Yesterday, the Supreme Court issued its long-awaited decision in Spokeo, Inc. v. Robins, addressing whether the plaintiff had standing to sue in a putative class action brought under the Fair Credit Reporting Act (“FCRA”). Like some other opinions we have seen from the eight-member Court following Justice Scalia’s death, this decision is relatively narrow in scope. The Court held that the requirements of standing apply to statutory violations, and sent the case back to the Ninth Circuit to reconsider whether the plaintiff adequately alleged a “concrete harm.” Plaintiffs and defendants will continue to debate in individual cases whether the alleged harm was sufficiently concrete or particularized, with limited guidance from the Court. The requirement of a “personal and individual” injury that the Court reiterated may be useful in defending against motions for class certification in some cases.
As brief background, Spokeo operates an Internet-based “people search engine” that can be used to search for information about a particular person. Robins alleged that Spokeo violated the FCRA by providing incorrect information about his age, marital / family status, education, employment status, etc., which could have impacted his general prospects in finding a job. The district court dismissed the case for lack of standing, but the Ninth Circuit reversed.
The Court issued a 6-2 decision authored by Justice Alito. The Court explained that the requirement that an injury is “concrete and particularized” involves two separate requirements. “For an injury to be ‘particularized,’ it ‘must affect the plaintiff in a personal and individual way,” whereas “[a] ‘concrete’ injury must be ‘de facto’; that is, it must actually exist” – it must be “’real,’ and not ‘abstract.’” (Slip op. at 7-8.) It seems to me that when an injury affects someone in a “personal and individual way” it is usually “real,” but I suppose some people might be personally impacted by the abstract (academics perhaps more than others).
The heart of the Court’s opinion was that “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.” (Id. at 9-10.) The Court noted, however, that some harms that are difficult to prove (such as libel and slander per se) are deemed sufficiently concrete by the law, and in some circumstances the violation of a procedural right can be sufficient (such as with voting rights or rights to government information). With respect to the FCRA, however, the Court concluded that “not all inaccuracies cause harm or present material risk of harm.” (Id. at 11.) The Court gave the example of an incorrect zip code as something that likely would not cause concrete harm. The case was remanded to the Ninth Circuit to address the concrete harm requirement, which the Court found not adequately addressed in the Ninth Circuit’s prior opinion. (The Court could have tackled this issue themselves, it simply involves an analysis of the complaint, but they may have been deadlocked on that point, and therefore reached this outcome.)
Justice Thomas wrote a concurring opinion, in which he proposed to create a distinction between private rights (where, in his view, a mere statutory violation apparently would be sufficient) and public rights (where concrete, individual harm distinct from harm to the general public would be required). He would find the FCRA to largely create public rights, however, except for one provision.
Justice Ginsburg wrote a dissent, joined by Justice Sotomayor. They would have found that Robins’ complaint adequately alleged concrete harm to his employment prospects, and therefore would have affirmed the Ninth Circuit’s decision. It is notable though that only two of the Justices took this view.
I expect this opinion will have limited impact on class action litigation generally. Where the plaintiff’s claims are nebulous, defendants will continue to argue that there is no concrete or particularized injury. Lower courts will have to sort that out without much more guidance from the Supreme Court than they had before this decision.
Where I see this opinion as being potentially more useful to defendants is that where defendants can argue that the individual circumstances of each putative class member’s claim must be litigated to determine whether there is a “personal and individual” injury, that can, in appropriate cases, be a strong argument against class certification.
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