The U.S. Supreme Court recently granted certiorari in Spokeo, Inc. v. Robins, No. 13-1339 (SCOTUSblog page), to decide whether a plaintiff who does not suffer any injury has Article III standing to sue for violation of a federal statute. The case will not be argued until the next Supreme Court Term, likely in October. It potentially could have a very significant impact on class action practice.

The Court will review Robins v. Spokeo, Inc., 742 F.3d 409 (9th Cir. 2014), in which the plaintiff alleges that that defendant violated the Fair Credit Reporting Act by publishing inaccurate personal information about him potentially relevant to his creditworthiness. The district court initially dismissed the complaint because the plaintiff failed to allege any actual or imminent harm, and the possibility of future injury does not satisfy Article III standing requirements. After the complaint was amended, the district court initially found that allegations of harm to the plaintiff’s employment prospects were sufficient to satisfy the standing requirement, but then reconsidered and found that those alleged injuries were not traceable to the defendant’s conduct, and dismissed the complaint. On appeal, the Ninth Circuit reversed. It cited a 1975 Supreme Court decision stating that “The actual or threatened injury required by Art[icle] III may exist solely by virtue of statutes creating legal rights, the invasion of which creates standing.” Warth v. Seldin, 422 U.S. 490, 500 (1975). The Ninth Circuit further explained that “the violation of a statutory right is usually a sufficient injury in fact to confer standing,” and that “the statutory cause of action does not require a showing of actual harm when a plaintiff sues for willful violations.” Robins, 742 F.3d at 412. The Ninth Circuit further concluded that Congress had the power to confer standing because “the interests protected by the statutory rights at issue,” related to the plaintiff’s credit information, ”are sufficiently concrete and particularized that Congress can elevate them.” Id. at 413.

The opposition to the petition for certiorari argued that the plaintiff has in fact suffered concrete injuries – reputational harm akin to defamation. The plaintiff will likely press that point in the merits briefing as well, and argue for a broad concept of “harm.” The Court invited the Solicitor General to file a brief at the certiorari stage. The United States supported the plaintiff’s position and argued that certiorari should be denied. It also suggested, in the alternative, that the question presented be reformulated more narrowly, but the Court did not do that.

The decision in this case could potentially have a broad impact on class actions brought under various federal statutes, such as the Fair Debt Collection Practices Act, Telephone Consumer Protection Act, Employee Retirement Income Security Act, etc. Class actions arising from data breaches have often turned on standing issues as well. This decision could potentially have a substantial impact on insurers to the extent that their businesses are regulated by federal statutes.

But insurers are much more heavily regulated at the state level, and insurance class actions often focus on state statutes. So how might this case impact state law class actions? The state courts are not constrained by Article III, but the vast majority of class actions are removable to federal court under the Class Action Fairness Act. Suppose a state statute creates a cause of action without requiring a showing of actual injury, and the Supreme Court rules that a federal court cannot hear such a case under Article III. But federal jurisdiction exists under the Class Action Fairness Act. Defendants will argue for dismissal, and plaintiffs will argue for remand to a state court that can hear that case. If Spokeo comes down in favor of the defendant’s position, that could be the next battleground, but we’re a year or two away from that.

Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Wystan Ackerman Wystan Ackerman

I am a partner at the law firm of Robinson+Cole in Hartford, Connecticut, USA.  My contact information is on the contact page of my blog.  I really enjoy receiving questions, comments, suggestions and even criticism from readers.  So please e-mail me if you…

I am a partner at the law firm of Robinson+Cole in Hartford, Connecticut, USA.  My contact information is on the contact page of my blog.  I really enjoy receiving questions, comments, suggestions and even criticism from readers.  So please e-mail me if you have something to say.  For those looking for my detailed law firm bio, click here.  If you want a more light-hearted and hopefully more interesting summary, read on:

People often ask about my unusual first name, Wystan.  It’s pronounced WISS-ten.  It’s not Winston.  There is no “n” in the middle.  It comes from my father’s favorite poet, W.H. (Wystan Hugh) Auden.  I’ve grown to like the fact that because my name is unusual people tend to remember it better, even if they don’t pronounce it right (and there is no need for anyone to use my last name because I’m always the only Wystan).

