On April 27, the U.S. Supreme Court agreed to hear the case of Spokeo, Inc. v. Robins—a lawsuit that, depending on its outcome, could end private enforcement of scores of federal laws, including RESPA. Spokeo raises a simplistic question, one you might think had been answered long ago: Can Congress create legal rights that, if violated, an aggrieved party can sue over if that person has not been financially harmed or injured in some concrete way? For example, most plaintiffs in RESPA cases cannot prove that they suffered money damages as a result of alleged kickbacks. That’s not a problem now, but Spokeo could throw them out of court.
Spokeo describes itself as a “people search engine that organizes White Pages listings, Public Records and Social Network Information to help you safely find and learn about people.” The plaintiff, Thomas Robins, is unemployed and accuses the company of spreading false information about him, which he says hurts his job prospects. He sued Spokeo under the Fair Credit Reporting Act (FCRA). It’s not clear to me how a “people search engine” could qualify as a credit reporting agency, but Spokeo must be worried about potential FCRA liability because it has chosen to fight to the death on a collateral question (standing), rather than focus on the potential inapplicability of the statute.
The question the Supreme Court has agreed to address is: “Whether Congress may confer [constitutional] standing upon a plaintiff who suffers no concrete harm, and who therefore could not otherwise invoke the jurisdiction of a federal court, by authorizing a private right of action based on a bare violation of a federal statute?”
In 2012, the Supreme Court was poised to answer this same question in First American Financial Corporation v. Edwards. In that case, all the appellate briefs had been filed, oral argument had been held, and only the final decision remained. But, on the last day of the court’s term that year, the justices dismissed the appeal as having been “improvidently granted.” That is normally the high court’s way of saying: we’ve decided to punt on this matter because, upon closer review, it presents unforeseen complications that bar us from issuing a definitive opinion. In appellate-lawyer speak: the case did not represent a good “vehicle” for answering the question at hand. After a three-year search, the Supreme Court seems to have found its ideal vehicle.
Besides FCRA and RESPA (the Real Estate Settlement Procedures Act), other federal statutes that could be affected by Spokeo’s outcome include: the Truth in Lending Act (TILA); the Fair Debt Collection Practices Act (FDCPA); the Telephone Consumer Protection Act (TCPA); the Employee Retirement Income Security Act (ERISA); the Americans with Disabilities Act (ADA); the Video Privacy Protection Act; the Lanham Act; and the Fair Housing Act.
How do I expect the Supreme Court to rule on this one? I see Chief Justice John Roberts joining the liberal wing of the court in a 5-4 decision, upholding the ability of Congress to allow uninjured people to sue for violations of federally created rights. (Justice Kennedy might even swing to the majority, making it a 6-3 vote.) But, at day’s end, I’d be shocked if John Roberts stood by and let his court invalidate dozens of federal statutes and decades of case law in one fell swoop. You read it first here, folks.