In a decision surely welcomed by the plaintiffs’ bar, the US Court of Appeals for the Ninth Circuit held, on August 15, 2017, that a putative class action plaintiff has Article III standing as long as the plaintiff alleges just slightly more than a mere statutory violation. The case, Robins v. Spokeo, was on remand from the United States Supreme Court following that Court’s well-known May 2016 Spokeo v. Robins decision, which held that allegations of a statutory violation of the Fair Credit Reporting Act (FCRA), without more, did not confer standing. A three-judge panel of the Ninth Circuit has now ruled that, as a matter of statutory interpretation, the FCRA procedures at issue were crafted to protect consumers’ “concrete” interest in accurate credit reporting about themselves, and that the plaintiff’s allegations of inaccurate credit reports could be deemed “a real harm” sufficient to confer standing.
While in one sense, the Ninth Circuit’s decision specifically involves the FCRA, it represents the latest in a string of post-Spokeo decisions analyzing just how little a plaintiff needs to plead to survive a motion to dismiss on standing grounds. This trend is applicable to numerous genres of litigation, but is of particular relevance for defendants both in data breach cases and under the Telephone Consumer Protection Act (TCPA).
Spokeo v. Robins – Part One
Spokeo, Inc. runs a “people search engine” that provides subscribers to its service, including employers, with access to information on individuals in its database (including alleged FCRA consumer reports). The plaintiff alleged that Spokeo, in violation of the FCRA, kept inaccurate information about him in its database concerning his age, education, marital status and employment status, all of which harmed his employment prospects (for example, by making him appear overqualified). Initially, the district court dismissed the complaint on the basis that a mere statutory violation of the FCRA, without any additional injury, was not sufficient for Article III standing.
The Ninth Circuit reversed, however, holding that the plaintiff’s allegations were sufficiently concrete and particularized to confer Article III standing. After granting certiorari, the Supreme Court vacated the opinion and held the Ninth Circuit’s standing analysis to be incomplete. The Court did not disagree with the Circuit Court’s particularized analysis, but found that the Ninth Circuit had not sufficiently analyzed whether the plaintiff’s injury was concrete. An injury-in-fact, according to the Supreme Court, must not only be particularized, i.e., affecting the plaintiff in a personal and individual way, but it also must be concrete. For the Court, although Congress had enacted the FCRA at least in part to curb the dissemination of false information by adopting procedures designed to decrease that risk, if the plaintiff had not suffered any “concrete” injury as a result of the dissemination of false information, the plaintiff could not recover under the FCRA. Importantly, the Supreme Court also noted that injuries do not have to be tangible to be concrete (for example, unduly impeding someone’s First Amendment rights would be a concrete harm while nonetheless intangible). This distinction would later be seized upon by lower courts applying Spokeo.
Spokeo – Part Two
In its decision on remand, the Ninth Circuit heeded the Supreme Court’s instructions and determined that the plaintiff’s alleged injury was sufficiently concrete under the FCRA to confer Article III standing. Specifically, the court analyzed the congressional history and historical practice to determine that Congress created the FCRA to ensure that consumers are protected against the dissemination of inaccurate information in consumer reports and this “dissemination of false information in consumer reports can itself constitute a concrete harm.” With that, the Ninth Circuit then found that although some FCRA violations may not cause injury-in-fact on their own, others can and in this case do satisfy the test.
Other Decisions Applying Spokeo
Thus far, although courts applying the Supreme Court’s holding in Spokeo have yet to reach a full consensus, the majority of courts have held that it does not take much for plaintiffs to satisfy Article III standing.
One notable area that has been impacted by Spokeo is TCPA litigation, in which plaintiffs generally allege injuries such as minimal time or expense associated with receiving an unwanted phone call, text or fax. For example, in Sartin v. EKF Diagnostics, Inc., the district court dismissed a putative class action where the plaintiff alleged that defendants unlawfully sent him a single fax in violation of the TCPA.1 In dismissing the complaint, the court held that the plaintiff “provides no factual material from which the Court can reasonably infer what specific injury, if any, the plaintiff sustained.” The plaintiff subsequently amended his complaint, adding allegations of lost time and ink from receiving the single fax. Based only on those de minimis allegations of injury, the court allowed the re-pled complaint to proceed.
A majority of TCPA decisions applying Spokeo have agreed with the second Sartin decision, denying motions to dismiss on standing grounds where the plaintiff alleges even a very minor (but apparently “concrete”) harm.2 One court went so far as to hold that under the TCPA, it is not necessary to allege the same kind of harm as under the FCRA to survive a motion to dismiss for lack of standing. In Aranda v. Caribbean Cruise Line, Inc., the court found that the TCPA differs from the FCRA because it “establishes substantive, not procedural, rights to be free from telemarketing calls consumers have not consented to receive.” The Aranda court seized on the fact that under Spokeo, an injury need not be “tangible” to be “concrete.” Because the harm alleged by the plaintiff was contemplated by the language of the TCPA, the statutory violation alone conferred standing.
Some courts have interpreted Spokeo in ways that thwart plaintiff actions. Recently, for example, the US District Court for the Northern District of Illinois denied class certification in a putative TCPA class action on the basis of evidence that certain members consented to the calls and thus did not suffer a concrete, tangible injury based on their receipt of calls.3 This case is also significant because it demonstrates that a plaintiff’s failure to plead an injury-in-fact to satisfy Article III standing can be challenged at any stage of litigation, not just on the pleadings.
Similar to the Ninth Circuit’s holding in Spokeo, the Third Circuit held in In re Horizon Healthcare Servs. Inc. Data Breach Litig. that the alleged unauthorized dissemination of a plaintiff’s private information in violation of the FCRA was not a mere procedural violation of the FCRA, but was the very kind of injury the FCRA was designed to prevent.4 It therefore satisfied the concreteness prong of the standing test. In fact, the Ninth Circuit cited to this Third Circuit decision in its holding.
Data Breach Context
Post-Spokeo, courts have also considered standing in the context of class actions alleging failure to protect information from data theft. In many of these cases, plaintiffs have argued that the release of their personal information following a data breach puts them at an increased risk of identity theft, creating a “substantial risk of harm” that should be cognizable as a concrete injury under Article III. But courts have struggled to determine whether allegations of an increased risk of identity theft truly creates a “substantial risk of harm” to the data subject, or whether the possibility of identity theft in the future is merely speculative (and hence falling short of Article III standing).Courts continue to grapple with this issue, and have reached different conclusions based on the specific facts and circumstances alleged by plaintiffs in each case.5
What Happens Now?
It is highly likely that the number of FCRA, TCPA and data breach class actions will continue to rise, and given the trend which the Ninth Circuit’s recent Spokeo decision reflects, more will likely survive a standing analysis. That said, courts are not yet uniform in their interpretation of the Supreme Court’s Spokeo opinion, or Article III standing principles more generally. Until the Supreme Court revisits and clarifies its position on what constitutes an injury-in-fact, defendants in these and other categories of cases will be at the mercy of the specific allegations in their case and perhaps the venue of the litigation.