On April 27, 2015, the United States Supreme Court granted certiorari in Spokeo, Inc. v. Robins—a case that could have longstanding implications for privacy litigation going forward. The case will be heard sometime during the Supreme Court’s fall term.
The question presented in the case is whether Congress can confer, consistent with Article III of the U.S. Constitution, standing on plaintiffs who suffer no concrete harm, but have the ability to recover statutory penalties for violation of a federal privacy statute, in this case, the Fair Credit Reporting Act (FCRA).2 The plaintiff, Thomas Robins, alleged that he suffered non-economic harm by the dissemination of information about him in violation of the FCRA. The defendant asserted that Robins lacks standing because he did not plead any actual injury.
Spokeo won in district court, but the Ninth Circuit reversed the district court decision.3 The Ninth Circuit held that Robins met Article III standing injury requirements because statutory penalties are sufficient to confer standing without having to plead actual injury or damages. In doing so, the Ninth Circuit joined the Sixth, Tenth, and D.C. Circuits who had previously ruled similarly. The Second and Fourth Circuits have found to the contrary, and this circuit split led to the Supreme Court granting certiorari.
While the Supreme Court’s decision will have direct impact on future FCRA litigation, it also holds broader implications for privacy suits generally. As several amici curiae have asserted in briefs, a number of privacy statutes including the Video Privacy Protection Act (VPPA)4 and the Telephone Consumer Protection Act (TCPA)5 provide a private right of action for alleged violations and statutory damages. Litigation under these statutes often fails because of the plaintiffs’ inability to plead an actual “privacy” injury, quantifiable by damages