Grayson v. AT & T CORP.

RUIZ, Associate Judge,

concurring in part and dissenting in part:

Although I conclude that both appellants had standing to bring suit, I agree with the court’s conclusion that Grayson’s complaint was properly dismissed for failure to state a cause of action under the CPPA. Breakman’s complaint does state a cause of action, however, and I would reverse and remand his case for further proceedings.

*253 This appeal presents three issues for consideration:

1) Must a plaintiff, to have standing to sue under the CPPA, allege injury-in-fact?

2) Even if the CPPA does not impose such a requirement, are the District of Columbia courts nonetheless bound to adjudicate only “cases or controversies”?

3) If the answer to the first two questions is no, and appellants therefore have standing to sue, did appellants’ complaints state a cause of action under the CPPA?

I answer the first two questions in the negative. As to the third, although I disagree with the majority opinion that appellants had to show injury-in-fact to sue under the CPPA, I agree that Grayson’s complaint did not allege any unlawful trade practice cognizable under the CPPA; therefore, I agree with the court’s affir-mance of the trial court’s dismissal of his complaint for failure to state a cause of action. Because I believe that Breakman has standing to sue without alleging injury-in-fact, I must address whether his complaint states a cause of action and conclude that it does; therefore, I would reverse the dismissal of his complaint and would remand his case for further proceedings.

I. Does the CPPA require injury-in-fact as a prerequisite to suit?

The principal, and, for me, difficult issue presented in this appeal is whether the CPPA statute permits a person to sue for relief against unlawful trade practices regardless of whether that person can show injury-in-fact. Appellants and amici 1 present a strong textual argument that the Council of the District of Columbia intended just that when it amended the statute in 2000 to delete language that permitted suit by “[a]ny consumer who suffers any damage as a result of a trade practice” made unlawful by D.C. law, in favor of language that now allows suit by “[a] person, whether acting for the interests of itself, its members, or the general public ... seeking relief from the use by any person of a trade practice” unlawful under D.C. law. Compare D.C.Code § 28-3905(k)(1) (1981) (1996 Repl.) with D.C.Code § 28-3905(k)(1) (2001). The statute defines “person” as including “an individual, firm, corporation, partnership, cooperative, association, or any other organization, legal entity, or group of individuals however organized.” D.C.Code § 28-3901(a)(1) (2001). It is undeniable that the combination of the expansive definition of “person” — it is difficult to conceive of a broader definition — with the grant to a “person” of the right to sue “whether acting for the interests of itself, its members, or the general public” is, on its face, sweeping in scope. 2

*254 The broad sweep of the 2000 amendments is to be compared with the language it replaced: “any consumer who suffers any damage as a result of’ an unlawful trade practice. D.C.Code § 28-3905(k)(1) (1996 Repl.). “[A] change in legislative language gives rise to the presumption that a change was intended in legislative result.” United States v. Brown, 422 A.2d 1281, 1284 (D.C.1980). It is important to note that this is not a case where the legislature solely omitted language that appeared in a parallel statute, as we recently considered in Gause v. United States, 6 A.3d 1247 (D.C.2010). As appellants point out, the language that was deleted has been the subject of judicial interpretation by this court on the same issue of standing that is before us, which gives added weight to the usual presumption that substantive change was intended. In Beard v. Goodyear Tire & Rubber Co., 587 A.2d 195 (D.C.1991), we relied on the language that was eliminated in the 2000 amendments in concluding that:

[sjuffering damage is a condition precedent to suit, and one who has not been injured cannot sue under this statute -for any relief whatever. Nothing in the regulations purports to extend the statutory right to such relief, or, indeed, to any remedy, to an individual who has suffered no injury.

Id. at 204 . The legislature is presumed to enact laws with knowledge of relevant decisional law. See Office of People’s Counsel v. Public Serv. Comm’n, 477 A.2d 1079, 1091 (D.C.1984). Now that the CPPA statute has been amended to eliminate the language we quoted in Beard as imposing an injury requirement, it is logical to conclude — absent evidence to the contrary— that the Council intended to dispense with a requirement of injury as a prerequisite to suit, a conclusion that is particularly valid when the legislature is amending the very language that has been the subject of judicial interpretation. 3

