Spokeo and Article III Standing: You May Be Particularized But Are You Concrete?
By John Phillips, Behnam Dayanim, Sean D. Unger & Dae Ho Lee
In Spokeo, Inc. v. Robins,
Spokeo was a case of particular interest to those companies facing privacy class actions and other consumer class actions where the plaintiffs claimed no substantive injury but sought recovery based on violations of procedural statutes. Courts had been divided over the question of whether the statutory violation alone is sufficient to give Article III standing to the named plaintiff in those cases. Spokeo laid to rest confusion amongst lower courts as to whether the term “concrete and particularized” was a definitional phrase – denoting only one requirement – or whether the term obligated satisfaction of two separate requirements. Those two potential readings are different, and the difference, at least conceptually, is important. As the Court made clear, a statutory violation that is particular to one plaintiff may not be concrete to that same person.
By answering one question, however, the Supreme Court raised several others. While the requirement that an injury be “particularized” – i.e., be “personal and individual[ized]”
In Spokeo, plaintiff sued Spokeo Inc. on behalf of himself and a class of those similarly situated under the federal Fair Credit Reporting Act
When Robins discovered inaccurate information about himself displayed on the Spokeo website, he filed a class-action complaint on behalf of himself and others, alleging that Spokeo was a consumer reporting agency and that it “willfully” failed to comply with the FCRA.
Supreme Court Distinguishes the Requirements for a “Particularized” and “Concrete” Injury
The Supreme Court reversed the Ninth Circuit’s decision.
The Court began by acknowledging that the “irreducible constitutional minimum” of standing under Article III of the U.S. Constitution requires “plaintiffs to have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.”
The Court then held that the Ninth Circuit had erred, not necessarily in holding that Robins’ injury was “concrete and particularized,” but by failing to analyze the two requirements – “concrete” and “particularized” – separately.
Fortunately, the Court also provided some guidance on what constitutes a “concrete” injury. The Court stated that a “concrete” injury must be “‘de facto’; that is, it must actually exist.”
In determining whether an intangible injury was nevertheless a concrete one, the Court provided two touchstones:
First, whether the “alleged intangible harm has a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts.”The closer the relationship to those traditional categories of harm, the more likely the intangible harm would be recognized as “concrete.”
Second, the Court highlighted Congress’ judgment, stating that Congress was “well positioned to identify intangible harms that meet Article III requirements,”but qualified that Congress’ granting of a statutory right did not automatically grant standing, and a “bare procedural violation, divorced from any concrete harm,” would still be insufficient in the context of vindicating statutory rights.
The Court also explained that the “risk of real harm,” without actual harm, in some cases, could satisfy the concreteness requirement.
In light of these principles, the Court held that remand was necessary to determine whether the injuries that Robins alleged were “concrete.”
Justice Ginsburg, joined by Justice Sotomayor, while agreeing with most of the Court’s reasoning, disagreed that Robins had failed sufficiently to plead a concrete injury. Justice Ginsburg reasoned that because the misinformation about Robins’ “education, family situation, and economic status” could negatively “affect his fortune in the job market,”
It is interesting that the majority did not explicitly join the dissent on this point or otherwise respond to Justice Ginsburg’s argument. Under one reading, it could simply mean that the majority and dissenters disagreed on whether Robins had sufficiently pleaded a “concrete” injury, that the majority believed Robins’ allegations were insufficient, and that the dissenters thought otherwise. It may also suggest that the majority believed that it was better, as a matter of prudence, to allow the lower courts to make a determination on whether Robins had sufficiently pleaded a “concrete injury” in light of the Court’s decision, even though procedurally the Supreme Court did have de novo review.
Ultimately, we will see on remand whether, although this specific complaint may have failed sufficiently to plead “concrete” injury, the harms at issue here still may prove sufficiently “concrete” if pled properly.
One Answer Leads to More Questions: What will Constitute “Concrete” Harm?
Now that plaintiffs must allege facts sufficient to show that an injury is both “particularized” and “concrete,” the obvious question arises: what facts will need to be pled to satisfy this requirement? As mentioned above, the requirement that an injury be “particularized” is simple enough – the injury must be “personal and individual[ized].”
In the context of privacy harms, it is still an open question as to whether the types of privacy harms that Robins alleged could ever amount to “concrete injury,” even if properly pled. Spokeo, at a minimum, suggests that allegations of misinformation regarding “education, family situation, and economic status,” possibly leading to reduced job prospects, need to be articulated more robustly. Beyond that, all that can be deduced is that courts will begin placing more scrutiny at the pleading stage on whether the plaintiffs’ alleged harm was “concrete.” Considering that privacy plaintiffs have already encountered difficulty in establishing Article III standing, it will be interesting to see how Spokeo will effect plaintiffs’ ability to bring suits based on privacy harms.
Spokeo was originally thought to be most relevant to the emerging world of privacy class actions. But it may have an equally important impact for consumer class actions generally. In all class actions, Article III requires each plaintiff to have standing to sue.
In short, Spokeo suggests that no class should be certified, in any consumer context, privacy or otherwise, where the named plaintiff has not shown that the “concreteness” of each class member’s standing is capable of class-wide resolution using common proof. Ultimately, that should prove the most lasting legacy of the Court’s decision.