November 19, 2014 Articles

SCOTUS Approaches Review of Question: Does the Violation of a Statutorily Created Right Create Article III Standing?

At stake is nothing less than what a consumer must show to bring a claim for violations of federal law.

By Randall W. Edwards, Sabrina Heron Strong, and Mimi Vu

Can consumers establish Article III injury-in-fact standing, as required to maintain a lawsuit in federal court under the U.S. Constitution, by alleging that the defendant violated a federal statute in its conduct toward the plaintiff, if the plaintiff cannot, or does not try to, establish actual harm?

On October 6, 2014, the U.S. Supreme Court invited the Solicitor General’s briefing on whether to grant certiorari review of this constitutional standing question in Spokeo, Inc. v. Robins, No. 13-1339. (See the SCOTUSblog for this case.) Many consider this step to be a good indication the Court will grant certiorari review in the high-profile putative class action, which has already garnered 10 amicus briefs filed on behalf of 17 individual companies, trade associations, and other organizations. Previously, the Ninth Circuit found the plaintiff had established injury-in-fact standing based on Spokeo’s alleged violation of his rights under the Fair Credit Reporting Act (FCRA), 15 U.S.C. 1681 et seq., even though the plaintiff failed to allege actual or imminent harm as is required under Article III. Robins v. Spokeo, Inc., 742 F.3d 409 (9th Cir. 2014), petition for cert. filed, No. 13-1339 (U.S. May 1, 2014). The Supreme Court’s review could resolve the Article III standing question the Court previously punted in First American Corp. v. Edwards, 610 F.3d 514 (9th Cir. 2010), a Ninth Circuit decision that recognized Article III standing even without a showing of monetary or actual harm.

No matter the outcome, any opinion from the Court in Spokeo will likely have a sweeping impact on consumer class actions premised on alleged statutory violations, especially in privacy and data security cases in which plaintiffs have increasingly sought to meet standing and damages requirements by bringing claims based on statutes that provide for private rights of action and statutory damages.

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