In issuing its decision in Braitberg v. Charter Communications, the Eighth Circuit recently became the first federal appellate court to issue a published opinion interpreting Spokeo and, as predicted, shows that the Supreme Court’s ruling will have a significant impact on the viability of privacy-related claims.  In Braitberg, the plaintiff alleged that Charter indefinitely retained consumer data in violation of the Cable Communication Policy Act. The plaintiff did not allege any “actual injury;” instead, the plaintiff argued that a violation of the statute alone was sufficient to establish Article III standing.  The court disagreed, relying on Spokeo for the proposition that a “bare procedural violation” of a statute is insufficient to establish Article III standing when “divorced from any concrete harm.” The Eighth Circuit reiterated the language from Spokeo that a “concrete injury must ‘actually exist,’ and it must be ‘real,’ not ‘abstract.’”

The decision provides insight into how other courts may interpret Spokeo, and includes language potentially relevant for other privacy actions. The Eighth Circuit noted that the plaintiff “alleges only that Charter violated a duty to destroy personally identifiable information by retaining certain information longer than the company should have kept it. . . . [Plaintiff] identifies no material risk of harm from the retention; a speculative or hypothetical risk is insufficient.” The holding underscores that to establish Article III standing plaintiffs must allege a “concrete injury” that is not “hypothetical” but “actually exists” and is “real” rather than being merely “speculative.”

We will continue to provide updates on how the various courts are interpreting Spokeo as cases continue to be decided.

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