Standing After Spokeo What does it mean for an injury to be concrete?

Transcription

1 Standing After Spokeo What does it mean for an injury to be concrete? Paul G. Karlsgodt, Partner June 28, 2017

2 Basic Article III Standing Requirements U.S. Const. Art. III, 2, cl. 1. The judicial Power shall extend to all Cases... [and] Controversies.... Basic requirements: Personal stake in the outcome Injury-in-fact - Concrete - Particularized Claim is redressable Injury fairly traceable to the defendant s conduct 2

3 Lujan (Personal Stake) Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) Facts: Defenders of Wildlife ( Defenders ) brought suit seeking a declaratory judgment that a new regulation interpreting the Endangered Species Act of 1973 ( Act ) as applying only to actions taken in the United States or on the high seas was incorrect and asking for an injunction requiring the enactment of a new rule that applied the Act to actions taken abroad. Defenders argued that absent a new rule, the rate of extinction of endangered and threatened species would increase. Holding: The United States Supreme Court held that Defenders lacked Article III standing because it could not establish how damage to the species will produce imminent injury to any of the members of Defenders. The mere presumption that the members would be deprived of the opportunity to observe animals of the endangered species was simply not enough. Defenders was required to, but could not, establish that any of its members would suffer personally an injury in fact. 3

4 Clapper (Actual or Certainly Impending Injury) Clapper v. Amnesty Int'l USA, 133 S. Ct (2013) Facts: Attorneys and human rights, labor, legal and media organizations ( Respondents ) brought suit seeking a declaration that 1881a of the Foreign Intelligence Surveillance Act of 1978 was unconstitutional and a permanent injunction against authorized surveillance. Respondents argued there was an objectionably reasonable likelihood their communications with their foreign contacts will be intercepted under 1881a at some point in the future and, therefore, they suffered an injury in fact. Holding: The United States Supreme Court held that Respondents did not have Article III standing because they could not demonstrate that the threatened injury was certainly impending, as opposed to objectively reasonably likely. Respondents speculative chain of possibilities does not establish that injury based on potential future surveillance is certainly impending or is fairly traceable to 1881a. Note: Alternative standard to certainly impending is substantial likelihood. 4

5 Spokeo (Concreteness) Spokeo, Inc. v. Robins, 136 S. Ct (2016), as revised (May 24, 2016) Facts: Robins filed suit against Spokeo, Inc., a people search engine, alleging that Spokeo had violated the Fair Credit Reporting Act of 1970 when it gathered and disseminated information about Robins that was incorrect. Ninth Circuit found that he had Article III standing because Spokeo had violated his statutory rights and that his personal interests in the handling of his credit information are individualized. Holding: The United States Supreme Court vacated the Ninth Circuit s ruling and remanded the case back to the Ninth Circuit to determine whether Robins alleged injury was concrete, in addition to being particularized. The Supreme Court held that a bare procedural violation, divorced from any concrete harm cannot satisfy the injury-infact requirement of Article III. Abstract harms may still be concrete, depending on congressional intent. 5

6 Cases Dismissed for Lack of Standing After Spokeo FCRA In re Ocwen Loan Servicing LLC Litigation, No. 3:16-cv MMD- WGC, 2017 WL (D. Nev. March 3, 2017) (claim for negligent violation of FCRA was not sufficiently concrete, but granting leave to amend). In re Michaels Stores, Inc. Fair Credit Reporting Act Litigation, No , 2017 WL (D.N.J. Jan. 24, 2017) (finding that alleged violation of requirement that employer make disclosure of intent to obtain background checks in a stand-alone disclosure was mere procedural violation, but granting leave to amend). FDCPA Benali v. AFNI, Inc., No , 2017 WL (D.N.J. Jan. 4, 2017) (finding no concrete injury when debt collection letters obviously referred to a debt on an account not owned by the recipient, and noting that plaintiff had tried to obfuscate in his complaint the fact that the debt was not his). FACTA Fullwood v. Wolfgang s Steakhouse, Inc., 13 Civ. 7174, 2017 WL , at *3 (S.D.N.Y. Jan. 26, 2017) (finding no plausible concrete injury associated with the fact that plaintiff had been given a credit card receipt that included the card expiration date). Katz v. Donna Karan Int l, Inc., No. 14 Civ. 740, 2017 WL (S.D.N.Y. May 17, 2017) (no concrete injury where plaintiff did not claim that anyone saw the non-truncated credit card number on receipt); Devorah Cruper-Weinmann v. Paris Baguette America, No. 1:2013cv07013, 2017 WL (Jan. 30, 2017) (same). 6

