In a 6-2 decision, the Supreme Court held that the mere allegation of a statutory violation is not necessarily enough to create Article III standing. Spokeo, Inc. v. Robins, 578 U.S. __, No. 13‑1339 (May 16, 2016). Instead, the plaintiff has the burden of alleging “concrete” injury, meaning injury that actually exists or is real and not abstract. Concrete injury may be tangible or intangible, but particularly when a statute creates the possibility of a “procedural” violation, the plaintiff must establish a harm sufficiently “concrete” to satisfy Article III.

Background

Plaintiff Thomas Robins brought a claim against defendant Spokeo, Inc. under the Fair Credit Reporting Act (FCRA), 84 Stat. 1127, as amended, 15 U.S.C. § 1681 et seq. Spokeo operates an online “people search engine” that collects information from sources such as phone books, real estate listings and social media networks and makes it available to those who search its database. Robins alleged that Spokeo violated the FCRA by publishing inaccurate information about him. Robins sued on behalf of himself and a purported nationwide class seeking statutory damages.

Spokeo argued that Robins lacked standing to sue under Article III. The U.S. Court of Appeals for the Ninth Circuit rejected Spokeo’s argument and held that Robins had alleged injury in fact because he alleged a violation of his own statutory rights, not the rights of others, and because his interests in the handling of his credit information were individual rather than collective. Robins v. Spokeo, Inc., 742 F.3d 409, 413 (9th Cir. 2014), vacated and remanded, 578 U.S. __, No. 13-1339 (May 16, 2016).

The Supreme Court Majority’s Decision

The Supreme Court vacated and remanded on the ground that the Ninth Circuit’s analysis was “incomplete” because it failed to analyze whether Robins had established that his injury was “concrete” as required under Article III.

Article III requires that a plaintiff has suffered (1) an injury in fact that (2) is fairly traceable to the defendant’s challenged conduct and (3) is likely to be redressed by a favorable judicial decision. Spokeo, slip op. at 6 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). In turn, the first element—injury in fact—itself has three components. To establish injury in fact, a plaintiff must show (1) “an invasion of a legally protected interest” that (2) is “concrete and particularized” and (3) is actual or imminent. Id. at 7 (quoting Lujan, 504 U.S. at 560). The plaintiff, “as the party invoking federal jurisdiction, bears the burden of establishing these elements.” Id.at 6. Moreover, “[w]here, as here, a case is at the pleading stage, the plaintiff must ‘clearly . . . allege facts demonstrating’ each element.” Id. (citation omitted).

The Spokeo decision turns on the “concrete and particularized” element of the injury-in-fact test. The Court clarified that “concrete” and “particularized” are distinct requirements that must be independently satisfied. The Court held that the Ninth Circuit had actually addressed only whether Robins’s injury was “particularized” and the “independent requirement [of concreteness] was elided.” Id. at 8.

With respect to whether an injury is “concrete,” the Court began by stating that a “concrete” injury is one that is “‘de facto’; that is, it must actually exist.” Id. Citing dictionaries, the Court also said that a concrete injury is one that is “‘real,’ and not ‘abstract.’” Id. The Court also noted that while “tangible injuries are perhaps easier to recognize, we have confirmed in many of our previous cases that intangible injuries can nevertheless be concrete.” Id. at 9. The Court cited free speech and free exercise of religion cases as examples of intangible injuries that may confer standing. Id. But, not every intangible injury will create standing. One “instructive” consideration in assessing whether an intangible injury is concrete is whether it “has a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts.” Id. Another “instructive and important” consideration is the judgment of Congress—as expressed through the adoption of a statute—because “Congress is well positioned to identify intangible harms that meet minimum Article III requirements.” Id.

