On The Brink Of A Class Action Sea Change? SCOTUS To Hear Robins And Critical Standing Issues

On April 29th, as expected and predicted, SCOTUS granted certiorari in Spokeo v. Robins case. This case was the subject of our previous discussion in the February 20 post " Robins v. Spokeo Inc: the Light at the End of the Tunnel for Rule 23 Privacy Class Actions...or the Headlights of an Oncoming Train." As we noted there, this case has enormous significance in both data breach litigation and in class action litigation generally.

The key issue facing the Court in Robins is whether Article III standing can be conferred when a plaintiff suffers no injury, but can instead only recover statutorily imposed penalties. Article III of the U.S. Constitution requires that a plaintiff suffer an injury in fact - injury or damage that is concrete and which the law recognizes - in order to maintain an action.

Robins was originally decided by the 9th Circuit in February 2014. Not surprisingly, the 9th Circuit determined that statutory penalties were alone sufficient without other injury or damage to provide Article III standing. In doing so, the 9th Circuit joined the 6th, 10th and D.C Circuits and a number of other courts.

See: In re Adobe Sys. Privacy Litig., 2014 U.S. Dist. LEXIS 124126, at *27-28 (N.D. Cal. Sept. 4, 2014); Moyer v. Michaels Stores, Inc., 2014 U.S. Dist. LEXIS 96588, at *19 (N.D. Ill. July 14, 2014); In re Sony Gaming Networks & Customer Data Sec. Breach Litig., 996 F. Supp. 2d 942, 962 (S.D. Cal. 2014); see also Memorandum and Order, In re Target Corp. Customer Data Sec. Breach Litigation, No. 14-mdl-2522, slip op. at 3-4 (D. Minn Dec. 18, 2014); cf.Tierney v. Advocate Health & Hosps. Corp., 2014 U.S. Dist. LEXIS 158750, at *4-6 (N.D. Ill. Sept. 4, 2014).

The 2nd and 4th Circuits and other lower courts have found directly to the contrary.

See: e.g., Galaria v. Nationwide Mut. Ins. Co., 998 F. Supp. 2d 646, 655-60 (S.D. Ohio 2014); In re Sci. Applications Int'l Corp. (SAIC) Backup Tape Data Theft Litig., 45 F. Supp. 3d 14, 26-28 (D.D.C. 2014); In re Barnes & Noble Pin Pad, 2013 U.S. Dist. LEXIS 125730, at *8-9, 12 (N.D. Ill. Sept. 3, 2013); Lewert v. P.F. Chang's China Bistro, Inc., 2014 U.S. Dist. LEXIS 171142, at *7-8 (N.D. Ill. Dec. 10, 2014); Remijas v. Neiman Marcus Group, LLC, 2014 U.S. Dist. LEXIS 129574, at *9-10 (N.D. Ill. Sept. 16, 2014).

As we previously noted, should the SCOTUS side with the 9th Circuit, this will open the floodgates for data breach and other class actions which are commonly referred to as "non injury"...