The Supreme Court released its highly anticipated decision yesterday in Spokeo, Inc. v. Robins, which addresses whether plaintiffs have standing to pursue statutory damages even in the absence of actual harm under the Fair Credit Reporting Act (“FCRA”). As we previously reported, the case was expected to have significant down-stream implications for standing in privacy class action litigation, because numerous privacy-related federal laws have been construed to allow statutory damages even in the absence of actual injury (e.g., the Telephone Consumer Protection Act).
In a 6-2 decision authored by Justice Alito, the Court reaffirmed that “concrete” (i.e., actual) harm remains a constitutional requirement for federal court standing. The Court remanded the case to the Ninth Circuit to consider whether the plaintiff had suffered any concrete harm. In doing so, the Court offered several guiding principles to assist lower courts in drawing the line between a “bare procedural violation,” which will not support federal jurisdiction, and a “real risk of harm,” which may be sufficient for federal standing. For instance, the Court suggested that a failure to provide notice to a user of the user’s duties under the FCRA might not satisfy Article III standing requirements if the information provided by the consumer reporting agency was accurate. And the Court suggested that providing certain types of false information, such as an inaccurate zip code, “without more,” would not be a “concrete” harm. The Court noted that both tangible and intangible injuries recognized in jurisprudence or legislation may meet the constitutional test.
The Court also reaffirmed several standing principles that can be particularly important in class action lawsuits. First, the decision confirms that “Congress cannot erase Article III’s standing requirements by statutorily granting the right to sue a plaintiff who would not otherwise have standing.” Second, the Court emphasizes that class representatives must personally show that they have been harmed, as opposed to relying solely on injuries suffered by putative class members. Third, although the Court did not expressly state that Article III’s standing requirements apply to putative class members, any other conclusion would seem to conflict with the Court’s decision earlier this year in Tyson Foods.
For further analysis of the Supreme Court’s decision in Spokeo, please see our Covington alert on the subject.