Yesterday the Supreme Court issued its long-awaited decision in Spokeo, Inc. v. Robins, in which it was asked whether plaintiffs have Article III standing if they allege a bare violation of a statute (i.e., an injury in law) but no concrete harm (i.e., an injury in fact). Six of the eight sitting Justices agreed that an injury in law alone is insufficient and that plaintiffs must plead and prove concrete harm in order to satisfy Article III.
Spokeo is a search engine that provides information on people (for example age, address, phone number, and occupational and marital status) based on computerized searches in various databases. Plaintiff Thomas Robins filed suit against Spokeo because he learned (he did not allege how) that it had reported (he did not allege to whom) that he was in his fifties, employed, married, and affluent. However, Robins alleged that he is in fact younger, unemployed, unmarried, and of modest means. Opinion at 4. Robins alleged that these inaccuracies resulted from various violations of the Fair Credit Reporting Act, which requires among other things the use of “reasonable procedures to assure maximum possible accuracy of” consumer reports, 15 U.S.C. § 1681e(b), and the posting of toll-free numbers that consumers can call to request reports. See id. § 1681j(a). Robins also alleged that those violations were “willful,” which he hoped would entitle him—and every other member of a putative class—to statutory damages plus fees and costs. See id. § 1681n(a). The District Court dismissed his claim due to the lack of an injury-in-fact but the Ninth Circuit reversed, reasoning that a “violation of a statutory right is usually sufficient injury in fact to confer standing.” Opinion at 5. The Supreme Court granted certiorari in order to answer that question for itself.
This morning the Supreme Court issued its highly anticipated decision in Spokeo, Inc. v. Robins, which vacates the Ninth Circuit’s decision and remands for further proceedings. We are reviewing the majority opinion from Justice Alito (in which Justices Roberts, Thomas, Breyer, and Kagan joined), the concurring opinion from Justice Thomas, and the dissenting opinion from Justice Ginsburg (in which Justice Sotomayor joined), and will report back shortly.
A number of federal district courts have recently stayed TCPA cases pending the outcome of Supreme Court proceedings in Robins v. Spokeo, Inc. and Campbell-Ewald Co. v. Gomez, and the outcome of petitions seeking review of the FCC’s July 10, 2015 Declaratory Ruling and Order (“FCC Order”) that are currently pending before the United States Court of Appeals for the District of Columbia Circuit. See ACA Int’l, et al. v. F.C.C., No. 15-1211 (D.C. Cir. 2015).
On Tuesday the Supreme Court heard oral argument in Tyson Foods, Inc. v. Bouaphakeo, which concerns (among other things) whether courts can certify classes that are defined in a way that would include people who do not have Article III standing. For those who were unable to attend the argument, a transcription of the argument is available here.
Earlier this week the Supreme Court heard oral argument in Spokeo, Inc. v. Robins, which concerns whether Congress can confer Article III standing on a plaintiff who alleges a violation of a statute (i.e., an injury in law) but no resulting harm (i.e., an injury in fact). For those who were unable to attend the argument, recordings and transcriptions of the argument are available here and here.
Defendants’ discussions of the Third Circuit’s recent decisions in Leyse v. Bank of America and Dominguez v. Yahoo have been all doom and gloom. Some of that disappointment is understandable, as the Third Circuit vacated notable defense rulings and expanded the scope of consumers who have statutory standing to file suit under the TCPA. On closer examination, however, both of the decisions offer not only a sword to plaintiffs but a shield to defendants. This is the first of two posts that will dissect those decisions and discuss their implications for the ever-growing number of defendants that are facing TCPA claims.