In Spokeo, Inc. v. Robins, the Supreme Court clarified the requirements necessary for plaintiffs to establish standing. The Court held that an allegation of a statutory violation, without some showing of concrete harm, is not enough. Concrete harm, however, is not synonymous with tangible harm. In evaluating standing, the issue articulated by the Court is whether the particular violations alleged entail a degree of risk of harm sufficient to meet the concreteness requirement. While the Court provided some guideposts, lower courts must engage in a fact-intensive analysis to evaluate the sufficiency of risk of harm. To read more about the Spokeo decision, see our previous blog post here and read our discussion of Spokeo’s impact on product liability claims here.
Before the Court handed down Spokeo, many cases were stayed, hopeful that the decision would resolve questions of standing. We report below on several cases that had been stayed pending a decision in Spokeo to see what trends have emerged in lower courts’ application of Spokeo.
Trend 1: Case Dismissed
Courts have dismissed cases alleging no more than “bare procedural violations.” Under Spokeo, such allegations are insufficient to confer standing. Plaintiffs in Smith v. Ohio State University, No. 2:15-cv-3030 (S.D. Ohio June 8, 2016) and Alaleh v. XO Communications, No. 2:15-cv-05507-SJO-FFM (C.D. Cal. filed June 8, 2016) admitted that they suffered no concrete or consequential damages, so courts dismissed the actions citing Spokeo. These cases stand for the broader trend that bare procedural violations will not survive post-Spokeo.
Trend 2: Let’s Settle This
Several actions that were stayed pending Spokeo settled while waiting for the Court to hand down its opinion or shortly thereafter. See, e.g., Taylor v. Spherion Staffing LLC, et al. No. 3:15-cv-2299 (N.D. Ohio 2015), Ernst v. Dish Network, LLC, et al. No. 1:12-cv-8794 (S.D.N.Y May 27, 2016); Hillson et al. v. Kelly Services, No. 2:15-cv-10803 (E.D. Mich. June 8, 2016). The cases that settled involved allegations of statutory violations. Although Spokeo left open the possibility that a statutory violation may involve a sufficient risk of harm to satisfy the concreteness requirement, settlement may have presented a more attractive alternative than extended litigation about the sufficiency of alleged harms.
Trend 3: See You in State Court
For the majority of stayed cases that we tracked, Spokeo did not immediately resolve the standing questions. In about a third of these ongoing cases, the lower court, sua sponte, ordered parties to file supplemental briefs or reports discussing Spokeo’s impact on the action, indicating that courts are uncertain about what factors to consider in determining which harms present a sufficient risk to meet the concreteness requirement. In supplemental reports filed so far, plaintiffs allege that Spokeo did not change the state of Article III standing law since intangible injuries can still meet the concreteness requirement. Defendants take the opposite view, reading Spokeo to require actual harm.
Instead of addressing head-on whether the requirements of standing have been met, some plaintiffs have argued that the defendants who removed the action to federal court bear the burden of establishing the elements of standing and if they cannot, the action should be remanded back to state court, rather than dismissed. The plaintiffs in Bulcao, Jr. v. Ziprecruiter, Inc., No. 2:15-cv-7340 (C.D. Cal June 27, 2016) employed this strategy in response to the court’s order to show cause why the action should not be dismissed for lack of standing. Although Ziprecruiter settled before the issue of remand was decided, courts have remanded other actions to state court after finding no Article III standing. See Patton v. Experian Data Corp., No. 15-cv-1871 (C.D. Cal. May 6, 2016).So the uncertainty left in the wake of Spokeo could lead to more action in state court.
Takeaways
Since the Supreme Court’s narrow decision in Spokeo, several trends have emerged in lower courts. While Spokeo seems to clearly preclude actions in which plaintiffs alleged only a bare procedural violation and suffered no concrete or consequential harm, less clarity exists as to what degree of risk of harm is sufficient to meet the concreteness requirement. As courts continue to apply the Spokeo rationale to more actions, perhaps it will not be long before one trend emerges as the most dominant.
*Co-author Claire Bonelli was a summer associate in our San Francisco office.