No speculative standing

In a counterpoint to some treatments of standing in the mifepristone litigation, the Fifth Circuit rejected Texas’s standing to challenge an SEC disclosure requirement, reasoning:

As the States conceded during oral argument, there is no guarantee that regulated parties will always pass costs on to their consumers. Some costs may be too small to warrant a cost pass-through. So any cost pass-through must be established through evidence. We look to the evidence in the record to determine whether the facts of a specific case support “likely . . . pecuniary harm” to a suing party.  Evidence couched in hypothetical language cannot support such an injury. Here, the record provides only speculation about the possibility of increased costs to investors as a result of new regulatory burdens on the funds.

State of Texas v. SEC, No. 23-60079 (May 10, 2024) (citations omitted, paragraph breaks removed, emphasis added).