Court Upholds Industry Position on Requisite Harm to Initiate Litigation

On May 16, 2016, the Supreme Court ruled in a 62 decision in favor of the NAM position in Spokeo, Inc. v. Robins. This case arose from an alleged statutory violation of the Fair Credit Reporting Act (FCRA). Spokeo published inaccurate information on its website that portrayed that the plaintiff, Robins, as having more education and a higher income than was true. Robins sued under the act for this error. This was a significant case for the business community that could have opened the litigation floodgates. The Ninth Circuit held that “the violation of a statutory right is usually a sufficient injury in fact to confer standing,” and that Robins could establish injury-in-fact because he alleged violations of “his statutory rights.”

The Supreme Court rejected the Ninth Circuit’s reasoning that particularization alone is enough to constitute injury-in-fact. Rather, the Supreme Court said to constitute injury-in-fact the harm must be both particularized (meaning that it must affect the plaintiff in a personal and individual way) and concrete (meaning it must be a de facto, real harm).

The Ninth Circuit erred by eliding over the separate concreteness inquiry, rendering its standing analysis incomplete.

The Supreme Court emphasized that concrete injuries need not necessarily be tangible, giving examples of injuries to free speech and free exercise. And it added that Congress plays an important role in elevating intangible harms to judicially redressable injuries. However, the Supreme Court said, “Congress’ 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.” A plaintiff cannot simply allege a “bare procedural violation.” After all, a failure to provide the required notice under the FCRA might not cause any harm, because the information reported might be accurate. And even inaccurate information (for example, the Supreme Court said, listing an incorrect zip code) may not present any material risk of harm. The Supreme Court remanded the case to the Ninth Circuit to address whether the procedural violations of the FCRA alleged by Robins entail a degree of risk sufficient to meet the injury-in-fact concreteness requirement.

Patrick Forrest

Patrick Forrest

Vice President and Deputy General Counsel at National Association of Manufacturers
Patrick Forrest is the vice president and deputy general counsel for the National Association of Manufacturers (NAM). As part of the Manufacturers' Center for Legal Action, Forrest works to strengthen the NAM's ability to promote manufacturing policy objectives through litigation. Mr. Forrest's background includes legal, policy and government relations experience on a wide range of issues.
Patrick Forrest

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