In today's litigation and regulatory climate, class actions alleging statutory violations can pose some of the most persistent and troublesome threats to lenders, mortgage servicers, and financial service businesses. Consumer protection statutes, whether adopted at the federal or state level, frequently go beyond prohibiting certain types of business conduct and impose affirmative obligations on the target businesses, often including highly technical disclosure requirements to consumers. In addition to providing for a private right of action, such statutes often allow for the recovery of statutory damages on behalf of plaintiffs without imposing any explicit statutory requirement of proof of actual damage and injury. Class actions brought under such statutes can represent huge exposure for companies in many cases. The applicability of a uniform federal law for a nationwide statutory damage class action (or a uniform state law for statewide statutory damage class actions brought under state law), combined with judicial constructions loosening or eliminating the necessity of proof of actual injury and causation, make it considerably easier for plaintiffs to obtain class certification and coerce classwide settlement in the statutory context, or alternatively demand disproportionately favorable individualized settlements prior to certification proceedings.
That of course does not mean that surrender is the only option. To obtain class certification and establish liability, a plaintiff still must satisfy Rule 23's requirements as well as those of the statute(s) at issue. See, e.g., Halliburton Co. v. Erica P. John Fund, Inc., — U.S. —, 134 S. Ct. 2398 (2014) (Securities Exchange Act of 1934); Comcast Corp. v. Behrend, — U.S. —, 133 S. Ct. 1426 (2013) (Sherman Act); Wal-Mart Stores, Inc. v. Dukes, — U.S. —, 131 S. Ct. 2541 (2011) (Civil Rights Act). But the strategy for defending such actions will frequently involve considerations that may be given less focus and import in the defense of other forms of class litigation.
I. AN ASPECT OF ADEQUACY: DO TRADITIONAL STANDING REQUIREMENTS APPLY TO STATUTORY CLASS ACTIONS?
Plaintiff standing is rarely the subject of great debate in most forms of litigation, including class litigation. When common law tort or contract claims are at issue, a plaintiff's standing or lack thereof is generally obvious and rarely debatable. Statutory damage actions are different. A statutory damage plaintiff must demonstrate not only statutory standing, but Constitutional standing as well. Lerner v. Fleet Bank, N.A., 318 F.3d 113, 126 (2d Cir. 2003). Exactly how these two types of standing interrelate is currently the subject of substantial judicial uncertainty and debate.
The necessity and meaning of the traditional "injury-in-fact" component of Constitutional standing in the context of statutorily-based claims is the primary focal point of this debate.. Where a plaintiff brings a putative statutory class action seeking only statutory damages for technical violation of the statute, but asserts no allegations of actual injury to herself or others, some courts have been willing to find the requirements of both statutory and Constitutional standing satisfied, even though traditional injury-in-fact does not exist. Such decisions have engendered an ongoing debate over whether a legislative body may, consistent with separation of powers principles, eliminate or modify the Constitutional requirement (or, at the state level, state constitutional or judicially created requirements) that a plaintiff allege and later prove the type of injury-in-fact that has traditionally been required to demonstrate a bona fide case or controversy exists between her and the defendant within the meaning of Article III (or its state analogue).
Obviously, this ongoing debate complicates the defense of statutory class actions, but at the same time presents important opportunities for a defendant. A defendant should always evaluate whether the plaintiff has adequately alleged—and can prove—not just a statutory violation, but also whether that violation inflicted an injury in fact on the named plaintiff. The nature of such an injury (particularly if it is individualized in nature), and the associated issue of causal link between the statutory violation and the injury, can impact not just the merits of the named plaintiff's claims but also a company's defenses to class certification
A. What Constitutional Principles Are We Talking About?
At the federal—and often the state—level, courts are subject to restraints on the exercise of their judicial power. At the federal level, such restrictions derive directly from the Constitution. See U.S. CONST., art. III., § 2, cl. 1. At the state level, such restrictions may derive from provisions of state constitutions,1 or they may be creatures of judicial creation.2 The point is that where constitutional standing rules apply, "threshold individual standing is a prerequisite for all actions, including class actions."3 "In [this] era of frequent litigation, class actions, sweeping injunctions with prospective effect, and continuing jurisdiction to enforce judicial remedies, courts [should] be more careful to insist on the formal rules of standing, not less so." Accord Arizona Christian Sch. Tuition Org. v. Winn, —U.S.—, 131 S. Ct. 1436, 1449 (2011).
