Marie Falcone sued Nestlé USA over statements on product labels that cocoa was “sustainably” or “respon- sibly” sourced. She claimed the statements were mis- leading because Nestlé USA could not guarantee a sup- ply chain free of all risks of child labor. Falcone sought certification of injunctive-relief and damages classes. Undisputed evidence showed that many consumers did not see the statements, understand them as promises about labor practices, or rely on the statements in de- ciding to buy the chocolate. It was also undisputed that most consumers would not have considered the choco- late worthless without the statements. Falcone herself testified that she now has a full understanding of Nestlé USA’s labels and sourcing practices. Yet the district court certified both classes, approving the injunctive- relief class based on Falcone’s testimony and the dam- ages class based on a model that would award all class members a full refund of every cent they paid for the chocolate. A divided Ninth Circuit panel affirmed.

The questions presented are:

1. Whether a consumer who is aware of alleged de- ception has Article III standing to seek injunctive relief requiring removal of the allegedly deceptive statements.

2. Whether a damages class may be certified when some members lack Article III standing.

3. Whether, under Comcast Corp. v. Behrend, 569 U.S. 27 (2013), a damages class may be certified based on a model that would award class members damages they could not recover in individual litigation.

(I)

MG+M THE LAW FIRM

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Counsel for Petitioner Jackson T. Friesen

Ratemaking by federal agencies, including of inter- state energy markets, is typically governed by the “filed rate doctrine.” The doctrine constrains regulated enti- ties from charging a rate that is unjust or unreasonable, or that deviates from the terms officially on file with the regulating agency, including through a tariff. The doc- trine, which extends to rate-related classifications, prac- tices, and regulations, has long been held to prohibit ret- roactive changes by federal agencies, including, as rele- vant here, the Federal Energy Regulatory Commission. That prohibition is of paramount importance to main- taining the stability and predictability of the Nation’s multi-billion-dollar energy markets, among other things.

In the decision below, the D.C. Circuit held, in con- flict with the Third Circuit, that FERC’s approval of a change to a tariff governing certain wholesale energy ca- pacity auctions was not retroactive, even though the change divested a participant in those auctions of a vested right it had acquired under the prior tariff rules. In doing so, the Circuits divided on the antecedent ques- tion of when a change in law is retroactive, a question with far-reaching implications beyond the filed rate doc- trine. The question presented is:

Whether, as the Third Circuit held, a legal change is retroactive if it eliminates an entitlement acquired un- der prior law through a completed past act, even if the entitlement would have been exercised only in the fu- ture, or whether, as the D.C. Circuit held, a legal change is retroactive only if it alters the past legal consequences of the completed act.

(i)

The appeal presenting these questions was docketed in the Third Circuit on January 26, 2023. In the more than three and a half years since, the United States has never filed a responsive brief, and the court of appeals has never ordered one, heard argument, or decided the appeal. A petition for a writ of certiorari is filed concurrently in Lawyers for Fair Reciprocal Admission v. Timmer, No. 26-___, presenting the state-law half of the same question on a final judgment of the Ninth Circuit.

The questions presented are:

1. Whether D.N.J. L.Civ.R. 101.1 and D. Del. L.Civ.R. 83.5—which categorically deny general bar admission to attorneys licensed and in good standing in the other forty-nine states, allocating the right to file, appear, and petition in the courts of the United States by class membership rather than individual merit—violate the First Amendment and the equal- protection component of the Fifth Amendment’s Due Process Clause.

2. Whether the Local Rules’ class-based exclusions that have nothing to do with individual merit exceed the rulemaking authority conferred by 28 U.S.C. §§ 1654, 2071, and 2072, as construed in Frazier v. Heebe, 482 U.S. 641 (1987), and Siegel v. Fitzgerald, 596 U.S. 464 (2022), or can survive any standard of review, when these are federal courts administering federal law.

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1. | Whether the prosecution of a foreign citizen on a foreign- registered boat for drug activity outside of and having no connection to the United States violates the Fifth Amendment’s Due Process Clause— a question that divides the Circuits?

2. Whether Congress’s authority “[t]o define and punish Piracies and Felonies committed on the high Seas,” U.S. Const. Art. I, § 8, cl. 10, permits it to criminalize drug conduct, having no connection to the United States, by a foreign citizen on a foreign-registered boat?

3. Whether Congress’s authority “[t]o define and punish Piracies and Felonies committed on the high Seas,” U.S. Const. Art. I, § 8, cl. 10, permits it to criminalize drug conduct committed within a foreign nation’s exclusive economic zone?

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