7 Cases Dismissed for Lack of Standing After Spokeo State Consumer Protection Laws Khan v. Children s National Health Sys., No. 8:15-cv (D. Md. May 19, 2016) (no standing to pursue state statutory damages when only possibility of future harm alleged). TCPA Brinker v. Normandin s, No. 5:2014cv03007 (N.D. Cal. Feb. 17, 2017) (receipt of a single call that went to voic too minimal to be concrete). Romero v. Department Stores National Bank, et al., No. 15- CV-193 (S.D. Cal. Aug. 5, 2016) (reasoning that one singular call, viewed in isolation and without consideration of the purposes of the call, does not cause any injury that is traceable to the conduct for which the TCPA created a private right of action, namely the use of an ATDS to call a cell phone ). Ewing v. SQM US, Inc., 211 F.Supp.3d 1289 (2016) (finding that because the plaintiff would have been no better off if defendant had dialed manually, the alleged injury was not concrete). 7

8 Lower Court Cases Recognizing Standing After Spokeo FCRA Syed v. M-I, LLC, 853 F.3d 492 (9th Cir. 2017) (claim for willful violation of stand-alone disclosure requirement by including liability waiver in same document was sufficiently concrete because Congress intended to give applicant a right to privacy by conferring a meaningful choice to authorize credit check). Gambles v. Sterling Infosystems, Inc., No. 15 Civ (PAE), 2017 WL (S.D.N.Y. Feb. 13, 2017) (allegations of harm sufficiently concrete where information in credit report allegedly depicted plaintiff as itinerant, unstable, and unattractive, creating risks to his ability to obtain employment). In re Ocwen Loan Servicing LLC Litigation, No. 3:16- cv mmd-wgc, 2017 WL (D. Nev. March 3, 2017) (claim for intentional violation of FCRA was sufficiently concrete because Congress sought to deter intentional conduct). 8

9 Lower Court Cases Recognizing Standing After Spokeo FDCPA Pisarz v. GC Services Limited Partnership, No , 2017 WL (D.N.J. March 24, 2017) (collecting cases) (finding that failing to provide required disclosures in debt collection letter was a deprivation of an information right that Congress intended to protect, and was therefore sufficiently concrete to provide standing); Guerrero v. GC Services Limited Partnership, No. CV , 2017 WL (E.D.N.Y. March 23, 2017) (same). Carney v. Russell P. Goldman, P.C., No , 2016 WL (D.N.J. Dec. 22, 2016) (deprivation of the right to be free from abusive debt collection practices is a concrete injury in and of itself). Bock v. Pressler & Pressler, LLP, Civ No , 2017 WL (D.N.J. May 25, 2017) (finding standing based on allegation that complaint falsely stated that collection attorney had read and reviewed the complaint but had not, even though complaint was correct). 9

10 Lower Court Cases Recognizing Standing after Spokeo TCPA Ung v. Universal Acceptance Corporation, No RHK/FLN (D. Minn. August 5, 2016) (collecting cases). Van Patten (9 th Cir. 2017) (holding that Congress identified unsolicited contact as a concrete harm, and gave consumers a means to redress this harm ). Abante Rooter and Plumbing, Inc. v. Pivotal Payments, Inc., No. 16-cv-05486, 2017 WL , at *6 (N.D. Cal. Feb. 24, 2017). Mohamed v. Off Lease Only, Inc., No , 2017 WL , at *2 (S.D. Fla. March 22, 2017) (holding standing existed because the defendant s unsolicited text messages invaded the plaintiff s privacy and were a nuisance and a trespass on his cellular telephone ). Compressor Eng g Corp. v. Thomas, F.R.D., 2016 WL , at *10 (E.D. Mich. Dec. 29, 2016) (finding that the specific injury in a TCPA junk fax case is the occupation of the recipient s phone and fax lines, regardless of whether the fax was printed or read). 10

11 Potential Benefit of Standing Arguments Argument that prevents a plaintiff from even getting into the courthouse Emphasizes the noinjury nature of the case Gives a defendant multiple bites at the apple 11

12 Practical Impacts of Heightened Standing Requirements Multiple plaintiffs and filings to avoid impact Multiple rounds of briefing merits questions delayed Dismissals without prejudice Threat of state court remand or refiling 12

13 Tactical Considerations Are there other stronger merits defenses to emphasize? Is the court likely to reach merits issues? Could standing be a question of fact? What is the likelihood of an appeal of a successful standing motion? What are the applicable standing principles if the case is remanded to or refiled in state court? 13

14 Questions? 14

15 Contact Information Paul G. Karlsgodt Leader, Class Action Defense Team T

16 Atlanta Chicago Cincinnati Cleveland Columbus Costa Mesa Denver Houston Los Angeles New York Orlando Philadelphia Seattle Washington, DC bakerlaw.com These materials have been prepared by Baker & Hostetler LLP for informational purposes only and are not legal advice. The information is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. Readers should not act upon this information without seeking professional counsel. You should consult a lawyer for individual advice regarding your own situation.