Although courts, including this one, see Burgess v. United States, 681 A.2d 1090, 1095 (D.C.1996), have been reluctant to go beyond consideration of language that appears clear on its face, the effect of a plain meaning interpretation of the 2000 amendments is so foreign to the manner in which we have understood and applied principles of standing, that I do not object to the majority’s recourse to legislative history as a further tool to ascertain legislative intent. See Jones v. United States, 526 U.S. 227, 234 , 119 S.Ct. 1215 , 143 L.Ed.2d 311 (1999) (“Congress is unlikely to intend any radical departures from past practice without making a point of saying so.”). In Gause we declined to apply the presumption that a “radical departure from past practice” was intended by a change in language because the legislative history *255 was absolutely silent on the issue and the statute’s purpose did not support it. See Gause, 6 A.3d at 1260 & n. 5. In this case, consideration of the legislative history of the CPPA amendments and the purpose of the statute, however, does not lead me to the conclusion the majority reaches that the status quo ante the amendments should prevail in terms of standing. Rather, it tends to confirm that the broad sweep of the amended language should be given effect.

As the opinion for the court describes in detail, the 2000 amendments to the CPPA were the product of budgetary constraints. The District was suffering from serious revenue shortfalls and, as a result, its expenses had to be reduced. One of the expenses that was entirely cut was funding for the Department of Consumer and Regulatory Affairs enforcement arm responsible for enforcing the CPPA. In amending D.C.Code § 28-390600(1), the CPPA section that creates a private right of action, the Council was attempting to supplement, with private efforts, the gap in public enforcement that would result from the budget cuts. Substitution of private for public enforcement was to be accomplished by expanding the categories of plaintiffs who could sue to enforce the law. Elimination of traditional injury-in-fact as a prerequisite to standing in favor of suit by a “person” (broadly defined) “whether acting for the interests of itself, its members, or the general public” is fully consistent with this goal. D.C.Code § 28-3905(k)(1). Also consistent with this purpose was the clarification, in the remedies section, of the availability of injunctive and other equitable relief (“in representative actions, additional relief as may be necessary to restore to the consumer money or property, real or personal, which may have been acquired by means of the unlawful trade practice”). Id. at (k)(1)(D) & (E).

The majority recognizes that the purpose of the 2000 amendments was to enhance the tools available to enforce the CPPA, but its interpretation concludes that the only way in which it sought to do so was by “augmenting] the remedies available to enforce the CPPA under a revised § 28-3905(k)(1) by providing for injunctive relief and merchant disgorgement of ill-gotten gains.” See ante at 245. 4 I have no doubt that the Council intended to do what the majority says in terms of remedies, but that is only part of what the Council must have intended, for enhancement of remedies in no way accounts for the change in the language describing who may bring suit, from “a consumer who has suffered injury,” to a “person, whether acting for the interests of itself, its members, or the general public.” D.C.Code § 28-3905(k)(1). Although the majority appears to recognize that the CPPA was amended to “enlarge[] the category of persons authorized to bring a CPPA enforcement action,” see ante at 245, it does not explain how, under its interpretation, that category has been “enlarged.” Because the definition of “person” was unchanged by the 2000 amendments, the only “enlargement” in the “category of persons” — as opposed to remedies — has been effectuated by the elimination of the “any consumer who suffers any damage” language we relied on in Beard as imposing an injury requirement as a precondition to suit and its substitution with the more liberal language. Although it does not quite say so, the majority opinion implies *256 that the “enlargement” is that certain entities may now bring “representative” actions to prevent injury to consumers, see ante at 240, but still subject to the injury-in-fact requirement. But even before the 2000 amendments, an organization had injury-in-fact standing to sue if it was itself a “consumer” 5 that had been injured or sued as a representative of its consumer members who had been injured. See Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 , 102 S.Ct. 1114 , 71 L.Ed.2d 214 (1982) (noting that “concrete and demonstrable injury to [an] organization’s activities” suffices to establish [constitutional] standing to the organization “whether the injury is economic or non-economic”) (quoted in Friends of Tilden Park v. District of Columbia, 806 A.2d 1201, 1207 (D.C.2002)). If the Council’s purpose was as limited as the majority’s interpretation implies, it simply should have changed the statute to say that a “person” (rather than a “consumer”), which includes “any ... organization, legal entity or group, however, organized,” “who suffers any damage as a result of an unlawful trade practice” could sue. Instead, the Council went further, and deleted “who suffers any damage,” substituting it with “whether acting for the interests of itself, its members, or the general public.” My disagreement with the majority’s textual analysis is that it does not give any content to that substantive change in statutory language, rendering it wholly superfluous.