In recognition of the fact that their judicial power is not unrestrained, federal courts may entertain only those cases involving "injury to the complaining party, even though the court's judgment may benefit others collaterally." Warth v. Seldin, 422 U.S. 490, 499 (1975). A federal court's jurisdiction is only properly invoked when the plaintiff asserts an actual and personally-particularized injury because the court's role is not to resolve "generalized grievances shared in substantially equal measure by all or a large class of citizens" or claims seeking "relief on the legal rights or interests of third parties." Id. Therefore, to evidence standing (e.g., to make out the sort of case involving a stake sufficiently personal to the plaintiff to warrant invocation of the court's jurisdiction), a plaintiff "must show (1) [she] has suffered an 'injury in fact' that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Friends of the Earth, Inc v. Laid-law Envtl. Servs., Inc., 528 U.S. 167, 180 (2000) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–561 (1992)); see also Clapper v. Amnesty Int'l USA, — U.S. —, 133 S. Ct. 1138, 12247 (2013).4 Courts have long resisted efforts to water down these minimal requirements, including the injury-in-fact requirement. Abundant authority recognizes that it is the necessity of demonstrating a personalized injury, and a casual connection between it and the defendant's conduct, which serve to distinguish those claims properly subject to judicial resolution from the sort of generalized grievances that are best resolved by the legislative branch of government.5
This is not to say, however, that the standing doctrine requires that the claimed injury be great or "substantial . . . ; an identifiable trifle will [often] suffice." Public Citizen v. Lockheed Aircraft Corp., 565 F.2d 708, 714 (D.C. Cr. 1977) (citing U.S. v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669,689 n.14 (1973)). The injury need not even be economic in nature. Lujan, 504 U.S. at 562–63; Assoc. of Data Processing Serv. Orgs, Inc. v. Camp, 397 U.S. 150, 152 (1970). What is instead required is that the plaintiff evidence some injury from the defendant's alleged misconduct: an injury that is "concrete and particularized"—and not "conjectural or hypothetical"—in nature,6 and "distinct . . . to h[er]self." Warth v. Seldin, 422 U.S. 490, 501 (1975); accord In re Carter, 553 F.3d 979, 989 (6th Cir. 2009) ("Even though an injury need not be economic in nature, it still must cause individual, rather than collective, harm.").
A plaintiff's failure to allege such an injury is a dispositive defect. Numerous courts have dismissed class actions at the pleading stage simply because the named plaintiff failed to adequately plead the fact that she had been personally injured in some way by the defendant's alleged misconduct.7
B. If The Injury In Fact Requirement Is Really So Important, Why Are Many Statutory Class Actions Involving No Allegation Of Personalized Injury Surviving Motions To Dismiss?
The answer to the question of why so many statutory class actions devoid of any allegations of actual injury seem to be surviving in court today lies in the willingness of some courts to accept a broad notion of what constitutes a sufficient "injury," at least within the federal statutory context.
Many statutes have been judicially interpreted to define "injury" as the statutory violation itself, unconnected with any traditional notion of actual harm resulting from the violation. The Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692, et seq., Fair Credit Reporting Act, 15 U.S.C. §§ 1681, et seq., Real Estate Settlement Procedures Act, 12 U.S.C. §§ 2601, et. seq., Fair and Accurate Credit Transactions Act, 15 U.S.C. §§ 1601, et. seq., Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq., and many of the other federal alphabet-soup statutes (oftentimes codified in Title 15 of the United States Code) are prime examples of consumer protection legislation that purport to authorize a private cause of action for an award of statutory damages in the absence of allegation or evidence of actual injury. No-injury class actions under these statutes are quite common, particularly in the financial services context, and seem to be growing in number. But lesser encountered statutes contain similar provisions, including the Wiretap Act (as amended by the Electronic Communications Privacy Act of 1986), 18 U.S.C. §§ 2510-2522, and the Store Communications Act, 18 U.S.C. §§ 2701-2712, and putative class actions asserting claims under them are growing in number. See, e.g., In re Google Inc. Gmail Litig., No. 13-md-2430, 2014 WL 294441 (N.D. Cal. Jan. 27, 2014); In re Facebook Privacy Litig., 791 F. Supp. 2d 705 (N.D. Cal. 2011). Actions under any statute which purports to eliminate the necessity of actual injury pose significant risks for companies because they offer the potential for large recoveries even where the evidence of economic injury or causation is absent.
