Will the Spokeo v. Robins Supreme Court Ruling Favor Plaintiffs Or Defendants? Uh…
The Supreme Court issued its opinion in Spokeo v. Robins. A six Justice majority reversed the Ninth Circuit’s decision on the basis that the Ninth Circuit did not sufficiently consider whether Mr. Robins’s alleged harms were “concrete.”
On the question of whether Congress can define harms that entitle a plaintiff to sue, the court said yes, but that Congress “cannot erase” Article III standing requirements. While the judgment of Congress is “instructive and important,” courts retain their independence to evaluate whether a plaintiff satisfies Article III requirements.
The court says that “concrete” harms can be intangible, but “bare procedural violations” do not suffice. It’s possible that a violation of FCRA’s procedural requirements results in no harm. Even inaccuracies in credit reports may not result in a harm. The court expresses particular skepticism about dissemination of an incorrect zip code:
[i]t is difficult to imagine how the dissemination of an incorrect zip code, without more, could work any concrete harm.
A concurring Justice Thomas draws a distinction between public and private harms and says when public harms are at issue, the concreteness requirement is of increased importance. He seems to have a more tolerant view of whether Congress can simply create a cause of action by legislation.
Justices Ginsburg and Sotomayor say that “concreteness” actually refers to whether the plaintiff has a sufficient stake in the outcome of the dispute, whether through injury or otherwise. In any event, even under the test suggested by Justice Alito, they say that Robins alleges sufficiently concrete harm (the incorrect information harmed his job prospects). This is clearly sufficient in their view, and there’s no reason to return the case to the Ninth Circuit.
It’s tough to know what to make of this opinion. Similar to Elonis, I think it mostly fizzled. All sides are proclaiming it a victory. (Yes!)
Paul Bland at Public Citizen says Spokeo is “overwhelmingly a win for consumers!”
Eric tweeted that Spokeo says emphatically that “plaintiffs can’t go to federal court based solely on statutory violation.”
Gautam Hans as CDT characterized it as a “narrow win” for the consumer.
I think it will depend on how lower courts make use of this ruling, and my sense is that it will be cited by defendants liberally. Some courts will probably rely on it to get rid of privacy lawsuits (perhaps in combination with a strict reading of the Iqbal/Twombly pleading requirements). I could see it having an effect on class actions procedurally as well. I don’t think this will have much of an effect on TCPA cases.
In any event, there is a lot of language in Justice Alito’s opinion that supports a narrow(ish) view of privacy harm.
I’m fascinated by the wide range of assessments about who won this ruling. Are we all reading the same set of opinions?! Perhaps Justice Alito achieved something incredible and drafted an opinion that pleased everyone because it’s a win-win all around. Alternatively, perhaps his opinion contains inconsistent and contradictory statements that give everyone something they can enthusiastically cite/quote; but, collectively, the inconsistencies make the opinion a jurisprudential clusterfuck. Given how often the Supreme Court has mucked its words and let other courts parse what it avoided saying, I’m voting the latter.
Still, as I read the opinion and tried to extrapolate how lower court judges would interpret it (a process that reminded me of the Roommates.com train wreck, which contained two inconsistent holdings that courts had to choose between), to me it seems extremely likely that this opinion will emerge as a key defense-favorable ruling. Let me explain why…in more than 140 characters!
Consider the following two quotes:
* “Article III standing requires a concrete injury even in the context of a statutory violation. For that reason, Robins could not, for example, allege a bare procedural violation, divorced from any concrete harm, and satisfy the injury-in-fact requirement of Article III.”
* “Robins cannot satisfy the demands of Article III by alleging a bare procedural violation. A violation of one of the FCRA’s procedural requirements may result in no harm.”
(Also the opinion quotes an earlier case saying “Congress cannot erase Article III’s standing requirements by statutorily granting the right to sue to a plaintiff who would not otherwise have standing”),
Nothing ambiguous about those quotes. The Supreme Court says plaintiffs must allege a concrete harm caused by a statutory violation or they lack standing. Simple and clean.
Now, contrast the following quote: “the violation of a procedural right granted by statute can be sufficient in some circumstances to constitute injury in fact. In other words, a plaintiff in such a case need not allege any additional harm beyond the one Congress has identified.” Wait a minute–doesn’t that contradict the prior quotes?
Here’s how I think courts will reconcile this. The last quote was located a paragraph discussing whether or not a “real risk of harm” could be sufficiently concrete. So I think the majority didn’t mean it as a general policy statement, but rather as a clarification that statutory violations can cause concrete “real risks of harm”–if the plaintiff can make that allegation. So when the court said no additional harm needs to be alleged, it meant that the statutory violation can provide the source of that concrete harm rather than making the plaintiffs find some independent source of the harms. Obviously the court could have worded this better, but I think my interpretation will become obvious when judges look at the opinion’s language and structure. Thus, I think most courts will conclude that a plaintiff must say more about how he/she suffered concrete harms than simply pointing to the statutory violation.
If I’m right, what does this mean in practice? First, we’ve seen cases where the plaintiff didn’t actually attempt to show any harm from a statutory violation. Those cases should lack standing. Second, plaintiffs will be required to do more work to identify sufficient harms that they suffered. Obviously saying “the statutory violation made me mad/upset/frustrated or caused me angst” won’t cut it. And as we’ve seen, speculation about the possibility of bad things that might happen in the future (e.g., I could get hacked or I am exposed to a higher chance of identity theft) shouldn’t cut it either. So I think this opinion will make plaintiffs say more in their complaint, work harder to show they suffered cognizable harms, and fail to have standing when they don’t do both.
I have less strong views about what will happen to the Spokeo case on remand. Even if Robins gets a favorable standing ruling on remand, I don’t think that will change the overall defense-favorable implications of the ruling.
Case citation: Spokeo, Inc. v. Robins, No. 13-1339, 578 U.S. __ (2016).