Last week, in a much anticipated decision, the U.S. Supreme Court addressed whether a consumer can sue over violations of statutory rights without herself having suffered an actual, concrete harm. The Supreme Court said “no,” but gave little detail about which injuries are concrete enough to pass constitutional muster. That lingering uncertainty is likely to help at least some companies defeat class certification.
In the case, Thomas Robins sued Spokeo, Inc., a “people search engine,” over allegedly inaccurate information the company disseminated about his age, income, educational background, and family status. Robins alleged that those falsehoods violate the Fair Credit Reporting Act (FCRA). While none of the incorrect information was negative, Robins nonetheless claimed that it could hurt his ability to find work, by for example wrongly inflating his salary expectations.
The case has long been viewed as having critical implications for class actions. Many laws, like the Real Estate Settlement Procedures Act (RESPA) and the Truth in Lending Act (TILA), allow consumers to bring private lawsuits against companies that violate those statutes. But, to sue in federal court, a litigant must have sufficient standing, one component of which requires the person to have experienced a concrete and particularized injury. Spokeo argued that Robins had not alleged sufficient injury from its dissemination of false information about him.
The only example of non-concrete, and therefore deficient, injury that the high court gave was a false zip code: If Spoke had gotten Robins’s zip code wrong, it held, he would likely not have incurred a concrete harm for standing purposes. The Supreme Court remanded the case to the court of appeals to decide whether Robins has asserted a sufficiently concrete injury.
At that, the high court left lower courts and the legal community with a jurisprudential cliffhanger. It is unclear how Spokeo will play out over the next few years, and whether the Supreme Court will revisit the issue.
One strategy companies are likely to adopt in the wake of Spokeo is to argue that each putative class member’s situation is different. And, therefore, there can be no classwide determination about whether, for instance, a given RESPA or TILA violation caused a sufficiently concrete harm to each individual. So the more plaintiffs’ lawyers do to prove the individualized and concrete nature of damages, which Spokeo seems to require them to do, the more they may be doing to hurt their chances of achieving class certification.