Such statutes also push the Constitutional limits of standing. As explained supra, courts have long been hesitant to loosen the standing doctrine's injury in fact requirement. This has been true even within the statutory context, under the rationale that a legislative body like Congress cannot grant jurisdiction on more generous terms than Article III (or a state counterpart) allows. Summers, 555 U.S. at 497 ("the requirement of injury in fact is a hard floor of Article III jurisdiction that cannot be removed by statute."); Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 100 (1979) ("In no event, however, may Congress abrogate Art. III minima."); Raines v. Byrd, 521 U.S. 811, 820 n.3 (1977) ("It is settled that Congress cannot erase Article III's standing requirements by statutorily granting the right to sue to a plaintiff who would not otherwise have standing."). Many courts are unwilling to challenge the legitimacy of the injury in fact requirement head on, even within the context of statutorily-based claims. Instead, some courts have been willing to find standing in putative statutory class actions based purely on the defendant's alleged failure to comply with a statute, whether or not that violation produced tangible harm to the plaintiff and putative class, by adopting a broad notion of what constitutes an "injury" sufficient to satisfy standing requirements.
Most often, they have done so by accepting the idea of an "informational injury," under which plaintiffs contend they were injured simply by being denied information that the defendant was obligated by statute to provide them. At least six federal circuits so far have been willing to accept this notion of injury, at least within the context of federal consumer protection statutes.8 The First Circuit is one of the latest to join this trend, at least within the context of the Fair Debt Collection Practices Act,9 although not in the context of the Employee Retirement Income Securities Act.10 The same is true in the Fifth Circuit: an allegation of a bare violation of the Electronic Funds Transfer Act will apparently suffice to satisfy Article III's injury in fact requirement,11 whereas similar alleged violations of the Americans With Disabilities Act will not.12 Other circuits have been more hesitant to water down the injury in fact requirement in this manner, refusing to conflate principles of statutory standing with those of Constitutional standing.13 The position of the Eleventh Circuit is unclear: panels have recently issued contradictory pronouncements.14 District courts are all over the map on this issue, with some holding that the standing doctrine does not require a plaintiff to allege any specific injury apart from the defendant's alleged statutory violation,15 while others have held that a bare allegation of a statutory violation does not satisfy standing's injury in fact requirement.16 As one court has recognized, "[t]he current Supreme Court jurisprudence is not entirely clear as to whether a defendant's violation of a statute that confers a private right of action in and of itself constitutes an 'injury in fact' to those protected under the statute." Tyler v. Michaels Stores, Inc., 840 F. Supp. 2d 438, 449 n.8 (D. Mass. 2012).
