On November 2, 2015, the United States Supreme Court conducted oral argument in a case that will decide the question of whether violation of a statute alone, without other “concrete” injury, can give a plaintiff access to federal court.  See Spokeo Inc. v. Robins, U.S., No. 13-1339, argued 11/2/15.  In the case, plaintiff Robins filed a class action complaint against Spokeo Inc. alleging that the website violated the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681, by posting inaccurate, but not necessarily negative or harmful, information about him.  In its briefs, Spokeo argued that the plaintiff did not sufficiently allege an “injury-in-fact” sufficient to maintain Article III standing for his lawsuit.  

In the argument, the Court appeared to be divided along the familiar ideological lines.  From the Court’s liberal wing, Justice Elena Kagan led much of the questioning, stating that she would feel harmed if she knew that a website was posting inaccurate information about her. “I think that if you went out on the street and you did a survey, most people would feel harmed,” she said. “Most people would feel as though they had some interest that had been invaded.” The details Spokeo got wrong about Robins “are not unimportant details,” Kagan asserted. “They basically got everything wrong about him,” she said: marital status, income, education. “They basically portrayed a different person.”

From the Court’s conservative wing, Justice Samuel A. Alito asked if there was anything to indicate that anybody other than Robins ever searched for him on Spokeo. If not, this is the “quintessential speculative harm,” he said.  Chief Justice John G. Roberts also asserted that statutory injuries like the one Robins alleged are not “real-world harms.”

The justices spent little time discussing class actions, even though their decision could have major implications on the use of the device in a whole host of other types of consumer and privacy cases involving statutory violations.  In addition to the FCRA, such federal statutes as the Telephone Consumer Protection Act and the Real Estate Settlement Procedures Act could also be significantly impacted by the Court’s decision.  A copy of the oral argument transcript may be found here.

Reporter, Barry Goheen, Atlanta, GA +1 404 572 4618, bgoheen@kslaw.com.