If you are a litigator, there is a very good chance that you have just become a member of a class action. Congratulations! This is because several advocacy groups (the National Veterans Legal Services Program, the National Consumer Law Center and the Alliance For Justice) filed a class action against the U.S. Government for overcharging users of PACER (Public Access to Court Electronic Records).
PACER is an online electronic records system that provides access to documents and information about U.S. federal cases. If you litigate in federal courts, it is indispensable (and mandatory). Aside from the litigants themselves, PACER is widely used by lawyers conducting research, journalists, and watch groups. The lawsuit claims that the government illegally charged fees beyond what was strictly necessary to fund the program and seeks to have those fees given back and reduced in the future (plus some attorneys' fees thrown in).
On January 23, 2017, the District Judge overseeing the case granted class certification and defined the class as: "All individuals and entities who have paid fees for the use of PACER between April 21, 2010, and April 21, 2016, excluding class counsel in this case and federal government entities." In other words, all lawyers who have practiced in federal court -- as well all journalist following federal cases -- over the last six years, are now class members.
Whether or not the lawsuit will ultimately be successful (or settle), is yet to be determined. However, a question we should ask is: do we want this lawsuit to succeed?
PACER is an incredible tool that allows instant access to millions of documents from the comfort of your computer. As someone who also has significant experience in state litigation, I can only wish that states could come up with a PACER equivalent. PACER also allows litigants one free copy of the documents in their own cases, allows exemptions for individuals or organizations who cannot afford the fees, and waives fees for those who use the service minimally (under $15 per quarter).
Although the class plaintiffs are non-profit organizations and worthy advocacy groups, the reason they did not even bother asking for exemptions is because they can afford to use PACER. For example, according to the Court's opinion, each organization has an annual revenue of at least $3 million. Out of these annual revenues, the National Consumer Law Center paid PACER an average of $977 per year, the National Veterans Legal Services Program paid PACER an average of $317 per year, and the Alliance For Justice paid PACER a mere average of $65 per year. PACER's fees have clearly not been standing in the way of their advocacy or their missions.
Nor is the extra money being spent on lavish parties or judicial extravaganzas. According to the Court's Order, most of the collected fees were earmarked for "courtroom technology, websites for jurors, and bankruptcy notification systems." In other words, the money is still going towards making the federal court system more accessible and attempting to bring it up to speed to our technological expectations.
For anyone who has seen an episode of The Good Wife and compared the technology that courtrooms should have to the technology that courtrooms do have, money spent on updating our last-century judicial system should be a welcome development.