Spokeo, Inc. v. Robins, No. 13-1339 (May 16, 2016)
In a 6-2 decision authored by Justice Samuel Alito, the United States Supreme Court spoke on the issue of standing when statutory violations are alleged, and its opinion could have profound effects on TCPA litigation. Holding that Article III standing requires a concrete injury even in the context of a statutory violation, the Court sent the case back to the U.S. Court of Appeals for the Ninth Circuit, stating that because the “Ninth Circuit failed to fully appreciate the distinction between concreteness and particularization, its standing analysis was incomplete. It did not address the question framed by our discussion, namely, whether the particular procedural violations alleged in this case entail a degree of risk sufficient to meet the concreteness requirement.”
In reaching its conclusion, the Court noted that the “irreducible constitutional minimum” of standing consists of three elements. The plaintiff must have (1) suffered an injury in fact; (2) that is fairly traceable to the challenged conduct of the defendant; and (3) that it likely to be redressed by a favorable judicial decision, noting that the case at issue primarily concerned injury in fact. To establish injury in fact, a plaintiff must should that she suffered an “invasion of a legally protected interest” that is “concrete and particularized” and “actual or imminent, not conjectural or hypothetical,” focusing its discussion on the particularization and concreteness requirements.
After discussing the particularization requirement, the Court noted that the Ninth Circuit’s analysis focused on this requirement alone, not concreteness, adding that particularization and concreteness are not the same thing. A “concrete” injury must be “de facto” that it is it must actually exist. When the Court has used the adjective in the past, it has meant to convey the usual meaning of the term – “real,” and not “abstract.” The Court noted, however, that “concrete” is not synonymous with “tangible” as intangible injuries (such as the curbing free speech) can nevertheless be concrete. The Court further noted that the requirement of a concrete injury “does not mean, however, that the risk of real harm cannot satisfy the requirement of concreteness” as the law has long permitted recovery by certain tort victims even if their harms may be difficult to prove or measure, adding that violation of a procedural right granted by statute can be sufficient in some circumstances to constitute injury in fact. “In other words, a plaintiff in such a case need not allege any additional harm beyond the one Congress has identified.”
After summarizing general principles of concreteness, the Court stated:
In the context of this particular case, these general principles tell us two things: On the one hand, Congress plainly sought to curb the dissemination of false information by adopting procedures designed to decrease the risk. On the other hand, Robins cannot satisfy the demands of Article III by alleging a bare procedural violation. A violation of one of the FCRA’s procedural requirements may result in no harm. For example, even if a consumer reporting agency fails to provide the required notice to a user of the agency’s consumer information, that information regardless may be entirely accurate. In addition, not all inaccuracies cause harm or present any material risk of harm. An example that comes readily to mind is an incorrect zip code. It is difficult to imagine how the dissemination of an incorrect zip code, without more, could work any concrete harm.
Justices Kennedy, Breyer, Roberts, Kagan and Thomas joined in the opinion with Justice Thomas writing separately to explain how the “injury in fact” requirement applies differently when public and private rights are at issue, stating that “the concrete-harm requirement does not apply as rigorously when a private plaintiff seeks to vindicate his own private rights,” adding that a plaintiff seeking to vindicate a statutorily created private right need not allege actual harm beyond the invasion of that private right. A plaintiff seeking to vindicate a public right embodied in a federal statute, however, must demonstrate that the violation of that public right has caused him a concrete, individual harm distinct from the general population.
Justices Ginsburg and Sotomayor dissented. A copy of the opinion can be viewed here.