The Supreme Court's grant of certiorari review of the Ninth Circuit's opinion in Edwards v. First American Corporation, 610 F.3d 514 (9th Cir. 2010), was the case that was supposed to resolve this debate. Unfortunately, after briefing and oral argument, certiorari was dismissed as having been improvidently granted by the Court on the last day of its 2011-2012 term. — U.S. —, 132 S. Ct. 2536 (2012). However, the issue was presented again to the Supreme Court during the following term in Mutual First Federal Credit Union v. Charvat. The Court, however, denied certiorari review. — U.S. —, 134 S. Ct. 1515 (2014). The issue has not gone away, and has been presented again for review in Spokeo, Inc. v. Robins, No. 13-1339, wherein the petitioner seeks review of the Ninth Circuit's reversal of a trial court's order dismissing a putative Fair Credit Reporting Act class action in which no actual injury was alleged. See Robins v. Spokeo, Inc., 742 F.3d 409 (9th Cir. 2014). The petition was circulated for conference on September 29, 2014. Rather than deny review outright, the Court sought comment from the Solicitor General on October 6, 2014. Even if the Court does not take up the issue this term, the issue will almost certainly be presented again during the Court's next term. Perhaps the most enticing case to present the issue arises from a recent decision by the Ninth Circuit, in which the court held that the plaintiff had Constitutional standing to assert class action claims under the Fair Debt Collection Practices Act based on allegedly deceptive collection notices, even though the plaintiff admitted that he never personally received those notices himself. Tourgeman v. Collins Fin. Serv., Inc., 755 F.3d 1109 (9th Cir. 2014). The defendant in Tourgeman sought en banc review on August 13, 2014, and petitioners' response was filed on September 26, 2014. A denial of en banc review would position this case for a certiorari petition during the Supreme Court's next term.
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Footnotes
1. See, e.g., Gregory v. Shurtleff, 299 P.3d 1098, 1102-03 (Utah 2013); Harrison v. Monroe Cnty., 716 S.W.2d 263, 265-67 (Mo. 1986).
2. See, e.g., IndyMac Bank v. Miguel, 184 P.3d 821, 830 (Haw. Ct. App. 2008); State v. Baltimore, 495 N.W.2d 921, 926 (Neb. 1993).
3. Fallick v. Nationwide Mut. Ins. Co., 162 F.3d 410, 423 (6th Cir. 1998); see also Cole v. Gen. Motors Corp., 484 F.3d 717, 721 (5th Cir. 2007); Bates v. United Parcel Serv., Inc., 511 F.3d 974, 985 (9th Cir. 2007); Murray v. Auslander, 244 F.3d 807, 810-11 (11th Cir. 2001).
4. Most states have adopted similar requirements for establishing a plaintiff's standing. See, e.g., Ex parte Aull, — So. 3d —, 2014 WL 590300 (Ala. Feb. 14, 2014); Carnival Corp. v. Historic Ansonborough Neighborhood Ass'n, 753 S.E.2d 846 (S.C. 2014); Freedom From Religion Found., Inc. v. Brewer, No.12-cv-0684, 2013 WL 2644702 (Ariz. Ct. App. June 11, 2013); ORO Mgmt., LLC v. R.C. Mineral & Rock, LLC, 304 P.3d 925 (Wyo. 2013); Brown v. Div. of Water Rights of Dep't of Natural Res., 228 P.3d 747 (Utah 2010); Godfrey v. State, 752 N.W.2d 413 (Iowa 2008); Hall v. Walter, 969 P.2d 224 (Colo. 1998). But see Lansing Schools Educ. Ass'n v. Lansing Bd. of Educ., 792 N.W.2d 686, 699 (Mich. 2010) (standing is a "limited, prudential doctrine" under which "a litigant has standing whenever there is a legal cause of action.").
5. See, e.g., Summers v. Earth Island Inst., 555 U.S. 488, 497 (2009) ("It would exceed Article III's limitations if, at the behest of Congress and in the absence of any showing of concrete injury, we were to entertain citizen suits to vindicate the public's nonconcrete interest in the proper administration of the laws. The party bringing suit must show that the action injures him in a concrete and personal way."); Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 65 (1996) (it is "fundamental that Congress could not expand the jurisdiction of the federal courts beyond the bounds of Article III"); Valley Forge Christian College v. Ams. United for Separation of Church and State, 454 U.S. 464, 475 (1982) ("[N]either the counsels of prudence nor the policies implicit in the 'case or controversy' requirement should be mistaken for the rigorous Art. III requirements themselves."); Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 100 (1979) ("In no event ... may Congress abrogate the Art. III minima ...."); U.S. ex rel. Kreindler & Kreindler v. United Tech. Corp., 985 F.2d 1148, 1154 (2d Cir. 1993) ("some injury-in-fact must be shown to satisfy constitutional requirements, for Congress cannot waive the constitutional minimum of injury-in-fact."); Doe v. Nat'l Bd. of Med. Exam'rs, 199 F.3d 146, 153 (3d Cir. 1999) ("The proper analysis of standing focuses on whether the plaintiff suffered an actual injury, not on whether a statute was violated. Although Congress can expand standing by enacting a law enabling someone to sue on what was already a de facto injury to that person, it cannot confer standing by statute alone."); U.S. v. Weiss, 467 F.3d 1300, 1311 (11th Cir. 2006) ("While it is true that Congress may enact statutes creating legal rights, the invasion of which creates standing, even though no injury exists without the statute, a federal court's jurisdiction can be invoked only when the plaintiff himself has suffered some threatened or actual injury resulting from the putatively illegal action.").
