Understanding How Spokeo Affects Consumer Financial Litigation
In May 2016, the United States Supreme Court has ruled in Spokeo, Inc. v. Robins that a claim of a mere Fair Debt Collection Practices Act (FDCPA) or Fair Credit Reporting Act (FCRA) statutory violation is insufficient to demonstrate Article III standing. This game changing decision creates a significant barrier to plaintiffs seeking FDCPA or FCRA class certification, thus, dramatically affecting consumer finance litigation cases.
Following Spokeo, courts have dismissed putative class action complaints, such as Hancock v. Urban Outfitters, Inc. and Gubala v. Time Warner Cable, Inc., due to lack of standing. While Spokeo’s standing requirements aid class action defendants, these pose significant challenges to plaintiffs. With that, the latter might need to modify their pleadings accordingly.
Join a panel of key thought leaders and professionals assembled by The Knowledge Group as they bring the audience to a road beyond the basics of bringing or defending against consumer financial litigation cases as they delve into the depth-analysis of the current trends and recent court decisions involving the Supreme Court’s Spokeo ruling. Speakers will also provide the audience with practical strategies in bringing out the best in these lawsuits in a rapidly evolving legal climate.
Key topics include:
- Spokeo, Inc. v. Robins – An Overview
- Consumer Financial Litigation Post-Spokeo – Recent Trends and Developments
- Dismissed Putative Class Action Complaints
- Litigation Strategies in Light of Spokeo
- 2018 Outlook
Robert A. Gaumont, Member
Gordon Feinblatt LLC
- Spokeo, Inc. v. Robins – decision is now 17 months old and able to determine some trends from case law
- Case held that “bare procedural violation” cannot alone confer standing under Article III
- Harm must be concrete and particularized
- Idea was to remove more technical (i.e. procedural) violations of law as being a basis for civil claims
- Unforeseen consequences – Danger of removing and then arguing no Article III standing
- Court might provide for remand and then arguing case in state court (not preferable)
- Could be trend in cases filed in state court and then removed – if you are claiming that there is no Article III standing, why remove to federal court?
- Claims challenging the form of the disclosure have been most easily dismissed
- Second Circuit case from last month (September 19th) where merchant who printed first six numbers of credit card violated the Fair and Accurate Credit Transactions Act (FACTA)
- Issue is different than when no disclosure made at all
- Answer for Plaintiff is to identify an injury
- In case where plaintiff’s personal information was disclosed by publisher of magazine, injury was found because it reduced the value of the magazines that plaintiff said they would not have paid as much for if they knew their personal information would not be private.
- Defense counsel can take advantage of boiler plate allegations
- Most dismissals seem to be without prejudice
Emily P. Daly, Attorney
Schnader Harrison Segal & Lewis LLP
- What is an injury in fact in data breach cases and how does Spokeo affect the analysis?
- The breach itself, which may be a violation of a statute but a violation alone may not be enough under Spokeo
- The threat of resulting identity theft
- Resources expended to protect against potential identity theft
- Actual resulting identity theft
- Concreteness can be found based on the violation of a statute alone, as the Third Circuit recently held in a FCRA case, but data breach cases usually focus on the risk of future harm
- The concreteness analysis overlaps with the actual or imminent analysis in Clapper and progeny
- Courts look to the nature of the data breached and the circumstances of the disclosure to determine whether identity theft is likely to occur
- Courts treat certain information (such as email address) differently than sensitive PII or credit card information
- Courts may view a hack as sufficient for concreteness because it suggests that identity theft is more likely
- Courts may require allegations of suspicious activity
- Both sides have an opportunity to broaden their arguments by relying on the Clapper circuit split cases in conjunction with Spokeo
Who Should Attend:
- Attorneys defending class actions
- Finance Lawyers
- Financial Litigation Lawyers
- Chief Financial Officers
- Corporate Counsel
- In-house Lawyers
- Arbitration Law Attorneys
- Litigation Officers
- Litigation Attorneys
- Senior Counsel
Bob Gaumont is a trial lawyer with an emphasis on consumer financial services litigation. Bob has litigated lender liability claims in federal and state court and has litigated novel issues related to the standard of care of financial institutions to third parties and the economic loss rule to financial services. Bob also has experience litigating the Maryland Mortgage Fraud Protection Act, as well as numerous federal statutes impacting the financial services industry, including the Fair Debt Collection Practices Act, Real Estate Settlement Procedures Act, Truth In Lending Act, and state and federal unfair and deceptive practices acts.
In addition, Bob is experienced in litigating a wide array of business competition claims, including shareholder disputes, restrictive covenants, unfair competition claims, trade secret and employment disputes. He has served as first chair in a several jury and non-jury trial cases and has extensive experience with many different types of alternative dispute resolution.
Bob Gaumont is a trial lawyer with an emphasis on consumer financial services litigation. Bob has litigated lender liability claims …
Emily P. Daly is a member of Schnader’s Litigation Services team, working primarily with the Financial Services practice group where she has experience representing lenders and mortgage insurers in complex commercial litigation. Before joining the firm, she clerked for the Honorable Lisa M. Rau, Team Leader at the Philadelphia Court of Common Pleas, Civil Trial Division.
Emily P. Daly is a member of Schnader’s Litigation Services team, working primarily with the Financial Services practice group where …
Print and review course materials
Method of Presentation:
Experience in class action litigation
NASBA Field of Study:
Specialized Knowledge and Applications
NY Category of CLE Credit:
Unlock All The Knowledge and Credit You Need
Leading Provider of Online Continuing Education
It's As Easy as 1, 2, 3
Get Your 1-Year All Access Pass For Only $199
About Gordon Feinblatt LLC
Gordon Feinblatt LLC is a collection of legal boutiques working together to provide a legal advantage for our clients, with more than 60 attorneys and over 20 paralegals. Our size assures proficiency in virtually every area of the law without sacrificing personalized attention to our clients.
Each of the Firm’s Practice Chairs and many of our other attorneys are among the State’s leading practitioners. Twenty-five of our attorneys are listed in Woodward & White’s Best Lawyers in America® 2017 and four of our lawyers have been designated “Lawyer of the Year” in Baltimore by Best Lawyers. Nineteen attorneys are named in Maryland Super Lawyers 2017.
About Schnader Harrison Segal & Lewis LLP
Schnader Harrison Segal & Lewis LLP is a law firm of 160 attorneys with offices in Pennsylvania, New York, California, Washington, D.C., New Jersey, Delaware, and an affiliation with a law firm in Jakarta. We provide corporations, municipalities, nonprofit organizations and individuals throughout the world with innovative, practical and cost-effective solutions to their business and litigation needs. Since 1935, our mission has remained the same: excellence in practicing law, responsiveness to clients, and dedication to public service to bring about a just and ordered society.