Restitution may be a casualty in a collision with the constitutional law of standing. Article III is traditionally said to require an “injury in fact” for standing to be a plaintiff in federal court. Edwards, who alleges that First American paid a bribe or kickback in violation of the federal Real Estate Settlement Procedures Act, seeks to recover the statutory penalty. Defendant argues that even if it violated the Act, Edwards suffered no “injury in fact.” Our amicus brief in support of Edwards alerts the Supreme Court to the many restitutionary claims either for a wrongdoer’s profits or to set aside transactions tainted by wrongdoing that do not involve any “injury” to plaintiff that would qualify as an “injury in fact” under First American’s apparent definition of that term. Our brief argues that just as a plaintiff’s standing to sue for damages differs from her standing to sue for an injunction, her standing to sue for restitution must be different from either. The Court must base a plaintiff’s standing to sue for each remedy or form of relief on the nature of that relief and on the substantive-law premises that underlie the plaintiff’s cause of action. The Court should not, perhaps inadvertently, bar from federal court plaintiffs suing for restitution of a defendant’s unjust enrichment. Such a development would be particularly unfortunate in light of the 2011 publication of the American Law Institute’s Restatement (Third) of Restitution and Unjust Enrichment.
Brief for Reporter and Advisers to Restatement (Third) Restitution and Unjust Enrichment, as Amici Curiae Supporting Respondent, First American Financial Corp. v. Edwards, 131 S.Ct. 3022 (2011) (No. 10-708).