All the Injury Required? How the Supreme Court’s Spokeo Decision May Alter the Road for Privacy Litigants

    View Authors September 2016

    This article explains a recent US Supreme Court ruling that signals stricter judicial scrutiny for individual and class action plaintiffs in federal privacy cases arising under laws like the Fair Credit Reporting Act, which provide a private right of action and statutory damages without requiring any actual injury.

    The US Supreme Court recently issued an opinion in Spokeo, Inc. v. Robins, a Fair Credit Reporting Act (FCRA) case, where the Court considered the nature of the injury required for a plaintiff to sue in federal court. For years, courts throughout the country have struggled with whether simply alleging the violation of a statute that creates a private right of action is all the injury required to meet the constitutional requirements of the standing doctrine. The ruling in Spokeo signals stricter judicial scrutiny for individual and class action plaintiffs in federal privacy cases arising under laws like the FCRA, which provide a private right of action and statutory damages without requiring any actual injury. Such statutes include the Telephone Consumer Protection Act (TCPA), consumer protection and deceptive trade practices acts, and the Wiretap Act. Spokeo makes clear that, irrespective of whether a plaintiff has stated a technical statutory violation, he or she must further affirmatively plead particularized and concrete injury to establish Article III standing.