Standing After Spokeo

On May 16, the Supreme Court handed down its decision in Spokeo, Inc. v. Robins, a case that could have been one of the term’s blockbusters. But, following the death of Justice Scalia, the Court instead produced a narrow 6-to-2 consensus opinion that merely reaffirmed established principles of Article III standing, without applying them to the facts. This decision (or lack thereof) will soon have ripple effects throughout the judiciary.
This page offers our firm’s resources for consumer advocates, who must now engage in a fierce battle over standing and the meaning of Spokeo. Additional resources can be found at this website created by the National Consumer Law Center, whose consumer-law experts have compiled summaries on standing issues under frequently litigated federal consumer laws.

Strategy Memo

We have prepared a strategy memo [password required] putting forward our recommended approach to briefing standing after Spokeo. The memo is based on a fresh analysis informed by our experience briefing several key standing cases over the last few years. Prepared by attorneys at Gupta Wessler in consultation with NCLC, it was made possible by contributions from leading consumer advocates and may be freely repurposed without attribution in your briefing. The memo is organized as follows:
  • Part I presents an overall argument about the meaning of “concreteness” after Spokeo. 
  • Part II provides a taxonomy of concrete injuries, with examples.
  • Part III presents a methodology for making historical analogies to frequently arising consumer claims, with examples.
  • Part IV provides a framework for arguing based on congressional purposes and factfinding, with model statutory background sections.
This approach is animated by our conviction that successful briefing after Spokeo will be based on context-specific and historically based arguments for concrete injury—not by arguing that Congress has unrestrained power to “create” injury ex nihilo. We therefore caution advocates that there can be no cookie-cutter approach; our memo suggests a basic framework, but cannot substitute for research and thinking based on the specific legal theories and context of each case. For case-specific inquiries, or to request the password, contact us at spokeo@guptawessler.com.

Our Briefs

Our firm’s lawyers have prepared briefs in key cases on Article III standing–from Edwards to Spokeo–that may be of use to consumer advocates:
  • First American Financial v. Edwards (U.S. Supreme Court). As the CFPB’s Senior Litigation Counsel, Deepak Gupta worked on the Solicitor General’s Supreme Court brief in this case, arguing for concrete injury under RESPA based on historical common-law analogies. Solicitor General’s Brief | SCOTUSblog case page
  • Charvat v. First National Bank (Eighth Circuit). Deepak Gupta successfully argued this appeal in the Eighth Circuit and obtained a  published reversal of the district court’s dismissal on Article III standing grounds. The Eighth Circuit held that the plaintiff has standing, based on a theory of “informational injury,” to seek statutory damages for violation of ATM fee notice requirements. We also successfully recruited the U.S. Department of Justice to file a brief in support. Brief of Plaintiff-Appellant | Brief of Appellee First National Bank | Reply for Plaintiff-Appellant | Brief of the United StatesEighth Circuit’s Opinion
  • Mutual First Credit Union v. Charvat (U.S. Supreme Court). We also successfully opposed the defendants’ efforts to seek review in the U.S. Supreme Court. The petition–accompanied by amicus briefs from the Chamber and other industry groups–suggested the case as a replacement for First American Financial v. Edwards, which was dismissed as improvidently granted.  Petition for Certiorari | Brief in Opposition | Petitioner’s Reply | SCOTUSblog case page
  • Dreher v. Experian (Fourth Circuit). Here, we extended the informational injury approach developed in Charvat to the FCRA. We twice successfully opposed Experian’s petitions for interlocutory review on Article III standing grounds. In its first petition, Experian argued that standing principles precluded certification of a statutory-damages class. After that petition was denied, Experian filed a petition under 28 U.S.C. 1292(b) seeking interlocutory review of the same standing issue. Answer to Rule 23(f) Petition | Answer to 1292(b) Petition | District Court Opinion
  • Spokeo, Inc. v. Robins (U.S. Supreme Court). We prepared the brief in opposition to the petition for certiorari in Spokeo. Our brief drew on the common-law tort of defamation in making a history-based argument for standing. Ninth Circuit’s Opinion | Petition for Certiorari | Brief in Opposition | SCOTUSblog case page
We have also been retained to brief Article III standing in post-Spokeo cases, and will post some of that briefing here when it is available:
  • Bock v. Pressler & Pressler (Third Circuit)On June 3, 2016, we filed this supplemental letter brief to the Third Circuit on the effect of Spokeo in a Fair Debt Collection Practices Act case involving deceptive conduct in violation of 15 U.S.C. § 1692e. The CFPB also filed its own letter brief as amicus curiae.
  • Milbourne v. JRK Residential America LLC (E.D Va.) – In this response brief filed on May 27, 2016, we argue that the plaintiffs have Article III standing (on informational-injury and invasion-of-privacy grounds) to vindicate the Fair Credit Reporting Act’s specific requirements governing the use of consumer reports for employment purposes–specifically 15 U.S.C. § 1681b(b).
A larger and more comprehensive brief bank will soon be available on NCLC’s website.

