Shook Associate Melissa Plunkett has authored an article, "Defendants Beware: Spokeo Standing Arguments May Result in Costly Trip Back to State Court," for DRI's The Business Suit, the newsletter of the Commercial Litigation Committee, exploring the effects of 2016 U.S. Supreme Court decision Spokeo v. Robins on statutory claims.
"Defendants have tried to capitalize on Spokeo by moving to dismiss statutory claims brought under various federal and state statutes, arguing that the plaintiffs had not incurred any actual harm sufficient to confer standings," Plunkett writes. "Even considering the success found by some defendants, however, Spokeo is not quite the game-changer that defense counsel may have hoped for. Plaintiffs’ counsel have found a way to use Spokeo as a sword and a shield, keeping their statutory claims alive outside of federal court."
Defendants must carefully consider the standing issue before removing a case to federal court, Plunkett advises. "Defense counsel should develop a strategy to address standing/remand issues if and when they arise. Certainly, defendants do not want to find themselves in a surprise situation where they have expended numerous resources litigating a case in federal court, only to start over in state court if standing is challenged well into the litigation."