There are two additional aids to statutory interpretation that support an interpretation that there is no longer an injury-in-fact requirement for standing to sue under the CPPA. The first is embedded in the statute itself and was added by the 2000 amendments: “This chapter shall be construed and applied liberally to promote its purpose.” D.C.Code § 28-3901(c). One of the statute’s purposes, as the majority notes, is to “assure that a just mechanism exists to remedy all improper trade practices and the continuing use of such practices.” D.C.Code § 28-3901(b)(1) (emphasis added). Another stated purpose of the CPPA is to “promote, through effective enforcement, fair business practices throughout the community.” Id. at (b)(2). The legislative mandate to “construe[ ] and appl[y] liberally” to promote these purposes further supports that the court should not shrink from giving the language of subsection (k)(1) its plain meaning. Even without the 2000 amendments mandate that the CPPA should be “construed and applied liberally,” we had commented that “the CPPA is, ‘to say the least, an ambitious piece of legislation,’ with broad remedial purposes.” DeBerry v. First Gov’t Mortgage & Investors Corp., 743 A.2d 699, 700 (D.C.1999) (quoting Howard v. Riggs Nat’l Bank, 432 A.2d 701, 708 (D.C.1981)); cf., Tippett, 10 A.3d at 1135-36 (Ruiz, J., dissenting) (concluding that statutory provision is ambiguous and applying statutory mandate that ambiguities are to be resolved in favor of “strengthening the legal rights of tenants and tenant organizations”).

Secondly, the initial drafters used and cited the California Unfair Competition Law as a model for the CPPA amendments. See Legislative Committee of the Public-Private Working Group on Consumer Affairs, The Consumer Protection *257 Amendment Act of 1999 at 3 (citing Cal. Bus. & Prof.Code § 17200 et seq.); see also District of Columbia Practice Manual, Consumer Protection, 8-1 (2009) (“The ‘private attorney general’ provision [of the CPPA] is modeled after a provision of California’s Unfair Competition Law.”). The California statute, which contains very similar language to the CPPA’s subsection (k)(1) creating a private cause of action, 6 had at the time that the Council enacted the amendments been interpreted by the California Supreme Court as permitting “a private plaintiff who has himself suffered no injury at all [to] sue to obtain relief for others.” Stop Youth Addiction v. Lucky Stores, 17 Cal.4th 553 , 71 Cal.Rptr.2d 731 , 950 P.2d 1086, 1091 (1998) (citing Comm. on Children’s Television, Inc. v. Gen. Foods Corp., 35 Cal.3d 197 , 197 Cal.Rptr. 783 , 673 P.2d 660, 668 (1983) (“Allegations of actual deception, reasonable reliance and damage are unnecessary.”)), superseded by statute initiated by Proposition 64, Cal. Bus. & Prof.Code § 17204, as recognized by Arias v. Superior Court, 46 Cal.4th 969 , 95 Cal.Rptr.3d 588 , 209 P.3d 923 (2009). Although it is true, as the majority notes, that this interpretation was not referred to in the Council reports, it remains significant that the California Supreme Court gave effect to the plain meaning of very similar language in a consumer protection statute — an indication that there is nothing inherently “absurd” or even “unreasonable” in such an expansive approach to enforcement of consumer protection laws.

That this also would have been the Council’s intent in the 2000 amendments is supported by other provisions of the CPPA. For example, the CPPA defines actions constituting unlawful trade practices in violation of the CPPA, “whether or not any consumer is in fact misled, deceived or damaged thereby....” D.C.Code § 28-3904. This statutory definition stands in contrast to our observation in Beard , that nothing in the regulations that the suit brought under the CPPA sought to enforce “purports to extend the statutory right to such relief ... to an individual who has suffered no injury.” 587 A.2d at 204 . Here, a trade practice, to be unlawful and a violation of the CPPA, need not cause actual injury. This is the reason why, even with no damages, a consumer may recover a statutory civil penalty of $1500 per violation. See D.C.Code § 28-3905(k)(1)(A). Similarly, the D.C. Attorney General has authority to sue to enjoin unlawful trade practices without being “required to prove damages.... ” D.C.Code § 28-3909(a); in addition, the D.C. government may recover “a civil penalty of not more than $1000 for each violation.” Id. at (b). Cf. D.C.Code § 28-3903(a) (providing that DCRA, “the principal consumer protection agency of the District of Columbia government,” D.C.Code § 28-3902(a), may investigate consumer complaints and initiate its own investigations “where the (i) amount in controversy totals $250 or more; or (ii) case, or cases, indicates a pattern or practice of abuse on the part of a business or industry.”). A plain-meaning interpretation of the 2000 amendments with respect to the right to sue by private parties, in other words, is in line with the statute’s pre-existing provisions that no damages are required for injunctive actions by the Attorney General and that actual damage to consumers is not an element of an unlawful trade practice that otherwise meets the definition of § 28-3904. That these *258 concepts of “no injury” would have been extended to actions by persons acting as private attorneys general at a time when the Council was seeking to supplement strained public resources is not at all unreasonable.