6. Lujan, 504 U.S. at 560.
7. See, e.g., Birdsong v. Apple, Inc. 590 F.3d 955, 960-61 (9th Cir. 2009) (holding plaintiffs had no standing because they did not themselves claim injury due to allegedly excessive headphone volume); Veal v. Citrus World, Inc., No. 12–CV–801, 2013 WL 120761, at *4 (N.D. Ala. Jan. 8, 2013) (dismissing putative class action for plaintiff's failure to allege a personalized, actual injury: "plaintiff alleges that his injury was the actual purchase of orange juice. However, he does not explain how buying packaged orange juice, when he wanted packaged orange juice, injured him."); In re Google, Inc., Privacy Policy Litig., No. 12-cv-01382, 2012 WL 6738343, at *4-6 (N.D. Cal. Dec. 28, 2012); Matte v. Sunshine Mobile Homes, Inc., 270 F. Supp. 2d 805 (W.D. La. 2003) (dismissing putative class action because none of the 16 named plaintiffs alleged they were injured by a product that was manufactured by the defendant). Accord DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299 (Tex. 2008) (dismissing putative class action for lack of standing because plaintiff's alleged injury was based on an unmanifested product defect and, as a result, his alleged injury was conjectural in nature); Yu v. Int'l Bus. Mach. Corp., 732 N.E.2d 1173 (Ill. Ct. App. 2000) (same, with respect to unmanifested software defect); Ex parte James, 836 So. 2d 813, 872-73 (Ala. 2002) (dismissing putative class action in part for lack of named plaintiffs' standing: "the plaintiffs did not allege in their complaint that they were harmed through racial discrimination resulting from the application of Amendment 111, they lacked standing to move for a declaration of unconstitutionality."); Taran v. Blue Cross Blue Shield of Florida, Inc., 685 So. 2d 1004 (Fla. Ct. App. 1997) (dismissing putative class action for lack of jurisdiction because named plaintiffs failed to allege they were personally overcharged by the defendant).
8. See, e.g., Hammer v. Sam's East, Inc., 754 F.3d 492, 498-99 (8th Cir. 2014) (putative class representatives' allegation that they received receipts "showing ... more than the last five digits of the[ir] credit or debit card numbers" in violation of the Fair and Accurate Credit Transactions Act's requirements was "an injury-in-fact sufficient to confer Article III standing."), petition for certiorari filed Oct. 13, 2014; Charvat v. Mut. First Fed. Credit Union, 725 F.3d 819, 823 (8th Cir. 2013) (finding that consumer had standing to assert putative class action against bank under the Electronic Fund Transfer Act based simply on allegations that the bank failed to have an external notice on its ATMs disclosing that users may be subject to service charges: "an informational injury alone is sufficient to confer standing, even without an additional economic or other injury."), cert. denied — U.S. —, 134 S. Ct. 1515 (2014); Edwards v. First Am. Corp., 610 F.3d 514, 517-18 (9th Cir. 2010) (consumer had standing to bring putative class action alleging defendant's exclusive referral agreement with title insurer violated the Real Estate Settlement Procedures Act, even though the consumer was not overcharged by the practice: to determine whether Article III's injury in fact requirement was satisfied, "we must look to the text of RESPA to determine whether it prohibited Defendants' conduct; if it did, then Plaintiff has demonstrated an injury sufficient to satisfy Article III"), cert. granted in part by — U.S.—, 131 S. Ct. 3022 (2011), and cert. dismissed as improvidently granted by, —U.S. —, 132 S. Ct. 2536 (2012); Shaw v. Marriott Int'l., Inc., 605 F.3d 1039, 1042 (D.C. Cir. 2010) ("The deprivation of such a statutory right may constitute an injury-in-fact sufficient to establish standing, even though the plaintiff would have suffered no judicially cognizable injury in the absence of the statute."); Beaudry v. TeleCheck Serv/, Inc., 579 F.3d 702, 707 (6th Cir. 2009) ("No Article III (or prudential) standing problem ar[ose]" in lawsuit alleging bare violation of the Fair Credit Reporting Act).
