In Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), the Supreme Court held that Article III requires plaintiffs to establish a “concrete and particularized” injury-in-fact, “even in the context of a statutory violation.” Although the Supreme Court noted that “intangible” injuries, including the “violation of a procedural right” can be sufficient in some circumstances, the Supreme Court made clear that “a bare procedural violation, divorced from any concrete harm” to the plaintiff cannot satisfy the injury-in-fact requirement. Given the limited guidance provided by the Supreme Court, the circuit courts have taken differing approaches to what constitutes an injury-in-fact that satisfies Article III standing. In particular, courts are wrestling with whether a bare violation of a statute constitutes a concrete injury under Article III, such that a plaintiff is relieved from having to show any additional harm or injury. These varying interpretations make it difficult for defendants to predict whether a plaintiff’s lawsuit may survive a Rule 12 attack.
No Article III Standing with Bare Statutory Violation: The Sixth, Seventh, and Eleventh Circuits have found that bare violations of certain consumer protection statutes did not constitute injuries under Article III. In Huff v. Telecheck Services, Inc., the plaintiff filed a putative class action alleging violation of the Fair Credit Reporting Act (“FCRA”) because Telecheck provided him an incomplete report of its records about his check-writing history and accounts. 923 F.3d 458, 461-62 (6th Cir. 2019). In that case, the Sixth Circuit held that the plaintiff could not satisfy his Article III standing requirement because the alleged statutory violation did not harm the plaintiff’s interests under FCRA since there were no adverse consequences. Id. at 466. The Court reasoned that “Congress cannot conjure standing by declaring something harmful that is not, by saying anything causes injury because the legislature says it causes injury.” Id. at 465.
Similarly, in Casillas v. Madison Avenue Associates, Inc., the Seventh Circuit found that the plaintiff had not satisfied her Article III standing requirements with a Fair Debt Collection Practices Act (“FDCPA”) claim. 926 F.3d 329, 331 (7th Cir. 2019). There, the plaintiff brought a putative class action predicated on allegations that the debt-collection letter violated the FDCPA because it failed to disclose that the plaintiff “had to communicate in writing to trigger the statutory protections” to verify her debt. The Seventh Circuit held that because the plaintiff did not allege that “she tried to dispute or verify her debt orally and therefore lost or risked losing the statutory protections,” the defendant’s “mistake didn’t put [plaintiff] in harm’s way, [so] it was nothing more than a ‘bare procedural violation.’” Id. at 334. This was not sufficient to establish Article III standing.
Along similar lines, in Salcedo v. Hanna, the plaintiff filed a putative class action under the Telephone Consumer Protection Act (“TCPA”) based upon receipt of a single unsolicited text message. 936 F.3d 1162, 1165 (11th Cir. 2019). The Eleventh Circuit found that single unsolicited text message did not satisfy Article III’s injury-in-fact requirement, noting that “an act of Congress that creates a statutory right and a private right of action to sue does not automatically create standing.” Id. at 1167.
Article III Standing with Bare Statutory Violation: The Second, Third, Fourth, and Ninth Circuits have taken a different approach, and have found Article III standing can be satisfied even with bare procedural violations by focusing on the underlying language in the statute created a protected interest. The Ninth Circuit initially led the charge in Van Patten v. Vertical Fitness Group, LLC, finding that a violation of the TCPA, standing alone, categorically causes concrete injury sufficient for Article III standing. 847 F.3d 1037, 1043 (9th Cir. 2017). This conclusion was based on the finding that “Congress identified unsolicited contact [under the TCPA] as a concrete harm.” Id. at 1043.
The Third Circuit followed suit. In Susinno v. Work Out World Inc., the Third Circuit found that a “single prerecorded telephone call” under the TCPA was sufficient to confer Article III standing. 862 F.3d 346, 351-52 (3d Cir. 2017). Then, the Second Circuit adopted both Van Patten and Susinno. In Melito v. Experian Marketing Solutions, Inc., the Court concluded that the “receipt of the unsolicited text messages [under the TCPA], sans any other injury” was sufficiently concrete to establish standing. 923 F.3d 85, 88 (2d Cir. 2019).
Finally and most recently in Krakauer v. Dish Network, L.L.C., the Fourth Circuit again considered whether a bare violation of the TCPA’s private right of action in a putative class action satisfies Article III’s standing requirement. 925 F.3d 643 (4th Cir. 2019). Consistent with the Second, Third, and Ninth Circuits, the Fourth Circuit concluded that the TCPA’s private right of action, by itself, “plainly satisfies the demands of Article III.” Id. at 653. It reasoned that receipt of a call on a residential line that the called party “previously took steps to avoid,” (i.e. by listing it on the Do Not Call Registry) imposes a “concrete burden on his privacy” that is sufficient to confer standing.
On December 16, 2019, the Supreme Court denied Dish Network’s petition for certiorari. By declining the take the appeal, the Supreme Court leaves unresolved for now this growing circuit split on whether a bare procedural violation under various consumer protection statutes constitutes an injury-in-fact under Article III. Until this split is resolved, defendants should stay vigilant in assessing Article III standing, and consider which circuit the case arises in to determine whether a bare violation of a particular statute is sufficient for Article III standing.