Class Certified in Suit Over Pacer Fees

WASHINGTON (CN) – A federal judge has certified a class action that accuses the U.S. government of overcharging the public for online access to court records.

Anyone can access federal court documents remotely through a system called PACER, short for Public Access to Court Electronic Records, but each page costs 10 cents to view, with a maximum charge of $3 per download.

This past April, three Washington nonprofits brought a federal class action in Washington against the agency that gatekeeper for such records, the Administrative Office of the U.S. Courts.

In violation of the E-Government Act, which allows courts to collect fees “only to the extent necessary,” the class accuses the courts office of shirking its duty to charge the minimum cost of records maintenance.

By charging more, according to the complaint, the office has extra revenue to spend on courtroom technology and other unrelated expenses.

U.S. District Court Judge Ellen Segal Huvelle certified the plaintiffs Tuesday to represent a class.

The National Veterans Services Program, the National Consumer Law Center and the Alliance for Justice seek represent “all individuals and entities who have paid fees for the use of PACER within the past six years, excluding class counsel and agencies of the federal government.”

In opposition, the government had disputed whether the nonprofits could prove how many potential class members had actually voiced their displeasure over the fees with the PACER Service Center or how many are nonprofit organizations.

But Huvelle noted that she already addressed this issue in a ruling that said the nonprofits did not have to notify the PACER Service Center of their complaints before filing suit.

The government also argued that nonprofits make for poor class representatives since, unlike average people, they can request fee exemptions.

To this point, Huvelle chided that the government “greatly exaggerates the relevance of named plaintiffs’ nonprofit status.” Nonprofits are sometimes eligible for fee waivers, but Huvelle noted that those as large as the lead plaintiffs in this case rarely do.

“In fact, the nonprofit organizations who are named plaintiffs in this case make particularly good class representatives,” Huvelle wrote. “They are interested in reducing PACER fees not only for themselves but also for their constituents. As nonprofit organizations, named plaintiffs exist to advocate for consumers, veterans and other public-interest causes.”

Huvelle also rejected the government’s final claim: that she must first figure out whether each member of the proposed class had accessed so many pages after exceeding the $3 maximum that their actual per page cost did not violate the E-Government Act.

Making minor changes to the class definition, however, the judge specified that the six-year window ended on April 21, 2016, the date of the complaint’s filing.

“Second, rather than stating that the definition excludes ‘class counsel,’ the court will state that it excludes ‘class counsel in this case,’” the 19-page opinion continues. “Plaintiffs’ counsel stated at the motion hearing that they were excluding only themselves, not all PACER users who have acted as counsel in class actions.”

Class counsel Deepak Gupta, an attorney with Gupta Wessler, did not respond to an email seeking comment.

The Administrative Office of the U.S. Courts declined to comment on the pending litigation.

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