Supreme Court Decision on Article III Injury-in-Fact in Spokeo Potentially Impacts Class Certification

By Andrew C. Glass, Joseph C. Wylie II, Gregory N. Blase, Molly K. McGinley, Roger L. Smerage, and Eric W. Lee

On Monday, the United States Supreme Court issued its long-awaited decision in Spokeo, Inc. v. Robins, — U.S. — (No. 13-1339).  In rendering its decision, the Court reiterated that to establish Article III standing, a plaintiff must plead an injury-in-fact that is both particular to the plaintiff and concrete.  The Court explained that whether a plaintiff has pleaded sufficient facts to allege a concrete injury requires more than just examining whether the plaintiff has pleaded that the defendant violated a federal statute.  In particular, the Court held that “a bare procedural violation, divorced from any concrete harm,” does not suffice to “satisfy the injury-in-fact requirement of Article III.”  As such, the Spokeo plaintiff’s allegation that the defendant’s actions had violated the Fair Credit Reporting Act, 15 U.S.C. §§ 1681, et seq., would not, by itself, demonstrate a plausible injury-in-fact.  Rather, “Article III standing requires a concrete injury even in the context of a statutory violation.”

The Court concluded that although the Ninth Circuit had analyzed whether the plaintiff had alleged an injury particular to himself, it failed to analyze whether the plaintiff had alleged a concrete harm sufficient to establish Article III standing. For this reason, the Court vacated the Ninth Circuit’s decision and remanded the case to the Ninth Circuit for further analysis.

The effect of the Supreme Court’s Spokeo ruling remains to be seen.  But two potential points of impact are easily imagined.  First, in light of the Court’s remand, federal courts will need to reexamine what it means to have suffered “concrete” injury under a wide range of federal statutes, including the TCPA.

Second, in class action context, the decision may open the door to class certification challenges on the basis that the members of a purported statutory-violation class lack a concrete injury capable of classwide resolution. Before Spokeo, courts typically analyzed the question of whether a named plaintiff has standing under Article III separately from the question of whether to certify a class under Fed. R. Civ. P. 23. Spokeo’s reiteration of the baseline principle that a person must have a concrete injury, not just a bare statutory violation, may suggest that Rule 23’s commonality, typicality, and adequacy requirements are not met where the named plaintiff has not suffered the same concrete injury as the purported class members, or where the purported class members may not have suffered any concrete injury at all, even if all purported class members experienced a similar statutory violation.

Ultimately, how Spokeo and Rule 23 intersect remains to be seen, as the issue will likely play out in federal district and appellate courts in the years to come.  Watch for the K&L Gates client alert discussing the full impact of Spokeo.