A Post-Spokeo Taxonomy of Intangible Harms.

• Author: Erpenbach, Jackson

Article III standing is a central requirement in federal litigation. The Supreme Court's Spokeo decision marked a significant development in the doctrine, dividing the concrete injury-in-fact requirement into two subsets: tangible and intangible harms. While tangible harms are easily cognizable, plaintiffs alleging intangible harms can face a perilous path to court. This raises particular concern for the system of federal consumer protection laws where enforcement relies on consumers vindicating their own rights by filing suit when companies violate federal law. These plaintiffs must often allege intangible harms arising out of their statutorily guaranteed rights. This Note demonstrates that Spokeos standard for what constitutes a cognizable intangible harm has produced inconsistent and arbitrary results in such lower court cases. Courts have come to varying conclusions about which intangible harms are sufficiently concrete to confer standing under the Court's new standard. This Note makes two contributions. First, it offers a novel taxonomy of these various intangible harms, sorted into five discrete categories. Once these categories are identified, the underlying inconsistencies, both between circuits and between similar consumer protection laws, become evident. Second, it proposes an approach to intangible harms that is more deferential to the judgment of Congress as revealed in its statutes.

TABLE OF CONTENTS INTRODUCTION I. BACKGROUND A. The Development of Standing Doctrine B. Spokeo and the Concrete Injury Requirement C. Intangible Harms II. THE DUTTA-LONG CIRCUIT SPLIT III. CATEGORIES OF INTANGIBLE HARMS A. Privacy Harms 1. Invasion of Privacy 2. Intrusion upon Seclusion 3. Breach of Confidence B. Personal and Property Torts 1. Defamation and Slander 2. Infliction of Emotional Distress 3. Trespass to Chattels 4. Implied Bailment C. Pecuniary Costs D. Risks of Harm E. Informational Injuries IV. PROPOSING DEFERENCE TO CONGRESS CONCLUSION INTRODUCTION

To bring a claim in federal court, plaintiffs must satisfy the standing requirement found in Article Ill's "case" or "controversy" language. (1) Over time, the Court has refined standing doctrine by framing it in terms of three neat, formalist elements: injury in fact, causation, and redressability. (2) The Court's articulation of standing has provided additional clarification for parties but has also raised new questions regarding the doctrine's limits. (3) Because of standing's threshold nature, resolving these questions has consequences for countless federal cases. (4)

One area of significant controversy is what constitutes a cognizable injury in fact. Without one, a plaintiff cannot file suit in federal court. In the past, the Supreme Court has described cognizable injuries as "concrete and particularized, ... 'actual or imminent, [and] not " conjectural" or "hypothetical."'" (5) Until the Court's 2016 decision in Spokeo, Inc. v. Robins, lower courts generally treated the "concrete and particularized" language as one requirement: particularized injuries were presumed to be sufficiently concrete. (6) But in Spokeo, the Court made clear that concreteness is a separate, necessary requirement for a cognizable injury in fact. (7)

Yet Spokeo only further confused standing doctrine. The Court held that a plaintiff raising a statutory violation under a private right of action must have suffered some concrete injury beyond the mere violation. (8) In doing so, the Court created new distinctions in the doctrine, dividing tangible from intangible harms, and "bare procedural violation[s]" from "risk[s] of real harm." (9) The interplay between Spokeo and the doctrine's constitutional nature has created significant confusion in the lower courts. (10) A confused jurisprudence could, as Justice Harlan feared, reduce "constitutional standing to a word game played by secret rules." (11)

A confused standing doctrine is especially troubling in the area of consumer protection because it may prevent consumers from vindicating their interests in a federal forum. (12) The modern patchwork of federal laws can be a powerful tool for consumer interests. (13) Yet since its inception, the system has been underfunded and underenforced. (14) As a result, federal consumer protection statutes are heavily reliant upon private rights of action to police bad behavior. (15) Private right of action provisions enable consumers wronged by fraudulent business practices to vindicate their rights by acting as their own "private attorneys general." (16) Crucially, standing doctrine limits the reach of such private rights of action. (17) Because standing is constitutional, it cannot be statutorily conferred. (18) How lower courts apply Spokeo, then, has enormous implications for the future of consumer protection statutes.