9. Pollard v. Law Office of Many L. Spaulding, 766 F.3d 98, 102-03 (1st Cir. 2014) ("[t]he invasion of a statutorily conferred right may, in and of itself, be a sufficient injury to undergird a plaintiff's standing even in the absence of other harm;" accordingly, a consumer asserting a FDCPA claim does not need to allege she was confused by debt collection-related communications because "the absence of [actual] confusion is irrelevant to the standing inquiry."), petition for en banc review denied Oct. 15, 2014.
10. Merrimon v. Unum Life Ins. Co. of Am., 758 F.3d 46, 53 (1st Cir. 2014) ("[A]n insurer's violation of an ERISA-imposed fiduciary duty does not necessarily confer standing on all plan beneficiaries: [to have standing,] a beneficiary must show that the alleged violation has worked some personal and tangible harm to her"). Accord Conservation Law Found. of New England, Inc. v. Reilly, 950 F.2d 38, 41 (1st Cir. 1991) (concluding that a statutory violation does not confer Article III standing unless plaintiffs can show they suffered a "distinct and palpable injury" from the violation).
11. Mabary v. Home Town Bank, N.A., 771 F.3d 820, 824(5th Cir. 2014) (in reversing denial of class certification, noting that a bank's failure to attach a user fee disclosure on its ATMs violated the Electronic Funds Transfer Act and alone constituted "an injury-in-fact that allows [the plaintiff] to pursue her claim here"); but see id. at 830 (Jolly, C.J., dissenting) (characterizing the majority's holding as "stunning," noting that "Congress's creation of a cause of action can make an injury legally cognizable, but it can't make a non-injury justiciable."). Accord Grant ex rel. Family Eldercare v. Gilbert, 324 F.3d 383, 387 (5th Cir. 2003) ("The 'inability to obtain information' required to be disclosed by statute constitutes a sufficiently concrete and palpable injury to qualify as an Article III injury-in-fact.").
12. Armstrong v. Turner Indus., Inc., 141 F.3d 554, 562 (5th Cir. 1998) ("[W]e hold that damages liability under [the Americans With Disabilities Act] must be based on something more than a mere violation of th[e Act's] provision[s]. There must be some cognizable injury in fact of which the violation is a legal and proximate cause for damages to arise from a single violation.").
13. See, e.g., David v. Alphin, 704 F.3d 327, 338 (4th Cir. 2013) (theory that allegation of a statutory violation by the defendant is alone "sufficient to constitute an injury-in-fact for Article III standing .... is a non-starter as it conflates statutory standing with constitutional standing."); Doe v. Nat'l Bd. of Med. Exam'rs, 199 F.3d 146, 153 (3d Cir. 1999) ("The proper analysis of standing focuses on whether the plaintiff suffered an actual injury, not on whether a statute was violated. Although Congress can expand standing by enacting a law enabling someone to sue on what was already a de facto injury to that person, it cannot confer standing by statute alone."). In the Second Circuit, for example, it seems that a bare allegation of a statutory violation will not satisfy the injury in fact requirement, but such an allegation may do so when accompanied by allegations that the deprivation is presently threatening the plaintiff with a cognizable injury. Compare Kendall v. Employees Ret. Plan of Avon Prods., 561 F.3d 112, 121 (2d Cir. 2009) ("While plan fiduciaries have a statutory duty to comply with ERISA," the plaintiff "must allege some injury or deprivation of a specific right that arose from a violation of that duty in order to meet the injury-in-fact requirement.") with Miller v. Wolpoff & Abramson, LLP, 321 F.3d 292, 307 (2d Cir. 2003) (injury in fact may be established under the FDCPA by showing that the defendant is taking legal action to collect an unlawful debt—actual payment of that debt by the plaintiff is not required). Accord Salvati v. Deutsche Bank Nat'l Trust Co., N.A., 575 Fed. App'x 49 (3d Cir. 2014) (adopting the reasoning of the Second Circuit's Miller decision); Robey v. Shapiro, Marianos & Cejda, LLC, 434 F.3d 1208 (10th Cir. 2006) (same).
