Yesterday, the Supreme Court heard oral argument in Spokeo, Inc. v. Robins, No. 13-1339 (SCOTUSBlog page). The question presented is “Whether Congress may confer Article III standing upon a plaintiff who suffers no concrete harm, and who therefore could not otherwise invoke the jurisdiction of a federal court, by authorizing a private right of action based on a bare violation of a federal statute.” The case has been highlighted as one that potentially could have a significant impact on class action practice because many class actions involve claims in which the named plaintiff at least arguably did not suffer a concrete harm, and thus may not have standing to sue. The impact on insurance class actions is likely to be in circumstances where: (1) insurers are subject to regulation under federal statutes, such as the Fair Debt Collection Practices Act or Telephone Consumer Protection Act; (2) insurers are subject to state regulation, but the suit is brought in or removed to federal court; or (3) insurers are sued in state court, but the state jurisprudence on standing aligns itself with the Supreme Court’s Article III case law.

Based on my review of the oral argument transcript, the Justices were most concerned about where to draw the line. The case involves allegations that the defendant violated the Fair Credit Reporting Act by publishing personal information about the plaintiff that was grossly inaccurate, but the plaintiff could not identify particularized harm that he suffered beyond the publication of inaccurate information (which may or may not have been seen by anyone). The Ninth Circuit concluded that Congress could, in this context, essentially create standing by statute.

The Court seemed to be largely in agreement that there has to be some concrete harm beyond a mere statutory violation, and thus that the Ninth Circuit’s opinion was incorrect or not well-written in at least some respects. The Justices appeared to disagree about whether, on the allegations in this case (which was decided on a motion to dismiss), there is a harm sufficient to confer standing. Andrew Pincus, arguing for the defendant, asserted that the plaintiff would need to show that something happened to his credit or with an employment opportunity. Justice Kagan responded “that’s a really hard thing to do,” and suggested that it should be sufficient merely that someone was inaccurately represented in a credit report. Justice Breyer appeared to agree with that. Pincus later pointed out how an amicus brief detailed how actual harm can be shown. Justice Kennedy suggested that in the Internet age there “has to be some real injury” in this type of circumstance, and that perhaps Congress was holding credit agencies to a higher standard.  Chief Justice Roberts suggested that “you have to look at whether the plaintiffs have been injured in fact, and that some plaintiffs will be able to proceed if they can make that showing and others may not.” He noted that “the requirement of a case or controversy . . . has always been recognized as at the core of Article III jurisdiction. And we have a legion of cases that say you have to have actual injury.” Justice Breyer seemed to indicate that he read the Fair Credit Reporting Act as requiring a showing that false information was published, not merely that there was a bad practice by the defendant. He later suggested that the statute would need to be construed in that manner to save its constitutionality. Justice Alito asked about whether there was any indication that anyone actually searched the defendant’s database for information about the plaintiff (there was not). He suggested that, in the absence of such a showing, any harm would be speculative. Justice Sotomayor, however, took the view that “I think the breach of any legal right you’re given . . . gives Article III jurisdiction” and “[t]here is a difference between that and whether you’re within the zone of interest of a statute.” That view, however, did not appear likely to command a majority.

My prediction is that this case will be a close call, possibly a 5-4 decision. The decision might turn on the language of the statute at issue and the specific allegations here more than on the broader constitutional principles of standing. If that is the case, it won’t be a blockbuster decision. But you never know.

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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.