Ambiguity Eclipses Clarity in Two Post-“Spokeo” Standing-to-Sue Decisions

9thCirIn addition to an America-only total solar eclipse, August has brought us a remarkable flurry of significant federal appeals court decisions. Among those decisions were two that addressed a hotly contested procedural issue: plaintiff’s standing to sue for violation of a federal statute.

The rulings, both of which interpreted and applied the 2016 US Supreme Court Spokeo, Inc. v. Robins decision, further clarified that decision’s main holding while also exacerbating the confusion over what constitutes a “concrete and particularized” injury.

We’ve written quite a bit about Spokeo and its progeny here. There, the Court held that plaintiffs alleging a “bare procedural violation” of a federal statute do not meet the “case or controversy” standing requirement of Article III of the US Constitution. Such litigants must also claim an injury-in-fact, i.e. a harm that is concrete and particularized to them. Justice Alito’s opinion offered very little guidance on how courts should make that determination. Continue reading

Class Actions Clothed in Righteousness: Appeals Court Rejects Bargain-Hunters’ Suits for Lack of Injury

nordstrom rackBy Abbey Coufal, a 2017 Judge K.K. Legett Fellow at Washington Legal Foundation who will be entering her third year at Texas Tech University School of Law in the fall.

Bargain shopping is not for the weary, but there is something thrilling about combing through items on tightly-packed circular racks, with the hope of hunting down the desired piece of clothing at a good price. Landing the perfect deal usually brings a feeling of satisfaction, and does not give rise to conflict with the retailer. But in America, even a bargain-finder who bought an unblemished sweater can turn around and sue the business on behalf of herself and countless other shoppers, claiming they were all fooled into making their purchases. Continue reading

Data-Breach Plaintiffs’ Lawyers Concoct New “Overpayment” Harm Theory, with Mixed Results

vtechPlaintiffs’ attorneys, like politicians, rarely let a good crisis go to waste. Digital crises, such as data-breach and hacking events, are no exception.

Defendants in data-breach-related lawsuits, however, have had a great deal of success beating back consumer-harm claims with motions to dismiss challenging plaintiffs’ lack of standing to sue. As in many of the food-labeling class actions that helped pave the way for data-breach suits, it is often hard for plaintiffs to identify any way that they were actually harmed—because typically they weren’t.

Some data-breach plaintiffs have begun to claim injury based on “overpayment.” Continue reading

Federal Court Deems “Identifiable Trifle” to Be Sufficient Harm for Environmental Citizen-Suit Standing

sboxermanFeatured Expert Column – Environmental Law and Policy

By Samuel B. Boxerman, Sidley Austin LLP with Katharine Falahee Newman, Sidley Austin LLP

In late August, the United States District Court for the Central District of Illinois held that the owner and operator of a coal-fired power plant was liable for violations of the Clean Air Act (CAA) related to particulate matter emissions. See National Resources Defense Council et al. v. Illinois Power Resources, et al.  While the decision ultimately reached and decided the merits of the CAA violations largely in Plaintiffs’ favor, the case is also notable for its discussion of whether Plaintiffs—the Natural Resource Defense Council, Respiratory Health Association, and Sierra Club—have standing to sue under the CAA’s citizen-suit provision, 42 U.S.C. § 7604.  The court held that they do, and specifically that all that was required to establish injury was an “identifiable trifle.”  Defendants in environmental citizen suits will have an increasingly difficult time challenging plaintiffs’ standing if more judges embrace this court’s exceedingly low standard for what constitutes a “case or controversy.” Continue reading

‘In re Nickelodeon’: Third Circuit’s Post-‘Spokeo’ Standing Analysis Flawed

nickBy Logan Cochran, Judge K.K. Legett Fellow at Washington Legal Foundation and a rising third-year student at Texas Tech University School of Law.

For the second time in less than a year, the U.S. Court of Appeals for the Third Circuit has ruled on minor consumers’ claims that Google and Viacom had “unlawfully collected personal information about them on the Internet, including what webpages they visited and what videos they watched on Viacom’s websites.”  In re Nickelodeon Consumer Privacy Litigation.  Although several issues raised by the plaintiffs substantially overlapped with the Third Circuit’s November 2015 decision In re Google Inc. Cookie Placement Consumer Privacy Litigation, two claims involved questions of first impression for the court: (1) a violation of the federal Video Privacy Protection Act (VPPA), and (2) an alleged invasion of privacy under New Jersey law.  Continue reading

Data-Breach Class Actions Feel the Effects of “Spokeo v. Robins”

supreme courtBy Jeryn Crabb, Judge K.K. Legett Fellow at Washington Legal Foundation and a rising third-year student at Texas Tech University School of Law

With Spokeo v. Robins the US Supreme Court clarified the requirements necessary for plaintiffs to establish standing in federal court.  Federal district courts are only beginning to explore those parameters, but the early applications are generally encouraging in one key area: data-breach class-action litigation.

In Spokeo, Mr. Robins alleged that Spokeo, a “people search engine,” violated the Fair Credit Reporting Act by inaccurately reporting that he was married, employed, and in good financial standing.  The Court held that a plaintiff bringing suit under a federal law that defines a statutory violation as harm must allege the existence of a concrete and particularized injury in order to have standing to sue. Continue reading

Post-“Spokeo,” More Suits Should Be Vulnerable to Article III Standing Attacks

supreme courtIn 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. Continue reading