Justices Rule That Injury In Fact Must Be Concrete, Requiring More Than A Statutory Violation

In a 6-2 decision, the Court held that an injury in fact must be not only “particularized” to the plaintiff, but also concrete, and that bare allegations of a statutory violation do not automatically satisfy that concreteness requirement.  Defendants in cases where a plaintiff has suffered no concrete harm can, and already are using this decision to dismiss claims based on a lack of Article III standing.  Defendants can also use the holding when defending against class actions where the issue of concrete harm is individualized.

The implications of this decision may depend on whether courts choose to adopt a narrow or broad interpretation of the case. On the one hand, a narrow reading would provide that Spokeo applies only to the question of Art. III standing of private plaintiffs bringing actions under particular consumer protection statutes and, therefore, by its literal terms would not apply to privacy cases brought by the FTC. In addition, because Art. III jurisprudence does not apply to states, Spokeo would similarly not apply to actions brought under “mini FTC Acts” by state attorneys general or private plaintiffs.

A broad reading, on the other hand, may focus on the Court’s discussion of “concrete harm,” and its potential applicability to the contours of “harm” under Section 5 of the FTC Act and other, related statutes. If so, the Spokeo decision may prove influential in regulators’ and others’ determination of whether certain activities would amount to unfair practices under consumer protection statutes. The forthcoming FTC LabMD decision may provide some insight into whether the FTC is adopting a broad or narrow interpretation of the decision.

For more information, please see a Hogan Lovells client alert on the ruling, available here.

Hogan Lovells attorneys Theresa House and Andrew Leff also recently wrote an article for the American Bar Association’s Privacy and Data Privacy Committee that discusses in detail the background of the Spokeo litigation, the proceedings leading up to and before the Court, and the Court’s decision.  Access the full report here (subscription only).

Authored by the HL Chronicle of Data Protection Team