Webinars/Trainings

Commentary

Judicial Decisions

Prindle v. Carrington Mortgage Services (M.D. Fla. August 16, 2016) (explaining that Spokeo “reaffirmed one fundamental principle of the concept of injury in fact that is crucial in this case: that “Congress may ‘elevat[e] to the status of legally cognizable injuries concrete, de facto injuries that were previously inadequate in law,’” and analyzing at length the relevance of Havens Realty Corp. v. ColemanPublic Citizen v. U.S. Department of Justice, and Federal Election Commission v. Akins.)
Hancock v. Urban Outfitters (D.C. Cir. July 26, 2016) (holding that the “Supreme Court’s decision in Spokeo thus closes the door on [plaintiffs’] claim that the Stores’ mere request for a zip code, standing alone, amounted to an Article III injury.)
Friends of Animals v. Jewell (D.C. Cir. July 15, 2016) (explaining that “[a] plaintiff suffers sufficiently concrete and particularized informational injury where the plaintiff alleges that: (1) it has been deprived of information that, on its interpretation, a statute requires the government or a third party to disclose to it, and (2) it suffers, by being denied access to that information, the type of harm Congress sought to prevent by requiring disclosure”)
Lane v. Bayview Loan Servicing, LLC (N.D. Ill. July 11, 2016) (finding that a plaintiff “has alleged a sufficiently concrete injury because he alleges that [the defendant] denied him the right to information due to him under the FDCPA,” and analogizing this “right to information” under the FDCPA to the “information-access interests protected by the Freedom of Information Act”)
Church v. Accretive Health, Inc. (11th Cir. July 6, 2016) (finding that a plaintiff has standing because she has “alleged injury to her statutorily- created right to information pursuant to the FDCPA”)
In re Nickelodeon Consumer Privacy Litigation (3d Cir. June 27, 2016) (holding that “[t]he Supreme Court’s recent decision in Spokeo, Inc. v. Robins does not alter . . . prior analysis” that plaintiffs have standing in a Video Privacy Protection Act case)
Chapman v. Dowman, Heintz, Boscia & Vician, P.C. (N.D. Ind. June 13, 2016) (finding that “[b]ecause Spokeo largely reiterated long-standing principles of Article III standing,” a plaintiff has standing in an FDCPA case)
Rogers v. Capital One Bank (N.D. Ga. June 7, 2016) (finding that “[w]ith respect to the TCPA, . . . Congress intended to create a concrete injury where the statute was violated, meaning so long as the plaintiff has been affected personally by the conduct that violates the statute, standing exists”)
Booth v. Appstack, Inc. (W.D. Wa., May 25, 2016) (finding standing in a TCPA case because the defendant’s robocalls caused the plaintiffs to waste time answering unwanted phone calls)
Hochendoner v. GenzymeAdamo v. Genzyme (1st Cir., May 23, 2016) (holding that an action against a drug company by patients with a rare genetic disorder failed for lack of Article III standing)
Errington v. Time Warner Cable Inc., 2016 WL 2930696, at *3 (C.D. Cal. May 18, 2016) (“The Supreme Court’s ruling in Spokeo was expected to resolve whether a plaintiff can rely on a bare statutory violation to establish Article III standing … . However, the Supreme Court handed down its decision in Spokeo on May 16, 2016, and in doing so, declined to decide the key standing issue.”).
Spokeo v. Robins (May 16, 2016) (reaffirming established principles and remanding to the Ninth Circuit to assess the concreteness component of Article III injury)
Dreher v. Experian Information Solutions (E.D. Va., Dec. 3, 2014) (finding standing in FCRA case based in part on informational-injury, reasoning that “consumers have the right to receive certain information from consumer reporting agencies, including the sources of information on credit reports”)
Charvat v. Mutual First Credit Union (8th Cir., Aug. 2, 2013) (finding standing in an EFTA notice case because “informational injury alone is sufficient to confer standing, even without an additional economic or other injury”)