Consumer Finance Insights
February 26, 2016

Spokeo Scenarios: With Scalia’s death, Additional Possibilities Cloud Resolution of the Standing Question

As an ongoing update to our coverage of the Spokeo case, today we look at what could happen in the case where, with Justice Scalia’s recent death coming after oral argument but before an opinion was issued, the court’s new composition has created some ambiguity regarding the outcome.  Given that there is an eight person court now, without apparent majority leaning, there are now more possibilities that the Ninth Circuit’s decision will remain in force, at least for the short-term.  Indeed, most possible scenarios will yield either a deferral or a ruling that affirms the lower court ruling, with either situation leaving plaintiffs in a better position to bring lawsuits for the foreseeable future.  Below, we break down the possible outcomes.

The Fourth Paths Leaving the Ninth Circuit Decision Intact

(1) Split Court

In order for a lower court’s decision to be overturned, a majority of justices must sign onto an opinion in favor of reversal.   If there is a split 4-4 vote, which, given the make-up of the court, is possible, the decision below is affirmed, although the affirmance has no precedential value. That would leave both the Ninth Circuit opinion and the existing circuit split in place, with the possibility of years more of litigation before a case with this specific standing issue reaches the Supreme Court again.  If also leaves uncertainty for any circuit that has not decided this issue.

(2) Decision Deferred: Referred for Rehearing

Chief Justice Roberts could defer the Spokeo decision until Justice Scalia’s replacement is appointed to the Court.  This is more likely to happen if Scalia’s death changed the votes in Spokeo from a majority vote to an equal split,  giving the Chief Justice an incentive to defer, so as to allow the split to be resolved.   Adding more weight to this possibility, since the Chief Justice’s oral argument questions suggested that he was in favor of reversing the Ninth Circuit’s opinion, and given the outcome of a split vote is an affirmance, a rehearing offers at least a chance of a future reversal.  Given the current political climate, that means it is unlikely that a decision would be made in Spokeo until at least 2017, leaving the Ninth Circuit decision intact in the interim.

(3) Decision Deferred: Improvidently Granted

This standing issue—whether a bare statutory violation alone confers standing— has previously been deemed improvidently granted after a full briefing. See First American Financial Corp. v. Edwards (2012).  If Justice Roberts would prefer not to decide the standing issue at all given the make up of the court, this option would also serve to defer the standing issue.   It would, however, keep the Ninth Circuit’s decision intact and provide the third route to a functional affirmance, in that the Ninth Circuit’s opinion would remain law in the Ninth Circuit.

(4) Majority Opinion in Favor of Affirming the Ninth Circuit Ruling

There is the possibility that there could be five votes for an affirmance, whether for the proposition that a bare statutory violation confers standing, or for the narrower proposition that, in this case, the plaintiff was harmed because of the statutory violation.  The later outcome avoids the thornier, larger issue of whether a straightforward statutory violation is sufficient to confer standing and may have some traction with some justices, particularly since it would allow the plaintiff’s case to go forward in this case, without having to answer the more expansive question.

The Lone Path to a Reversal

There is, of course, the regular path to a reversal of the Ninth Circuit’s opinion, namely that a majority of the justices find the Ninth Circuit’s reasoning is improper, and reverse the opinion 5-3. And despite the 4-1 odds, that is not as unlikely a scenario as the straight math suggests.   The oral argument questions and the court’s general leanings suggest that, at minimum, Roberts, Alito, and Thomas would vote to reverse the Ninth Circuit.  Justice Kennedy’s questions also suggested he may be in favor of reversal.  And it is not improbable that a fifth vote could be brought over to the reversal position in this case.

We will continue to monitor Spokeo, and update this post as soon as the Court makes a decision.

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