To bring a lawsuit in federal court a plaintiff must have “standing” per Article III of the U.S. Constitution. An undisputed element of standing is that the plaintiff has suffered an injury. But what if Congress allows plaintiffs who have suffered no concrete harm to sue based upon a mere violation of statute? The Supreme Court will decide whether such plaintiffs have Article III standing in Spokeo v. Robins. 

While the impact of this case on state and local governments may not be obvious, there is a finite number of statutes where Congress has created a private right of action and a plaintiff may be unharmed by a violation of the statute. Most are consumer protection statutes like the Truth in Lending Act and the Telephone Consumer Protection Act, which don’t apply to state and local governments. But a few such statutes do apply—the Fair Housing Act (FHA), the Americans with Disabilities Act (ADA), and the Driver’s Privacy Protection Act (DPPA).  

The Fair Credit Reporting Act (FCRA), which is enforceable through a private right of action, requires consumer reporting agencies to “follow reasonable procedures to assure maximum possible accuracy” of information used for employment purposes. Thomas Robins sued a website operator, Spokoe, for willfully violating the FCRA by publishing inaccurate personal information about himself. Spokoe described Robins as holding a graduate degree and being wealthy though neither are true. The only harm he alleged was that this misinformation harms his employment prospects and causes him anxiety.    

The Ninth Circuit concluded that Robins had Article III standing to sue Spokoe in federal court for violating the FCRA. “First, Congress’s creation of a private cause of action to enforce a statutory provision implies that Congress intended the enforceable provision to create a statutory right. Second, the violation of a statutory right is usually a sufficient injury in fact to confer standing.” So, Robins had standing because the FCRA does not require a showing of actual harm when a plaintiff sues for willful violations. 

If Robins loses this case before the Supreme Court he may still have recourse against Spokeo. State court standing rules tend to be more permissive. While state and local governments may not necessarily prefer to be sued under the under the FHA, ADA, or DPPA in state rather than federal court, fewer venues to be sued in are generally better than more venues.