While I am not unsympathetic to the majority’s preference that the Council have expressed itself unequivocally in the legislative history and demonstrated that it understood our usual standing requirements and recognized the significant change the amendment language would bring about, I know of no other case where we have imposed such an additional burden on the legislature where the statutory language is otherwise clear and consistent with the statute’s broad remedial purpose. Concerns expressed by appellees and their amici 7 about the potential for abuse and procedural difficulties that might be created by the CPPA’s far-reaching private attorney general provision are based on policy, not law. 8 As such, they should be addressed to the legislature, not the court charged with implementing a statute that the legislature has enacted. As the California Supreme Court stated in rejecting a similar challenge to a plain-meaning interpretation of the private attorney general provision in California’s Unfair Competition Law, “it is not for the courts, ... to determine whether or not the policy of a statute is economically sound or beneficial. That is a matter solely for the legislature.” Stop Youth Addiction, Inc., 71 Cal.Rptr.2d 731 , 950 P.2d at 1102 (quoting ABC Internal Traders, Inc. v. Matsushita Electric Corp., 14 Cal.4th 1247 , 61 Cal.Rptr.2d 112 , 931 P.2d 290 (1997)).

Finally, I see no inherent unfairness in this statutory scheme such that we should be reluctant to assume that the Council meant what it said or refuse to give it effect. That virtually anyone, regardless of injury, can bring suit to enforce the law is not common, but it bears emphasizing that it does not mean that a plaintiff who suffers no individualized injury can recover windfall damages, as any such claim for damages would fail for failure of proof. The statute, by its terms, provides that trebled damages and the statutory penalty ($1500 per violation) are “payable to the consumer,” D.C.Code § 28-3905(k)(1)(A), a category that is narrower than a “person” who may bring suit as a private attorney general, see note 5, supra, and the intended beneficiary of the CPPA. The relief that the statute permits for a plaintiff who has not been personally injured and is not a consumer is an injunction, punitive damages, and “any other relief which the court deems proper.” Id. at (k)(1)(C), (D) & (F). Trebled damages, statutory civil penalties and “in a representative action, additional relief as may be necessary to restore to the consumer money or property, real or personal, which may have been acquired *259 by means of the unlawful trade practice,” are for the benefit of consumers. Id. at (k)(1)(A) & (E). All the relief the statute provides, in other words, is either intended for consumers or within the discretion of the trial judge to fashion with the CPPA’s consumer protection purpose in mind. With the possible exception of the right to “reasonable attorney’s fees” in a case brought by a self-represented plaintiff-attorney — a determination also committed to the trial court’s discretion — an uninjured plaintiff who brings suit in the capacity of a private attorney general “in the interests of ... the general public,” even if successful, does not personally benefit from relief awarded by the court. There is no reason to thwart claims authorized by statute at this early pleading stage, based on speculative concern that judges of the Superior Court will be unable to manage litigation brought by private attorneys general on behalf of the public interest in an orderly manner and consistent with due process concerns. See, e.g., Boyle v. Giral, 820 A.2d 561 , 570 n. 11 (D.C.2003) (interpreting CPPA § 28-3911(a) as permitting cy pres distributions into D.C. Consumer Protection Fund); see also Kraus v. Trinity Management Services, Inc., 23 Cal.4th 116 , 96 Cal.Rptr.2d 485 , 999 P.2d 718, 733 (2000) (noting several procedural mechanisms available to litigants and the courts to avoid multiple liability and repetitive actions).

II. Did the Congress bind the District of Columbia courts to the article III “case or controversy” requirement for standing?

No one questions the Council’s authority to remove prudential limits on standing and we have decided that the Council has done so, for example, in the D.C. Human Rights law. See Executive Sandwich Shoppe, Inc. v. Carr Realty Corp., 749 A.2d 724, 733 (D.C.2000). The question remains whether the Council may go beyond removing prudential limits, and eliminate the basic injury-in-fact requirement. I conclude that it can, and, as discussed in the previous section, that it did so in creating a private cause of action in the CPPA.

