May 17, 2016
U.S. SUPREME COURT HOLDS THAT VIOLATION OF A STATUTORY
RIGHT, WITHOUT A RESULTING "CONCRETE" INJURY, DOES NOT
SATISFY ARTICLE III'S INJURY-IN-FACT REQUIREMENT
To Our Clients and Friends:
On May 16, 2016, the Supreme Court issued Spokeo, Inc. v. Robins, an important opinion that
significantly limits the ability of civil plaintiffs to bring claims for violation of a statute without
establishing that they have suffered a real, concrete injury. The Court's decision disapproves many
lower court decisions that had deemed an alleged statutory violation sufficient on its own to satisfy the
standing requirements of Article III, and as a result will have broad ramifications across numerous
subject areas--including actions involving the Fair Credit Reporting Act, the Fair Debt Collections
Practices Act, the Truth in Lending Act, the Telephone Consumer Protection Act, the Wiretap Act, and
the Real Estate Settlement Procedures Act. Spokeo also creates a potentially dispositive obstacle to the
certification of "no injury" class actions in which plaintiffs seek to recover statutory damages on a
classwide basis without proof that individual class members suffered any actual, concrete injury.
Spokeo settled that "Article III standing requires a concrete injury even in the context of a statutory
violation." Slip op. at 9. Violations of a statute that are "divorced from any concrete harm" do not
"satisfy the injury-in-fact requirement of Article III." Id. at 9–10. While important questions remain
regarding what a plaintiff asserting a statutory violation must allege (and ultimately prove at trial) to
establish concrete harm, Spokeo clearly places a significant additional burden on plaintiffs seeking to
recover statutory damages in federal court, and provides class-action defendants with an additional
avenue of attack at both the pleading and class certification stages.
The Supreme Court's Decision
Spokeo operates a "people search engine" that gathers and provides information about individuals for a
number of purposes, including employers' evaluation of prospective employees. Thomas Robins filed
a class action complaint claiming that Spokeo willfully failed to comply with the requirements of the
Fair Credit Reporting Act ("FCRA")--a statute that requires consumer reporting agencies to, among
other things, "follow reasonable procedures to assure maximum possible accuracy of the information
concerning the individual about whom the report relates." 15 U.S.C. § 1681e(b). Robins brought this
suit even though the allegedly inaccurate information on Spokeo arguably enhanced his job prospects.
The district court dismissed the complaint for lack of Article III standing because Robins had not
sufficiently alleged that he had suffered an injury in fact, but the Ninth Circuit reversed. Relying on its
earlier decision in Edwards v. First American Corp., 610 F. 3d 514 (9th Cir. 2010), cert. granted, 564
U. S. 1018 (2011), cert. dismissed as improvidently granted, 132 S.Ct. 2536 (2012) (per curiam), the
Ninth Circuit ruled that Robins had satisfied the Article III injury-in-fact requirement because "Spokeo
violated his statutory rights, not just the statutory rights of other people" and his "personal interests in
the handling of his credit information are individualized rather than collective." Robins v. Spokeo, Inc.,
742 F.3d 409, 413–14 (9th Cir. 2014).
In a 6-2 decision, the Supreme Court determined that the Ninth Circuit's Article III analysis was
"incomplete" because, although it considered whether the alleged injury was "particularized," it had
"overlooked" whether Robins had also alleged a "concrete" injury. Slip op. at 2. The Court thus
vacated the Ninth Circuit's judgment, and instructed the Ninth Circuit to consider on remand whether
Robins adequately alleged any concrete harm. Id.
As Justice Alito's majority opinion explained, the Court has "made it clear time and time again that an
injury in fact must be both concrete and particularized." Slip op. at 8. An injury must be
"particularized" in that it "must affect the plaintiff in a personal and individual way." Id. at 7. But
while "[p]articularization is necessary to establish injury in fact, . . . it is not sufficient" because "[a]n
injury in fact must also be 'concrete.'" Id. at 8 (emphasis added). The Ninth Circuit failed to consider
this "independent requirement," which "is quite different from particularization" because it requires a
showing that an injury is "'real,' and not 'abstract.'" Id.
While the Court did not resolve in the first instance whether Robins had alleged a concrete injury, it
provided significant guidance on the meaning of this requirement, and the role that statutes play in
assessing whether a plaintiff has standing under Article III.
