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Many hoped that Robins v. Spokeo, 136 S. Ct. 1540 (2016), would clarify the meaning of the requirement that an alleged “invasion of a legally protected interest” be “concrete and particularized.” Based on Spokeo itself and the courts that have interpreted it, those hopes have been frustrated.

Spokeo Inc. operates an online “people search engine.” After the plaintiff Robins learned that inaccurate information about him was available on Spokeo, he sued the company for Fair Credit Reporting Act (FCRA) violations on behalf of a putative class. The district court dismissed this claim, holding that Robins merely alleged that Spokeo violated FCRA without any injury. That, the district court held, was insufficient to allege standing under Article III.[1] The Ninth Circuit disagreed. That court held that Robins alleged that “Spokeo violated his statutory rights.”[2] According to the panel, Robins’ “personal interests in the handling of his credit information are individualized” and thus sufficient to confer standing. 

In a much-anticipated opinion, the Supreme Court vacated and reversed the Ninth Circuit’s ruling because the Ninth Circuit failed to analyze the “concreteness” requirement of an injury in fact. The panel instead hinged its decision only on the particularized nature of Robins’s alleged statutory violation. Particularity, the Court explained, was “necessary to establish injury in fact, but it is not sufficient.”[3] An alleged injury must also be “concrete.”

But the Court declined to address the central question – whether Robins’s allegations sufficed – opting instead to remand that question to the lower courts. The Court provided only general observations: “A ‘concrete’ injury must be ‘de facto’; that is, it must actually exist.” But concrete is not “synonymous with ‘tangible,’” and Congress may identify and elevate intangible injuries to compensable ones. Yet “Congress’s role in identifying and elevating intangible harms does not mean that a plaintiff automatically satisfies 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. . . . Robins could not, for example, allege a bare procedural violation, divorced from any concrete harm, and satisfy the injury-in-fact requirement of Article III.”

Needless to say, Spokeo left much open to interpretation.

And the circuit split is already developing. Some circuits have sided with the defendants’ interpretation of the case, agreeing that something more than a technical statutory violation must be alleged. The Seventh Circuit in Meyers v. Nicolet Restaurant of De Pere LLC[4] held that Spokeo requires a plaintiff to “allege a concrete injury that resulted from the violation in his case.” In Meyers, the mere fact that Congress decided receiving a credit card receipt with more than four digits is an injury was not enough.

Several other circuits have likewise come down against plaintiffs seeking to sue based solely on statutory violations, even if personal to the plaintiff. In Hancock v. Urban Outfitters, Inc.,[5] the D.C. Circuit held that the plaintiffs failed to allege standing based on a department store clerk’s asking for their ZIP codes, a violation of a District of Columbia consumer protection statute. The Fifth Circuit in Lee v. Verizon Communications, Inc.,[6] rejected a plaintiff’s claim that the breach of an ERISA duty – mismanagement of the pension plan – alone was sufficient to confer standing. A plaintiff’s allegation that a cable company retained personal information about him for more than 30 days, which violates the Cable Communications Policy Act, was not enough for the Eighth Circuit to confer standing.[7] And the Eleventh Circuit held that a defendant’s failure to record a satisfaction of a mortgage within the required 30 days under state statute, absent harm flowing from that failure, was insufficient.[8]

The Ninth and Third circuits, however, arguably read Spokeo more broadly. In two privacy class actions – In re Nickelodeon Consumer Privacy Litigation[9] and In re Horizon Healthcare Services Inc. Data Breach Litigation[10] – the Third Circuit sketched a broad view of the concreteness requirement, holding that “we do not believe that the Court [ ] intended to change the traditional standard for the establishment of standing.” And thus, so long as “Congress has expressed an intent to make an injury redressable,” it is concrete for Article III purposes. The Third Circuit acknowledged, however, that Spokeo places some limits on Congress’s right to elevate procedural injuries to the level of concrete. But the Third Circuit determined that neither Nickelodeon nor Horizon required it to consider that limitation.

The Ninth Circuit, too, held that Congress has wide latitude to establish that an intangible harm is concrete. In Van Patten v. Vertical Fitness Grp., LLC,[11] the panel held that the plaintiff had standing to sue for violations of the Telephone Consumer Protection Act (TCPA) regardless of any additional harm. According to the Ninth Circuit, “[t]he TCPA establishes the substantive right to be free from certain types of phone calls and texts absent consumer consent,” and “Congress identified unsolicited contact as a concrete harm, and gave consumers a means to redress this harm.” That privacy interest, the court held, is concrete, and a plaintiff “need not allege any additional harm beyond the one Congress has identified.” (Emphasis in original.)

The only thing certain about Spokeo is that courts will continue to struggle with what exactly a concrete injury is.

[1] Robins v. Spokeo, Inc., 2011 WL 597867, at *1 (C.D. Cal. Jan. 27, 2011).

[2] Robins v. Spokeo, Inc., 742 F.3d 409, 413 (9th Cir. 2014) (emphasis in original).

[3] Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016).

[4] 843 F.3d 724, 727 (7th Cir. 2016).

[5] 830 F.3d 511, 514 (D.C. Cir. 2016).

[6] 837 F.3d 523, 529–30 (5th Cir. 2016).

[7] Braitberg v. Charter Communications, Inc., 836 F.3d 925, 930–31 (8th Cir. 2016).

[8] Nicklaw v. Citimortgage, Inc., 839 F.3d 998, 1002–03 (11th Cir. 2016).

[9] 827 F.3d 262 (3d Cir. 2016).

[10] 846 F.3d 625 (3d Cir. 2017).

[11] 847 F.3d 1037 (9th Cir. 2017).

The continuing debate about the meaning of Spokeo