Second Circuit Addresses Standing In Statutory Damages Class Actions: Finds Standing Where Procedural Rights Protect Consumer’s Concrete Interests
The Second Circuit issued an interesting and significant decision on standing in statutory damages class actions just before Thanksgiving. The case, Strubel v. Comenity Bank, 2016 U.S. App. LEXIS 21032 (2nd Cir. November 23, 2016) contains a lengthy discussion of the Supreme Court’s decision in Spokeo, Inc., v. Robins, 136 S.Ct. 1540 (2016). The District Court in Strubel dismissed Plaintiff’s claims on summary judgment without addressing Article III standing. On appeal, the bank argued that the District Court was correct on the merits and that, in addition, Plaintiff lacked standing under Spokeo.
Addressing standing, the Second Circuit found that two of the four statutory claims alleged a sufficiently concrete injury and that two others did not. The Second Circuit that upheld the District Court’s decision on the merits with regard to the two claims for which there was standing.
So, the Defendants won. Nonetheless, on the way to finding for Defendants, the Second Circuit’s discussion contains good news for consumers, as the standard the Court articulated for determining Article III standing was largely consumer-friendly. Specifically, the Second Circuit affirmed that violations of a purely procedural right (e.g. the right to receive a given disclosure or notice) are sufficient to confer standing “where Congress confers a procedural right in order to protect a plaintiff’s concrete interests and where the procedural violation represents a ‘risk of real harm’ to that concrete interest.”
Applying this standard, Court found that two of the alleged violations were sufficient because the disclosures in question “each serve[d] to protect a consumer’s concrete interest in ‘avoiding the uninformed use of credit,’ a core object of the” Truth in Lending Act. Thus, the connection between the procedural right that was violated and the purpose of the statute is critical. Where consumers can tie the two together, they should be on solid ground. This is good news for consumer advocates.
The Court’s discussion also emphasized that “risk of harm” was sufficient to confer standing, and noted that a showing of risk of harm did not mean that the “consumer must have occasion to use challenged procedures to demonstrate concrete injury from defective notice”. Again, this is good news, as shuts the door to reliance or actual damages based arguments.
The violations that were found insufficient are telling with regard to the sorts of situations that do not meet the “risk of harm” standard. To wit, the Court found failure to provide a disclosure regarding procedures relating to stopping automatic payment of disputed credit card charges insuffient and immaterial because it was “undisputed that [the bank] did not offer an automatic payment plan at the time Strubel held the credit card at issue.” The Court concluded that, in light of this, there was no risk of injury that could be tied to the purpose of the statute. Likewise, an alleged defect regarding disclosure of the bank’s obligation to correct a billing error was immaterial where it was undisputed that the bank had already corrected the error at the time it sent the notice. These sorts of facts point to something more akin to impossibility or mootness than reliance or actual damages,
Bottom line: Although dismissal of the particular allegations set forth by plaintiff in Strubel was upheld, consumer advocates should generally be happy with how Spokeo was applied here.