Laycock, Douglas and Gergen, Mark P. and Rendleman, Doug, Spokeo v. Robins – Brief of Restitution and Remedies Scholars as Amici Curia in Support of Respondent (September 11, 2015). Washington & Lee Legal Studies Paper No. 2015. Available for download at SSRN: http://ssrn.com/abstract=26603

“Both consumer protection and restitution may be casualties in a collision with the constitutional law of standing.  Spokeo collects information from the internet and publishes it; however, Spokeo neither verifies the facts nor confirms which same-named person it refers to. Robins alleges that Spokeo violated the Fair Credit Reporting Act by disseminating false information about him. He seeks class certification and up to $1,000 in statutory minimum damages instead of compensatory damages. Spokeo argues that Robins lacks standing because he suffered no “injury in fact,” no “concrete harm.” Statutory minimum recoveries for defendants’ violations of plaintiffs’ individual rights without proof of pecuniary damages or actual harm were well known before the American founding. Indeed the First Congress enacted at least one statutory minimum recovery. Congress continues to need the ability to legislate statutory minimum damages as remedies to protect consumers and other plaintiffs. This brief argues that the Court should not erode Congress’s efforts by denying standing to those plaintiffs.  The search for harm beyond defendants’ violations of plaintiffs’ legally protected interests arose where defendants’ alleged public-law violations were not individualized, more generally where the laws at issue did not actually apply to plaintiffs. If, on the other hand, a defendant actually invades a plaintiff’s individualized statutory private-law “legally protected interest,” then that violation satisfies the standing prerequisite of “injury in fact.” The Court has never required a plaintiff to adduce an additional or consequential harm beyond a violation. This brief also warns the Court that accepting Spokeo’s standing argument will inadvertently lock the federal courthouse door to much of the law of restitution. Restitution is based on defendant’s gain, not plaintiff’s loss. Many restitution defendants made improper profits by violating plaintiffs’ legal rights without causing plaintiffs any pecuniary loss or harm. The brief reviews numerous long-standing restitution claims that do not involve any “injury in fact” under Spokeo’s apparent definition. These claims to recover a wrongdoer’s improper profits or to set aside a transaction tainted by a wrongdoer’s conflict of interest are crucial parts of our restitution jurisprudence. This brief calls on the Court to stand up for restitution.”