This article at items #1 – #4, infra examines the holdings and limitations of the Supreme Court’s May 16 decision in Spokeo, Inc. v. Robins, 2016 WL 2842447 (May 16, 2016). Then item #5 notes that nothing in the decision alters existing law that only the class representative must show standing to certify a class, and item #6 is a reminder that Spokeo only has direct application to cases brought in federal court and not state court.
Of special utility to consumer practitioners, item #7 describes a website where there will soon be found more analysis on how Spokeo might affect specific claims under different federal consumer statutes, such as TILA, FCRA and the FDCPA. Item #7 also describes how NCLC will make available to consumer attorneys a large number of consumer briefs responding to standing challenges in light of the Spokeo decision.
1. Standing Is a Bedrock Principle
Well-established Supreme Court doctrine dictates that for a federal court to have subject matter jurisdiction of a case, the plaintiff must have “standing” to bring the claim. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–561 (1992).
Standing, in turn, has three elements, as reiterated by Spokeo: “The plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision. The plaintiff, as the party invoking federal jurisdiction, bears the burden of establishing these elements. Where, as here, a case is at the pleading stage, the plaintiff must ‘clearly ... allege facts demonstrating’ each element.” [citations omitted]
Spokeo focuses on the first element, an injury-in-fact, stating that “to establish injury in fact, a plaintiff must show that he or she suffered `an invasion of a legally protected interest’ that is `concrete and particularized’ and `actual or imminent, not conjectural or hypothetical.’” For an injury to be particularized, it “must affect the plaintiff in a personal and individual way.” The Court found this part of the standing test was easily satisfied in the case before it, leaving the question whether the Ninth Circuit had properly considered the concreteness requirement.
2. The Ninth Circuit Didn’t Adequately Analyze Concreteness
In Spokeo, the Supreme Court held that the Ninth Circuit had “elided” the particularity requirement of injury in fact with the concreteness requirement, and had therefore failed to determine whether a website operator's alleged violations of the FCRA’s procedural requirements caused concrete injury. While noting that a bare procedural violation of the FCRA is not alone enough to establish a concrete injury, the Court did not reverse the holding of the Ninth Circuit that Robins had adequately alleged standing. It simply vacated and remanded so that the Ninth Circuit could consider in the first instance a question that it had not addressed: did the allegations of procedural violations show a material risk of “concrete” injury?
More particularly, what types of false information can work concrete harm? While the Court did not answer this, the Court gave zip codes as an example of inaccurate information that would be extremely unlikely to cause harm, without more--in fact an inaccurate zip code can lead to higher insurance rates or being excluded from a certain school district.
The Ninth Circuit would have to consider whether such harm flowed from the alleged violations of the Fair Credit Reporting Act. The four alleged violations were Spokeo’s failure to follow reasonable procedures to assure maximum possible accuracy of consumer reports, 15 U.S.C. § 1681e(b); to notify providers and users of consumer information of their responsibilities under the Act, § 1681e(d); to limit the circumstances in which such agencies provide consumer reports for employment purposes, 1681b(b)(1); and to post toll-free numbers for consumers to request reports, § 1681j(a).
3. Intangible Harm Can Be Concrete
The majority opinion provided guidance regarding when harm is concrete, a term of art, but broke no new ground. Concrete means “real,” not “ abstract,” but “it is not necessarily synonymous with `tangible.’… Although tangible injuries are perhaps easier to recognize, we have confirmed in many of our previous cases that intangible injuries can nevertheless be concrete.”
So which intangible injuries can be concrete? The Court noted: “Because the doctrine of standing derives from the case-or-controversy requirement, and because that requirement in turn is grounded in historical practice, it is instructive to consider whether an alleged intangible harm has a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts.” An example mentioned by the Court is slander, which is actionable due to the intangible injury to reputation.
There is no requirement that the plaintiff have suffered a loss of money, personal injury or actual damages as a result of the alleged violation. Importantly, the Court also observed that “Many traditional remedies for private-rights causes of action—such as for trespass, infringement of intellectual property, and unjust enrichment—are not contingent on a plaintiff's allegation of damages beyond the violation of his private legal right.” The harm can be actionable even if it is “difficult to prove or measure.”
Apart from intangible harms that have “a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts,” Spokeo recognized that Congress “may `elevat[e] to the status of legally cognizable injuries concrete, de facto injuries that were previously inadequate in law,’” citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–561 (1992).
Spokeo goes on to state: “Congress is well positioned to identify intangible harms that meet minimum Article III requirements, [and] its judgment is also instructive and important.” The Court observed that Congress identified such intangible harms in enacting the FCRA: “Congress plainly sought to curb the dissemination of false information by adopting procedures designed to decrease that risk.” Although “Article III standing requires a concrete injury even in the context of a statutory violation,” “the violation of a procedural right granted by statute can be sufficient in some circumstances to constitute injury in fact. In other words, a plaintiff in such a case need not allege any additional harm beyond the one Congress has identified.” (emphasis in the original) The Court gave as examples the right to information that Congress had decided should be made public, citing to Federal Election Comm'n v. Akins, 524 U.S. 11, 20–25 (1998); Public Citizen v. Department of Justice, 491 U.S. 440, 449 (1989).
4. Next Up on Remand
On remand, it can be expected that the Ninth Circuit will consider whether any or all of the four alleged procedural violations are sufficient in themselves to constitute a concrete injury in fact – either by reason of being analogous to a common law wrong that is actionable without tangible harm or by dint of having been elevated to that status by reason of Congressional intent.
5. Spokeo and Class Certification
It is worth noting that if a proposed class representative in a putative class action brought in federal court has adequately alleged a concrete and particularized injury, then Spokeo should not affect class certification. There was no hint in the opinion that in the context of class actions – which included the case before it – courts must consider whether all class members have standing. See the online version of NCLC’s Consumer Class Actions at § 4.3a.
6. State Court Proceedings
Finally, Article III standing is only required for a federal court to have jurisdiction; it has no application in state courts. Depending on whether a particular state has a concreteness requirement as a condition of access to its courts, the Supreme Court’s examination of this issue in Spokeo may be persuasive, albeit not binding.