Zombie or no-injury plaintiffs seeking to represent zombie or no-injury classes are on the rise. In these suits, plaintiff was not injured, and there’s no way to prove who, if anyone, in the class was. Thomas Robins is one of those plaintiffs who brought suit on behalf of a class of similarly situated consumers against Spokeo for alleged violations of the Fair Credit Reporting Act (FCRA). The Ninth Circuit found Robins had standing to pursue his claim for statutory damages authorized by the FCRA and, of course, attorney’s fees for class counsel.

The Supreme Court tried once before to consider whether Congress can create Article III standing by including a right to recover statutory damages. Edwards v. First American Corp., 610 F.3d 514 (9th Cir. 2010), cert. granted, 131 S. Ct. 3022 (2011), cert. dismissed as improvidently granted, 132 S. Ct. 2536 (2012). After agreeing to hear the case despite the Solicitor General’s view otherwise, and after hearing oral argument, the Court dismissed certiorari without explanation.