Litigation: Article III standing for plaintiffs in privacy litigation

Some plaintiffs asserting consumer privacy claims face significant challenges attempting to demonstrate the “injury in fact” necessary for standing in federal court

Article III of the U.S. Constitution grants federal courts the power to adjudicate certain “cases” or “controversies.” This constitutional case-or-controversy clause provides the foundation for the doctrine of standing, a threshold inquiry plaintiffs must satisfy before a federal court may exercise subject-matter jurisdiction over a claim. Among other requirements, a plaintiff must show that he has suffered an “injury in fact” that is concrete and particularized as well as actual or imminent, not conjectural or hypothetical. These standing requirements ensure that only an individual directly impacted by the violation or imposition of a law may sue to enforce or challenge it. Note, however, that the threshold question of whether a plaintiff has standing is distinct from the merits of the plaintiff’s claim. As such, a plaintiff may have standing to bring a suit but still may not be able to assert a claim successfully on the merits.

As Supreme Court Justice Samuel Alito once quipped, “injury-in-fact is not Mount Everest,” and in many types of litigation the issue of standing attracts little attention. For some plaintiffs alleging violations of privacy rights, however, identifying the requisite injury-in-fact has been challenging—particularly where the plaintiffs’ legal claims are based on alleged misappropriation of personal information. In some cases, the plaintiffs’ allegations fail to give the detail necessary to demonstrate an injury that is concrete and particularized, actual or imminent, and likely to be redressed by a favorable decision.

The same court reached a similar conclusion in Low v. LinkedIn Corp. in addressing the plaintiff’s allegations that LinkedIn had disclosed his “personally identifiable [Internet] browsing history,” among other personal information, to third-party advertising and marketing companies via “cookies” installed on the plaintiff’s computer. Asserting legal claims similar to those in the iPhone case, the plaintiff in LinkedIn claimed to have suffered injury in fact in the form of disclosure of his personally identifiable browsing history, which plaintiff asserted was “valuable personal property with a market value”, without compensation. The plaintiff also alleged “embarrassment and humiliation” caused by this disclosure. The court held that both of the plaintiff’s alleged injuries were too abstract and hypothetical to constitute an actual or imminent injury in fact sufficient to establish Article III standing.

As to the plaintiff’s theory of “emotional harm,” the court concluded that the plaintiff had not adequately alleged what personal information had actually been disclosed, how such information could be traced to the plaintiff himself, or how such information had been disclosed to third parties by LinkedIn. The court also rejected the plaintiff’s theory of economic harm, holding that he had not alleged facts demonstrating whether or how he was prevented from capitalizing on the purported value of his personal information. (The court later held that the plaintiff’s amended complaint sufficiently alleged injury in fact, but dismissed the complaint for failure to state a claim.)

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Matthew Brown

Matthew D. Brown is a partner in Cooley LLP’s Litigation Department in San Francisco and a member of the firm’s Privacy, Commercial Class Action Litigation,...

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Christopher Durbin

Christopher B. Durbin is a partner in Cooley LLP’s Litigation Department in Seattle and a member of the firm’s Commercial Class Action Litigation, Securities Litigation,...

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Abby Pringle

Abby Pringle is an associate in Cooley LLP’s Litigation Department in San Francisco. Ms. Pringle practices complex commercial litigation with a focus on consumer class...

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