Federal courts continue to interpret and analyze the Supreme Court's decision in Spokeo, Inc. v. Robins. Recently, a federal judge in New York permitted a lawsuit against Hearst Communications, Inc., to move forward after considering supplemental briefing on Article III standing.
Plaintiffs Suzanne Boelter and Josephine Edwards subscribe to magazines published by Hearst. Plaintiffs claim that Hearst sold their personal information to third parties, without their consent, in violation of Michigan's Video Rental Privacy Act ("VRPA"). Hearst asked the court to dismiss the complaint for lack of Article III standing, arguing that Plaintiffs failed to allege any concrete injury-in-fact and instead relied on bare procedural violations of the law. In response, Plaintiffs argued that Hearst's disclosure of information implicated their right to privacy and personal security. Plaintiffs also claimed that as a result of Hearst's actions, they suffered actual injury because they overpaid for magazine subscriptions and received junk mail and telephone solicitations.
Judge Analisa Torres denied Hearst's motion to dismiss, holding that Plaintiffs allegations qualified as particularized and concrete harm, and that they adequately alleged "injury-in-fact." Taking the allegations as true, the Court held that Hearst's sale and disclosure of personal information to third parties violated Plaintiffs' right to keep their information private, subjected Plaintiffs to unwanted solicitations, and resulted in Hearst's unjust retention of economic benefits. Judge Torres also denied the motion to dismiss on other grounds, including that the VRPA was constitutional and that the complaint stated a plausible claim for relief.
There is no doubt that plaintiffs' bar will continue to disagree about the implications of Spokeo. However, as Judge Torres acknowledged, "violation of a statute by itself is insufficient to confer standing to sue," and it is clear that to satisfy Article III standing plaintiffs must allege a concrete and consequential harm beyond a mere technical violation of a statute. Accordingly, defendants should anticipate that clever plaintiffs will continue to create theories of harm that attempt to sidestep the lack of tangible injury—such as those made by Plaintiffs in Hearst of "unjust enrichment" and "invasion of privacy."
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