Spokeo, Inc. v. Robins

Today the Supreme Court issued its long-awaited opinion in Spokeo, Inc. v. Robins, -- S.Ct. --, No. 13-1339, 2016 WL 2842447, at *6 (U.S. May 16, 2016).  In a victory for defendant Spokeo, the Supreme Court reversed the Ninth Circuit Court of Appeals, on grounds that the lower court—in finding Robins had Article III standing to sue—had erroneously focused only on whether Robins’ injury was “particularized,” and had failed to adequately analyze whether Robins' injury was also sufficiently "concrete" to confer Article III standing.  See Spokeo, Inc., 2016 WL 2842447, at *8 (“Because the Ninth Circuit failed to fully appreciate the distinction between concreteness and particularization, its standing analysis was incomplete. It did not address the question framed by our discussion, namely, whether the particular procedural violations alleged in this case entail a degree of risk sufficient to meet the concreteness requirement.”). The Court held “Congress' role in identifying and elevating intangible harms does not mean that a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right. Article III standing requires a concrete injury even in the context of a statutory violation. For that reason, Robins could not, for example, allege a bare procedural violation, divorced from any concrete harm, and satisfy the injury-in-fact requirement of Article III.”  Spokeo, Inc., 2016 WL 2842447, at *7 (citing Summers v. Earth Island Institute, 555 U. S. 488, 496 (2009) (“[D]eprivation of a procedural right without some concrete interest that is affected by the deprivation . . . is insufficient to create Article III standing”); Lujan v. Defenders of Wildlife, 504 U. S. 555, 572 (1992) (emphasis added)). The Court further held:  “Robins cannot satisfy the demands of Article III by alleging a bare procedural violation. A violation of one of the FCRA's procedural requirements may result in no harm. For example, even if a consumer reporting agency fails to provide the required notice to a user of the agency's consumer information, that information regardless may be entirely accurate. In addition, not all inaccuracies cause harm or present any material risk of harm. An example that comes readily to mind is an incorrect zip code. It is difficult to imagine how the dissemination of an incorrect zip code, without more, could work any concrete harm.”   Id. at *8.  Citing language relating to “the context of this particular case,” the plaintiffs’ bar may contend that the Supreme Court’s decision is limited to the circumstances of this case and the provisions of the Federal Credit Reporting Act, 15 U.S.C. § 1681 et. seq. there at issue.  See id. (“In the context of this particular case, these general principles tell us two things: On the one hand, Congress plainly sought to curb the dissemination of false information by adopting procedures designed to decrease that risk. On the other hand, Robins cannot satisfy the demands of Article III by alleging a bare procedural violation.”).  However, the Supreme Court’s decision reiterates fundamental Constitutional principles, which should apply with undiminished force regardless of the statute at issue:  bare statutory violations do not suffice to establish Article III standing—rather a plaintiff must allege concrete and particularized injury in fact to establish Article III standing to sue.  In the context of other statutes, such as the TCPA, the Supreme Court’s consideration of Spokeo will of course no longer be a basis for a stay in these cases.  The decision will, however, have a place in combating TCPA and other cases alleging bare statutory violations.  What will constitute “concrete harm” under the TCPA—and whether, for example, use of electricity, tying up of a plaintiff’s phone line, and impact of cellular telephone minutes, will suffice—will be the subject of litigation, and the subject of likely motion practice as these cases develop.