As the majority notes, since 1971, when the Congress enacted court reorganization legislation that created the current structure of the District of Columbia courts, we have adopted the Constitutional “case or controversy” requirement that limits the jurisdiction of courts created by Congress pursuant to article III of the United States Constitution. The first cases arose under the D.C. Administrative Procedure Act, enacted by Congress, which by its terms permits us to “entertain only petitions brought by ‘[a]ny person suffering a legal wrong, or adversely affected or aggrieved, by an order or decision of the Mayor or an agency in a contested case....’” Lee v. District of Columbia Bd. Of Appeals & Review, 423 A.2d 210, 215 (D.C.1980) (quoting D.C.Code § 1-1510 (1978 Supp.)). We have extended that basic standing requirement even when not expressly required by statutory language (as in the D.C. Administrative Procedure Act), but as a number of our cases make clear, that has been a choice that the court has made— not a mandate we must follow — because the D.C. courts were created by Congress pursuant to article I of the Constitution, not article III. See D.C.Code § 11-101(2). As a result, although we have for the most part followed federal jurisprudence as to what constitutes “injury-in-fact” sufficient to satisfy the case or controversy requirement, see Warth v. Seldin, 422 U.S. 490 , 95 S.Ct. 2197 , 45 L.Ed.2d 343 (1975), we have also on occasion felt at liberty to diverge from the Supreme Court’s standing jurisprudence in certain limited circumstances, dealing primarily, for example, with the mootness doctrine applicable to cases that *260 are capable of repetition yet avoid review in the pretrial detention area. See Tyler v. United States, 705 A.2d 270, 273 (D.C.1997) (en banc) (citing Lynch v. United States, 557 A.2d 580, 582 (D.C.1989), and distinguishing Murphy v. Hunt, 455 U.S. 478, 482 , 102 S.Ct. 1181 , 71 L.Ed.2d 353 (1982)); cf., Hardesty v. Draper, 687 A.2d 1368, 1373 (D.C.1997) (concluding that case was moot where issue was not “capable of repetition yet evading review” even as to another litigant). In this regard, I agree with Judge Reid’s opinion for the division:

[T]he constitutional and prudential standing principles this court imposes are not mandatory. Those principles “originally evolved as a mechanism to enforce the mandate of Article III of the Constitution that federal courts have jurisdiction only in ‘cases’ and ‘controversies.’ ” Lee v. District of Columbia Bd. of Appeals & Review, 423 A.2d 210 , 216 n. 13 (1980) (citing Warth v. Seldin, 422 U.S. 490, 498-99 , 95 S.Ct. 2197 , 45 L.Ed.2d 343 (1975)) (other citation omitted). “In creating this court ... Congress provided that we, like the federal courts, should hear only ‘[cases] and controversies.’ ” Id. (citing D.C.Code § 11—705(b); United States v. Cummings, 301 A.2d 229, 231 (D.C.1973) (per curiam)). Thus, we have generally adhered to that requirement in determining whether a party has standing before this court. See Riverside Hosp. v. District of Columbia Dep’t of Health, 944 A.2d 1098, 1103-04 (D.C.2008) (citing Speyer v. Barry, 588 A.2d 1147, 1160 (D.C.1991); D.C.Code § 11-705(b) (2001)); see also Friends of Tilden Park, Inc., v. District of Columbia, 806 A.2d 1201, 1206 (D.C.2002). Nevertheless, this court is not bound by the case or controversy requirement of Article III. See, e.g., Palmore v. United States, 411 U.S. 389, 397 , 93 S.Ct. 1670 , 36 L.Ed.2d 342 (1973); see also Atchison v. District of Columbia, 585 A.2d 150, 153 (D.C.1991) (stating that “this court ... enjoys flexibility in regard to [the case or controversy requirement] not possessed by the federal courts”). This is especially true when the Council has provided a cause of action. See DeGroot v. DeGroot, 939 A.2d 664, 668 (D.C.2008) (“the Superior Court is ‘a court of general jurisdiction,’” and “‘has jurisdiction of any civil action or other matter (at law or in equity) brought in the District of Columbia.’ ”).

