The Supreme Court of the United States yesterday issued its opinion inSpokeo, Inc. v. Robins, an important case about the injury-in-fact requirement of Article III standing. In a 6-2 decision, the Court held that an injury in fact must be not only “particularized” to the plaintiff, but alsoconcrete, and that bare allegations of a statutory violation do not automatically satisfy that concreteness requirement. The Court’s decision gives defendants additional leverage in fighting off cases where a plaintiff has suffered no concrete harm and in defending against class actions where the issue of concrete harm is individualized.
The case before the Court involved a putative class action brought against petitioner Spokeo, Inc., a company that generates profiles about people based on information obtained though computerized searches. Respondent Thomas Robins was one of the people with a profile on Spokeo’s website. According to Robins, the information on that profile was inaccurate; the profile portrayed him as, among other things, wealthier and better-educated than he in fact was. Robins filed a class-action complaint against Spokeo in federal court, alleging violations of the Fair Credit Reporting Act (FCRA), which requires consumer reporting agencies to “follow reasonable procedures to assure maximum possible accuracy of” consumer reports. The Ninth Circuit held that by alleging the violation of a statutory right, Robins had satisfied the injury-in-fact requirement of Article III standing.
In a majority opinion authored by Justice Alito, the Court vacated and remanded. The Court held that an injury in fact must be “concrete” as well as particularized. It explained that “concrete” means real, as opposed to abstract. And it concluded that “Article III standing requires a concrete injury even in the context of a statutory violation.” Thus, a plaintiff does not “automatically satisf[y] 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.” The Court nevertheless emphasized that an injury need not be “tangible” to be “concrete.” A “risk of real harm” may be sufficient to satisfy the concreteness requirement. And because the Ninth Circuit had not examined whether the particular procedural missteps Robins alleged “entail[ed] a degree of risk sufficient to meet the concreteness requirement,” the Court remanded for the Ninth Circuit to apply these principles in the first instance.
The Court’s opinion decides an important issue left unresolved four years ago, when the Court dismissed as improvidently granted the writ of certiorari in First American Financial Corp. v. Edwards, 132 S. Ct. 2536 (2012). Because an injury in fact must be concrete, plaintiffs can no longer establish standing merely by alleging violations of consumer statutes like the FCRA, the Telephone Consumer Protection Act, the Video Privacy Protection Act, and the Fair Debt Collection Practices Act. Instead, a plaintiff must plausibly allege concrete harm or a risk of real harm. Moreover, by reinforcing the need to prove concrete harm, the Court’s opinion makes it more difficult to certify class actions where concrete harm cannot be proven on a class wide basis. When proving concrete harm entails individualized inquiries, those inquiries may cut against class certification.
Justice Thomas concurred in the Court’s opinion, but wrote separately to explain his view on how “the injury-in-fact requirement applies to different types of rights.” Drawing a distinction between public rights—duties “owed to the whole community,” such as general compliance with regulatory law—and private rights such as rights of reputation, Justice Thomas opined that “the concrete-harm requirement does not apply as rigorously when a private plaintiff seeks to vindicate his own private rights.”
Justice Ginsburg dissented in an opinion joined by Justice Sotomayor. Although Justice Ginsburg agreed with “much of the Court’s opinion,” she disagreed on the need for a remand. In her view, Robins’ allegations satisfied the concreteness requirement, so the Court should have simply affirmed the Ninth Circuit.