SDNY Finds Standing Well-Pleaded Post-Spokeo

As we’ve discussed previously, following the Supreme Court’s Spokeo decision, there is some question of how courts will analyze the “concrete” injury requirement for Article III standing.

In Boelter v. Hearst Communications, 2016 WL 3369541 (S.D.N.Y. June 17, 2016), the plaintiffs filed a class action complaint alleging violations of the Michigan Video Rental Privacy Act, among other things. Defendant sought dismissal, arguing that plaintiffs lacked standing because they had “not suffered an ‘injury-in-fact’—that is, that violation of the VRPA, as well as the other harms alleged in the amended complaint, do not constitute a particularized, concrete injury sufficient to confer standing.”

The court denied the motion to dismiss, based on allegations that

Defendant disclosed protected information about Plaintiffs in two ways: by selling it to third parties, and by providing it to “data mining” companies who then supplemented it with additional data to enhance the value of the information for Defendant.

By that conduct, the court reasoned, the defendant had

deprived Plaintiffs of their right to keep their information private, subjected them to unwanted solicitations and the risk of being victimized by “scammers,” and unjustly retained the economic benefit the value of that information conferred. Moreover, had Plaintiffs known that Defendant would disclose their information, they “would not have been willing to pay as much, if at all, for [their magazine] subscriptions.”

Accordingly, the court held plaintiffs had suffered a particularized, concrete injury-in-fact, sufficient to establish their standing to sue.  The court was not persuaded that Spokeo requires a different result, explaining that the statutory violation, as alleged, “caused a concrete and particular injury to plaintiffs.”