The Supreme Court held this morning that a party suing for a purely technical violation of a statute (in this case, the Fair Credit Reporting Act (“FCRA”)) must demonstrate that he/she has suffered or is likely to suffer a concrete harm from the statutory violation. Spokeo, Inc. v. Robins. Robins sued Spokeo under the FCRA when he learned that searches for him in the Spokeo search engine by third parties turned up false information about him. Robins’ lawsuit claimed that Spokeo violated the FCRA, and he was therefore entitled to an automatic statutory penalty provided in the FCRA. But it was not clear from the lawsuit whether Robins suffered or was likely to suffer any real harm from Spokeo’s technical violations of the FCRA. So, the Court sent the case back to reassess whether Robins actually complained of a concrete harm or a concrete threat of harm.
And you care because…..? First, in a footnote, the Court reemphasized that, in all class actions, the plaintiffs who bring the actual lawsuit must themselves demonstrate that they have suffered or will suffer some concrete harm. This is important because oft-times in employment class actions, the plaintiff simply claims that he/she is a member of a large class, and that the class has suffered some generalized harm from the employer’s actions. That will not be enough under Spokeo. Second, the Court’s extraordinary emphasis on the need for concrete harm may provide places of public accommodation with a new weapon in the defense of Americans With Disabilities Act Title III cases. One could read this opinion as the possible death-knell for the legions of cases where the plaintiff alleges that he/she wanted to visit a property, but was “deterred” by the alleged ADA violations on the property. And, better still, this may require the Ninth Circuit to revisit its mind-bogglingly broad ADA public accommodations decision in Doran v. 7-Eleven, Inc. (no relation to yours truly).