Eighth Circuit Holds that Direct Contact with Defendant Needed to Establish Standing under "Futile Gesture" Theory in Civil Rights Context

The Eighth Circuit in McClain v. American Economy Ins. Co., 424 F.3d 728 (8th Cir. Sep. 07, 2005) determined that a plaintiff seeking to establish standing based on a "futile gesture" theory must present evidence of direct contact with the defendant in order to establish a direct injury. The futile gesture theory permits plaintiffs alleging discrimination to claim that although they did not approach the defendant and suffer direct discrimination, they were "reliably informed" of the defendant's discriminatory policies and that knowledge deterred them from seeking employment or services from the defendant. See Teamsters v. United States, 431 U.S. 324, 364, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977).

Here, the Eighth Circuit determined, "Given the many intangible factors that impact an insurer's decision to issue a homeowners policy, we are inclined to agree with the district court that direct contact with the insurer, or at least with its authorized agent, is a prerequisite to showing that an allegedly deterred plaintiff was 'reliably informed' of the discriminatory policies." [Apparently, no such direct contact with the defendant had been required by other courts in other contexts]. Thus the court concluded that this plaintiff could not establish the injury in fact needed to support Article III standing.