Ballard Spahr LLP

In a victory to the defense bar, the U.S. Court of Appeals for the Eighth Circuit has published the first appellate opinion to apply the principles the U.S. Supreme Court articulated in Spokeo, Inc. v. Robins regarding Article III standing. In Braitberg v. Charter Communications, Inc., the Eighth Circuit demonstrated the breadth and impact of Spokeo by holding the plaintiff lacked standing to sue because he alleged only a violation of Cable Communications Policy Act. He did not allege he suffered any harm as a result.

In Braitberg, the plaintiff brought suit under the Cable Communications Policy Act, which requires cable operators to destroy personally identifiable information if the data is no longer necessary for the purpose for which it was collected. Relying on the Spokeo decision, the panel concluded that plaintiff had not established standing because he merely alleged the retention of information lawfully obtained, without a further disclosure, access or misuse that could have harmed him. The panel rejected the plaintiff’s arguments that customers place value on the privacy of their personal information and the defendant’s failure to destroy his information deprived him of the full value of the services he purchased.

While circuits will continue to grapple with the full impact of the Spokeo decision, the Eighth Circuit has provided both some clarity and also ammunition to the defense bar against the assertion of bare technical statutory violations. The Eighth Circuit itself will be deciding another case likely to hinge on Spokeo relating to the Michigan's Video Rental Privacy Act and the selling of customer data without consent—we will wait to see if this decision is consistent with Braitberg

At the very least, this decision sends a warning to plaintiffs’ and class counsel that a bare technical violation will likely not confer Article III standing under Spokeo. Instead, plaintiffs must be prepared to demonstrate a tangible injury-in-fact.