September 27, 2019 Articles

What Has Changed with Article III Standing in Consumer Class Actions after Spokeo v. Robins?

Courts diverge on how to apply Article III standing to consumer privacy and data breach class actions after the landmark Supreme Court decision.

By Melanie A. Conroy

In the three years following Spokeo v. Robins, 136 S. Ct. 1540 (2016), Article III standing has been a focal point in consumer class action litigation. Federal courts have grappled with applying Spokeo’s requirements, often with inconsistent results, and the Supreme Court on multiple occasions declined to clarify its ruling. Especially for claims based on violations of consumer statutes with private rights of action, demonstrating Article III standing is now a higher hurdle. Circuit-level divisions have intensified as new categories of class actions, particularly related to consumer data privacy and security, are pushing courts to consider injury and standing in new ways. Most recently, in Frank v. Gaos, No. 17-961 (U.S. Mar. 20, 2019), the Supreme Court declined to take up the issue again, which means that outstanding questions and divisions will likely persist as legislatures look to enact new consumer protections in the future.

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