Yesterday, the U.S. Supreme Court invited the Solicitor General to file a brief to express the Obama administration’s views on whether certiorari should be granted in a consumer case involving an important issue of statutory standing. In the case – Spokeo v. Robins – the issue is whether a plaintiff asserting a private cause of action under the federal Fair Credit Reporting Act has the requisite injury-in-fact for Article III standing when his complaint alleges no injury other than violation of the statutory right itself. See our prior e-alert on the Ninth Circuit’s decision in Spokeo, holding that standing did exist.
For the past few years, this issue of standing has been percolating in federal appellate courts in various consumer statutory contexts. In 2010, in Edwards v. First American Corp., the Ninth Circuit held that a plaintiff bringing a claim under RESPA possesses Article III standing to recover statutory damages even in the absence of any actual damages caused by the alleged RESPA violation. The U.S. Supreme Court initially granted certiorari in Edwards, and – upon the Court’s request – the Solicitor General and the CFPB jointly filed an amicus brief arguing that deprivation of statutory rights is all that is required for standing under RESPA. Ultimately, the Supreme Court did not address the merits of the issue in Edwards, and instead dismissed the writ as “improvidently granted.” See our prior blog posts about Edwards here and here.
Last year, in Charvat v. Mutual First Federal Credit Union, the Eighth Circuit held that the plaintiff did have standing to assert a claim under the federal Electronic Fund Transfer Act for the failure of an ATM to contain a transaction fee notice, even if the plaintiff had suffered only “informational injury” and not any economic or other injury. The Supreme Court denied certiorari in Charvat earlier this year. See our prior blog post on Charvat.
Spokeo gives the U.S. Supreme Court another opportunity to hear this significant issue of consumer statutory standing. For details on the parties’ arguments in Spokeo, see the petition for certiorari, opposition brief, and reply brief. In addition, several amicus briefs in support of granting certiorari have been filed in Spokeo, which can be found here (by Pacific Legal Foundation), here (by ACA International), here (by Trans Union LLC), here (by Chamber of Commerce of the United States of America), here (by eBay Inc., Facebook, Inc., Google, Inc. and Yahoo! Inc.), here (by Experian Information Solutions, Inc.), here (by Consumer Data Industry Association), here (by National Association of Professional Background Screeners), here (by New England Legal Foundation), and here (by DRI – The Voice of the Defense Bar). There is no deadline for the Solicitor General to file its brief. We will closely monitor the proceedings in Spokeo given its potential to impact the ability of consumers to recover under a wide array of consumer protection statutes where actual damages are often difficult to prove or non-existent.