Federal Courts Follow Two Approaches Post-Spokeo When Analyzing Standing
By Andrew C. Glass, Gregory N. Blase, Ryan M. Tosi, Lindsay Sampson Bishop, and Roger L. Smerage
From the January 27, 2017 issue of the Washington Legal Foundation’s LEGAL BACKGROUNDER, Vol. 32 No. 3, with permission from the Washington Legal Foundation (WLF).
Last term, in Spokeo, Inc. v. Robins, the United States Supreme Court issued a much-anticipated opinion on Article III standing. The Court reiterated that to establish standing at the pleading stage, a plaintiff must allege an injury-in-fact that is both particularized and concrete. In other words, a plaintiff bringing suit upon an alleged statutory violation may not establish standing by merely alleging “a bare procedural violation, divorced from any concrete harm.”
Much has been written about Spokeo in the intervening months. Some members of the plaintiffs’ bar have lauded the decision as purportedly protecting consumer rights; some members of the defense bar have suggested Spokeo may signal the end of statutory class actions. Yet, to date, courts have not taken a uniform, bright-line approach in applying Spokeo to civil litigation asserting statutory causes of action, including those styled as putative class actions. Even still, courts have begun to develop two apparent schools of thought on how to analyze standing under Spokeo, resulting in increasingly divided case law across the country.
This article analyzes a few notable decisions applying each of these two approaches and considers the possibility that courts may begin to apply a third, “hybrid” approach.
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