I grew up in Deep River, Connecticut, a small town on the west side of the Connecticut River in the south central part of the state.  I’ve always had strong interests in history, politics and baseball.  My heroes growing up were Abraham Lincoln and Wade Boggs (at that time the third baseman for the Boston Red Sox).  I think it was my early fascination with Lincoln that drove me to practice law.  I went to high school at The Williams School in New London, Connecticut, where I edited the school newspaper, played baseball, and was primarily responsible for the installation of a flag pole near the school entrance (it seemed like every other school had one but until my class raised the money and bought one at my urging, Williams had no flag pole).  As a high school senior, my interest in history and politics led me to score high enough on a test of those subjects to be chosen as one of Connecticut’s two delegates to the U.S. Senate Youth Program, which further solidified my interest in law and government.  One of my mentors at Williams was of the view that there were far too many lawyers and I should find something more useful to do, but if I really had to be a lawyer there was always room for one more.  I eventually decided to be that “one more.”  I went on to Bowdoin College, where I wrote for the Bowdoin Orient and majored in government, but took a lot of math classes because I found college math interesting and challenging.  I then went to Columbia Law School, where I was lucky enough to be selected as one of the minions who spent their time fastidiously cite-checking and Blue booking hundred-plus-page articles in the Columbia Law Review.  I also interned in the chambers of then-Judge Sonia Sotomayor when she was a relatively new judge on the Second Circuit, my only connection to someone who now has one-ninth of the last word on what constitutes the law of our land.  I graduated from Columbia in 2001, then worked at Skadden Arps in Boston before returning to Connecticut and joining Robinson+Cole, one of the largest Connecticut-based law firms.  At the end of 2008, I was elected a partner at Robinson+Cole.

I’ve worked on class actions since the start of my career at Skadden.  Being in the insurance capital of Hartford, we have a national insurance litigation practice and I was fortunate to have the opportunity to work on some prominent class actions arising from the 2004 hurricanes in Florida and later Hurricane Katrina, including cases involving the applicability of the flood exclusion, statutes known as valued policy laws, and various other issues.  My interest and experience in class actions gradually led me to focus on that area.

In Connecticut courts I’ve defended various kinds of class actions that go beyond insurance, including cases involving products liability, securities, financial services and consumer contracts.

My insurance class action practice usually takes me outside of Connecticut.  I’ve had the pleasure of working on cases in various federal and state courts and collaborating with great lawyers across the country.  While class actions are an increasingly large part of my practice, I don’t do exclusively class action work.  The rest of my practice involves litigating insurance coverage cases, often at the appellate level.  That also frequently takes me outside of Connecticut.  A highlight of my career thus far was working on Standard Fire Ins. Co. v. Knowles, the U.S. Supreme Court’s first Class Action Fairness Act case.  I was Counsel of Record for Standard Fire on the cert petition, and had the pleasure of working with Ted Boutrous on the merits briefing and oral argument.

I started this blog because writing is one of my favorite things to do and I enjoy following developments in class action law, writing about them and engaging in discussion with others who have an in interest in this area.  It’s a welcome break from day-to-day practice, keeps me current, broadens my network and results in some new business.

When I’m not at my desk or flying around the country trying to save insurance companies from the plaintiffs’ bar, or attending a conference on class actions or insurance litigation (for more on those, see the Seminars/Programs page of this blog), I often can be found playing or reading with my young daughter, helping my wife with her real estate and mortgage businesses, reading a book about history or politics, or watching the Boston Red Sox (I managed to find bleacher seats for Game 2 of the 2004 World Series when Curt Schilling pitched with the bloody sock).  When the weather is good I also love to take the ferry to Block Island, Rhode Island and ride a bike or walk the trails there. If you go, I highly recommend the Clay Head Trail.