The Supreme Court has issued its much anticipated opinion in Spokeo Inc. v. Robins, No. 13-1339, 578 U.S. ___ (2016) (click here for a prior post detailing the procedural history and case background).  The Supreme Court granted certiarori in Spokeo to determine whether a bare violation of a statute – the Fair Credit Reporting Act (“FCRA”) – is sufficient to confer Article III standing, which requires that an injury be both (a) concrete and particularized and (b) actual or imminent.  Below the Ninth Circuit held that Robins’ allegation of an FCRA violation were sufficient, but the Supreme Court disagreed.  The Supreme Court vacated the Ninth Circuit’s ruling, holding that it had failed to consider both the “concrete” and the “particularized” aspects of the injuries alleged by Robins, overlooking the former requirement while focusing exclusively on the latter.  Expressing no view on whether Robins’ alleged injuries in fact met the test for “concrete” injury, the Court remanded the case to the Ninth Circuit to reevaluate its analysis consistent with the Court’s opinion.

Most important, the Court rejected the notion that Congress can confer standing to a litigant by statute. The Court made clear that a plaintiff does not “automatically satisfy 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.”  Absent any tangible damage resulting from a procedural statutory violation, the Court noted that a person must face at least “the risk of real harm” to satisfy the concreteness requirement.  A “bare procedural violation” will not suffice.  This analysis will likely have far reaching implications for data privacy class actions, particularly those under the Telephone Consumer Protection Act.

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