Pension, patent rights at stake in SCOTUS Spokeo case: new briefs

September 9, 2015

The U.S. Supreme Court will hear oral arguments in Spokeo v. Robins on Nov. 2. And if you still had any doubts (despite my frequent reminders) about the potentially enormous consequences of this case, the 14 newly filed amicus briefs backing Thomas Robins – the lead plaintiff in a Fair Credit Reporting Act class action against the data broker Spokeo – should dispel them.

The Spokeo case presents the question of whether Congress can confer constitutional standing on plaintiffs who have not suffered a concrete injury by authorizing private rights of action for violations of federal statutes. I’ve been harping for a while about the impact on consumer class actions if the justices side with Spokeo and its chorus of business-friendly amicus supporters, who argue that Article III of the U.S. Constitution does not countenance mass litigation claiming statutory damages on behalf of thousands – or even millions – of otherwise uninjured plaintiffs. If Spokeo wins the broad holding its lawyers at Mayer Brown are advocating, class actions under all sorts of consumer and civil rights statutes, including the Telephone Consumer Protection Act, the Wiretap Act, and the Americans with Disabilities Act, will be endangered.

But according to briefs backing Robins, the ripples from this case could extend way beyond these laws. The group Public Knowledge, which advocates on patent reform for emerging tech companies, warned, for instance, that it will be tougher to invalidate questionable patents if the Supreme Court requires plaintiffs to show they’ve suffered the “real-world harm” Spokeo demands. That outcome, according to Public Knowledge, would empower patent trolls.

The nonprofit Pension Rights Center argued in its amicus brief that if the Supreme Court decides Congress can’t confer constitutional standing, pensioners may lose their right to sue under ERISA, “thus preventing them from remedying alleged fiduciary breaches or other violations of their statutory rights or enforcing reporting, disclosure, vesting and funding obligations.”

The Natural Resources Defense Council, the Lawyers Committee for Civil Rights and a group of lawyers specializing in restitution claims said the Supreme Court has never before insisted on real-world harm as a requirement for constitutional standing. If the court adopts the Spokeo standard, they said in their amicus briefs, cases involving defendants’ unjust enrichment, housing discrimination and the public’s right to information could all be affected. Instead, the Lawyers Committee brief said, the justices “should decline (Spokeo’s) invitation to graft onto the statute an additional element regarding harm that Congress did not want, that courts are ill equipped to enforce without legislative guidance, and that would undermine the effectiveness of the statutory scheme.”

Several of the Robins amici – including a group of state attorneys general, a public interest coalition led by the Center for Democracy and Technology and the Electronic Frontier Foundation, and several consumer rights groups led by Public Justice – predicted dire consequences if the Supreme Court concludes people do not have standing to sue over data brokers’ misuse of their personal information.

“It is true that not all FCRA plaintiffs will have yet lost a job, been rejected for a loan, or been turned down for an apartment because of inaccurate information in their consumer files,” the Public Justice brief said. “But for many of them, it is simply a matter of time. Class actions to stop systemic errors are important because they can prevent the violation at issue from leading to the larger harms, the sort of harms Spokeo’s amici demand as the admission to FCRA litigation.” (If you’re in the mood to be scared silly, read the amicus filing by the Center for Digital Democracy, which details the many ways data brokers collect, collate and sell information about all of us.)

Public Citizen and AARP and the Constitutional Accountability Center discuss the history of Article III and separation of powers doctrine in their amicus briefs. According to CAC, the question presented in the Spokeo case isn’t even a close call. “During the Framing era, courts in England and the United States applied (the) fundamental rule-of-law principle to hold that damages are available based on the violation of a legal right alone,” its brief said. “This history by itself answers the question whether Robins has a right to go to federal court to seek redress for the violation of his legal rights under the FCRA. He plainly does.”

Robins’ most powerful amicus supporter is the U.S. solicitor general, whose brief was also signed by lawyers from the Consumer Financial Protection Board. It’s not much of a surprise that the Justice Department is backing Congress’s right (albeit a qualified right, in the SG’s view) to legislate standing. The solicitor general backed consumers when the standing issue was previously before the Supreme Court in Edwards v. First American Financial, which the justices dismissed as improvidently granted on the last day of the term in 2012. The Justice Department had also argued against the Supreme Court taking the Spokeo case, but, obviously, the justices felt differently.

In the new brief, the solicitor general steps back a bit from the position he took in the filing opposing certiorari. Justice previously argued that Congress can grant statutory rights when those rights transform “de facto injuries that were previously inadequate in law” into “legally cognizable injuries.” The FCRA, Justice said in its cert opposition brief, was grounded in the common law of defamation, in which plaintiffs have a per se right of action for the dissemination of false information about themselves.

This time around, the SG argues for broader congressional power: “Congress can grant individuals new statutory rights, and can authorize persons whose own rights are violated to obtain relief in court, even where the proscribed conduct has not previously been viewed as an actionable wrong.” The new brief did include the previous argument about legislating standing for statutory claims based on common law injuries, but this time as a fallback. “Although Congress can create (and authorize private judicial enforcement of) new statutory rights that have no common-law analog, its power to act is particularly clear when such an analog exists,” the new brief said. “Common-law defamation provides a close analog to respondent’s FCRA claim.”

As Linda Greenhouse wrote in a provocative column last week in the New York Times, constitutional standing seems to be a blurry line. Greenhouse focused most of her piece on litigation over public policy matters like immigration and affirmative action, but she ended with a nod to the Spokeo case, which she called “the tip of a very big iceberg.”

Robins’ amici would certainly agree.

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