Last year, the Supreme Court decided Spokeo, Inc. v. Robins, 578 U.S.—, 136 S. Ct. 1540 (2016), which addressed whether the plaintiff adequately pleaded Article III standing by alleging bare violations of the Fair Credit Reporting Act, based on the publication of allegedly inaccurate consumer information. The Court held that the lower court, the Ninth Circuit, failed to address the “concreteness” component of the injury-in-fact element of standing and vacated and remanded for consideration. In its opinion, the Court offered guidance to the Ninth Circuit, noting that the injury-in-fact element comprises both particularity and concreteness components. The latter requires that the injury be “de facto”; “that is, it must actually exist.” While allegations of “a bare procedural violation, divorced from any concrete harm,” will not suffice, “the violation of a procedural right granted by statute can be sufficient,” so long as the right is tied to some “concrete interest.”

A recent unpublished decision of the Eleventh Circuit, Church v. Accretive Health, Inc., 654 F. App’x 990 (11th Cir. 2016) (per curiam), addressed whether a plaintiff adequately pleaded constitutional standing under Spokeo in a Fair Debt Collection Practices Act (FDCPA) case premised on the alleged failure to include required disclosures in a written communication. The Spokeo issue was raised for the first time on appeal. In its decision, the court analyzed Spokeo’s instruction that the “risk of real harm,” part of the concreteness requirement, could mean that “‘the violation of a procedural right granted by statute can be sufficient in some circumstances to constitute injury in fact’ and in such circumstances, a plaintiff need not allege any additional harm beyond the one Congress has identified.” In application, the court observed that the FDCPA “requires that debt collectors include certain disclosures in an initial communication with a debtor, or within five days of such communication.” The court went on to hold that “through the FDCPA, Congress has created a new right—the right to receive the required disclosures in communications governed by the FDCPA—and a new injury—not receiving such disclosures.” That right, the court found, was substantive and was elevated to the status of a legally cognizable injury. The court ultimately held that the denial of the right to receive the disclosure was a concrete injury sufficient to support the injury-in-fact element of Article III standing.

Church has garnered attention in the FDCPA context and beyond for its post-Spokeo consideration of whether alleging a statutory violation suffices to confer standing, with one district court concluding that “Church has been widely followed.” Hagy v. Demers & Adams, LLC, No. 2:11-cv-530, 2017 WL 1134408, at *3 (S.D. Ohio Mar. 27, 2017). We are keeping a watchful eye on the development of Spokeo in the lower courts as applied to a variety of consumer protection statutes with statutory damages, including the FDCPA.