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Who Won Spokeo? Attys Still Debating 4 Years Later

Law360

When the U.S. Supreme Court ruled in May 2016 that plaintiffs must allege concrete harm to prop up statutory privacy claims, both class counsel and the defense bar declared victory. Four years later, the question of who actually won is still hotly contested, with each side claiming gains from a ruling that continues to divide federal appellate courts. 

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As lower courts move to apply the standard announced in Spokeo to the specific facts of statutory privacy and data breach disputes, a wealth of conflicting opinions have emerged, even in cases that involve similar fact patterns, attorneys say. 

"The initial reaction to Spokeo was that it was going to change the face of litigation and all of these statutory privacy cases were going to be thrown out," said Jeffrey Rosenthal, a partner at Blank Rome LLP. "But that hasn't happened, and instead what has transpired over the past four years is that it's fallen to the lower courts to decide what actual injury beyond a mere statutory violation means, and it's become very nuanced."

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Standing has also factored prominently into data breach disputes, fueled both by Spokeo and the Supreme Court's 2013 ruling in Clapper v. Amnesty International that injuries must be real or imminent and not merely speculative.

"Four years after Spokeo, instead of having everything clarified, it's really been the opposite in the data breach context," Blank Rome attorney David Oberly said. "If anything, each new opinion is just muddying the waters on the concrete injury analysis."

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“Who Won Spokeo? Attys Still Debating 4 Years Later,” by Allison Grande was published in Law360 on May 26, 2020.