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Equal justice under the law. Carved across the front of the
Supreme Court building in Washington, D.C., these words
succinctly yet completely convey the duty of the U.S. Supreme
Court. Its decisions, however, are then interpreted and applied
by the lower federal courts. What happens when those federal
courts apply a Supreme Court ruling quite differently depending
on the claim? Inconsistency in the courts can certainly leave
questions in its wake.
DEFINING CONCRETE
In Spokeo v. Robins, 136 S. Ct. 1540 (2016),
the U.S. Supreme Court held that alleging a
bare violation of a statute will no longer suffice
to establish Article III standing. Even if the
defendant violated a statute that provides a
statutory penalty, a plaintiff will still need to
show particularized and concrete harm in order
to bring an action in federal court.
But the Supreme Court left the task of
figuring out what "concrete" harm may be
entirely to lower federal courts. e court
suggested that concrete harm does not
necessarily mean tangible harm and that
even the risk of harm may suffice in certain
circumstances. e court further suggested
that a plaintiff could be able to show a risk of
harm sufficiently concrete to support standing
based on a statutory violation alone where the
harm alleged was based on a long-recognized
common-law right (i.e., slander, libel, or the
right to obtain publicly available information).
at, however, is about where the Supreme
Court stopped. With respect to the Fair Credit
Reporting Act, the statute at issue in the suit,
the only specific example the court provided of
I N D U S T R Y I N S I G H T / L U K A S S O S N I C K I A N D M A D E L E I N E L E E
Applying the U.S. Supreme Court's Spokeo ruling one way to FDCPA claims
and yet another way to RESPA claims, federal courts have loan servicers and
litigants guessing as to what type of harm to borrowers is considered concrete.
INCONSISTENCY IN
THE COURTS
