September 17, 2017 Articles

Emerging Trends in Post-Spokeo FACTA Litigation

Purely technical violations of statutory rights will not likely result in Article III standing

By Jeffrey D. Gardner and Lindsay Leavitt

Debate routinely ensues after the Supreme Court issues a decision, so it was no surprise—particularly given the potential impact on the Article III standing analysis—that a deluge of commentary trailed the Supreme Court’s decision in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016). First-blush opinions varied widely as to just how far the Supreme Court went. With the passage of Spokeo’s one-year anniversary, trends have begun to emerge across a range of privacy and consumer class action litigation that provide practitioners greater clarity regarding the likelihood of success when presenting or defending against Article III challenges to subject matter jurisdiction. However, Spokeo’s impact has been greatest in the context of class action litigation under the Fair and Accurate Credit Transactions Act (FACTA).

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