The remainder of the Court’s decision addresses what constitutes a sufficiently “concrete” injury to satisfy Article III standing when a plaintiff alleges a violation of a federal statute with an intangible harm. The Court provided these guideposts:

• Bare allegation of a statutory violation does not automatically confer standing. The mere allegation of a statutory violation, with nothing more, does not automatically give rise to a “concrete” injury establishing Article III standing. “Congress’ role in identifying and elevating intangible harms does not mean that a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right. Article III standing requires a concrete injury even in the context of a statutory violation.” Id.
• Allegations of a procedural statutory violation in particular may not be enough. The Court emphasized that that “a bare procedural violation, divorced from any concrete harm,” is not enough to confer standing. Id. at 9-10. But, the Court contrasted cases alleging violations of certain public disclosure laws, stating that “the violation of a procedural right granted by statute can be sufficient in some circumstances to constitute injury in fact” and “a plaintiff in such a case need not allege any additional harm beyond the one Congress has identified.” Id. at 10.
• A risk of harm may be enough to confer standing. Building upon its decision in Clapper v. Amnesty International USA, 133 S. Ct. 1138, 1146 (2013), the Court stated that a risk of harm can in some circumstances satisfy the concreteness requirement. Spokeo, slip op. at 10. The Court cited tort theories, such as slander, as examples of cases in which standing is present “even if [the plaintiffs’] harms may be difficult to prove or measure.” Id.

Applying these principles to Robins’s claim under the FCRA, the Court held that “Robins cannot satisfy the demands of Article III by alleging a bare procedural violation. A violation of one of the FCRA’s procedural requirements may result in no harm.” Id. The Court explained that if a consumer reporting agency failed to provide a required notice, but all the information in the background report was accurate, there would be no injury in fact. Id. at 10-11. Or, as another example, it would be hard to “imagine how the dissemination of an incorrect zip code, without more, could work any concrete harm.” Id. at 11.

The Court vacated and remanded the case because “the Ninth Circuit failed to fully appreciate the distinction between concreteness and particularization” and thus “did not address the question framed by our discussion, namely, whether the particular procedural violations alleged in this case entail a degree of risk sufficient to meeting the concreteness requirement.” Id.

Concurrence and Dissent

Justice Thomas wrote a concurring opinion. He noted that a plaintiff seeking to vindicate a public right embodied in a federal statute (such as the FCRA), as opposed to a private right recognized historically at common law, is required to demonstrate concrete, individual harm separate from the general population. Spokeo, No. 13-1339, concurring op. at 6 (Thomas, J). Justice Thomas agreed that remand was appropriate because the FCRA has a section that could arguably establish a private right enforceable by Robins regarding his own information. Id. at 7.

Justice Ginsburg, with whom Justice Sotomayor joined, dissented. Justice Ginsburg agreed with much of the legal framework set forth by the majority, but she disagreed with the application of that framework to Robins’s allegations. She reasoned that Robins’s allegations that Spokeo’s misrepresentations had harmed his employment prospects carried him over the threshold in satisfying the “concreteness” requirement. Spokeo, No. 13-1339, dissenting op. at 5-6 (Ginsburg, J.).

What’s Next?

Both sides are claiming victory and the Court’s decision gives each side something:

• Asserting a violation of a federal statute is not necessarily enough to establish Article III standing. Before this decision, and as Robins argued here, plaintiffs not uncommonly took the position that merely asserting a violation of federal statute was, in and of itself, enough to confer Article III standing. See, e.g., Edwards v. First Am. Corp., 610 F.3d 514, 517 (9th Cir. 2010), cert. granted, 564 U.S. 1018 (2011), cert. dismissed as improvidently granted, 132 S. Ct. 2536 (2012). The Court’s decision refutes that approach: “Congress’ role in identifying and elevating intangible harms does not mean that a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right.” Op. at 9.
• But the Court did not resolve whether Robins had alleged sufficient injury. The Court remanded the case to the Ninth Circuit to consider the “concreteness” inquiry in light of the Court’s guidance. Thus, the application of the Court’s guidance, both as to Robins’s claim and as to other possible claims, will be left for future decisions.

Although the Spokeo case itself involved an alleged violation of the FCRA, the decision will likely have broad application to many areas of federal statutory law that include a private right of action. In particular, class actions seeking statutory damages only, without any attempt to allege harm other than the violation of the statute—such as those commonly alleged for privacy or financial services claims—will require careful analysis under this decision. And, although Article III applies to federal courts only, practitioners and litigants may assess whether the decision has implications for cases brought in state court, depending on the law and analysis required in a given state.

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