Moss and Plunkett Examine Spokeo’s Guidance on Concrete Injury Requirement

Shook, Hardy & Bacon Partner Eileen Moss and Associate Melissa Plunkett authored an August 31, 2016, article in DRI's The Voice on the Supreme Court’s ruling in Spokeo v. Robins, which has brought “a wave of Article III standing arguments in private actions for statutory violations.” Titled “Spokeo: Defendants’ Potential Capitalization of the Concrete Injury Requirement,” the article explains that “Spokeo raised the issue of whether the mere violation of a federal statute could create Article III standing for an individual seeking statutory, but not actual, damages under the Fair Credit Reporting Act (FCRA).”

Noting that Article III standing requires plaintiffs to show an injury in fact—“one that is concrete and particularized”—the authors find little guidance in Spokeo as to what constitutes actual harm under FCRA or other statutes such as the Telephone Consumer Protection Act (TCPA). As a result, they write, “The clear outcome from Spokeo is that its progeny will likely find its way back to the Supreme Court before long.”

“Even if a case has been pending for some time and standing has not been addressed previously, a standing argument should be reevaluated. Without Article III standing, a federal court does not have subject matter jurisdiction to address a plaintiff’s claim,” conclude the authors. “Expect to see Spokeo cited frequently in cases in which a private litigant alleges statutory violations, not only to dismiss an individual claim, but also to demonstrate that individualized issues predominate over common questions.”