On May 16, the U.S. Supreme Court released its highly anticipated decision in Spokeo, Inc. v. Robins. The Court sent the case back down to the Ninth Circuit, which had ruled that the Fair Credit Reporting Act accorded the unemployed, single Mr. Robins standing to sue Spokeo—a “people search engine”—for inaccurately reporting that he was employed, married, and in good financial standing. The 6-2 decision, authored by Justice Samuel Alito, stated plainly that “bare” noncompliance with a statute “divorced from any concrete harm,” cannot “satisfy the injury-in-fact requirement of Article III.” WLF had filed an amicus brief in support of Spokeo. Our press release on the victory is here.

Even though the Court answered the question Spokeo posed to it—can a plaintiff sue based on “injury in law” alone?—with a clear “no,” Mr. Robins’ lawyer, Jay Edelson, remarkably asserted, “This is overall a major win for consumers and privacy advocates.”

If Mr. Edelson means that consumers win when businesses need not raise prices to pay litigation costs and attorneys’ fees incurred from frivolous litigation, then yes, Spokeo is a win for consumers. Somehow we doubt that’s what he meant. In any case, let there be no doubt, Spokeo is a loss for class-action lawyers, as many commentators have pointed out:

Plaintiffs’ Lawyers Try to Spin Spokeo
Mayer Brown Class Defense blog (written by Andrew Pincus, Supreme Court lead counsel for Spokeo)

Spokeo is a game-changer for defendants who face ‘no-injury’ statutory damages class actions: plaintiffs will have to prove concrete injury, alleging a statutory violation is no longer enough; plaintiffs relying on intangible injury will have to demonstrate that the claimed injury meets the ‘concreteness’ test spelled out in Spokeo; and plaintiffs who do that will face new and significant challenges in obtaining class certification.

Game-Changer: Spokeo Revamps Standing for Statutory Class Actions
Corporate Counsel article, David Almeida and Mark Eisen, Sheppard Mullin

Spokeo is nothing short of a game-changer in the context of statutory class actions.

Supreme Court Decision in Spokeo Breathes Life Into Standing Defenses
Mintz Levin Privacy & Security Matters blog

Initial reactions by some commentators have portrayed Spokeo as deferring a decision on the issue of standing.  That take misreads the decision.  By holding that the concrete injury requirement applies even where there is a mandated statutory recovery, the Court has definitely addressed the most important issue presented in Spokeo.

Spokeo v. Robins: Supreme Court Rejects Article III Standing Based Solely on Statutory Violation
Locke Lord Quick Study

The impact of Spokeo on federal-court class-action litigation could be significant. Plaintiffs in so-called ‘no-injury’ class actions (based solely on statutory violations) often argue predominance is shown because no individualized showing of injury is needed. But if federal courts can only adjudicate claims involving a concrete injury, defendants may argue that individualized inquiries regarding whether class members suffered concrete injuries predominate over any common questions.

Justices Rule That Injury In Fact Must Be Concrete, Requiring More Than a Statutory Violation
Hogan Lovells LLP publication

The Court’s decision gives defendants additional leverage in fighting off cases where a plaintiff has suffered no concrete harm and in defending against class actions where the issue of concrete harm is individualized.

Supreme Court Rejects “No Injury” Claims for Statutory Damages
Bradley Arent Financial Services Perspective

One area that will be particularly affected by the Spokeo decision is class actions involving federal data breach claims. In many of those cases, the plaintiffs and putative class members have not suffered any actual harm as a result of the alleged breach.

U.S. Supreme Court: A Bare Technical Violation of Statute Insufficient to Demonstrate Standing
Thompson Hine LLP publication

The Supreme Court’s opinion has potentially enormous impact on lawsuits alleging technical violations of federal statutes and regulations. In the last 50 years, Congress has enacted a variety of consumer protection legislation that has resulted in volumes of administrative regulations.