Following the U.S. Supreme Court’s May 2016 decision in Spokeo v. Robins, __ U.S. __, 136 S. Ct. 1540 (2016), courts have been re-examining whether plaintiffs seeking statutory damages, particularly under various consumer protection laws, have Article III standing to pursue their claims. With guidance from the Second Circuit’s post-Spokeo decision in Strubel v. Comenity Bank, 842 F.3d 181 (2d Cir. 2016), courts in the Southern District of New York are beginning to flesh out the new approach to standing in such cases. We discuss below a handful of recent cases that chart this developing area of the law.
‘Spokeo’ and ‘Strubel’
The “irreducible constitutional minimum” of standing consists of three elements: (1) injury in fact to the plaintiff (2) that is fairly traceable to the defendant’s conduct (3) and that is likely to be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Injury in fact must be “concrete and particularized” as well as “actual or imminent.” Id. In Spokeo, the Supreme Court focused on the “concreteness” requirement in the context of a claim for statutory damages under the Fair Credit Reporting Act of 1970 (FCRA). The plaintiff in that case asserted that a search engine geared at collecting and disseminating information about individuals had generated a profile for him containing inaccurate information. He alleged that Spokeo qualified as a consumer reporting agency under FCRA, which seeks to ensure fair and accurate credit reporting and which provides for statutory damages of $100-$1,000 per violation, among other remedies. Notably, although the complaint specified the inaccurate information collected and disseminated by Spokeo (including information about plaintiff’s family and employment status, age, education and relative affluence), it did not allege to whom the information was disseminated.
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