The Supreme Court’s recent decision in Spokeo, Inc. v. Robins casts doubts on a plaintiff’s standing to sue for statutory damages based upon merely procedural violations, posing additional hurdles for class-action claims under certain consumer protection statutes.
What it means for business: it is now harder for potential plaintiffs to satisfy Article III standing requirements in privacy and consumer class actions. Class action complaints should now define the class only as those persons who suffered a concrete and particularized injury.
The focus on concrete injury affords class action defendants greater means to argue against class certification on the grounds that that plaintiffs cannot establish common questions of fact that predominate over individual questions, as the concrete harm each individual class member suffers may differ among the class members.
While Spokeo weakens standing for plaintiffs bringing claims based on bare statutory violations, it leaves open the possibility that some statutory violations in themselves will create sufficient injury in fact. Nonetheless, the decision’s focus on concrete injury warrants revisiting defense strategies in a host of consumer protection claims. For a detailed discussion of the matter and decision, read our client alert.