Tech company asks the Supremes to review standing decision

Prelude to a…

It all seems so long ago. But it’s only been about a year and a half.

Back in May 2016, the Supreme Court handed down a ruling in Spokeo, Inc. v. Robins. The ruling stated that plaintiffs must allege a tangible or intangible concrete injury in order to have standing in a federal court.

In the Beginning

Plaintiff Thomas Robins alleged that he had suffered harm when Spokeo, a so-called people search engine, reported incorrect information about him, thereby violating the Fair Credit Reporting Act. Robins argued that the false information might affect the deliberations of companies doing background checks on him. The district court dismissed the complaint, holding that Robins had not pleaded an actual injury as required by Article III of the Constitution.

But on appeal the Ninth Circuit flipped the script, maintaining that Robins had met the injury-in-fact requirement and had standing to sue.

The Road to Petition

Back to that Supreme Court ruling from 2016. Reviewing the Ninth’s decision, the Court held that plaintiffs must allege a tangible or intangible concrete injury to gain standing. Nonetheless, it did not make a decision regarding the Spokeo/Robins dispute. It held that the Ninth had failed to consider “both aspects of the injury-in-fact requirement” in the case – particularization and concreteness – and sent the case back.

On the second go-round, the Ninth found that Robins had standing under Article III, because he had alleged a real, albeit intangible injury – all that was required given the FCRA’s mission to protect his concrete interests.

In the most recent twist in this saga, Spokeo has filed a petition for writ of certiorari, attempting to persuade the justices to address the Ninth’s most recent finding. It claimed that the circuit court misapplied the justices’ ruling, but also that the ruling demanded clarity – too many conflicting decisions in the lower courts were being made on the strength of the decision for it to remain unaddressed.

The Takeaway

By Spokeo’s account, the legal wishbone that’s being tugged on by the lower courts concerns the interpretation of what constitutes a “concrete” injury claim. Some courts have followed the Ninth Circuit, maintaining that as long as specific interests of the plaintiff are at stake, standing exists – even if there was no actual harm suffered. Others interpret the ruling to mean that an actual harm in the real world is necessary to gain standing.

The final disposition of this question – if it ever comes – will be of great interest to both plaintiffs and defendants alike in a wide variety of cases, especially matters invoking the Telephone Consumer Protection Act, where the question of actual harm is the cause of much debate.