May 20, 2016 Articles

In Spokeo, Supreme Court Requires "Particularized" and "Concrete" Harm

Even for plaintiffs pursuing statutory damages.

By Theresa House and Andrew Leff

After months of speculation, on May 16, 2016, the U.S. Supreme Court issued a greatly anticipated opinion in the Spokeo litigation, which examined the question of whether a plaintiff who sued for a technical violation of the Fair Credit Reporting Act (FCRA) could maintain Article III standing for a class action without claiming any real-world injury. In its decision, the Court held that an injury in fact must be not only “particularized” to the plaintiff but also concrete, and that bare allegations of a statutory violation do not automatically satisfy that concreteness requirement. In so holding, the Court gave comfort to companies fearing that a rule to the contrary could open the floodgates to class action litigations alleging technical violations of dozens of statutes outside the FCRA context, from the Wiretap Act, the Stored Communications Act, the Video Privacy Protection Act, to the Telephone Consumer Protection Act. That comfort, however, may prove to be rather cold, or at least lukewarm. By remanding to the Ninth Circuit, the Court left open the door as to whether the minimal allegations of harm asserted in the Spokeo litigation are sufficient to satisfy this requirement.

This article discusses in detail the background of the Spokeo litigation, the proceedings leading up to the Supreme Court, and the Court’s decision.

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