Issues affecting an entire profession or industry often give rise to lawsuits that seek to prevent alleged harm or require desired action. Professional and trade associations typically monitor these issues on behalf of their members and recommend the filing of a legal action or intervention in ongoing legal actions of others in order to protect the interests of the association. For a variety of reasons, including reluctance of individual members of an association to lend their name to the lawsuit, the association is often chosen as the named plaintiff or intervenor, even though the association as an entity may not itself have the requisite standing to sue. In such circumstances, it is critical that the association assert in its initial court filing sufficient facts to show that at least one of the association’s members will be adversely affected – that is, “aggrieved” — either by the action being challenged or by the relief sought in the lawsuit in which the association seeks to intervene. See Pennsylvania Med. Soc’y v. Dep’t of Pub. Welfare, 614 Pa. 574, 39 A.3d 267, 278 (2012) (under Pennsylvania law, an association has standing as representative of its members to bring a cause of action even in the absence of injury to itself, if the association alleges that at least one of its members is suffering immediate or threatened injury as a result of the action challenged).
To show that a member is legally aggrieved, the association must show that its member has a substantial, direct and immediate interest in the claim sought to be litigated. Pennsylvania Med. Soc’y v. Dep’t of Pub. Welfare, supra, citing William Penn Parking Garage, Inc., v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269, 280 (1975).
The associational standing requirement is one that is uniformly enforced; failure to respect it can be case-ending. For example, in Americans for Fair Treatment, Inc. v. Phila. Fed’n of Teachers, 150 A.3d 528, 533 (Pa. Cmwlth. 2016), the court affirmed dismissal of a case brought by an Oklahoma nonprofit corporation against a Philadelphia teachers’ union and the Philadelphia School District for lack of standing, based on failure to describe in sufficient detail the aggrievement of particular members. The complaint asserted the organization had “members throughout the country” and that it “facilitate[s] and support[s] litigation to enforce and expand human and civil rights of employees who have suffered public sector union abuse,” and that its “membership includes public sector union members and nonmembers, as well as supporters of public employees,” but did not identify any member who was a Philadelphia teacher or taxpayer and did not allege any facts concerning the positions that its claimed Philadelphia teacher members held, the schools where they taught, or the subjects or positions for which they were certificated. In affirming dismissal of the case, the court held: “General descriptions of an organization’s members cannot establish standing if they do not show that a member or members are sufficiently adversely affected to have standing.” Id. Similarly, in Pa. School Bd.s Ass’n, Inc. v. Pub. School Employees’ Retirement System, 751 A.2d 1237 (Pa. Cmwlth. 2000), the court found no standing where neither the plaintiff association nor one of its members was a member of retirement system and were not within the class of persons to whom the retirement system owed a fiduciary duty.
For administrative convenience, it often is easiest to choose as co-plaintiff “members” whose personal aggrievement can be described in sufficient detail or association officers who already may be involved in authorizing and supervising the litigation effort on behalf of the association. To avoid technical objections from opposing parties, these members should also be included as “named” plaintiffs or intervenors in the caption of the pleadings. The association itself can be named first, so that it will be the association, and not the named individual members, that will appear when the court short-forms the case caption, or when the press reports on the case.
For further discussion on this topic, see G. Ronald Darlington, Kevin J. McKeon, Daniel R. Schuckers & Kristen W. Brown, Pennsylvania Appellate Practice (2016-2017 Ed.) § 501:11.
About the Author:
Kevin McKeon, partner at Hawke, McKeon & Sniscak, LLP, represents a diverse array of clients before Pennsylvania state agencies, and state and federal appellate courts. A co-author of West’s Pennsylvania Appellate Practice and immediate past chair of the Pennsylvania Appellate Court Procedural Rules Committee, Kevin uses his comprehensive knowledge of Pennsylvania appellate procedural rules to guide clients through complex appellate proceedings.