In April of 2019, a three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit issued a decision in Muransky v. Godiva Chocolatier Inc. that was widely viewed as swinging open the doors of courts in the circuit to plaintiffs seeking damages for bare procedural violations of consumer protection statutes.[1]
Last month, on Oct. 28, the full Eleventh Circuit sitting en banc reversed the panel's prior decision.
The court's decision in Godiva dramatically altered the circuit's plaintiff-friendly view of standing.[2] In fact, Godiva is the latest in a string of appellate decisions to interpret the standing requirements set forth in the U.S. Supreme Court's 2016 decision in Spokeo Inc. v. Robins and brings the Eleventh Circuit in line with many of its sister circuits.[3]
The Supreme Court held in Spokeo that pleading a bare statutory violation is not enough to establish standing under Article III of the U.S. Constitution. Justice Samuel Alito, writing for the court, found that in order to establish standing a plaintiff must suffer a concrete injury resulting from the alleged statutory violation.
The court emphasized that, while Congress has the authority to create a right to sue for a statutory violation, Congress "cannot erase Article III's standing requirements by statutorily granting the right to sue to a plaintiff who would not otherwise have standing."[4]
The court confirmed that concrete harms may be tangible or intangible. And Justice Alito outlined broad considerations for determining when an intangible injury is concrete, observing that "both history and the judgment of Congress play important roles," and that "the risk of real harm" can satisfy the requirement of concreteness.[5]
He explained that "Congress' role in identifying and elevating intangible harms does not mean that a plaintiff automatically satisfies the injury-in fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right."[6]
While not setting clear parameters for what amounted to a concrete injury, the court provided examples of cases in which intangible injuries are concrete enough for standing. The examples included infringement on free speech or free exercise of religion and informational injury due to failure to follow statutory disclosure requirements.
However, the court noted that certain bare statutory violations do not actually cause anyone real, or concrete, harm — e.g., a consumer report misidentifying a person's ZIP code.
Upon remand of Spokeo, the U.S. Court of Appeals for the Ninth Circuit once again held that the plaintiff had standing. This time, the Ninth Circuit determined that inaccuracies concerning "age, marital status, educational background and employment history" presented a material risk of harm to the plaintiff because this is "the type [of information] that may be important to employers or others making use of a consumer report."[7]
Spokeo petitioned the Supreme Court for certiorari, arguing that "the limited guidance afforded by this Court's opinion in Spokeo has resulted in disagreement and confusion among the lower courts over Congress' role in the Article III standing inquiry and whether a claimed intangible harm resulting from a statutory violation is sufficiently concrete." The Supreme Court, however, declined to revisit Spokeo.
Nevertheless, the defendant's prediction about the questions left open by Spokeo proved to be correct. Disagreement and confusion ensued over the meaning of "concrete harm" — leading to a flood of litigation and the spilling of ink of federal district and appellate courts seeking to define just what constitutes a harm that is sufficiently concrete to rise above the level of a bare statutory violation.
Godiva is the latest circuit court case to wrestle with the concrete injury riddle. In Godiva, the class representative alleged a statutory violation of the Fair and Accurate Credit Transactions Act's so-called truncation rule. FACTA prohibits merchants from printing "more than the last [five] digits of the credit card number" on a receipt and provides for up to $1,000 in damages for each statutory violation.
The statutory damages provision makes FACTA violations particularly...
