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With Class Certification, PACER Lawsuit Continues Apace

A class action lawsuit against PACER, the online Public Access to Court Electronic Records service that everyone loves to hate, overcame an important hurdle last week.

The suit accuses PACER of charging too much for records and, on Tuesday, U.S. District Judge Ellen Huvelle certified the class, which includes just about anyone who has used PACER in the last six years.

Ten Cents Is Too Much, Suit Alleges

PACER charges ten cents a page, with a cap of $3 per record, though there is no cap for transcripts and certain other documents. But PACER isn't allowed to set just any fee for access to court documents. Congress has allowed the Judicial Conference to prescribe reasonable fees for document access, fees with are "to reimburse expenses incurred in providing these services."

According to the class action lawsuit, PACER's fees go beyond recovering the cost of distributing documents. In 2012, the suit claims, the judiciary spent $12.1 million in public access fees on the public access system, but $28.9 million on courtroom technology. "In 2014," the plaintiffs claim, "the judiciary collected more than $145 million in fees, much of which was earmarked for other purposes such as courtroom technology, websites for jurors, and bankruptcy notification systems."

Lawsuit Moves Forward

The plaintiffs, the National Veterans Legal Services Program, the National Consumer Law Center, and the Alliance for Justice, say the overcharging violates the E-Government Act of 2002. They're suing under the Little Tucker Act in order to recover money collected through excessive fees.

Judge Ellen Segal Huvelle ruled that the proposed class met the requirements of Rule 23, allowing the case to move forward, but the arguments over the merits still remain.

In the meantime, PACER is facing a separate lawsuit in the Court of Federal Claims. That litigation accuses PACER of overcounting the pages users access, resulting in excess charges. That suit, too, survived a motion to dismiss. Plaintiffs are now in settlement talks.

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