When Can Associations Litigate
on Behalf of Members?
This Law Review was written by
Timothy A. French and edited by
Jed Mandel, both of whom are
founding members of Chicago
Law Partners, LLC. CLP serves
as the Association Forum’s general counsel.
Q: When is it appropriate for an association to file a lawsuit concerning an issue
that affects its members and their businesses (and not the association directly)?
A: One of the many benefits of membership in an association is the ability — the
“standing” — to prosecute or defend
litigation under the association’s banner
and umbrella. In fact, there is a broad
range of options for exercising an association’s standing to sue. Those options
include: ( 1) filing suit as the party
plaintiff, including an appeal from an
administrative regulatory rulemaking; ( 2)
intervening as a plaintiff or defendant in
litigation initiated by other parties; and
( 3) filing amicus briefs in appellate cases
where legal issues germane to the association’s purposes are being litigated.
Both strength in numbers and a relative degree of individual anonymity can
be derived when a lawsuit is brought
or defended in the name of an association rather than an individual member.
Indeed, it is often very prudent to have
the association’s neck sticking out (rather
than an individual member plaintiff's).
That way there is no risk of any individual
member’s head being lopped off later
as the litigation and its results unfold.
Moreover, much greater efficiencies in
the marshalling of resources and the allocation of costs can be realized when an
association is the litigating party.
The role of associations in litigation
is specifically provided for under the doctrine of “associational standing.” Generally, the courts’ functions are limited to
deciding actual “cases and controversies,”
and do not include resolving political
questions or rendering advisory opinions.
That, in turn, requires that litigants have
adequate “standing” to present specific
issues to the courts in a sufficiently
adversarial context. Stated differently,
the party bringing a lawsuit generally
must show that an action injures him
or her in a real and personal way. This
requirement “preserves the vitality of the
adversarial process” by assuring that the
parties before the court have an actual,
as opposed to a professed or theoretical,
stake in the outcome, and that the legal
question presented will be resolved in a
concrete factual context that can lead to
targeted and effective relief through judicial action.
In a typical case, a litigant normally
must demonstrate that it has suffered a
concrete and particularized injury that is
either actual or imminent (an “injury in
fact”), that is traceable to the defendant’s
conduct and that is likely to be redressed
by a favorable decision from the court.
This typical “standing” requirement,
however, is problematic for associations,
since they do not normally suffer any
concrete and personal injury as a result
of conduct that aggrieves their members.
In recognition of this “standing” problem, and to foster the efficiencies and
other benefits that result from allowing
associations to litigate on behalf of their
members, the unique legal doctrine of
“associational standing” has evolved to
address and overcome this potential bar
to an association bringing a claim on
behalf of its members.
The doctrine of associational standing
allows an organization to seek to redress
injuries to its members, even without a
showing of any particularized injury to
the organization itself. Under the doc-
trine, there are three requirements for an
association to have standing to sue on
behalf of its members: ( 1) the associa-
tion’s members, or some of them, have
standing to sue in their own right; ( 2) the
interests that the association seeks to
protect are germane to its core purposes;
and ( 3) neither the claim asserted nor the
relief requested requires the participation
of individual association members in the
The answers provided here should not be construed as legal advice or a legal opinion. Consult a
lawyer concerning your specific situation or legal