TCPA Alert: Intangible Concrete – Spokeo, Inc. v. Robins and Constitutional Standing
May 18, 2016
On May 16, 2016, in Spokeo, Inc. v. Robins, the United States Supreme Court provided guidance on, but no definitive answer to, the question of whether a plaintiff who suffered no tangible harm has sufficient standing to maintain a federal cause of action under the Telephone Consumer Protection Act (“TCPA”).
Spokeo is not a TCPA case; it is a Fair Credit Reporting Act (“FCRA”) case. Robins alleged that Spokeo violated FCRA by publishing inaccurate information about Robins. Spokeo published information stating that Robins held a graduate degree and was employed, married with children, and relatively affluent, whereas Robins alleged in his suit that he was single, childless, unemployed with no graduate degree, and not particularly well-off. Robins sought statutory and unspecified actual damages pursuant to FCRA.
The district court granted Spokeo’s Motion to Dismiss, concluding that Robins had not pled an “injury-in-fact” sufficient to confer Article III standing. The Ninth Circuit reversed, holding that Robins pled facts sufficient to establish standing.
The United States Supreme Court, in a 6-2 majority decision authored by Justice Alito, stated that the Constitution vests federal courts with the “judicial Power of the United States.” That power extends only to “Cases” and “Controversies.”
In order for there to be a case or controversy, a plaintiff must have standing. The “irreducible constitutional minimum” requirements for standing are that a plaintiff must have:
1. suffered an injury-in-fact;
2. that is fairly traceable to the challenged conduct of the defendant; and
3. that is likely to be redressed by a favorable judicial decision.
With regard to the injury-in-fact requirement, the Court held that the injury must be “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.”
A “particularized” injury “must affect the plaintiff in a personal and individual way.” A “concrete” injury must be de facto; it must actually exist. It must be “real” and not “abstract.”
However, perhaps counterintuitively, the Court held that an injury that is “concrete” nonetheless can be intangible, and the Court conceded that Congress has a “role in identifying and elevating intangible harms” to the status of harms sufficient to create standing.
After announcing those principles, the Court held that the Ninth Circuit failed to conduct the proper analysis of the issue of Robins’s standing. The Circuit Court found that Robins had suffered a particularized harm but did not analyze whether Robins suffered concrete harm.
The Supreme Court noted that a FCRA statutory violation could be particularized but could result in no harm at all and therefore confer no standing. For instance, according to the Court, the dissemination of an inaccurate zip code would be a FCRA violation specific to a particular individual but would not likely cause harm or any “material risk of harm.”
In other words: no harm, no foul, no standing.
The Court remanded the matter to the Ninth Circuit for further consideration in light of the Supreme Court’s decision.
Justice Thomas issued a concurring opinion, emphasizing that standing requirements prevent private plaintiffs from suing to enforce public rights. Justice Ginsburg dissented based on her belief that Robins had satisfied the general standing principles set forth in Justice Alito’s decision.
Spokeo’s impact on TCPA litigation is unclear. Under Spokeo, a TCPA plaintiff should be required to plead the existence of a concrete and particularized harm. The harm can be intangible, but it should still be required to be actual harm or a “material risk of harm.”
In Spokeo, the dissemination of an inaccurate zip code, though a FCRA violation, was too insignificant to create constitutional standing. The TCPA bars certain types of phone calls, but what if the plaintiff never heard her phone ring, never answered the call, was not separately charged for the call, and only learned of the call after an enterprising lawyer pours over calling records in order to inform the plaintiff that she has suffered “harm” that could be worth $1,500 in “damages”?
Is that a “concrete” injury-in-fact that should justify intervention by the federal courts and the invocation of the judicial power of the United States? Spokeo provides guidance that is encouraging for TCPA defendants but, for now, leaves those questions to the lower courts to resolve.