In 2016, the U.S. Supreme Court in Spokeo, Inc. v. Robins, provided a potentially powerful Article III standing defense under F.R.Civ.P. 12(b)(1) seemingly applicable to a variety of privacy claims, including FCRA, FACTA, TCPA, and FDCPA statutory damage claims. The Court noted for a plaintiff to establish standing to sue in federal court, she must establish an “injury in fact” consisting of an invasion of a legally protected interest, which is both particularized and concrete.

Spokeo dealt with the “concrete” portion. To be concrete, an injury must be real but may also be intangible. Congress’ intent in creating a right is instructive, but not sufficient. Allegations of a bare procedural violation likely would not suffice to maintain standing. Some injuries create harm, others do not. Thanks for that.Continue Reading More or Less Than the Plaintiff Bargained For: Two Recent Appellate Courts Thwart Privacy Claims Based On The Contract