Can Congress create a statutory right to standing for a Plaintiff who suffers no concrete harm?
On November 3, 2015, the Supreme Court heard oral arguments in the closely watched class action, Spokeo, Inc. v. Robins, a case dealing with a statutory cause of action created by the Fair Credit Reporting Act (FCRA). At issue: whether Congress can create a statutory right to standing for a plaintiff who suffers no concrete harm?
Spokeo is a website that allows users to search for an individual’s personal information. In Spokeo, Plaintiff Robins alleges that Spokeo willfully violated the FCRA by publishing a consumer report that falsely claimed he had a graduate degree and was married with children. According to Plaintiff, the false report injured his job prospects. Spokeo moved to dismiss the case, arguing that the alleged injury was not enough to meet Article III’s requirement that a party seeking relief must have suffered an injury-in-fact. The District Court had dismissed the case, finding that Robins lacked standing because he failed to allege an injury in fact. The Ninth Circuit Court of Appeals sided with Robins and reversed the District Court’s decision, holding that Robins had Article III standing because the mere violation of a statutory right was enough to satisfy Article III.
In its Petition for Writ of Certiorari to the Supreme Court, Spokeo argued that Congress does not have the power to confer standing in the absence of concrete harm. In response, Robins argued that Congress does have such power, and in any event, the harm imposed by the publication of false information satisfies Article III. The Supreme Court granted certiorari to determine: “[w]hether Congress may confer Article III standing upon a plaintiff who suffers no concrete harm, and who therefore could not otherwise invoke the jurisdiction of a federal court, by authorizing a private right of action based on a bare violation of a federal statute.”
At oral argument, the Justices were sharply divided along the usual “liberal” and “conservative” lines, with Justice Kennedy making strong arguments for both sides.
During Petitioner’s argument, Justice Kagan and Justice Sotomayor pushed Spokeo’s counsel on the premise that the dissemination of false information by a company like Spokeo is in fact a “concrete harm” as required by Article III. Justice Sotomayor raised this hypothetical to support her argument, positing: What if a person checked Spokeo’s website before a date to gain information about Plaintiff, saw that he was incorrectly listed as married, and chose not to date him? Someone struggling for a date might find that there was an injury in that case, and perhaps Congress agrees, and passed this statute to protect against non-monetary injuries.
In response, Justice Scalia and Justice Roberts took issue with the fact that, under the Respondent’s interpretation, the statute does not distinguish between those who actually had false reports published and those who did not. Instead, it distinguishes between credit reporting agencies who follow the procedure and those who do not, allowing anyone to sue the latter. Addressing the argument that a violation itself is an injury, Justice Roberts raised this hypothetical: If the statute required websites like Spokeo to pay everyone it published reports about $10 a year, and one year Spokeo violated the statute by paying an individual $20, would that individual have a right to sue for the violation? While it is unlikely that anyone would turn down an extra $10, Justice Robert’s hypothetical points out the dilemma posed by allowing Congress to confer standing for violations of a statute that do not actual cause harm.
Although the Supreme Court could narrow its decision based on the language of the FCRA statute at issue, or the facts of Robins’ case, its decision nevertheless has implications for the future of class actions brought under the FCRA, and potentially beyond. Should the Supreme Court decide that an actual injury is required in order to bring suit under FCRA, the outcome could have far-reaching implications for a number of ongoing and future lawsuits looking to enforce federal statutes. A decision is expected sometime in early 2016.