The Court first explained that "[a]lthough tangible injuries are perhaps easier to recognize, . . .
intangible injuries can nevertheless be concrete." Slip op. at 9. "[B]oth history and the judgment of
Congress play important roles" in "determining whether an intangible harm constitutes injury in
fact." Id. It is thus "instructive to consider whether an alleged intangible harm has a close relationship
to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American
courts." Id. And "because Congress is well positioned to identify intangible harms that meet
minimum Article III requirements, its judgment is also instructive and important." Id.
In recognizing the relevance of "Congress' role in identifying and elevating intangible harms," the
Court made clear that this "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." Slip op. at 9. Rather, "Article III standing requires a concrete injury even
in the context of a statutory violation." Id. (emphasis added). Thus, "Robins could not, for example,
allege a bare procedural violation [of the FCRA], divorced from any concrete harm, and satisfy the
injury-in-fact requirement of Article III." Id. at 9–10. The Court, however, noted that it is possible for
a "risk of real harm" to "satisfy the requirement of concreteness," and acknowledged that "the violation
of a procedural right granted by statute can be sufficient in some circumstances to constitute injury in
fact." Id. at 10.
Based on these "general principles," the Court concluded that although "Congress plainly sought to
curb the dissemination of false information by adopting procedures designed to decrease that risk," that
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did not mean that Robins could "satisfy the demands of Article III by alleging a bare procedural
violation" because "[a] violation of one of the FCRA's procedural requirements may result in no
harm." Slip op. at 10. The Court remanded for the Ninth Circuit to address "whether the particular
procedural violations alleged in this case entail a degree of risk sufficient to meet the concreteness
requirement." Id. at 11.
In a concurring opinion, Justice Thomas emphasized the distinction between violations of duties owed
to the public collectively versus those owed to individuals, and claimed that the former require a
greater showing of concrete harm.
Justice Ginsburg wrote a dissenting opinion, joined by Justice Sotomayor, which expressed agreement
with "much of the Court's opinion," but disagreed that a remand was necessary. Slip. op. at 2
(Ginsburg, J., dissenting). In Justice Ginsburg's view, Robins' allegations of "misinformation about his
education, family situation, and economic status" were "inaccurate representations that could affect his
fortune in the job market," and thus were sufficient to satisfy the concreteness requirement. Id. at 5.
Potential Implications
1. Curbing "No Injury" Class Actions. Although Spokeo involved the standing of a named plaintiff
before class certification, the Court's opinion will likely make it significantly more difficult for
plaintiffs to pursue class actions for violations of statutes where named plaintiffs or absent class
members have not suffered any actual injury. Many federal statutes, including the Fair Debt
Collections Practices Act, the Truth in Lending Act, and the Telephone Consumer Protection Act, lack
any statutory injury requirement, yet nonetheless provide for awards of statutory damages. Those two
features have given rise to class actions involving individuals who have no possible injury besides the
violation of a statutory right.
Spokeo, however, makes clear that a bare statutory violation is not sufficient to satisfy Article III and
that plaintiffs must establish real, concrete harm. As a result, plaintiffs seeking to certify a class action
must show how, in a classwide proceeding, they can prove not just a statutory violation, but also that
all class members actually suffered a concrete injury. After Spokeo, that task will prove fatal to many
class certification bids, as establishing concrete injury will often require fact-intensive, plaintiffspecific inquiries.
Indeed, the analysis of the FCRA in Spokeo demonstrates the inherent variability in establishing
concrete injury. As the Court noted, "the violation of a procedural right granted by statute can be
sufficient in some circumstances to constitute injury in fact." Slip op. at 10 (emphasis added). But not
all statutory violations will be sufficient. In fact, the Court in Spokeo provided two examples of FCRA
procedural violations that did not result in a concrete injury: (a) the failure to provide required notice to
a user of the agency's consumer information (as the information could nevertheless be "entirely
accurate"), and (b) the dissemination of an incorrect zip code (as it is "difficult to imagine how the
dissemination of an incorrect zip code, without more, could work any concrete harm"). Id. at 10–
11. In other words, depending on the circumstances, some alleged statutory violations may result in a
sufficiently concrete injury to confer Article III standing, while others may not.
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Because Spokeo is premised on the standing requirements of Article III, the existing conflict among the
courts of appeals over whether those requirements apply to absent class members is now of increased
importance. The Court declined to resolve that conflict in Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct.
