First Take on Spokeo

The Supreme Court today issued its much-anticipated ruling in Spokeo v. Robins. The opinion vacates and remands the Ninth Circuit's holding that the plaintiff had standing to pursue his claims under the Fair Credit Reporting Act, but leaves open the possibility that the court of appeals may reach the same result on remand. The majority, consisting of the four conservative Justices, joined by Breyer and Kagan, holds that a statute creating a remedy for violations and conferring a right of action on an individual to obtain that remedy is not by itself sufficient to support Article III standing: a concrete and particularized injury is still required. However, the injury need not be tangible, it may arise from the violation of a procedural right, and a risk of injury may suffice. And according to the court, history and the judgment of Congress should inform a court's decision as to whether a claimed harm is sufficient to satisfy the standing requirement.

The Court's decision remands to the Ninth Circuit to apply these requirements to the facts of the case. The Court's opinion acknowledges that Congress's objective in FCRA was to curb the dissemination of false information, and it appears to recognize, at least implicitly, that a plaintiff about whom significant falsehoods are disseminated, or who faces a risk of dissemination of false information, will likely have suffered a sufficiently concrete injury to support standing. Given the facts in Spokeo, it seems quite likely that the plaintiff will ultimately be found to have standing. The court's opinion, however, suggests that some technical violations of FCRA will be unlikely to involve enough harm or risk of harm to support standing. (For example, the Court observes, "It is difficult to imagine how the dissemination of an incorrect zip code, without more, could work any concrete harm.")

The makeup of the majority, and its decision to punt the ultimate standing determination in the case back to the Ninth Circuit, suggests that the opinion may paper over an inability to agree on the application of the general principles stated by the majority opinion to the particular facts of the case. At the same time, the agreement on those general principles spans a significant majority of the Court (even the two dissenters, Ginsburg and Sotomayor, agree with much of the majority's analytic framework, and part company principally on whether a remand is necessary to find that there is standing on the facts of the case), so the analytical bounds within which standing will be litigated in similar cases appear set for the time being. Defendants are likely to continue to raise standing in many statutory consumer cases, and the issue will likely have to be fought out statute by statute and claim by claim. However, plaintiffs are likely to be able to prove in many cases that the statute on which a right of action is based protects a sufficiently concrete injury to support standing, and that that injury is implicated by the allegations in their complaint.

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