SCOTUS Vacates 9th Circuit’s Spokeo Decision

Alleging a bare statutory violation not enough to confer standing

When the Supreme Court granted certiorari in Spokeo v. Robins, it was clear that a ruling in the case would have significant implications for litigation under privacy statutes. The issue before the Court was whether Congress can confer Article III standing on a plaintiff that has not suffered a concrete injury, thus allowing suit based on the bare violation of a statute. In other words, the Court was asked to consider whether Article III standing can exist based on an injury-in-law even in the absence of an injury-in-fact. The 9th Circuit had accepted that proposition.

Today the Supreme Court reversed, however, finding that injury-in-law would not be enough and that an injury-in-fact must be both concrete and particularized such that alleging a bare procedural violation of a statute without more would be insufficient. The Court held:

• “For an injury to be ‘particularized’, it ‘must affect the plaintiff in a personal and individual way.’ Particularization is necessary to establish injury in fact, but it is not sufficient.”

• “A ‘concrete’ injury must be ‘de facto’; that is, it must actually exist. ‘Concrete’ is not, however, necessarily synonymous with ‘tangible.’ Although tangible injuries are perhaps easier to recognize, we have confirmed in many of our previous cases that intangible injuries can nevertheless be concrete.”

• “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 . . . Robins cannot satisfy the demands of Article III by alleging a bare procedural violation [of the Fair Credit Reporting Act]. A violation of one of the FCRA’s procedural requirements may result in no harm.”

• “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.”

Taking no position as to whether the 9th Circuit’s ultimate conclusion—that Robins adequately alleged an injury in fact—was correct, the Supreme Court remanded the matter back to the 9th Circuit to consider both aspects of the injury-in-fact requirement.

The Supreme Court’s holding that a plaintiff must show a concrete and particularized injury provides an additional hurdle that the plaintiff must clear in order to demonstrate standing when alleging injury on account of an alleged statutory violation.

Please revisit the Privacy & Security Law Blog in the coming days for a more detailed analysis of the how the Supreme Court’s decision in Spokeo may affect future litigation under the FCRA and other federal privacy statutes that provide for a private right of action.