In Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), the Supreme Court held that Article III requires plaintiffs to establish a “concrete and particularized” injury-in-fact, “even in the context of a statutory violation.” Although the Supreme Court noted that “intangible” injuries, including the “violation of a procedural right” can be sufficient in some circumstances, the Supreme Court made clear that “a bare procedural violation, divorced from any concrete harm” to the plaintiff cannot satisfy the injury-in-fact requirement. Given the limited guidance provided by the Supreme Court, the circuit courts have taken differing approaches to what constitutes an injury-in-fact that satisfies Article III standing. In particular, courts are wrestling with whether a bare violation of a statute constitutes a concrete injury under Article III. Courts have taken different approaches when looking at whether a statute itself creates a protected interest that relieves the need to show any additional harm or injury. The differing approaches makes it difficult for defendants to predict whether a plaintiff’s lawsuit may survive a Rule 12 attack.
No Article III Standing with Bare Statutory Violation: The Sixth, Seventh, and Eleventh Circuits have found that bare violations of certain consumer protection statutes did not constitute injuries under Article III. In Huff v. Telecheck Services, Inc., the plaintiff filed a putative class action alleging violation of the Fair Credit Reporting Act (“FCRA”) because Telecheck provided him an incomplete report of its records about his check-writing history and accounts. 923 F.3d 458, 461-62 (6th Cir. 2019). In that case, the Sixth Circuit held that the plaintiff could not satisfy his Article III standing requirement because the alleged statutory violation did not harm the plaintiff’s interests under FCRA since there were no adverse consequences. Id. at 466. The Court reasoned that “Congress cannot conjure standing by declaring something harmful that is not, by saying anything causes injury because the legislature says it causes injury.” Id. at 465.
Similarly, in Casillas v. Madison Avenue Associates, Inc., the Seventh Circuit found that the plaintiff had not satisfied her Article III standing requirements with a Fair Debt Collection Practices Act (“FDCPA”) claim. 926 F.3d 329, 331 (7th Cir. 2019). There, the plaintiff brought a putative class action predicated on allegations that the debt-collection letter violated the FDCPA because it failed to disclose that the plaintiff “had to communicate in writing to trigger the statutory protections” to verify her debt. The Seventh Circuit held that because the plaintiff did not allege that “she tried to dispute or verify her debt orally and therefore lost or risked losing the statutory protections,” the defendant’s “mistake didn’t put [plaintiff] in harm’s way, [so] it was nothing more than a ‘bare procedural violation.’” Id. at 334. This was not sufficient to establish Article III standing.
Along similar lines, in Salcedo v. Hanna, the plaintiff filed a putative class action...
