June 27 (Reuters) - Ashlie Beringer of Gibson, Dunn & Crutcher and her clients at Facebook, Apple and Yelp don't ordinarily pay much attention to the Real Estate Settlement Procedures Act, the law at issue in First American Financial Corp v. Edwards, which will be decided Thursday by the U.S. Supreme Court. First American focuses on whether a homeowner can sue her title insurance company for receiving kickbacks if the kickbacks didn't harm her directly -- not exactly a question of burning concern to the tech bar in Silicon Valley. Nevertheless, Beringer and other Silicon Valley defense lawyers will be watching anxiously to see how the court decides the case because the ruling could have a profound impact on the data privacy class actions that have become a routine nuisance for Internet companies.

At the heart of First American is a broad question: At what point does a plaintiff have standing to sue under Article III of the U.S. Constitution? Do prospective plaintiffs have a cause of action if they can't demonstrate any injury? That's a defense Beringer and other tech industry defense lawyers have raised in motions to dismiss privacy breach cases, arguing that consumers can't sue social media and smartphone companies for quietly collecting, using or disclosing their personal data because they can't show they were actually injured by the practice.

Beringer was one of the first lawyers to successfully advance an Article III standing argument in a privacy case, persuading U.S. District Judge George Wu of Los Angeles in April 2011 to dismiss a consumer case against online ad company Specific Media for allegedly using Adobe Flash cookies to track information. (At least one other standing grounds defense win predates Beringer's, with a ruling by a U.S. Judge Otis Wright II in January 2011 dismissing a proposed Internet privacy class action against Mayer Brown client Spokeo Inc.) The Gibson partner went on to win dismissals for Yelp and Mattel on similar grounds.

Apple recently hired Beringer after she successfully argued for the dismissal of class claims against Apple's co-defendants Flurry Inc and other companies including Admob Inc and Google Inc in a case accusing all of them of tracking iPhone users' activity. Less than two hours after a ruling by U.S. District Judge Lucy Koh of San Jose, California, that left Apple as the only remaining defendant in the case, Apple notified the court that it was replacing its Morrison & Foerster team withBeringer and other Gibson, Dunn partners.

But not every judge overseeing a data privacy case has bought the Article III argument, especially as the plaintiffs' bar began to alter its theories to focus on statutory rights to privacy. Facebook agreed to a $10 million privacy class action settlement only after Judge Koh held in December that the plaintiffs did have Article III standing. (Beringer joined the case soon after that ruling.) As recently as last week, U.S. District Judge John Coughenour in Seattle said plaintiffs hadstanding to sue Microsoft Corp for transmitting information about Windows Phone users' location.

A ruling for First American on Thursday could be a big help to defendants, however. Facebook, Zynga, Yahoo and LinkedIn hired Wilmer Cutler Pickering Hale and Dorr to file an amicus brief in the case in August, arguing that the Supreme Court needed to reverse a 9th Circuit Court of Appeals decision that allowed the homeowner's kickback case to move forward despite the Article III standing questions. The Electronic Privacy Information Center countered in its own amicus brief that consumers need the ability to sue to enforce statutory damages provisions or else privacy laws "will be rendered ineffective."

The privacy fight likely won't end, regardless of how the Supreme Court rules Thursday, but Beringer said in an email that questions about plaintiffs' injuries will "remain critical at the early stages of most privacy cases -- and will be key to ensuring that courts are not asked to adjudicate technical and business standards where no person can show harm."

(Reporting by Nate Raymond)

(An earlier version incorrectly said the Specific Media case was the first defense win on Article III standing grounds in an Internet privacy case. An earlier ruling, in January 2011, involving Spokeo Inc, predates the Specific Media case.)

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