This Note argues that lower courts have applied the Spokeo standard for standing to certain consumer protection statutes in an overly strict and inconsistent fashion. Part I tracks the development of Article III standing from the original language of "cases" or "controversies" through the formulation of its modern three-part structure in Lujan v. Defenders of Wildlife to the Court's decision in Spokeo. Part II introduces an active circuit split between the Third and Ninth Circuits, which concerns standing under the Fair Credit Reporting Act (FCRA), as a heuristic for subsequent discussion. Part III offers a novel taxonomy of intangible harms recognized by lower courts in applying the Spokeo analysis. Finally, Part IV provides a starting point for a more consistent standing doctrine through greater deference to congressional factfinding.

1. BACKGROUND

   This Part briefly tracks the development of the Court's modern standing doctrine, culminating in Spokeo's "concrete injury" standard. Section I.A describes standing's constitutional roots, with an emphasis on the Court's influential Lujan decision. Section I.B provides the background for the Court's 2016 Spokeo decision and its focus on concreteness. Section I.C explores the standard for intangible harms and highlights persistent ambiguities.

   1. The Development of Standing Doctrine

      Modern standing has its roots in Article III of the Constitution, which restricts the judicial branch's authority to "cases" and "controversies." (19) These terms set familiar baselines: courts preside over legal disputes between adversarial parties that can be resolved with a decision. (20)

      But standing as a distinct constitutional doctrine did not gain significant force until the latter half of the twentieth century. (21) Two primary justifications have shaped the doctrine. The first justification concerns separation of powers: the case-or-controversy requirement ensures that courts retain their traditional role as adjudicators of live disputes and are not pushed into legislative or executive roles. (22) The second is pragmatic: standing conserves judicial resources and ensures that consequential matters are brought by motimotivated plaintiffs. (23)

      Justice Scalia's Lujan opinion "significantly shift[ed] the law of standing" to its modern tripartite framework. (24) A plaintiff must first prove that she has suffered an injury in fact, defined as "an invasion of a legally protected interest which is [both] (a) concrete and particularized and (b) actual or imminent, not "conjectural" or "hypothetical."'" (25) Second, a plaintiff must show a "causal connection between the injury and the conduct complained of," and third, "it must be 'likely' ... that the injury will be 'redressed by a favorable decision.'" (26)

      In laying out the modern elements of standing, Lujan also demonstrated the impact of the doctrine's constitutional roots. The case concerned a challenge to a federal regulation that restricted the reach of an Endangered Species Act (ESA) protection to within U.S. territory. (27) Plaintiffs challenged the regulation under the ESA's citizen-suit provision. (28) They alleged that the move risked the extinction of certain species abroad, which would cause aesthetic and vocational injuries to the plaintiffs. (29) But because the plaintiffs had no plans to even visit the habitats of the threatened species, the Court found no cognizable injury and dismissed plaintiffs' claim for lack of standing. (30)

      The Court rejected the claim that plaintiffs could establish standing via the ESA's citizen-suit provision without alleging an injury in fact. (31) It reasoned that the statutory procedure in question must protect some "separate concrete interest," not a "generally available grievance about government." (32) This established an important strand in the Court's standing jurisprudence: because standing is constitutional, Congress lacks the authority to disregard injury in fact. (33)

      Nevertheless, Congress still has a role to play in conferring standing, though that role is imprecise. The majority acknowledged the special nature of "procedural rights" (34) insofar as they justify loosening the standards for immediacy and redressability. (35) Justice Kennedy, in an influential concurrence, went a step further, observing that "Congress has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before." (36) The ESA's citizen-suit provision failed to do so, however, because it did not "identify the injury it seeks to vindicate and relate [it] to the class of persons entitled to bring suit." (37) Beyond these comments, however, Congress's authority to bestow standing lacked much-needed clarity.

   2. Spokeo and the Concrete Injury Requirement

      Spokeo picked up where Lujan left off and gave concreteness meaning independent of particularity. Thomas Robins filed suit against Spokeo, Inc., an online "people search engine" often used for background checks, (38) for violating the Fair Credit Reporting Act (FCRA). (39) Robins claimed that Spokeo listed false information--that he was married, had...