By Mary-Christine Sungaila, a Partner, and Marco A. Pulido, an Associate, with Haynes and Boone, LLP in the firm’s Orange County, CA office. Ms. Sungaila filed an amicus curiae brief in the U.S. Supreme Court in Spokeo v. Robins, and she has also briefed post-Spokeo standing issues in Eric B. Fromer Chiropractic Inc. v. Molina Healthcare of California.
Since the U.S. Supreme Court’s decision in Spokeo v. Robins, it is not enough for a plaintiff suing in federal court “to allege that a defendant has violated a right created by a statute.”1 Rather, to determine whether a plaintiff has standing to sue under Article III, a federal court must further “ascertain whether the plaintiff suffered a concrete injury-in-fact due to the violation.”2
This Legal Opinion Letter discusses two developing post- Spokeo trends: (1) litigation of federal statutory claims in state courts, where standing requirements may differ from those under Article III; and (2) the application of Spokeo to dismiss state-law statutory claims in federal court.
Spokeo v. Robins Background
A plaintiff seeking to establish Article III standing must show (1) that he suffered an injury, (2) caused by the defendant, (3) that a judicial decision could redress.3 In Spokeo, Thomas Robins sued a website operator under the Fair Credit Reporting Act, alleging that the website willfully violated the statute by publishing inaccurate information about him.4 The Ninth Circuit held that Robins had standing to sue because his “personal interests in the handling of his credit information” meant that the harm he suffered was “individualized rather than collective.”5 The Supreme Court vacated that decision, reasoning that the injury-in-fact analysis has two elements—concreteness and particularization—and the Ninth Circuit had not addressed the “concreteness” issue.6 In particular, the Court rejected the premise that “a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right.”7 The Court then remanded “for the Ninth Circuit to consider both aspects of the injury-in-fact requirement.”8
On remand, the Ninth Circuit set up a two-part test to evaluate a claim of harm in this context: “(1) whether the statutory provisions at issue were established to protect [a plaintiff’s] concrete interests (as opposed to purely procedural rights), and if so, (2) whether the specific procedural violations alleged in th[e] case actually harm, or present a material risk of harm to, such interests.”9 Under this test, the Ninth Circuit held that Robins had alleged a sufficiently concrete injury because he claimed that inaccurate information in his credit report had caused harm to his potential job prospects.10
Increased Litigation of Federal Claims in State Court
Spokeo adds a new wrinkle for defendants who desire to litigate federal statutory claims in federal court. If a defendant removes a federal statutory claim from state court but plaintiff cannot satisfy Spokeo, the removed claim ends up right back in state court for lack of Article III standing.12
Consider Corozzo v. Wal-Mart Stores, Inc.13 In that case, plaintiffs alleged bare procedural violations of the Fair Credit Reporting Act. The Missouri Court of Appeals held that they lacked standing to pursue those claims in state court.14 The appellate court reasoned that the Missouri Constitution had an analogue to Article III, and therefore the court relied on Spokeo and federal circuit-court precedent concluding that bare procedural violations are insufficient to confer standing to sue.15
In contrast, in Duncan v. FedEx Office & Print Services, Inc,16 the plaintiff sued FedEx, alleging that the company had willfully violated the Fair and Accurate Credit Transactions Act (“FACTA”) when it printed more than the last five digits of her credit card number on its sales receipt.17 The Illinois Appellate Court held that “Illinois courts are not required to follow federal law on issues of justiciability and standing” and concluded that plaintiff could pursue his FACTA claim.18 The court reasoned that, under Illinois law, when a plaintiff alleges a statutory violation, no “additional requirements” are needed for standing.19
In short, since plaintiffs may attempt to pursue their federal statutory claims in state court after a dismissal or remand under Spokeo, defendants should consider standing requirements under state law to determine whether those claims will be able to proceed in state court.
Application of Spokeo to State-Law Claims in Federal Court
State law “cannot create Article III standing where none exists under . . . federal precedents.”20 In Lyshe v. Levy, for example, a plaintiff brought a claim for relief under the Fair Debt Collection Practices Act, alleging that a discovery request violated the Ohio Rules of Civil Procedure.21 The Sixth Circuit affirmed the dismissal of plaintiff’s claim, concluding that plaintiff’s “bald allegations of state procedural violations that did not result in any concrete harm [were] insufficient to confer standing.”22 In contrast, in Patel v. Facebook, the Ninth Circuit recently concluded that alleged violations of the Illinois Biometric Information Privacy Act (“BIPA”) were sufficiently concrete to constitute injury in fact, reasoning that, “[b]ecause the privacy right protected by BIPA is the right not to be subject to the collection and use of such biometric data, Facebook’s alleged violation of these statutory requirements would necessarily violate the plaintiffs’ substantive privacy interest.”23
Because Spokeo applies equally to state and federal statutory claims in federal court, defendants in federal court should evaluate whether any statutory claim is subject to dismissal under the Spokeo analysis.
- Patel v. Facebook, Inc., No. 18-15982, 2019 WL 3727424, at *3 (9th Cir. Aug. 8, 2019).
- Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992).
- Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1544 (2016).
- Robins v. Spokeo, Inc., 742 F.3d 409, 413 (9th Cir. 2014).
- Spokeo, 136 S. Ct. at 1545.
- Id. at 1549.
- Id. at 1545.
- Robins v. Spokeo, Inc., 867 F.3d 1108, 1114 (9th Cir. 2017).
- Id. at 1113-17.
- Collier v. SP Plus Corp., 889 F.3d 894, 896-97 (7th Cir. 2018). Once that claim is back in state court, state law controls the issue whether a plaintiff must show some harm beyond a statutory violation.11Mocek v. Allsaints USA Ltd., 220 F. Supp. 3d 910, 912 (N.D. Ill. 2016) (“plaintiff’s ability to satisfy Spokeo does not determine whether she may proceed with her suit in state court”); see also ASARCO Inc. v. Kadish, 490 U.S. 605, 617 (1989) (observing that absent provisions for exclusive federal jurisdiction, state courts may “render binding judicial decisions resting on their own interpretations of federal law.”).
- 531 S.W.3d 566, 575 (Mo. Ct. App. 2017).
- 123 N.E.3d 1249, 1252 (Ill. App. Ct. 2019).
- Id. at 1252.
- Id. at 1255.
- Id. at 1255-56.
- Mays v. Wal-Mart Stores, Inc., 330 F.R.D. 562, 576 (C.D. Cal. 2019); see also Huff v. TeleCheck Servs., Inc., 923 F.3d 458, 469 (6th Cir. 2019) (“Whatever is true of Congress’s power to create standing by statute would seem to hold for state legislatures as well, posing another threat to Article III’s limits.”).
- 854 F.3d 855, 861 (6th Cir. 2017).
- Patel, 2019 WL 3727424, at *6.