1036 (2016), but it is likely to consider the issue again in the coming years. For now, Spokeo will have
its most significant impact on class actions in those jurisdictions that have recognized the applicability
of Article III to absent class members. See, e.g., Halvorson v. Auto-Owners Inc. Co., 718 F.3d 773,
778 (8th Cir. 2013); Mazza v. Am. Honda Motor Co., 666 F.3d 581, 594 (9th Cir. 2012); Denney v.
Deutsche Bank AG, 443 F.3d 253, 264 (2d Cir. 2006). Defendants seeking to leverage Spokeo in class
actions can also rely on the Chief Justice's observation in Tyson Foods that "Article III does not give
federal courts the power to order relief to any uninjured plaintiff, class action or not." 136 S. Ct.
at 1053 (Roberts, C.J., concurring).
2. Reassessment of Pre-Spokeo Decisions. Spokeo effectively rejects the decisions of several
appellate courts that had held that an allegation of a bare statutory violation was sufficient, without
more, to satisfy the requirements of Article III. For example, the Ninth Circuit in Edwards held that a
plaintiff who had alleged a violation of the Real Estate Settlement Procedures Act, but had not alleged
any harm from that violation (such as an overcharge), had nonetheless "established an injury sufficient
to satisfy Article III." 610 F.3d at 517. Similarly, the Sixth Circuit allowed a FCRA claim to proceed
without any showing of "actual harm," ruling that "[n]o Article III (or prudential) standing problem
arises" in that scenario. Beaudry v. TeleCheck Servs., Inc., 579 F.3d 702, 706–07 (6th Cir. 2013).
These expansive views of the ability of uninjured persons to pursue claims in federal court cannot be
reconciled with Spokeo's holding that a plaintiff does not "automatically satisf[y] 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" because "Article III standing requires a concrete injury even in the context
of a statutory violation." Slip op. at 9.
Spokeo's framework thus forecloses the expansive and simplistic reasoning that many courts had
previously adopted. Defendants should consider challenging prior rulings in pending cases that have
followed decisions like Edwards and Beaudry, particularly if plaintiffs will not be able to establish any
"concrete harm" stemming from the alleged statutory violation at issue.
3. Impact on Privacy Cases. Plaintiffs in data privacy class actions have relied in the past several
years on decisions such as Edwards and Beaudry to argue that the mere allegation of a statutory right-i.e., a technical violation of a privacy-related statute for which there is a private right of action--is
sufficient to establish standing, even where there is no actual injury. Indeed, the plaintiffs' class action
bar has frequently asserted statutory claims of dubious merit for the purpose of pleading Article III
standing. But after Spokeo, those arguments are no longer viable. Instead, plaintiffs pursuing data
privacy claims will now have to allege (and ultimately prove) a concrete harm, and courts will be
required to determine whether that alleged harm or material risk of harm is "real" or "abstract." After
considering the Supreme Court's guidance in Spokeo, courts may very well hold that many of the fact
patterns alleged in recent privacy-related class actions do not satisfy the requirements of Article III
standing because the alleged injuries simply are not concrete.
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* * *
While some commentators have labeled Spokeo a "punt" because the Court did not resolve all the
issues presented for decision, what the Court did decide is an important contribution to the
jurisprudence of standing to sue in federal court for statutory violations, in both individual and class
actions. The Court's emphasis that a plaintiff must suffer an injury that is both particularized and
concrete to maintain suit, coupled with its unambiguous rejection of the premise that a mere allegation
of statutory violation is sufficient to confer standing, will go a long way toward curbing the abuse and
expense of "no injury" lawsuits.
Gibson, Dunn & Crutcher's lawyers are available to assist in addressing any questions you may have
regarding these developments. Please contact the Gibson Dunn lawyer with whom you usually work in
the firm's Class Actions, Appellate and Constitutional Law, or Privacy, Cybersecurity and Consumer
Protection practice groups, or any of the following lawyers who assisted in preparing this client alert:
Theodore J. Boutrous, Jr. - Co-Chair, Litigation Practice Group - Los Angeles (213-229-7000,
[email protected])
Mark A. Perry - Co-Chair, Class Actions Group - Washington, D.C. (202-887-3667;
[email protected])
Christopher Chorba - Co-Chair, Class Actions Group - Los Angeles (213-229-7396,
[email protected])
Joshua A. Jessen - Orange County/Palo Alto (949-451-4114/650-849-5375, [email protected])
Blaine H. Evanson - Los Angeles (213-229-7228, [email protected])
Bradley J. Hamburger - Los Angeles (213-229-7658, [email protected])
Jeana Bisnar Maute - Palo Alto (650-849-5348, [email protected])
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