In a sign of the continuing significance of the U.S. Supreme Court’s recent ruling in Spokeo v. Robins, 136 S. Ct. 1540 (May 24, 2016), another federal court has cited that ruling in dismissing claims for lack of Article III standing. In Gubula v. Time Warner Cable, Inc., No. 15-cv-1078 (E.D. Wis. June 17, 2016), the U.S. District Court for the Eastern District of Wisconsin dismissed putative class claims against Time Warner Cable because the plaintiff had not alleged he “suffered a concrete injury as a result of [Time Warner Cable’s] retaining his personally identifiable information” in violation of the Cable Communications Policy Act (“CCPA”). While the CCPA directs cable providers to destroy consumers’ personal information at a certain point, District Judge Pamela Pepper noted that plaintiff alleged no disclosure to a third party, and “[e]ven if he had alleged such a disclosure, he does not allege that the disclosure caused him any harm,” and dismissed the claims for lack of standing.
In the detailed opinion, Judge Pepper acknowledged that Spokeo confirmed that intangible harms could give rise to real, concrete injuries, but found the plaintiff had failed to allege any. Thus, while plaintiff’s claim that Time Warner Cable had retained his personally identifiable information for too long satisfied the particularized injury factor of the injury-in-fact inquiry, the concrete harm factor was unsatisfied. In spite of the complaint’s “detailed discussion of media articles which support the proposition that consumers value their personally identifiable information – and the privacy of that information – very highly,” the lack of allegations that, for example, plaintiff “has been contacted by marketers who obtained his information from the defendant, or that he has been the victim of fraud or identity theft,” ultimately doomed the complaint.
Judge Pepper also explained that even if Article III standing was not lacking, the court would still have to dismiss the complaint for failure to a state a claim. In order to avoid enforcement of an arbitration clause in plaintiff’s subscriber agreement with Time Warner Cable, the complaint sought exclusively injunctive relief. Such a claim requires a showing that a plaintiff has no adequate remedy at law, and that the plaintiff will suffer irreparable harm if the requested relief is not granted. Judge Pepper found the plaintiff could not satisfy the first requirement, as the CCPA explicitly provided a civil remedies provision after the provision regarding destruction of information. That structure made the CCPA distinguishable from a statute plaintiff cited – the Video Privacy Protection Act (“VPPA”) – which was found to have not provided a damages remedy for violation of a similar information destruction provision; plaintiff had hoped comparing the statutes would support his argument that the CCPA did not provide an adequate remedy. However, the VPPA was structured with a remedy provision before the destruction of information provision, unlike the CCPA. Because of the ordering of the CCPA provisions, the court found it dissimilar to the VPPA, and plaintiff did have an adequate remedy at law under the CCPA.
The Gubula decision demonstrates the effectiveness of Spokeo in clarifying standing requirements and enabling defendants – particularly those defending suits for procedural violations of intangible interests, such as consumer data – to summarily dismiss claims where a concrete injury is not identified.