The ripple effects persist as lower courts continue to apply the Supreme Court’s holding in Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016), which established a new “standing,”  threshold for plaintiffs seeking to assert a claim under the federal Fair Credit Reporting Act, more affectionately known by the acronym FCRA. The Northern District of California in  Dutta v. State Farm Mutual Automobile Insurance Company, 3:14-CV-04292 (N.D. Cal. Oct. 17, 2016) joined a steadily growing number of lower courts to apply Spokeo’s new standard for bringing suit in federal court - that mere awareness of a procedural violation of a law is not sufficient absent a showing of individualized harm.  This new threshold continues to be tried out by defendants seeking to dismiss complaints that fail to sufficiently allege harm which the Court coined as “concrete and particularized” to the individual.

In Dutta the plaintiff asserted that an insurance carrier, State Farm, violated FCRA by allegedly running the plaintiff’s credit score in conjunction with his job application and never furnished him with a copy of the report.  The plaintiff alleged that failing to provide him with a copy of his report deprived him of the ability to review that report for errors or explain any negative information contained therein – a technical violation of FCRA.  When he was not offered the job as an insurance agent, he filed suit.  The court dismissed the lawsuit, reasoning that there was no way the plaintiff could demonstrate that “but for these errors,” the applicant would have received the job under the new Spokeo standard. Spokeo’s definition of standing has now been applied by a district court in the Ninth Circuit, a circuit that is generally thought of as court more hospitable to plaintiffs.  

While Spokeo and the decisions issued in its wake has thus far focused only on FCRA, there could be a potential for broader application of the new standing requirement under other federal statutes.  One potential application that may be tried out by defense counsel are for cases arising under the  public accommodation provisions of the Americans with Disabilities Act in an effort to limit the effectiveness of “tester” and “drive-by” plaintiffs, suing for mere procedural violations of the law, without suffering any individualized harm.  These type of suits often involve the plaintiff’s awareness that a violation exists, rather than actual harm suffered by that plaintiff.  While how far the lower courts are willing to apply Spokeo is yet to be seen, many statutes provide defense counsel with the opportunity to seek to expand its application.