In the wake of the U.S. Supreme Court’s decision in Spokeo Inc. v. Robins, defendants in pending cases where the only harm the plaintiff alleged is violation of a federal statute should be filing new motions to dismiss due to lack of Article III standing. A Video Privacy Protection Act (VPPA) case decided recently by the First Circuit could provide an immediate opportunity to witness the impact of the Spokeo decision.
In Spokeo, the Court reaffirmed that plaintiffs must possess Article III standing to bring suit, and held that such standing required plaintiffs to allege that they were concretely injured by defendants’ actions. The Court held that the Spokeo plaintiff’s mere allegation that the defendant violated the terms of the Fair Credit Reporting Act (FCRA) was not necessarily enough to provide standing. Because Congress cannot abrogate standing requirements, even by providing private rights of action, each plaintiff must allege a concrete and particularized harm. A “bare procedural violation” is not sufficient to confer standing, the Court explained. Because the Ninth Circuit did not apply the correct standing test, the Court remanded the case for the lower court to determine whether the plaintiff could allege a concrete injury.
FCRA is hardly the only federal law that individuals can enforce through a private right of action, and for which a violation of the statute is the only “injury” plaintiffs need allege. Congress passed VPPA in 1988 after references to Judge Robert Bork’s video-rental record during his Supreme Court confirmation hearing created a public outcry. The law empowers private individuals to sue videotape service providers who knowingly disclose a customer’s personally identifiable information. Recently, plaintiffs’ attorneys have revived VPPA and attempted to force-fit the VHS-era law into the digital age. Their newfangled VPPA suits ask courts to expand the VPPA’s definitions of “videotape service providers,” “personally identifiable information” and “consumer” to cover modern video sharing.
For example, in Yershov v. Gannett Satellite Information Network, Inc., the plaintiff alleged that the defendant violated VPPA by sending, after every viewing of a video on the defendant’s app, “(1) the title of the video used, (2) the GPS coordinates of the device at the time the video was viewed, and (3) certain identifiers associated with the user’s device, such as its unique android ID” to a third party. Gannett filed a motion to dismiss based on a narrow reading of VPPA—the information it shared was not personally identifiable and Yershov was not a consumer under VPPA. The district court held that Yershov was not a consumer and granted Gannett’s motion to dismiss. Yershov appealed to the First Circuit. On appeal, Gannett renewed its statutory arguments against liability, but the First Circuit rejected each in turn, remanding the case for further proceedings.
Throughout the Yershov proceedings, Gannett has yet to request that the action be dismissed on standing grounds. The Supreme Court’s Spokeo decision, however, has exposed Yershov’s suit to such a challenge. Because standing implicates the court’s subject-matter jurisdiction, an argument that can never be waived and can be raised at any point, Gannett certainly should raise the issue on remand. In fact, the trial judge has a duty to reconsider Article III standing sua sponte.
On remand, Yershov should be required to explain how the defendant’s actions caused him a “concrete and particularized harm.” His complaint offered no explanation of physical, emotional, or financial harm that Gannett’s collection and sharing of information caused him. He merely pled a VPPA violation. In addition, Yershov seeks no compensatory damages—not a requirement for standing under Spokeo—but certainly a signal that he likely will be unable to demonstrate concrete injury.
In its Spokeo decision, the Supreme Court clearly reminded circuit courts that standing analyses required a consideration of concrete injury to the plaintiffs; courts should be reviewing the cases before them for standing issues that had not previously been brought to their attention. Such standing objections can serve as an effective way to combat plaintiffs’ attorneys’ attempts to broaden outdated statutes like VPPA and end class actions before they can start. When it comes to cases brought under statutes like VPPA, as in Yershov, courts should take the Spokeo decision seriously and require plaintiffs to allege a concrete injury or face dismissal.
Also published by Forbes.com on WLF’s contributor page.