- Joe Ravi | CC-BY-SA 3.0
Last year, we noted that the Supreme Court had granted certiorari in a case that could limit the ability of plaintiffs to sue defendants over bare statutory violations without the showing of actual injury. The case implicates a wide variety of statutes that grant monetary awards to successful plaintiffs on the basis of statutory violations. In order to pursue a claim in federal court, a plaintiff must demonstrate standing (the right to be heard in court), which requires (among other things) an “injury in fact,” which occurs when a legally protected interest is invaded and that invasion is “concrete and particularized.”
Here, in Spokeo, Inv. v. Robins, plaintiff Thomas Robins alleged that Spokeo was covered by the Fair Credit Reporting Act (FCRA) and violated the statute by providing inaccurate information about him through its “people search engine” website. Willful violations of the FCRA allow consumers to seek statutory damages of $100 to $1,000, plus punitive damages.
The Supreme Court decided against the plaintiff, concluding that a “bare procedural violation” cannot satisfy Article III, and remanding the case. Justice Alito wrote for the majority:
Congress plainly sought to curb the dissemination of false information by adopting procedures designed to decrease that risk. On the other hand, Robins cannot satisfy the demands of Article III by alleging a bare procedural violation. A violation of one of the FCRA’s procedural requirements may result in no harm.
So, violating mere procedural niceties will not necessarily meet the injury-in-fact requirement. The Court was, however, careful to note that “intangible injuries can nevertheless be concrete,” and a “concrete” injury can incorporate a “real risk of harm.” Thus, “[f]or example, the law has long permitted recovery by certain tort victims even if their harms may be difficult to prove or measure.” A risk of injury that is substantial enough may satisfy the concreteness element of the injury-in-fact requirement. As a counterexample, the court noted that “[i]t is difficult to imagine how the dissemination of an incorrect zip code, without more, could work any concrete harm.”
On this basis, the Court vacated the Ninth Circuit’s finding that Robins “particularized” injury satisfied the injury-in-fact requirement. A particularized injury is necessary—the Court took no issue with the Ninth Circuit’s finding on that point – but not sufficient. The Court directed the Ninth Circuit to conduct further analysis of whether “whether the particular procedural violations alleged in this case entail a degree of risk sufficient to meet the concreteness requirement” of Article III standing requirements.
Going forward, under a variety of federal statutes, plaintiffs for whom Congress has provided damages will need to prove not merely that a statute was violated but will have to inquire whether a statutory or procedural violation actually meets the concreteness requirement, including by showing that the procedural violation is not only in violation of procedural requirements, but also showing that the violation “harm[s] or presents the risk of harm.” For claims under statutes that authorize minimum monetary damages for statutory violations—such as the Telephone Consumer Protection Act (TCPA), which authorizes $500 to $1,500 in damages for unsolicited text messages—harms or risks of harm may be hard to prove.
Justice Alito was joined by Chief Justice Roberts, and Justices Kennedy, Thomas, Breyer, and Kagan. Justice Thomas also concurred, and Justice Ginsburg dissented, joined by Justice Sotomayor.