On May 16, 2016, the United States Supreme Court issued its decision in Spokeo v. Robins, likely making it more difficult for plaintiffs to bring individual or class action lawsuits based on the bare violation of a statutory right. However, because the Supreme Court merely clarified the standing requirement, and “took no position as to whether . . . Robins adequately alleged an injury in fact,”i the implications of the Court’s decision remains to be seen.
At first blush, this appears to be a victory for Spokeo, who had argued that Robins only had standing if he suffered an actual, real-world, “palpable” injury. The Court explained that a plaintiff does not “automatically satisf[y] the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right.”ii However, the Court specified that a “concrete” injury, “is not necessarily synonymous with ‘tangible.'”iii An injury can be “concrete” even if intangible and “difficult to prove or measure.”iv
As a result, what will constitute concrete injury will be highly dependent on the statutory right allegedly violated. Where a plaintiff seeks to vindicate a “private,” personal, or individual right, the threshold will likely remain low.v In contrast, where a plaintiff seeks to enforce a “public” right, the standard may become higher, with a plaintiff having standing only if he can “allege that he has suffered a ‘concrete’ injury particular to himself.”vi The new battleground will be whether the alleged violation involves a “public” or private” right.
Under the guidance articulated by the Supreme Court, the Ninth Circuit will likely find that Robins’ allegation that Spokeo provided false information about him involves a “private” right, and that his alleged injuries are sufficiently concrete to confer standing.vii However, Robins’ other FCRA allegations appear to involve “public” rights, and it is unlikely the Ninth Circuit will find that Robins has alleged “concrete” injuries arising from these violations.
i. Spokeo v. Robins, No. 13-1339, slip op. at 11 (2016).
ii. Id. at 9-10.
iii. Id. at 8-9.
iv. Id. at 10.
v. Id. at 2, 5 (Thomas, J., concurring).
vi. Id. at 4, 6 (Thomas, J., concurring).
vii. Id. at 7 (Thomas, J., concurring).