The two elements, that's the particularized requirement, and I understand that.

But you are saying there's -- injury in fact simply means particularized.

Mr. Yang: No, no, no, no.

It includes several concepts.

An injury in fact is an invasion of a legally protected interest.

It either has to be actual or imminent, and it has to be concrete and particularized.

Now, again, so there's several concepts within the umbrella of injury in fact.

But I'd like to go back to the examples that we would find at the time of the framing, of many types of injuries, where you don't have to have anything other than an invasion of your legally protected right.

For instance, a right to an agreement.

If there is a breach that has no impact whatsoever, you would be able to get in and sue.

Now, there is a question of the quantification of damage, but that's separate.

That's not whether you have an injury in fact, it is how -- it's the measure of damages, and the measure of damages in common law would be nominal damages.

Similarly, an invasion -- a trespass invasion, or, for instance, if you were a beneficiary of a--

Justice Anthony Kennedy: I'm not sure about trespass.

The object of my owning property is that I have a right to exclude.

This is what I own.

This is what the law protects.

This is a spatial area for -- for my -- which is my own domain.

Mr. Yang: --And why you have that is--

Justice Anthony Kennedy: And there -- there is an injury to that right.

Now--

Mr. Yang: --But if the right's threatened--

Justice Anthony Kennedy: --you want to say that Congress can say that you have a right to buy a conflict-free title insurance policy.

I'm -- I'm not sure that the two equate.

Mr. Yang: --Well, going back to your hypothetical, the reason you have that interest, the reason you have the right to exclude this space is solely by operation of the law.

Those concepts, they are attached to property rights, were created by common law courts.

Just as common law courts can create rights, the invasion of which create interest, so too can a State legislature or when Congress is acting within its Article III power to the one power--

Justice Anthony Kennedy: Well, but it's essential to my -- it's essential to my feeling of security and dignity and privacy.

Like Justice Breyer's telephone hypothetical.

Mr. Yang: --I don't -- I don't think the -- any common law court has inquired whether the invasion of -- the trespass somehow made you insecure--

Chief Justice John G. Roberts: Trespass cases, it seems to me, are different because you are talking about a property right, and you can sell a property right.

You can go to somebody and say I have the right to keep people off of this piece of property.

Do you want to buy it?

Here's how much it's worth.

But if -- that's only a property right to the extent you can keep people off of it.

Here no one is going to buy this right from the -- the -- the plaintiff, because everybody's got it anyway.

You don't -- you don't pay her, because she doesn't have a tangible concrete right.

The trespass case, the person obviously does, because he can sell it.

Mr. Yang: --Well, anything can be monetized.

Chief Justice John G. Roberts: No, this one -- that's my point.

This cannot be monetized because everybody's already got it.

You can answer.

Mr. Yang: Well--

Chief Justice John G. Roberts: It's not really a question, but you can answer.

[Laughter]

Mr. Yang: --Well, it is -- it's kind of a statement, although you know in this -- this is specific transaction, this is a transaction involving the plaintiff.

She paid money for a service that she got, and it was unlawfully tainted by a kickback and that's the type of thing that traditionally can be enforced in court.

Chief Justice John G. Roberts: Thank you, Mr. Yang.

Mr. Panner, you have 4 minutes remaining.

REBUTTAL ARGUMENT OF AARON M. PANNER ON BEHALF OF THE PETITIONERS

Mr. Panner: Thank you, Mr. Chief Justice.

It seems to me that there are two positions that have been articulated before the Court and both are inconsistent with the Court's prior decisions.

The first is--

Justice Antonin Scalia: Not yours and his?

[Laughter]

Mr. Panner: --That of the -- that of the plaintiff and that of the government, Your Honor.

I should have been more particularized.

[Laughter]

The violation of a duty owed to us, that is what plaintiff claims is the injury here.

The violation of a duty is a violation of a duty; it is not injury.

And similarly the government says that what is required is a sufficient connection to the conduct, but what is required is not a connection to the conduct, what is required is an injury-in-fact, a harm to the plaintiff who is seeking to obtain redress from the courts.

And that fundamental limitation on the role of the courts is critical to the liberty of the people who come before the courts and who are subject to the power of the courts.

It is absolutely appropriate for someone who has been harmed through the violation of a statutory or common law duty owed to that person to come before the court seeking redress, but what is not possible is for the courts to be open to a plaintiff who has not alleged that the statutory duty -- the statutory violation that has been alleged has caused any adverse impact.

Now of course there are broadly -- there are -- there is illegal conduct that may have caused harm to a broad section of the population.

If somebody engages in price fixing and then sells those price fixed goods it may be easy to show that as a result of that many people suffered harm and can come into court to sue for it.

Similarly, there are non-financial harms that for are the basis for standing in many, many cases: example, defamation, harm to reputation, discrimination where somebody is subject to a -- an injury of being discriminated against.

Justice Antonin Scalia: What about a -- I'm sorry to interrupt your -- your concluding marks, but I am troubled by the dollar nominal damages for breach of contract.

What do you say about that?

Mr. Panner: Well, Your Honor, in -- in a circumstance in which there is a bargain for performance, and it may well be that there is a recognition that there is value that was assigned to that performance that may be hard to measure, and therefore there is a concrete injury that is hard to measure, and the therefore nominal damages is awarded.

Now the cases are not uniform on whether nominal damages are available.

There is a -- it's actually split and that there's -- we are not aware of a case in this Court that would say that in a circumstance in which there was a harmless breach, that -- that a suit for nominal damages would establish Article III standing, so with respect to that I'm -- I'm not sure what the answers would be.

Unless the Court has further questions?

Chief Justice John G. Roberts: Thank you, counsel, counsel.

The case is submitted.

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Chief Justice John G. Roberts: In Case 10-708, First American Financial Corporation versus Edwards.

The petition for writ of certiorari is dismissed as improvidently granted.