14. Compare Morales v. U.S. Dist. Court for Southern Dist. of Florida, — Fed. App'x —, 2014 WL 5151619, at *5 (11th Cir. Oct. 15, 2014) ("Even if Morales could show that § 3332(a) creates a private right of action in some party under some set of facts, that would not confer standing on [him] in this particular case. The Article III requirements of standing persist, and Morales has not sufficiently alleged a cognizable injury .... The injury prong of standing analysis is designed to ensure that such generalized grievances remain non justiciable. A statutory violation alone will not suffice to create standing.") (emphasis added) with Palm Beach Golf Center-Boca, Inc. v. Sarris, — F.3d —-, 2014 WL 5471916, at *2-3, 5 (11th Cir. Oct. 30, 2014) ("[W]here a statute confers new rights on a person, that person will have Article III standing to sue based on a violation of the newly created rights:" accordingly, a plaintiff has standing to assert "junk fax" claims under the Telephone Consumer Protection Act even if he "failed to prove that the fax was printed or seen" as long as there is evidence the fax was sent) and Houston v. Marod Supermarkets, Inc., 733 F.3d 1323, 1329, 1334 (11th Cir. 2013) (finding that plaintiff had standing to assert Americans With Disabilities Act access claims even though he was "a tester and 'not a bona fide patron'"—because the court's "task is merely to apply statutory language, not to rewrite it," the "alleged violations of [a plaintiff's] statutory rights under Title III may constitute an injury-in-fact."). Cf. Trujillio v. Florida, 481 Fed. App'x 598 (11th Cir. 2012 (affirming dismissal of § 1983 claim because the plaintiff "failed to meet Article III requirements of standing. He did not allege in his complaint any injury in fact that occurred to him as a result of Florida's use of red light traffic cameras."), cert. denied — U.S. —, 133 S. Ct. 951 (2013).
15. See, e.g., In re Google Inc.Cookie Placement Consumer Privacy Litig., 988 F. Supp. 2d 434, 442 (D. Del. 2013) (contending that "a statutory violation, in the absence of any actual injury, may in some circumstances create standing under Article III."); Amason v. Kangaroo Express, No. 09-cv-2117, 2013 WL 987935 (N.D. Ala. Mar. 11, 2013) (defendant's failure to sufficiently truncate credit card numbers on consumer receipts in violation of the Fair and Accurate Credit Transaction Act held sufficient to establish an injury in fact for purposes of standing); In re Hulu Privacy Litig., No. 11-cv-3764, 2012 WL 2119193, at *8 (N.D. Cal. June 11, 2012) ("Under current law, ... Plaintiffs establish an injury (and standing) by alleging a violation of a statute.").
16. See, e.g., Wersal v. LivingSocial, Inc., No. 13-cv-381, 2013 WL 3871434, *3 n.4 (D. Minn. July 26, 2013) ("While a violation of a statute can create a legal right, the Court is not persuaded that [plaintiff's] claims of statutory violations do not require satisfaction of Article III's standing requirement."); Sterk v. Best Buy Stores, L.P., No. 11-cv-1894, 2012 WL 5197901, at *5 (N.D. Ill. Oct. 17, 2012) ("[A] plaintiff must plead an injury beyond a statutory violation to meet the standing requirement of Article III.").
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