ND Cal. Refuses to Decertify Based on Spokeo, Supposed Over-Breadth of Class

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Magistrate Judge Laurel Beeler recently examined the Supreme Court’s Spokeo decision in the context of a claim brought under the Fair Credit Reporting Act.  The decision also provides new clarity on when over-breadth is a deal-breaker for class definitions.  The case is Patel v. Trans Union, LLC, No. 14-CV-00522, 2016 WL 6143191 (N.D. Cal. Oct. 21, 2016).

In Patel, the plaintiff alleges defendants disseminated a consumer-information report that wrongly described him as a terrorist and as having a criminal record. Plaintiff further alleged that when he asked defendants for their file on him, they failed to send him his complete file.

The court had previously certified classes; defendants sought decertification under Spokeo, arguing plaintiff had not suffered “concrete” harm.  Judge Beeler disagreed as to both aspects of the plaintiff’s case.

First, regarding the inaccurate information, the court reasoned:

The court sees little difficulty in concluding that the alleged inaccuracies — being wrongly branded a potential terrorist, or wrongly ascribed a criminal record — are themselves concrete harms. This is fully in line with Spokeo’s express analysis. There, in describing cases in which the violation of a statutory right “can be sufficient…to constitute injury in fact,” the Court analogized to torts for which the law has “long permitted recovery” — picking out, specifically, the torts of “libel” and “slander per se.” Spokeo, 134 S.
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Spokeo: State Legislature Can Confer Standing, Says ED Cal.

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Judge Troy Nunley of the Eastern District of California is the latest to issue an important new opinion analyzing the Supreme Court’s Spokeo decision.   Courts around the country have grappled with Spokeo and whether various statutory violations confer Article III standing.

In Fraser v. Wal-Mart, Judge Nunley considered California’s Song-Beverly Credit Card Act of 1971; Wal-Mart allegedly violated the Act by requesting and recording its customers’ ZIP codes.  Notably, a recent decision from the District of Columbia found plaintiffs in a similar suit lacked standing. See Hancock v. Urban Outfitters, Inc., 2016 WL 3996710 (D.C. Cir. July 26, 2016).

Wal-Mart sought dismissal on a similar basis, arguing that plaintiffs had alleged only “a bare procedural violation” of the Act, which is not enough to constitute standing under Spokeo. Judge Nunley, however, wrote that “The Supreme Court explained that ‘the violation of a procedural right granted by statute can be sufficient in some circumstances to constitute injury in fact … [and] a plaintiff in such a case need not allege any additional harm beyond the one Congress has identified.’”  The court continued: “this Court finds that Plaintiffs adequately allege a procedural violation of Section 1747.08 sufficient to satisfy Article III standing requirements.”

Finally, the court noted that the Spokeo Court had also recognized that the risk of future harm can satisfy the requirement of concreteness for standing purposes.  … Read more

SDNY Rejects Spokeo Challenge, Recognizes Burgeoning Consensus

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In Boelter v. Advance Magazine Publishers Inc., Judge Naomi Reice Buchwald of the Southern District of New York considered Spokeo’s standing analysis in the context of the Michigan Preservation of Personal Privacy Act. The analysis on Spokeo reflects a burgeoning consensus:

 

The PPPA’s requirement that notice be provided to the customer of the ability to “remove his or her name at any time by written notice,” PPPA § 3(d), gives individuals the opportunity to prohibit disclosure of their protected information…. If, as [plaintiff] alleges, Condé Nast failed to give her notice and an opportunity to opt out, then the disclosure of her PRI would have violated the PPPA’s substantive disclosure prohibition.

[W]e also conclude that the asserted harm is sufficiently concrete. In light of the related aims of the two statutes, it is significant that all courts to consider the question, including this one, have concluded—both pre-and post-Spokeo—that consumers alleging that a defendant violated the VPPA by “knowingly disclos[ing] their [personally identifiable information] to a third party without their consent have satisfied the concreteness requirement for Article III standing.” Yershov v. Gannet Satellite Info. Network, Inc., ––– F.Supp.3d ––––, No. 14–13112–FDS, 2016 WL 4607868, at *7 (D.Mass. Sept.

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SD FL Rejects Dismissal Attempt Under Spokeo

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As we continue to track standing decisions following the Supreme Court’s Spokeo ruling, a new decision from the Southern District of Florida is noteworthy.

In Guarisma v. Microsoft Corporation, the plaintiff brought suit under the Fair and Accurate Credit Transactions Act (FACTA) after a Microsoft store issued him a printed receipt that bore the first six and last four digits of his credit card account number, along with his name.

Microsoft moved to dismiss on standing grounds, arguing the plaintiff did not suffer a concrete injury.  In response, plaintiff argued that Microsoft’s failure to comply with the FACTA constituted a concrete injury in and of itself.

Under Spokeo and Eleventh Circuit precedent, the court framed the question as “whether, in enacting the FACTA, Congress created a substantive right for consumers to have their personal credit card information truncated on printed receipts, or merely created a procedural requirement for credit card-using companies to follow.”  The answer:

The Court is persuaded Congress intended to create a substantive right.  Notably, other courts have found the FACTA endows consumers with a legal right to protect their credit identities, both pre- and post-Spokeo.

The FACTA’s legislative history supports the Court’s finding Congress desired to create a substantive legal right for consumers to utilize in protecting against identity theft.  

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ND Cal. Finds Standing Allegations Sufficient Under Spokeo

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As we continue to keep an eye on post-Spokeo standing decisions, Judge Alsup of the Northern District of California recently issued a decision on the topic in a ruling granting class certification in a Truth In Lending Act (TILA) suit.

In McLaughlin v. Wells Fargo Bank, 2016 WL 3418337 (N.D. Cal. June 22, 2016), the plaintiff alleged that Wells Fargo had breached its TILA obligation to provide her with an accurate payoff statement regarding her home mortgage.

Defendant contested certification on adequacy grounds, arguing the plaintiff lacked standing under Spokeo to pursue her claims.

Judge Alsup rejected the argument:

The bank argues that the harm alleged by plaintiff borrower is “akin to the no-harm procedural violations” detailed by the Supreme Court in Spokeo.  Not so.  In Spokeo, the Court acknowledged that not all inaccuracies cause harm or present material risk of harm. As an example, the Court explained that “[i]t is difficult to imagine how the dissemination of an incorrect zip code, without more, could work any concrete harm.” The inaccuracy here is in no way akin to an inaccurate zip code. The bank’s effort to downplay the harm done by an inaccurate payoff statement is unconvincing.
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SDNY Finds Standing Well-Pleaded Post-Spokeo

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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.  Read more

W.D. Wash. Court Finds Spokeo “Concrete Injury” in TCPA Case

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Following the Supreme Court’s recent decision in Spokeo, practitioners are keeping a close eye on how courts will analyze the “concrete” injury requirement for Article III standing.

One recent opinion comes from Judge James L. Robart of the Western District of Washington, who held that a plaintiff in the TCPA case before him contained sufficient allegations of a concrete injury:

Here, the court is satisfied that Plaintiffs’ allegations demonstrate “concrete injury” as elucidated in Spokeo. In Spokeo, the “injury” Plaintiffs incurred was arguably merely procedural and thus non-concrete. In contrast, the TCPA and WADAD violations alleged here, if proven, required Plaintiffs to waste time answering or otherwise addressing widespread robocalls. … As Congress and Washington State’s legislature agreed, such an injury is sufficiently concrete to confer standing.

Booth v. Appstack, Inc., 2016 WL 3030256 (W.D. Wash. May 25, 2016).… Read more