We have previously written about Charvat v. Mutual First Federal Credit Union, the case in which the Eighth Circuit held last year that denial of a statutory right is a sufficient injury to confer standing, even if the injury is only “informational” and does not include “an additional economic or other injury.” Last week, the U.S. Supreme Court denied the defendant’s petition for certiorari.
Charvat raised the standing question in the context of the Electronic Funds Transfer Act. The plaintiff had brought a purported class action against a bank seeking statutory damages for the bank’s alleged violation of the requirement that notice of an ATM fee must be posted on the machine. The plaintiff did not allege that the bank had failed to provide the required on-screen notice of the ATM fee before he completed the transaction for which the ATM fee was charged. The district court dismissed the complaint on the grounds that the alleged statutory violation did not establish an injury in fact sufficient to create Article III standing. On appeal, the Eighth Circuit reversed the district court and ruled that the plaintiff had Article III standing to seek statutory damages based on the alleged EFTA violation.
A possible factor contributing to the Supreme Court’s decision not to hear the case might have been the elimination of the fee sticker requirement pursuant to an EFTA amendment signed into law by President Obama in December 2012. (In March 2013, the CFPB issued a final rule amending Regulation E to remove the sticker requirement.)
The Supreme Court came close to deciding the standing question when, in 2011, it granted certiorari in First American Financial Corporation v. Edwards. The question raised in that case was whether a plaintiff who could not show any actual injury from a violation of the Real Estate Settlement Procedures Act’s anti-kickback provision had Article III standing. However, the case came to an anti-climactic conclusion in June 2012 when the Supreme Court issued a one-sentence per curiam order stating that “the writ of certiorari is dismissed as improvidently granted.”
Yet another opportunity for this important Article III standing issue to reach the Supreme Court may have been created by the Ninth Circuit’s February 2014 decision in Robins v. Spokeo, Inc. In Robins, the Ninth Circuit ruled that a plaintiff had Article III standing to sue a website operator for violations of the Fair Credit Reporting Act regardless of whether he could show actual harm resulting from the alleged violations. While it appears that the defendant did not seek a rehearing within the prescribed deadline, the defendant has 90 days from the February 4 judgment to file a petition for certiorari.