Grayson v. AT & T Corp., 980 A.2d 1137 , 1155 n. 78 (D.C.2009), reh’g en banc granted, opinion vacated, 989 A.2d 709 (D.C.2010). 9

A contrary interpretation would overrule any number of opinions in which we have consistently come to the conclusion that, as article I courts, the Superior Court of the District of Columbia and the District of Columbia Court of Appeals are not bound by article Ill’s case or controversy limitation. That consistent interpretation is well-supported by express Congressional intent, that the District of Columbia’s court system is to be “comparable to those of the states and other large municipalities.” Per nell v. Southall Realty, 416 U.S. 363, 367 , 94 S.Ct. 1723 , 40 L.Ed.2d 198 (1974) (quoting H.R.Rep. No. 91-907, at 23 (1970)); see S.Rep. No. 91-405, at 18 *261 (1969) (stating that “[b]y creating the local courts under authority granted by article I of the Constitution, the local District of Columbia court structure is not bound by the provisions found in article III of the Constitution”). Thus, we have said, unlike the federal courts, the Superior Court is a court of general jurisdiction and courts of the District of Columbia have “powers analogous to those of state courts.” District of Columbia v. Group Insurance Administration, 633 A.2d 2, 13 (D.C.1993) (quoting Reichman v. Franklin Simon Corp., 392 A.2d 9, 12 (D.C.1978)). This court is to be “similar to a state Supreme court.” H.R.Rep. No. 91-907, at 23.

The Constitution’s “case or controversy” limitation is a crucial distinction between federal and state courts. For example, in the case of a plaintiff who had alleged no “personal stake in the outcome” of the case, the plaintiff could proceed as a private attorney general under the state courts in California, which are not bound by the case or controversy requirement, but not in the federal courts. Nike, Inc. v. Kasky, 539 U.S. 654 , 661 & n. 2, 123 S.Ct. 2554 , 156 L.Ed.2d 580 (2003). The distinction is rooted in the limited powers of the federal government and the historical role of state courts. In City of Los Angeles v. Lyons, 461 U.S. 95 , 103 S.Ct. 1660 , 75 L.Ed.2d 675 (1983), the Supreme Court explained that whereas federal mootness principles precluded a federal court from granting injunctive relief to a man who had been the subject on an unlawful choke hold by police because he was not likely to be imminently similarly injured, id. at 111 , 103 S.Ct. 1660 , the states had no similar disability and “may permit their courts to use injunctions to oversee the conduct of law enforcement authorities on a continuing basis.” Id. at 113 , 103 S.Ct. 1660 .

Notwithstanding the express statements by both houses of Congress and our sustained interpretive history of the source and reach of the authority of the D.C. courts, appellees point to D.C.Code § 11-705(b) as indicating that Congress did, after all, mean to impose the constitutional “case or controversy” limitation on the judicial power of the D.C. courts. If so, it would be a jurisdictional limitation that the Council may not alter. See D.C.Code § 1-206.02(a)(4). 10 I disagree that the Congress intended to introduce indirectly, via § 11-705(b), a limitation that it expressly disclaimed when creating the D.C. courts. Section 11-705(b) provides:

Cases and controversies shall be heard and determined by divisions of the [Court of Appeals] unless a hearing or a rehearing before the court en banc is ordered. Each division of the court shall consist of three judges.

D.C.Code § 11-705(b).

It is interesting to note, first, that this provision has never been deemed by this court to present an impediment to our decision, in the limited cases mentioned above, to diverge from the Supreme Court’s jurisprudence interpreting the injury-in-fact requirement inherent in the case or controversy limitation. Nor has it been cited as a reason for our adoption of article Ill’s injury-in-fact requirement. That we have done voluntarily “to promote sound judicial economy” and in recognition of the concept “that an adversary system can best adjudicate real, not abstract conflicts.” District of Columbia v. Walters, 319 A.2d 332 , 338 n. 13 (D.C.), cert. denied, 419 U.S. 1065 , 95 S.Ct. 650 , 42 L.Ed.2d 661 *262 (1974). Moreover, the substantive import that appellees would have us read into § 11—705(b)’s use of “case or controversy” language is not supported by the article I source of Constitutional authority expressly cited by the Congress in creating and granting “judicial power”, to the D.C. courts:

The judicial power in the District of Columbia is vested in the following courts:

(1) The following federal courts established pursuant to article III of the Constitution:

(A) The Supreme Court of the United States.

(B) The United States Court of Appeals for the District of Columbia Circuit.

(C) The United States District Court for the District of Columbia.

(2) The following District of Columbia courts established pursuant to article I of the Constitution:

(A) The District of Columbia Court of Appeals.

(B) The Superior Court of the District of Columbia.

D.C.Code § 11-101.

