The Supreme Court recently handed down the landmark decision of Spokeo, Inc. v. Robins, holding that a “bare procedural violation” of a federal consumer protection statute—namely, the Fair Credit Reporting Act—was not enough to satisfy Article III standing because the injury alleged was particularized but not concrete. After Spokeo, those wishing to bring suit based on consumer protection statutes will have a much more difficult time showing that the injury suffered was “concrete” enough to confer Article III standing and, as a result, the term “consumer protection” will be rendered meaningless. Unless the Supreme Court revisits the issue presented in Spokeo, the lack of clarity given by the Spokeo Court in determining whether an injury is concrete will leave consumers without the necessary means to ensure that the consumer protection statutes actually protect them.
In Spokeo, the Plaintiff, Thomas Robins, on behalf of himself and others similarly situated, had false information disseminated about him by Spokeo in a “consumer report,” in violation of the Fair Credit Reporting Act. The Court correctly stated 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 to sue to vindicate that right. Article III standing requires a concrete injury even in the context of a statutory violation.” However, as Justice Ginsburg’s dissent states, “[j]udged by what we have said about ‘concreteness,’ Robins’ allegations carry him across the threshold.” Where the Court argues that a bare procedural violation, such as “an incorrect zip code,” is not enough, Justice Ginsburg points out that the misinformation disseminated about Robins could affect his ability to obtain a job, and therefore, the injury was concrete.
Because of this decision, plaintiffs now wishing to bring suit based on federal consumer protection statutes will, on the pleadings, be subjected to a much higher level of scrutiny. Accordingly, “consumer protection” loses much of its meaning because protects business interests more than consumer interests. This note argues that the Spokeo decision will negatively impact consumers moving forward and that the issue of when an injury is “concrete” must be revisited, sooner rather than later, if consumer protection is to survive.
Joshua Scott Olin,
Rethinking Article III Standing in Class Action Consumer Protection Cases Following Spokeo v. Robins,
26 U. MIA Bus. L. Rev.
Available at: https://repository.law.miami.edu/umblr/vol26/iss1/5