From the first month of district court decisions issued since the United States Supreme Court decided Spokeo, Inc. v. Robins
, No. 13-1339, 2016 WL 2842447, *3 (U.S. May 16, 2016), it appears the needle on Article III standing has moved slightly, but so far only slightly, in favor of the defense. Spokeo
held that (i) in order to establish Article III standing, a plaintiff must allege an injury-in-fact that is both “concrete and particularized,” and (ii) the plaintiff cannot “automatically satisf[y] the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right.” Courts have begun to give that requirement teeth, dismissing claims where a defendant may have violated a statute’s technical requirements, but where the plaintiff suffered no adverse consequence as a result. At the same time, however, courts have recognized Spokeo
’s other holding that a “concrete” injury is not necessarily synonymous with a “tangible” injury, and that the “risk of real harm” counts as such an injury (even when such harm has not materialized). Dismissals on Spokeo
grounds, therefore, have been sparse.
Just days after Spokeo
was decided, U.S. District Judge Theodore Chuang cited the decision while remanding a data breach class action against the Children’s National Health System to Maryland state court. See Khan v. Children’s Nat’l Health Sys
., No. 8:15-cv-02125, 2016 WL 2946165, at *7 (D. Md. May 19, 2016). In that suit, plaintiff alleged that her sensitive personal information had been compromised, and that defendant did not take sufficient steps to protect it; however, despite plaintiff’s “concern” that her personal information would be misused, she did not claim that she or anyone else had actually been affected by the data breach. Judge Chuang found that under these circumstances, plaintiff did not satisfy Spokeo
’s newly articulated injury-in-fact standard, because there were no allegations indicating: “either actual misuse of the personal data or facts indicating a clear intent to engage in such misuse with plaintiffs’ data…” Id.
at 8. The court concluded that it lacked subject matter jurisdiction, and remanded the case to state court.
More recently, the Eastern District of Wisconsin similarly applied Spokeo
to dismiss a putative class action brought under the Cable Communication Policy Act (“CCPA”). See Gubala v. Time Warner Cable, Inc.
, No. 15-cv-1078 (E.D. Wisc. June 17, 2016). The Complaint alleged that defendant collected, and continued to maintain indefinitely, consumers’ personally identifiable information in violation of the CCPA’s provision that such information be destroyed when no longer necessary for the purpose for which it was collected. The Complaint did not allege, however, that defendant distributed, sold, or otherwise disclosed plaintiff’s information to any third party. The Court found that under these circumstances, Plaintiff failed to satisfy the “concrete” injury prong of the Spokeo
analysis, and dismissed the case for lack of Article III standing.
Most recently, in Stoops v. Wells Fargo Bank, N.A.
, No. 3:15-cv-00083-KRG, 2016 U.S. Dist. LEXIS 82380 (W.D. Pa. June 24, 2016), a case involving the Telephone Consumer Protection Act (“TCPA”), a district court granted the defendant summary judgment because the plaintiff lacked both constitutional and prudential standing. The plaintiff in Stoops
, far from being “disturbed” by unwanted calls, actually purchased wireless phones with numbers from economically depressed areas out-of-state, hoping to receive misdirected debt collection calls, meant for the former owners of those numbers, so that she could bring TCPA claims regarding those calls. Her interests therefore fell outside the statute’s protected zone of interests—“privacy, peace, and quiet”—and she lacked standing.
But, in two other TCPA cases involving more conventional plaintiffs, district courts have refused to dismiss and/or remand for lack of Article III standing. In Booth v. Appstack, Inc
., No. 13-1533, 2016 U.S. Dist. LEXIS 68886, * 16-17 (W.D.Wash. May 25, 2016), neither party had briefed Spokeo
the Court nevertheless analyzed the opinion and considered whether Plaintiff’s TCPA allegations of robocalling demonstrated a sufficiently “concrete injury,” as described in Spokeo
. The Court believed if the violations alleged were proven, plaintiffs suffered the injury of “wast[ing] time answering or otherwise addressing widespread robocalls.” Id.
Subsequently, in Rogers v. Capital One Bank (USA), N.A.
, No. 1:15-cv-4016, 2016 U.S. LEXIS 735605, (N.D. Ga. June 3, 2016), another TCPA class action, the Court determined that plaintiffs had sufficiently alleged facts to support standing because the alleged calls were to plaintiffs’ “personal cell phone numbers, [and] they have suffered particularized injuries because their call phone lines were unavailable for legitimate use during the unwanted calls.”
Many other TCPA-related issues remain to be decided. For example, no court has yet ruled on whether a TCPA plaintiff would have standing if he consented orally
to receipt of calls or messages, but the defendant committed a technical violation of the requirement for written consent. No court has ruled, either, on whether a violation of the FCC’s required opt-out notice language for facsimile messages gives rise to a cognizable “injury.” Spokeo
’s impact on TCPA class certification also remains unexplored at this time.
We expect that many more cases will address standing, post-Spokeo
, in the coming months, and will continue to report on these matters.
For more information on this advisory, please contact:
Lauri A. Mazzuchett
Jeffrey S. Jacobson