July 22, 2019

July 22, 2019

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U.S. Supreme Court Rejects Second Bid for Review in Spokeo

The U.S. Supreme Court on Monday denied the petition for certiorari seeking review of the U.S. Court of Appeals for the Ninth Circuit's most recent decision in Spokeo v. Robins (Spokeo II), foregoing an opportunity to clarify the confusion that has ensued since the Supreme Court's 2016 decision in Spokeo (Spokeo I) on the issue of Article III standing. In Spokeo I, the Supreme Court held that intangible injury may satisfy the "concrete injury" requirement for standing, but lower courts have since struggled to apply the Court's holding.

In Spokeo I, the Supreme Court held that Article III standing's concrete injury element may be met by a showing of "intangible" harm, and that violation of a statutory procedural right, therefore, may satisfy this element. The Court explained that "both history and the judgment of Congress" play important roles in the determination of whether an intangible injury in fact satisfies the concreteness element. The Court then remanded the case to the Ninth Circuit for analysis of whether the plaintiff's claim—under the Fair Credit Reporting Act (FCRA) for Spokeo, Inc.'s generation of a web profile of plaintiff containing alleged inaccuracies—was supported by an allegation of concrete harm. (Our previous alert on Spokeo I may be found here.)

Following Spokeo I, lower courts have reached a variety of results applying the Supreme Court's holding in cases involving alleged intangible harm. These cases have frequently involved alleged procedural violations of consumer protection statutes, such as the FCRA and the Telephone Consumer Protection Act, as well as the alleged "risk of harm" to consumers following data breaches. (For our previous alerts discussing lower court decisions in the wake of Spokeo I, see here and here.)

In Spokeo II, on remand from the Supreme Court, the Ninth Circuit concluded that the plaintiff sufficiently alleged a concrete injury, reasoning that the alleged inaccurate information Spokeo published about him—including material inaccuracies about his age, marital status, education, wealth level, and profession—demonstrated harm to the real-world interests Congress sought to protect through the FCRA, such as the plaintiff's employment prospects. (Our previous alert on the Ninth Circuit's decision in Spokeo II can be found here.)

Spokeo thereafter sought certiorari from the Supreme Court for a second time, arguing that its decision in Spokeo I had resulted in "confusion among the scores of lower court decisions that have taken very different approaches" in applying the decision. Numerous amici filed briefs in support of Spokeo's cert petition. 

In a one-line order, the Supreme Court denied Spokeo's cert petition, but that may not be the Court's last word on standing this term. Still pending before the Court is a petition for certiorari in CareFirst v. Attias, a data breach class action stemming from the hacking-facilitated theft of personal information for approximately 1.1 million policyholders. CareFirst is seeking review of the reversal by the U.S. Court of Appeals for the District of Columbia Circuit of a district court order dismissing the data breach class action on standing grounds. The Supreme Court will consider the cert petition in Attias at its next conference, which is scheduled for February 16. In the meantime, lower courts will be left to wrestle with application of the Spokeo I concreteness standard in cases involving the disclosure of personal information protected by law.

Copyright © by Ballard Spahr LLP


About this Author

Joel Tasca financial institutions lawyer,  consumer class action attorney Ballard Spahr

Joel E. Tasca has defended banks and other financial institutions in consumer class and individual actions for over twenty years. These cases have arisen out of residential mortgage loans, credit card accounts, and an array of other consumer financial services.  Many of these suits have been brought under federal consumer protection laws such as the Fair Credit Reporting Act, the Telephone Consumer Protection Act, the Truth in Lending Act, and the Real Estate Settlement Procedures Act, as well as under state unfair, deceptive, or abusive acts and practices statutes....

Kaplinksy, partner, New York, finance

Alan S. Kaplinsky is Co-Practice Leader of the firm's Consumer Financial Services Group, which has more than 115 lawyers. Mr. Kaplinsky devotes his practice exclusively to counseling financial institutions on bank regulatory and transactional matters, particularly consumer financial services law, and defending financial institutions that have been sued by consumers in individual and class action lawsuits and by government enforcement agencies. Visit Mr. Kaplinsky's profile in Wikipedia.

Mr. Kaplinsky is heavily involved in counseling and representing clients in a wide variety of matters (regulatory, supervisory and enforcement) involving the Consumer Financial Protection Bureau. He was instrumental in launching a blog, CFPBMonitor.com, focused on the Consumer Financial Protection Bureau.

Mr. Kaplinsky pioneered the use of pre-dispute arbitration provisions in consumer contracts, has counseled numerous consumer financial services companies on this subject, and has defended in court numerous companies that have sought to enforce consumer arbitration agreements.

Philip Yannella, Ballard Spahr Law Firm, Philadelphia, Data Security Attorney

As Co-Practice Leader of Ballard’s Privacy and Data Security Group, and Practice Leader of the firm’s E-Discovery and Data Management Group, Philip N. Yannella provides clients with 360-degree advice on the transfer, storage, and use of digital information.

Mr. Yannella regularly advises clients on the Stored Communications Act (SCA), Computer Fraud and Abuse Act (CFAA), EU-US Privacy Shield, General Data Protection Regulation (GDPR), Defense of Trade Secrets Act, PCI-DSS, Telephone Consumer Protection Act (TCPA), New York Department of...

Edward McAndrew, Ballard Spahr, Philidelphia, Washington DC, Data Security, Privacy

Edward J. McAndrew is a counselor, investigator, and trial lawyer who helps clients navigate life in the digital world. He is the Co-Practice Leader of the firm's Privacy and Data Security Group.

Named a "Cybersecurity and Data Privacy Trailblazer" by The National Law Journal, Mr. McAndrew advises clients on cybersecurity, digital privacy, cyber-incident response, social media, online speech, defamation, commercial, employment, intellectual property, corporate governance, regulatory, and criminal matters. He also advises clients on cyber-based national security issues, as...