Seyfarth Synopsis: The Supreme Court’s Spokeo decision is sure to impact ERISA litigation. Expect ERISA plaintiffs to focus more on alleging a “concrete” injury, and ERISA defendants to argue more often that the claim cannot proceed in federal court because its alleged injury, while it may allege a breach of ERISA, does not rise above a purely technical violation.
We have blogged previously about the Spokeo Inc. v. Robbins case just decided by the Supreme Court, and our sister blog has recently commented on that decision. The following comments do not repeat what already has been said, and are intended to limit the discussion at this time to the ERISA litigation context.
The facts in Spokeo concern the federal Fair Credit Reporting Act, but the holding implicates litigation under a number of other federal statutes, including ERISA. The Supreme Court said that, while Congress can create federal claims, those claims can be litigated in federal court only if the plaintiff alleges a “concrete” injury (i) that affects the plaintiff in a personal and individual way, (ii) that is traceable to the defendant, and (iii) that is repressible by the federal judge. Add to these preconditions the Supreme Court’s Twombly holding, which said that any federal complaint, as a matter of federal civil procedure, must state a “plausible” claim, beyond speculation and conclusion, in order to be considered by a federal judge.
The Supreme Court found the allegations in Spokeo possibly less than concrete, and remanded the case back to the Court of Appeals for the Ninth Circuit with instructions to address that issue in detail. Here is the Court’s explanation of what a claim needs to allege to be “concrete” enough to be heard by a federal judge:
- The alleged injury must “actually exist”; it must be “real.”
- The alleged injury can be tangible or intangible. As to intangible harm, the courts will give some deference to what Congress thinks on the subject. But Congress cannot create an intangible harm merely by creating a claim to remedy a statutory violation.
- The alleged injury can be a “risk” of real harm that is difficult to measure. For example, the Court said, a failure to obtain information that Congress decided must be make public can (but not necessarily will) be a concrete injury. Still, it seems, any risk of real harm must rise to a level above speculation.
Some ERISA litigation claims obviously involve concrete injuries. These include claims for denial of benefits that plan terms allow, plan investment losses resulting from a fiduciary breach and detrimental reliance on fiduciary misrepresentations. Other ERISA litigation claims less obviously involve concrete injuries. These include claims challenging a denial to provide plan documents in a timely fashion, claims challenging notice of plan amendments that arguably violate ERISA section 204(h), claims challenging a fiduciary breach attendant to an investment of plan assets in an overfunded defined pension plan, and claims challenging a failure to fund a defined benefit plan where the plaintiff has suffered no benefit denial.
Where lines are drawn undoubtedly will be a subject of much discussion. How lines are drawn may determine the outcome of high-stakes litigation. For example, line-drawing will affect class certification decisions, as the more individualized the alleged concrete injury, the less likely the court will certify a class.
ERISA litigators should expect plaintiff s to spend more time drafting complaints, so they plausibly allege concrete injuries. They should expect defendants to spend more time arguing that, notwithstanding all the extra work, the plaintiffs still cannot enter a federal court because all that the plaintiff is merely alleging a technical violation or “gotcha” claim.