Since the Supreme Court decision in Lexmark International v. Static Control Components, courts across the country have been finding that challenges to the right to sue under federal statutes should be brought as motions under Federal Rule of Civil Procedure 12(b)(6) and not 12(b)(1). See, e.g., Lone Star Silicon Innovations v. Nanya Tech., 925 F.3d 1225, 1229 (Fed. Cir. 2019) (right to sue under the Patent Act); Am. Psychiatric Ass’n v. Anthem Health Plans, 821 F.3d 352, 359 (2d Cir. 2016) (right to sue under the ERISA statute). The U.S. District Court for the Southern District of New York has now clarified that the Lexmark holding applies equally to the Defend Trade Secrets Act (DTSA).
Background
In Lexmark International v. Static Control Components, the Supreme Court held that to sue for false advertising under 15 U.S.C. §1125(a) of the Lanham Act, a party had to “allege an injury to a commercial interest in reputation or sales.” 134 S. Ct 1377, 1390 (2014). In so holding, the court clarified that challenges to so-called “statutory standing” do not implicate a court’s subject matter jurisdiction. Id. at 1387 n.4. The court found the term “statutory standing” misleading because the absence of a valid cause of action under a statute “does not implicate subject-matter jurisdiction, i.e., the court’s statutory or constitutional power to adjudicate the case.” Id. (emphasis in original).
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