It has now been just over three months since the Supreme Court in Spokeo v. Robins made clear that “Article III standing requires a concrete injury even in the context of a statutory violation.” Since then, federal courts have begun to consider what impact is necessary to constitute a concrete injury-in-fact. Thus far, courts have varied in their application of Spokeo and in what is required to satisfy the concreteness requirement.
Luckily for defendants, several recent decisions support dismissal in cases alleging bare procedural violations. Below, we summarize many of these recent decisions:
- Hancock v. Urban Outfitters, Inc., No. 14-7047, 2016 WL 3996710 (D.C. Cir. July 26, 2016) involved the defendant’s alleged violation of District of Columbia’s data collection statutes, by requesting the plaintiff’s zip code at the point-of-sale. The D.C. Circuit found that the plaintiffs failed to allege any injury that they suffered as result of having their information collected, and thus lacked Article III standing. The D.C. Circuit remanded the case to state court.
- Attias v. CareFirst, Inc., No. 15-CV-00882 (CRC), 2016 WL 4250232 (D.D.C. Aug. 10, 2016) is a data breach case, in which the plaintiffs alleged a number of injuries, including an increased risk of identity theft, actual identity theft (for two of the plaintiffs), economic harm through purchasing credit-monitoring services and insurance coverage, loss of intrinsic value of their personal information, and violation of their statutory rights under consumer protection acts. The court rejected each of these arguments, and dismissed the case for lack of Article III standing with leave to amend. As to plaintiff’s statutory claim, the court, citing Spokeo, explained that “Where a violation of a statute may result in no harm, that mere violation is insufficient to confer standing. Even if Plaintiffs’ rights under applicable consumer protection acts have been violated, because they do not plausibly allege concrete harm, they have not demonstrated that they have standing to press their claims.” (Internal citations and quotation marks omitted).
- Similarly, in Khan v. Children’s National Health Sys., No. TDC-15-2125, 2016 WL 2946165 (D. Md. May 19, 2016), the court held that the plaintiff lacked standing, in part, because she failed to connect the alleged statutory and common-law violations arising from a data breach to a concrete harm.
- In Gubala v. Time Warner Cable, Inc., No. 15-cv-1078, 2016 WL 3390415 (E.D. Wis. June 17, 2016), the court dismissed the plaintiff’s claim under the Cable Communications Policy Act (CCPA), holding that defendant’s mere failure to dispose of ex-customers’ personally identifiable information in violation of the CCPA, without more, was not enough to confer Article III standing on plaintiff, where plaintiff did not allege that defendant distributed the information or that its retention caused plaintiff any harm.
- In McCollough v. Smarte Carte, Inc., No. 16 C 03777, 2016 WL 4077108 (N.D. Ill. Aug. 1, 2016), the plaintiff claimed that the defendant violated the Illinois Biometric Information Privacy Act (BIPA) by storing her fingerprint information without obtaining her advance consent. The defendant was a locker rental company, where users used their fingerprint information to check out a locker, and to open it after it had locked (thus, the renter’s fingerprint acted as a key to the locker). The court dismissed the plaintiff’s claim for lack of standing, finding that she failed to allege how the defendant’s retention of plaintiff’s fingerprint data could constitute a concrete harm, especially where the defendant “undoubtedly understood” when she first used the system that her fingerprint data would have to be retained until she retrieved her belongings from the locker. The court found that the plaintiff also failed to establish statutory standing, but held that even with statutory standing, the plaintiff would lack Article III standing “Since a state statute cannot confer constitutional standing.”
