On Tuesday, Andrew Pincus of Mayer Brown and William Consovoy of Consovoy McCarthy Park will appear in San Francisco before a three-judge panel of the 9th U.S. Court of Appeals to argue a familiar question: Does Spokeo’s alleged violation of the Fair Credit Reporting Act give plaintiff Thomas Robins standing to sue under Article III of the U.S. Constitution?
As you probably recall, Pincus and Consovoy argued the same question in November 2015 before the U.S. Supreme Court, in a case that might have erased an entire category of class actions based on statutory violations that don’t inflict actual harm. But instead of heeding the exhortations of the business lobby to hold categorically that class action plaintiffs must prove a tangible, real-world injury to establish standing, the Supreme Court instead issued a seemingly self-contradictory decision last May that prompted both sides to declare victory.
The justices sided with Spokeo in finding that a plaintiff does not meet constitutional standing requirements merely by alleging the violation of a federal consumer statute. The violation, the court said, must be accompanied by an injury or else there’s no case. The court also said, however, that such injuries need not be concrete physical or economic harm but can be intangibly impaired rights, like defamation or loss of privacy.
The Supreme Court remanded the Spokeo case itself back to the 9th Circuit for reconsideration of Robins’ standing in light of the court’s opinion. That’s the argument the appellate court will hear Tuesday. Mayer Brown partner Pincus represents the company, a data aggregator accused of publishing inaccurate information about Robins, who is represented by Consovoy.
Filings this month by Spokeo and Robins in advance of their 9th Circuit argument show the slipperiness of distinguishing between intangible injuries and statutory violations. Spokeo wants the inquiry to focus on whether Robins himself suffered an injury as a result of its supposedly false information about him. Robins wants the appellate court to look at the question a bit differently, considering whether he has alleged the violation of a concrete right rooted in common law defamation.
Spokeo contends that federal appellate court have so far focused on plaintiffs’ injuries, not rights, in interpreting the Supreme Court’s opinion. Class action defendants, as Spokeo pointed out in a Dec. 1 letter providing the 9th Circuit with supplemental authority on the issue of Robins’ constitutional standing, have persuaded four federal circuit courts that plaintiffs didn’t meet the Spokeo test for standing. (The appellate opinions are all included in Spokeo’s filing.)
The 5th, 8th, 11th and District of Columbia Circuits have all held confirmed that mere statutory violations - like retaining a cable customer’s personal information, requesting a shopper’s ZIP code or failing to file mortgage documents – do not, by themselves, give a plaintiff the right to sue in federal court. The opinions “all reject Robins’s focus on the concreteness of the statutory right rather than the injury,” Spokeo said in the Dec. 1 letter.
Robins countered in a Dec. 5 letter to the 9th Circuit that those decisions do not go as far as Spokeo suggests. “Each case merely held that that violation did not place the ‘concrete interest’ that statute protects ‘even potentially at risk,’” the Robins letter said. Robins lawyer Consovoy instead drew the 9th Circuit’s attention to the 2nd Circuit’s Nov. 23 decision in Strubel v. Comenity Bank. The 2nd Circuit found that a credit card customer suing under the Truth in Lending Act has constitutional standing to sue over a card issuer’s failure to notify customers about certain credit obligations related to disputed purchases because the disclosure failures put the plaintiff at risk of concrete and particularized harm: If she didn’t know of her obligations, she was likely not to satisfy them. (The court said two other alleged disclose violations did not give the plaintiff standing.)
“We understand Spokeo, and the cases cited therein, to instruct that an alleged procedural violation can by itself manifest concrete injury where Congress conferred the procedural right to protect a plaintiff's concrete interests and where the procedural violation presents a ‘risk of real harm’ to that concrete interest,” wrote 2nd Circuit Judge Reena Raggi in the Strubel opinion. “We do not understand Spokeo categorically to have precluded violations of statutorily mandated procedures from qualifying as concrete injuries supporting standing.”
The 2nd Circuit’s decision seems to me to delve more deeply into Spokeo interpretation than the appellate opinions Spokeo cited in its letter to the 9th Circuit, but it by no means draws an easily discernible line between statutory violations that give rise to standing and those that don’t. I don’t envy the 9th Circuit.