Consistent with “[t]he aim of the [court reorganization] Act ... to establish ‘a Federal-State court system in the District of Columbia analogous to court systems in the several States,’” Key v. Doyle, 434 U.S. 59, 64 , 98 S.Ct. 280 , 54 L.Ed.2d 238 (1977) (quoting H.R.Rep. No. 91-907, at 35), and the article I source of Congressional power invoked to create the District’s courts, § 11-705(b) is properly read as an administrative provision directing the composition of divisions of the Court of Appeals in all cases other than those that are heard by the en banc court. This interpretation is consistent with the procedural nature of the other subsections of § 11-705, which deal with “the order and times” when the judges shall sit, id. at (a); and the procedures for selecting and hearing cases for en banc consideration, id. at (c) & (d). These procedural provisions are to be contrasted with those in D.C.Code § 11-721, which set out the “jurisdiction” of the D.C. Court of Appeals. To read § 11-705(b) as imposing a case or controversy limitation on the D.C. Court of Appeals would lead to truly anomalous and indeed absurd results in light of the jurisdiction that Congress clearly intended in § 11-721. As there is no provision with “case or controversy” language comparable to § 11-705(b) applicable to the Superi- or Court, it would mean that the Court of Appeals operates under a significant limitation on its power to adjudicate that does not similarly constrain the trial court over which we have appellate review of “all final orders and judgments.” D.C.Code § 11-721(a)(1) (emphasis added); see D.C.Code § 11-721(b) (providing that “a party aggrieved by an order or judgment” of the Superior Court has a right to appeal). Alternatively, § 11-705(b) could be read to mean that the Court of Appeals need only decide cases that present a “case or controversy” in divisions of three, but that would mean that we have been wrong all along in thinking that adjudication of the merits of an appeal must be done by divisions comprised of three judges in all cases (other than those heard by the full court). I do not believe that the court has been misguided; rather, it has correctly understood that, as is the norm for appellate courts throughout the country, at least three judges should consider the merits of an appeal. Unfortunately, there is no legislative history to shed light on Congress’s one-off use of the term “case or controversy” in § 11-705(b) in connection with the D.C. Court of Appeals. The likely explanation is that Congressional drafters inadvertently copied this term from an analo *263 gous provision that applies to the federal appellate courts, or used the term as “shorthand” for “appeal” without realizing its implications as a constitutional term of art.

I therefore conclude that the D.C. courts have no constitutional or statutory impediment to their hearing or deciding cases that the legislature has said may be brought by a person “whether acting for the interests of itself, its members, or the general public,” D.C.Code § 28-3905(k)(1), even if the plaintiff has not suffered injury-in-fact.

III. Did appellants’ complaints state a cause of action under the CPPA?

Although I conclude that Grayson and Breakman have standing to sue, I agree with the majority’s analysis that Grayson’s complaint did not state a cause of action under the CPPA and need not belabor the point here. As to the sufficiency of Break-man’s complaint, which the majority does not reach because it concludes that Break-man has no standing to sue, I come to a different conclusion. Breakman’s complaint alleged in Paragraph 22 that AOL charged existing customers double what it charged new customers for certain services and had failed to disclose the pricing differential to its existing customers. The complaint alleged that AOL violated the CPPA because it “fail[ed] to state a material fact if such failure tends to mislead.” D.C.Code § 28—3904(f). If proven, the existence of a price differential of such magnitude for the same service would be material; appellee AOL claims, without citing controlling authority, that even though it would honor an existing customer’s request to change plans to a lower price, it is not required by the CPPA to inform its customers of the price differential. The trial court dismissed Breakman’s complaint on the ground that he lacked standing to sue and this court reversed, relying on the now-vacated division opinion in Grayson . Neither the trial court nor the appellate division of this court addressed whether AOL’s failure to inform existing customers of the price differential violates the CPPA. Nor did they address appellee AOL’s alternative argument, citing Forrest v. Verizon Communications, Inc., 805 A.2d 1007, 1015 (D.C.2002), that Breakman’s complaint must be dismissed because Breakman is bound to bring his claim in Virginia by an “online forum-selection clause.” 11 These were not the issues for which the court granted rehearing en banc. At this early pleading stage, we are bound to assess the viability of Break-man’s claim under Rule 12(b)(6) within the four corners of the complaint and assume that the facts alleged are true. In the absence of any controlling authority establishing that AOL’s failure to provide information about a material pricing differential to its customers does not violate the CPPA or any evidence that Breakman has agreed to AOL’s forum-selection clause, the complaint cannot be dismissed on either of AOL’s arguments. I would, therefore, reverse the dismissal of Breakman’s complaint and remand his case for further proceedings in Superior Court, without prejudice to the filing of a motion for summary judgment once the record is further developed.

