Whether limited liability companies are 'persons' under the Right to Financial Privacy Act

QUESTIONS PRESENTED The questions presented are i) whether at least some types of limited liability companies may be considered a “person” and thus a “customer” under the Right to Financial Privacy Act for purposes of allowing such companies to sue the United States, and ii) whether the scope of jurisdictional discovery should be broadened when, absent such discovery, the doors to federal court are left closed and viable claims are left unaddressed. The Federal Right to Financial Privacy Act (“RFPA” or “Act”), 12 U.S.C. § 3401, et seg. was enacted in 1978 as part of the Financial Institutions Regulatory and Interest Rate Control Act. The RFPA limits the ability of the federal government to obtain information kept in the financial records of banks. Congress enacted the RFPA in the wake of United States v. Miller, 425 U.S. 435, 442 (1976), which held that no “legitimate expectation of privacy” exists in “the information kept in bank records”, and thus such records are beyond the protections of the Fourth Amendment. The RFPA provides for a private cause of action when the restrictions set forth therein are not followed, thereby waiving the United States’ sovereign immunity. The private cause of action provided to a “customer” of financial institutions whose financial records are improperly obtained or disclosed by the government is set forth in § 3417. This provision allows plaintiffs to recover damages, including “punitive damages as the court may allow, where the violation is found to have ii been willful or intentional” as well as attorney’s fees. 12 U.S.C. § 3417(a)(3). The RFPA defines “customer” as “any person or authorized representative of that person who utilized or is utilizing any service of a financial institution, or for whom a financial institution is acting or has acted as a fiduciary, in relation to an account maintained in the person’s name.” 12 U.S.C. § 3401(5). In turn, the term “person” is defined as “an individual or a partnership of five or fewer individuals.” 12 U.S.C. § 3410(4). Petitioners, including the limited liability company Petitioners (“LLC Petitioners”) filed suit as class representatives alleging that the Government violated the RFPA when it wrongfully obtained banking records by way of secret John Doe summonses. In an issue of first impression, the Sixth Circuit agreed with the district court that limited liability companies are not “persons” and thus not “customers” under the RFPA such that the LLC Petitioners’ claims were barred by sovereign immunity. In addition, the Sixth Circuit agreed with the unduly limited scope of jurisdictional discovery afforded Petitioners by the district court, which left Petitioners hamstrung in establishing that the bank records of individuals were wrongfully obtained by way of these secret John Doe summonses. Petitioners now seek review of the questions presented as set forth above.