In 2016, the Supreme Court issued its decision in Spokeo Inc. v. Robins, holding that even when Congress has granted parties a statutory right, a procedural violation of that right will not by itself satisfy the “concrete harm” requirement for Article III standing. The Court explained that while harm must be “concrete,” it need not be “tangible.” With little guidance on what this distinction actually means, the Court sent the case back to the Ninth Circuit, then denied a petition for writ of certiorari when the petitioners sought clarification on what constitutes a concrete, “intangible” harm.
Three years later, we are no closer to truly understanding what is required for Spokeo standing. Indeed, the recent decision in Frank v. Gaos, 139 S. Ct. 1041 (2019) not only demonstrates the Supreme Court’s present unwillingness to substantively address standing under Spokeo, but also serves as a sobering example of how a lack of clarity on the issue can derail nearly a decade’s worth of litigation and settlement efforts. Continue Reading