. Three amicus briefs were filed supporting appellants, on behalf of (1) Legal Aid Society of the District of Columbia, Public Citizen, Inc., Center for Science in the Public Interest, National Association of Consumer Advocates, and National Consumer Law Center; (2) National Consumers League, and individual consumers Jarrod Beck, Keerthi Reddy and Erin Galloway; and (3) Brit A. Shaw.

. Subsection (k)(2) provides a helpful contrast in the statute’s use of standing language. Unlike the right of action created in subsection (k)(l) discussed in the text, subsection (k)(2) provides that “any person who is injured by a trade practice ” made unlawful by D.C. law and within the jurisdiction of DCRA, is not precluded from “exercising any right or seeking any remedy to which the person might be entitled or from filing any complaint with any other agency.” (Emphasis added). Subsection (k)(2) states that the remedies in the CPPA are “cumulative and in addition to other remedies and penalties provided by law.” The reservation of these additional remedies for "injured” persons underscores the Council's use of language imposing an injury re *254 quirement for standing to enforce "other” laws, but not the CPPA.

. This logic is not undermined, as the majority argues, by the fact that the Council has sometimes seen fit to change the result of a judicial decision with which it disagrees by subsequent legislation, and in doing so has mentioned the judicial opinion in the legislative history. See, e.g., Tippett v. Daly, 10 A.3d 1123, 1136-37 (D.C.2010). Unlike in K.R. v. C.N., 969 A.2d 257 & n. 2 (D.C.2009), on which the majority cites, where the Council intended to change a judicial result because it disagreed with the court's interpretation, here the Council’s motivation was not to overturn a prior opinion of the court but to amend the statute in light of changed budgetary constraints by adopting statutory language entirely different from that which the court had previously interpreted. The point here is that when the Council amended the CPPA in 2000 in order to enhance private enforcement of the CPPA, it did so by eliminating language in the statute that had received a particular judicial construction, a construction the legislature is presumed to know.

. As the majority notes, however, the specification of injunctive relief and restitution to consumers was more a clarification than a change, as the statute already provided (and still provides) for "any other relief which the court deems proper.” D.C.Code § 28-3905(k)(1)(F).

. " '[CJonsumer’ means a person who does or would purchase, lease (from), or receive consumer goods or services, including a co-obli-gor or surety, or a person who does or would provide the economic demand for a trade practice; as an adjective, 'consumer' describes anything, without exception, which is primarily for personal, household, or family use[.]” D.C.Code § 28-3901(a)(2).

. At the time of the 2000 CPPA amendments § 17204 of the California Unfair Competition Law provided that "any relief pursuant to this chapter shall be prosecuted ... by any person acting in the interests of itself, its members or the general public.” Cal. Bus. & Prof.Code § 17204(2000).

. On this point, two briefs amicus curiae in support of appellees were filed on behalf of Pacific Legal Foundation and United States Chamber of Commerce. The District of Columbia, which also filed a brief amicus curiae in support of appellees, disagreed that due process concerns could not properly be addressed, noting that “[t]he due process concerns associated with binding absent parties in a CPPA action brought by a private plaintiff in the interests of the general public are similar to the due process concerns that can arise in a CPPA action brought by the Attorney General.” The District’s brief suggests several mechanisms that have been employed in litigation to safeguard the rights of absent third parties.

. The Chamber of Commerce argues that the CPPA should not be given a plain meaning interpretation as eliminating injury-in-fact standing in order to avoid "constitutional infirmities.” As explained in the next section, there is no constitutional infirmity, because the D.C. courts are not bound by the "case or controversy” requirement applicable to article III courts.

. Our opinions have not all adhered to the distinction between what is mandated and what we, by choice, require. See, e.g., Friends of Tilden Park, Inc., 806 A.2d at 1206 (D.C.2002) (suggesting that we apply "in every case” the "constitutional” requirement of a "case or controversy" and the "prudential 'prerequisites of standing’ ”). But Friends of Tilden Park and similar cases must be read in the context of their facts, which did not involve issues of mootness or suit under a statute that purported to eliminate the usual requirements for standing.

. D.C.Code § 1-206.02(a)(4) provides in relevant part:

(a) The Council shall have no authority to: ... (4) Enact any act, resolution or rule with respect to any provision of Title 11 (relating to organization and jurisdiction of the District of Columbia courts)!..]

. There appears to be an important factual distinction between this case, where Break-man does not allege that he subscribes to AOL services, and Forrest , where the plaintiff was a subscriber who was held to be bound to the forum selection clause by having clicked “Agreed” to an online subscriber contract. 805 A.2d at 1015 .