U.S. Supreme Court Affirms That Bare Procedural and Technical Violations Do Not Confer Standing
The Supreme Court held yesterday in Spokeo, Inc. v. Robins1 that the injury-in-fact requirement of standing includes two independent components—particularity and concreteness—and remanded for the Ninth Circuit to address the latter. In so holding, the Court did not squarely address when Congress may confer Article III standing for intangible harms. This is the second time that the Court has granted review to clarify when Congress may confer constitutional standing by statute, having four years ago agreed to hear First American Financial Corp. v. Edwards, 132 S. Ct. 2536 (2012), before dismissing that case as improvidently granted. The Court did clarify, however, that plaintiffs must always have a concrete injury, even in the context of a statutory violation. Plaintiffs who allege bare procedural and technical violations do not satisfy Article III’s concreteness component. The Court’s decision thus should prevent plaintiffs from bringing actions, including class actions under various consumer statutes, for nominal statutory violations that did not result in real harm to those plaintiffs.
The case arose under the Fair Credit Reporting Act (FCRA), which regulates how credit reporting agencies disseminate information about consumers. Agencies that willfully fail to comply with the Act’s requirements are liable for either actual damages or statutory damages ranging from $100 to $1,000 per violation.
Spokeo is a “people search” website that aggregates publicly available information (such as a person’s age, contact information, income, and education) without independently verifying the data’s accuracy. Thomas Robins alleged that his online Spokeo profile contained inaccurate information, and he brought putative class claims against Spokeo for willful violations of the FCRA and statutory damages. The district court dismissed the case for lack of Article III standing, but the Ninth Circuit reversed and reinstated Robins’s claims.2 The Supreme Court then granted review.
THE SUPREME COURT’S DECISION
In a 6-2 decision by Justice Alito, the Supreme Court held that the Ninth Circuit’s standing analysis had been “incomplete” and vacated and remanded for further proceedings.3 The Court reiterated that, in order to invoke Article III jurisdiction, a plaintiff must show that she has suffered an injury-in-fact that is both particularized and concrete. The Court reasoned that the Ninth Circuit had erred in focusing exclusively on whether Robins’s asserted injury—“Spokeo’s marketing of inaccurate consumer reporting information about [him]”4—was particularized, without addressing whether that injury also was concrete.
The Court explained that a concrete injury must be “‘real,’ and not ‘abstract.’”5 The Court acknowledged that “intangible” injuries may qualify as concrete and that “both history and the judgment of Congress play important roles” in determining whether intangible injuries are sufficiently concrete to confer standing.6 The Court emphasized, however, that “Congress’ role in identifying and elevating intangible harms does not mean that a plaintiff automatically satisfies 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.”7 According to the Court, “a bare procedural violation, divorced from any concrete harm,” does not satisfy Article III; the appropriate inquiry is whether a statutory violation “cause[s] harm or present[s] any material risk of harm.”8 The Court remanded the case for the Ninth Circuit to assess “whether the particular procedural violations alleged in this case entail a degree of risk sufficient to meet the concreteness requirement.”9
Justice Thomas joined in the opinion but concurred to express his view that, although plaintiffs suing to vindicate “private rights” need only allege a bare violation of those rights in order to establish standing, plaintiffs suing to enforce “public rights” must further allege some form of concrete harm to their personal interests beyond the harm suffered by the general public.10
Justice Ginsburg, joined by Justice Sotomayor, dissented. Without disputing that concrete harm was required to show injury-in-fact, Justice Ginsburg argued that remand was unnecessary because Robins had adequately alleged a concrete injury: the allegedly incorrect information contained in Spokeo’s report could have affected Robins’s ability to find employment.11
Yesterday’s decision did not squarely resolve the tension in the lower courts over when Congress may confer Article III standing for intangible harms. The Court did clarify, however, that it is not enough for Congress to grant a statutory right and a private cause of action. The Court’s decision thus prevents plaintiffs from bringing suit for procedural or technical statutory violations that do not result in real harm or a substantial threat of real harm. That rule should be particularly important in the class-action context. Plaintiffs will be precluded from bringing putative class actions for technical non-compliance with various statutes (including consumer-protection statutes), and even if the named plaintiff has suffered real harm, the need for an individualized inquiry into whether all putative plaintiffs have suffered similar harms may defeat Rule 23’s predominance requirement.