Presenting a live 90-minute webinar with interactive Q&A Defending No-Injury Class Actions Post-Spokeo: Standing for Statutory Violations, State Court Litigation, and CAFA Removal THURSDAY, APRIL 27, 2017 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: Gavin J. Rooney, Partner and Chair , Class Action Litigation Group, Lowenstein Sandler , New York and Roseland, N.J. Archis A. Parasharami, Partner, Mayer Brown , Washington, D.C. Daniel E. Jones, Esq., Mayer Brown , Washington, D.C. The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
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Defending No-Injury Class Actions Under Spokeo Inc. v. Robins : April 2017 Standing for Statutory Violations, State Court Litigation, and CAFA Removal Gavin Rooney Archis A. Parasharami Daniel E. Jones grooney@lowenstein.com aparasharami@mayerbrown.com djones@mayerbrown.com Lowenstein Sandler LLP Mayer Brown LLP Mayer Brown LLP
Agenda • Review of the Spokeo decision, its background, and ramifications. • Review of Spokeo ’s treatment in the circuit courts. • Case study in Spokeo ’s application by the district courts: TCCWNA class actions. • Impact of Spokeo on removal of no-injury class actions. • Implications for future defense of no-injury class actions. • Questions and answers. 6
THE SPOKEO DECISION 7
Robins’ Lawsuit • Spokeo is a people search engine: aggregates publicly available info from variety of sources into an online searchable database • Disclaims any guarantees as to accuracy of information and warns that information should not be used for FCRA purposes • Plaintiff says that information about him suggests that he is wealthier and more educated than he really is, and married when he is single • He filed a putative class action alleging that Spokeo is a consumer reporting agency and that it violates FCRA; seeks statutory damages – In amended complaint, in addition to claiming a bare statutory violation, he says that he has suffered purportedly concrete harm because of allegedly diminished employment prospects and related anxiety 8
District Court Proceedings • Dismissed initial complaint • Initially concluded that amended complaint could go forward • After Spokeo sought Section 1292(b) certification, district court reversed course and on its own motion decided to dismiss for lack of standing • Held that allegations about harm to future employment prospects were too speculative to satisfy Supreme Court’s injury -in-fact standard 9
Ninth Circuit’s Decision • Ninth Circuit reversed district court’s dismissal for lack of standing • Did not reach the argument about diminished employment prospects • Found standing based on the broad theory that it is sufficient simply to allege a statutory violation • Relied on prior CA9 decision in Edwards v. First American Corp. , 610 F.3d 514 (9th Cir. 2010) – Supreme Court had granted cert; “DIG” on last day of term in June 2012 10
The Supreme Court’s Holding • Court vacated and remanded; Ninth Circuit had focused on “particularized” element only, holding that the plaintiff had standing based simply on his allegation that Spokeo “violated his statutory rights” – This was error, the Supreme Court explained, because it ignored the “concreteness” element of injury in fact • Core holding: “Congress’ role in identifying and elevating intangible harms does not mean that a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right. ” • Instead, “ Article III standing requires a concrete injury even in the context of a statutory violation. ” 11
What Does “Concrete” Mean? • Injury must be “de facto”—that is, it must “ actually exist ” and be “‘ real ,’ and not ‘ abstract ’” • Includes not just “tangible” injuries (such as loss of money) but also some “intangible” harms – “In determining whether an intangible harm constitutes injury in fact, both history and the judgment of Congress play important roles” • Existence of a private right of action under a statute does not automatically meet the “real” harm standard – If concrete harm is not an element of statutory cause of action, it must be proven separately 12
Claimed Future Harms Likely Must Satisfy Clapper • The Court also pointed out that the plaintiff need not always have suffered concrete harm in the past in order to sue: a “risk of real harm” can in some circumstances satisfy the concrete harm requirement – The Court cited its prior ruling in Clapper v. Amnesty International USA , 133 S. Ct. 1138 (2013) – Clapper : a “‘threatened injury must be certainly impending to constitute injury in fact,’ and ‘[a]llegations of possible future injury’ are not sufficient.” Id . at 1147 (quotation marks omitted) 13
POST- SPOKEO CIRCUIT COURT DECISIONS 14
Post- Spokeo Circuit Court Decisions • Hundreds of cases applying Spokeo already, just under a year later. Courts are divided; however, many appellate decisions reaffirm Spokeo ’s core holding that bare violation of statute not sufficient to satisfy Article III. • CA7: Meyers v. Nicolet Rest ., 843 F.3d 724 (7th Cir. 2016). No injury in fact for bare allegation that restaurant violated FACTA by failing to truncate expiration date on receipt. – Plaintiff retained the receipt and nobody else ever saw it, so “it is hard to imagine how the expiration date’s presence could have increased the risk that Meyers’ identity would be compromised.” Also rejects distinction between “substantive” and “procedural” rights: what matters is injury in fact, not characterization of the violation. • Gubala v. Time Warner Cable , 846 F.3d 909 (7th Cir. 2017). No injury from allegation that cable company violated Cable Communications Policy Act (CCPA) by retaining consumers’ personal information beyond the statutory deadline for deleting it. 15
Post- Spokeo Circuit Court Decisions • CA8: Braitberg v. Charter Commc’ns , 836 F.3d 925 (8th Cir. 2016). Nearly identical CCPA claim brought by same plaintiff’s lawyer as in Gubala . Again no injury in fact for mere retention of info beyond statutory deadline. – Held that Spokeo changed the law and superseded the “absolute” view of prior 8th Cir. decisions holding that any statutory violation amounts to injury in fact. • DC Cir.: Hancock v. Urban Outfitters , 830 F.3d 511 (D.C. Cir. 2016). No injury in fact from requesting customer’s zip code at time of purchase in alleged violation of D.C. consumer protection statute. – “If, as the Supreme Court advised, disclosure of an incorrect zip code is not a concrete Article III injury, then even less so is [plaintiffs’] naked assertion that a zip code was requested and recorded without any concrete consequence.” • CA11: Nicklaw v. CitiMortgage , 839 F.3d 998 (11th Cir. 2016). No injury in fact from defendant’s allegedly delayed recording of a mortgage after NY statutory deadline of 90-days, with no consequence. 16
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