United States: Concrete And Particularized Part III: Initial Circuit Court Reactions To Spokeo

In the two months since the U.S. Supreme Court issued its much-awaited decision in Robins v. Spokeo, 136 S. Ct. 1540 (2016), a handful of federal circuits have applied the decision to pending disputes over Article III standing. Consistent with the scope of the Court's holding, described in Parts I and II of our coverage of the decision, the circuits have varied in their treatment of Spokeo. This post provides a brief rundown of the decisions thus far, which take three basic forms.

First, and least significant, two circuits have only briefly cited Spokeo without giving any hint of how they will apply Spokeo. See Texas v. EEOC, — F.3d —, No. 14-10949, 2016 WL 3524242, at *13 (5th Cir. June 27, 2016) (citing Spokeo only for the basic elements of standing); Pierce v. Green Tree Servicing LLC, — F. App'x. —, No. 15-1473, 2016 WL 3435391, at *1 (10th Cir. June 21, 2016) (citing Spokeo for definition of "injury in fact").

Second, a few of the circuits have discussed Spokeo in some detail, focusing largely on the Supreme Court's having "emphasized that concreteness and particularization are distinct requirements" for a constitutional injury in fact. See Hochendoner v. Genzyme Corp., — F.3d —, No. 15-1446, 2016 WL 2962148, at *5 (1st Cir. May 23, 2016); see also In re Nickelodeon Consumer Privacy Litig., — F.3d —, No. 15-1441, 2016 WL 3513782, at *7 (3d Cir. June 27, 2016); Church v. Accretive Health, Inc., — F. App'x. —, No. 15-15708, 2016 WL 3611543, at *2 (11th Cir. July 6, 2016). The Third and Eleventh Circuits have offered the most detailed discussions, and both courts held that the alleged violations of the plaintiffs' statutory rights were sufficiently concrete under Spokeo, even if the injuries were not tangible. See Nickelodeon, 2016 WL 3513782, at *7; Church, 2016 WL 3611543, at *3. In both cases, pre-Spokeo decisions on the sufficiency of statutory violations still controlled.

Third, and finally, the Second Circuit expressly recognized "the change Spokeo effected in the standing doctrine," but it did not elaborate on the nature of that change. Cruper-Weinmann v. Paris Baguette Am., Inc., — F. App'x. —, No. 14-3709-CV, 2016 WL 3553448, at *1 (2d Cir. June 30, 2016). There, the Second Circuit remanded the case for the district court to apply Spokeo in the first instance, leaving for another day the task of defining Spokeo's effect on the standing inquiry. Accordingly, litigants in all circuits are still awaiting an explicit statement of Spokeo's impact.

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