The U.S. Court of Appeals for the Second Circuit unanimously dismissed a lawsuit by the organization Do No Harm against the Pfizer Corporation, alleging the latter operates a discriminatory fellowship program. While all three judges on the panel agreed the suit should be dismissed for a lack of standing, they disagreed about why. In particular, they disagreed about whether an association that seeks to establish Article III standing based upon the alleged injury to an individual member must identify that member by name when seeking a preliminary injunction.
Judge Robinson wrote the majority opinion in Do No Harm v. Pfizer, and was joined by Judge Jacobs. Her opinion begins:
Defendant-Appellee Pfizer Inc. ("Pfizer") sponsors a Breakthrough Fellowship Program (the "Fellowship") that seeks "to advance students and early career colleagues of Black/African American, Latino/Hispanic, and Native American descent." J. App'x 45. Do No Harm, a nationwide membership organization, filed suit against Pfizer on behalf of its members, alleging that Pfizer unlawfully excludes white and Asian-American applicants from the Fellowship in violation of federal and state laws.
When Do No Harm moved for a preliminary injunction, the district court dismissed the suit for lack of subject matter jurisdiction. Do No Harm v. Pfizer Inc., 646 F. Supp. 3d 490, 517–18 (S.D.N.Y. 2022). In particular, the district court concluded that Do No Harm lacked Article III standing because, among other reasons, it failed to identify a single injured member by name. Id. at 504–05.
