On January 22, 2018, the United States Supreme Court, quietly and without commentary, declined to review the Ninth Circuit Court of Appeals' recent decision in the storied Spokeo, Inc. v. Robins case. In 2016, the Supreme Court issued a decision in the same case1 to provide guidance on how federal courts should analyze Article III standing in cases alleging statutory violations.
Yet the lower courts have struggled to apply that guidance, leading to some alarmingly varied results. This is perhaps best illustrated by the Ninth Circuit which, on remand from the Supreme Court, issued a new opinion in Spokeo that is in tension with holdings from other circuits, and which many commentators believe to be wholly inconsistent with the Supreme Court's core holding in its 2016 decision.
The defendant, Spokeo, Inc. ("Spokeo") petitioned the Supreme Court to take the case again. Spokeo's bid for further review by the high court was supported by a number of amicus curiaei.e., persons and groups from all segments of the economy who are not parties in the case but who have a strong interest in its outcomewho filed briefs in support of Spokeo's petition. However, the Supreme Court's decision not to accept the case means that, for the foreseeable future, lower courts will be left to grapple with the existing uncertainties and even conflicts about how to apply the Supreme Court's 2016 guidance.
The Supreme Court's 2016 Spokeo Opinion
The Supreme Court's 2016 decision in Spokeo addressed whether an alleged willful violation of the Fair Credit Reporting Act (FCRA), absent any claim of damages or other actual harm, constitutes sufficient injury to confer Article III standing. Vacating and remanding a 2014 Ninth Circuit decision finding that the plaintiff had standing,2 the Supreme Court, with only eight justices at the time, issued a 6-2 decision reiterating the need for "concrete" harm (as well as harm that is particularized) and providing guidance for determining when the concreteness requirement may be satisfied.
The Supreme Court held that "Article III standing requires a concrete injury even in the context of a statutory violation," and, therefore, a plaintiff "could not . . . allege a bare procedural violation, divorced from any concrete harm, and satisfy the injury-in-fact requirement of Article III."3 The Court allowed that "intangible injuries" can be concrete, pointing to free speech and free exercise cases as examples, but warned that "Congress' role in identifying and elevating intangible harms does not mean that a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to...