Clark v. TransUnion

Still “standing” after Spokeo. Time will tell what 2017 holds in store…

For consumer class action attorneys like myself, we can continue to count our blessings for the moment.  Indeed, a number of courts across the country continue to make commonsense and carefully crafted opinions that confer Art III standing for statutory damages claims.

I have much faith in the Ninth Circuit Court of Appeals. The panel just heard oral arguments,  as the U.S. Supreme Court had remanded Spokeo (back on Dec. 13th). The 9th Cir.’s new challenge is to tackle the concreteness requirement with newfound gusto. Judge O’Scannlain found it difficult to move past her view that Mr. Robin’s allegations (the resulting inability to find work because of a grossly incorrect report about him) were ostensibly sufficiently concrete, tangible harm. However, Counsel for Plaintiff, William Consovoy kept focus on the issue that the Spokeo court harped on: Defendant was making this about an apparently intangible harm that has yet to run through the rigors of a concreteness test as the one that Alito pieced apart in his majority opinion…

Well, hang tight, as the panel will render its decision in the early portion of next year. From that, we’ll get more guidance about what that court thinks is needed to satisfy Art. III standing requirements…

We have some phenomenal judges, such as Judge Lucy Koh in the N.D. of CA in the 9th Circuit. She recently decided the Matera v. Google case, which laid out a clear, incredibly thoroughly reasoned opinion indicating why specific allegations are substantive violations. As such, these violations give rise to sufficiently concrete and particular injuries in fact. Stay tuned for a more detailed analysis of her 9/23/16 order. I hope to write more about that case here as I reflect on the year’s developments in privacy law.

I will also write more about this a couple of recent cases out of the E.D. Va, including my insights regarding Thomas v. FTS, which lays out some strong arguments that a statutory damages class action attorney may want to crib. A fun but rocky ride ahead of us is guaranteed…

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