- Romero v. Dep’t Stores Nat’l Bank, No. 15-CV-193-CAB-MDD, 2016 WL 4184099 (S.D. Cal. Aug. 5, 2016) involved claims under the Telephone Consumer Protection Act (TCPA). Here, the plaintiff claimed to have been injured as result of being called by defendant through an automated telephone dialing system (ATDS). The plaintiff argued that this statutory violation was sufficient to establish an injury-in-fact, because she suffered the exact harm that Congress wanted to eliminate with the TCPA. The court disagreed. First, the court found that the plaintiff could not have been injured by calls she did not know were made, such as calls that she did not hear or that were made when her phone was turned off. Second, the court found that the plaintiff failed to establish any injury from calls that she did hear ring or actually answered, since she “does not offer any evidence of a concrete injury caused by the use of an ATDS, as opposed to a manually dialed call.” Additionally, the court also rejected the plaintiff’s claims to have been injured as a result of “invasion of privacy” and “trespass to chattels,” because these are not injuries in and of themselves, but instead torts, for which an injury is an element of the claim.
- Sartin v. EKF Diagnostics, Inc., No. CV 16-1816, 2016 WL 3598297 (E.D. La. July 5, 2016), is another TCPA case dismissed for lack of standing. The plaintiff in Sartin claimed to have been injured as a result of receiving unsolicited faxes by the defendant. The defendant’s 12(b)(1) motion argued that the plaintiff lacked standing because he failed to plead an injury in fact divorced from the defendant’s alleged violations of the TCPA. The court agreed, explaining that although the plaintiff had plausibly alleged a claim under the TCPA, “Congress may not erase the requirements of Article III by legislative fiat,” and the plaintiff failed to plead facts demonstrating how the defendant’s statutory violation caused him concrete harm. The court dismissed the complaint with leave to amend.
- In Smith v. Ohio State Univ., No. 2:15-CV-3030, 2016 WL 3182675 (S.D. Ohio June 8, 2016), the plaintiffs sought statutory damages on behalf of a putative class for violations of Fair Credit Reporting Act (FCRA), alleging that defendant obtained consumer reports on them “without first providing [them] a clear and conspicuous written disclosure, in a document consisting solely of the disclosure, that a consumer report may be obtained for employment purposes.” More specifically, the plaintiffs alleged that the defendant provided a disclosure and authorization during the job hiring process that “improperly included extraneous information such as a liability release.” The defendant challenged the plaintiffs’ claims under Rule 12(b)(1), arguing that the alleged violations amounted to FCRA procedural requirements that result in no harm. The plaintiffs, in response, attempted to establish a concrete injury by arguing that the extraneous material invaded their privacy and misled them as to their rights under the FCRA. The court found that the plaintiffs failed to alleged any concrete consequential damage.
- Similarly, in Groshek v. Time Warner Cable, Inc., No. 15-C-157, 2016 WL 4203506 (E.D. Wis. Aug. 9, 2016), the plaintiff argued that the defendant violated the FCRA by obtaining his consumer report without first providing him with a standalone document warning him that it was going to do so. As in Smith, the court found that the plaintiff had failed to allege any concrete harm, and dismissed the case with leave to amend.
- Jamison v. Bank of Am., N.A., No. 2:16-CV-00422-KJM-AC, 2016 WL 3653456 (E.D. Cal. July 7, 2016) also concerned a defendant’s alleged failure to make certain disclosures, but in a different context. Here, the plaintiff alleged that the defendant violated the Truth in Lending Act (TILA) by failing to disclose insurance claim proceeds in its mortgage payoff and periodic statements. The court dismissed the plaintiff’s claim for lack of Article III standing, finding that the plaintiff did not allege any injury caused by the defendant’s failure to disclose the insurance claim proceeds on the statements. The court specifically noted that the plaintiff failed to allege that she could not have gotten the proceeds information through other means.
Plaintiffs will be quick to distinguish these cases, arguing that they have adequately alleged a concrete injury separate from the statutory violation. And because many of these decisions were granted without prejudice, the plaintiffs in these cases may be successful in alleging concrete injuries not included in the complaints above. Regardless, these decisions offer welcome ammunition to defendants seeking dismissal in “gotcha” cases lacking any actual harm.