Spokeo’s “Concreteness Versus Particularity” Dichotomy

Original Post can be found here: https://www.americanbar.org/groups/litigation/committees/class-actions/practice/2016/spokeo-concreteness-versus-particularity-dichotomy/ 

Federal lawsuits must allege an injury-in-fact. Together with traceability and redressability, this forms the holy trinity of Article III standing. See U.S. Const. Art. III § 2. But what if a statute provides a right to sue in federal court, is actual harm still required for plaintiffs—for instance, consumers or debtors—to receive their statutory remedies? While Spokeo does not clearly answer this question; it only addresses it. Nonetheless, Spokeo likely frames the outer limits of standing, particularly for statutory private rights of action, and one federal circuit court has already applied Spokeo outside of the statutory context.

According to the Supreme Court, when the Ninth Circuit addressed Article III standing, it failed to appreciate the difference between the two injury-in-fact prongs: concreteness and particularity. Though often bundled together, Spokeo made clear that these separate and distinct requirements. The Ninth Circuit erred by focusing only on particularity and ignoring concreteness—a flaw they may correct on remand.