With the year ending, and McGuireWoods’s webinar next week on class actions’ Hot Issues of 2017 approaching, this seems like a good time to take note of a few of the trends we have seen arising in class actions over the last year. Consider these appetizers for the main course on December 19. So, with no further ado, here’s a taste of four ways in which class action lawyers have dealt with the Supreme Court’s ruling in Spokeo v. Robins in 2017.
Emerging Circuit split over data breaches? Appellate courts are split in interpreting Spokeo, particularly with regard to data breach claims. The Eleventh Circuit has found that assertion of a violation of the Video Privacy Act, by itself, gives rise to Article III standing. Similarly, the D.C. Circuit has held that a bare allegation of a data breach is enough to establish standing for a class plaintiff.
The Third and Seventh Circuits, on the other hand, have held that plaintiffs may bring data breach cases where they have alleged some risk of increased harm from the breach. And the Eighth Circuit has held that bare allegations of mere risk of harm are not enough to establish injury in fact.
The Third, Seventh, and Eighth Circuits are largely in agreement. But look for wider variations in those standards as lower courts continue to interpret these holdings.
TCPA claims here to stay. As the Western District of Louisiana has noted after a comprehensive review of post-Spokeo TCPA cases:
“Courts, post-Spokeo, have repeatedly held that a plaintiff can establish concrete injury from a violation of the TCPA and the JFPA by alleging wasted time in reviewing unsolicited fax advertisements and the use of paper and ink toner in printing those advertisements.”
Other statutory violations less viable. Plaintffs are finding it more difficult, however, to allege standing for other statutory violations, particularly under FCRA and the FDCPA. The Second, Fourth, and Seventh Circuits have held that technical violations of FCRA do not establish standing. And the Sixth Circuit has held the same for the FDCPA.
Jurisdictional Tactic. Most intriguing, some plaintiffs have begun to use Spokeo to support arguments to remand class actions to state court. To do so, they argue that the statutory violations for which they seek damages do not establish Article III standing, but may establish standing under state law.