Today the Supreme Court issued its long-awaited decision in Spokeo, Inc. v. Robins, addressing whether the plaintiff had standing to sue in a putative class action brought under the Fair Credit Reporting Act (“FCRA”). Like some other opinions we have seen from the eight-member Court following Justice Scalia’s death, this decision is relatively narrow in scope. The Court held that the requirements of standing apply to statutory violations, and sent the case back to the Ninth Circuit to reconsider whether the plaintiff adequately alleged a “concrete harm.” Plaintiffs and defendants will continue to debate in individual cases whether the alleged harm was sufficiently concrete or particularized, with limited guidance from the Court. The requirement of a “personal and individual” injury that the Court reiterated may be useful in defending against motions for class certification in some cases.

As brief background, Spokeo operates an Internet-based “people search engine” that can be used to search for information about a particular person. Robins alleged that Spokeo violated the FCRA by providing incorrect information about his age, marital / family status, education, employment status, etc., which could have impacted his general prospects in finding a job. The district court dismissed the case for lack of standing, but the Ninth Circuit reversed.

The Court issued a 6-2 decision authored by Justice Alito. The Court explained that the requirement that an injury is “concrete and particularized” involves two separate requirements. “For an injury to be ‘particularized,’ it ‘must affect the plaintiff in a personal and individual way,” whereas “[a] ‘concrete’ injury must be ‘de facto’; that is, it must actually exist” – it must be “’real,’ and not ‘abstract.’” (Slip op. at 7-8.) It seems to me that when an injury affects someone in a “personal and individual way” it is usually “real,” but I suppose some people might be personally impacted by the abstract (academics perhaps more than others).

The heart of the Court’s opinion was that “Article III standing requires a concrete injury even in the context of a statutory violation. For that reason, Robins could not, for example, allege a bare procedural violation, divorced from any concrete harm, and satisfy the injury-in-fact requirement of Article III.” (Id. at 9-10.) The Court noted, however, that some harms that are difficult to prove (such as libel and slander per se) are deemed sufficiently concrete by the law, and in some circumstances the violation of a procedural right can be sufficient (such as with voting rights or rights to government information). With respect to the FCRA, however, the Court concluded that “not all inaccuracies cause harm or present material risk of harm.” (Id. at 11.) The Court gave the example of an incorrect zip code as something that likely would not cause concrete harm.  The case was remanded to the Ninth Circuit to address the concrete harm requirement, which the Court found not adequately addressed in the Ninth Circuit’s prior opinion. (The Court could have tackled this issue themselves, it simply involves an analysis of the complaint, but they may have been deadlocked on that point, and therefore reached this outcome.)

Justice Thomas wrote a concurring opinion, in which he proposed to create a distinction between private rights (where, in his view, a mere statutory violation apparently would be sufficient) and public rights (where concrete, individual harm distinct from harm to the general public would be required). He would find the FCRA to largely create public rights, however, except for one provision.

Justice Ginsburg wrote a dissent, joined by Justice Sotomayor. They would have found that Robins’ complaint adequately alleged concrete harm to his employment prospects, and therefore would have affirmed the Ninth Circuit’s decision. It is notable though that only two of the Justices took this view.

I expect this opinion will have limited impact on class action litigation generally. Where the plaintiff’s claims are nebulous, defendants will continue to argue that there is no concrete or particularized injury. Lower courts will have to sort that out without much more guidance from the Supreme Court than they had before this decision.

Where I see this opinion as being potentially more useful to defendants is that where defendants can  argue that the individual circumstances of each putative class member’s claim must be litigated to determine whether there is a “personal and individual” injury, that can, in appropriate cases, be a strong argument against class certification.

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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.