As courts have wrestled with standing issues in a variety of kinds of cases, the central question has been whether or not under the standard the U.S. Supreme Court enunciated in the Spokeo case the plaintiff alleged an injury that is sufficiently “concrete.” The Supreme Court remanded the Spokeo case itself to the Ninth Circuit for further proceedings to determine whether the plaintiff’s allegations met the high court’s standard. On August 15, 2017, the Ninth Circuit issued its ruling in the remanded case that the injury the plaintiff alleged was sufficiently concrete to meet the Supreme Court’s test. This ruling could boost plaintiffs as they seek to resist defendants’ efforts for an early dismissal in cases in which plaintiffs are alleging a statutory violation, such as Fair Credit Reporting Act (FCRA) cases, Telephone Consumer Protection Act cases, and Truth in Lending Act cases. The Ninth Circuit’s opinion can be found here.
Spokeo maintains a website from which background information about individuals can be obtained. Thomas Robins was among the individuals profiled on Spokeo. Robins contends that several pieces of information in the profile (including his marital and job status, age, and educational background) were incorrect. Robins sued Spokeo alleging that the Spokeo profile violated the Fair Credit Reporting Act.
Spokeo argued that the plaintiff lacked standing to assert his claim because he did not allege any concrete harm. The district court agreed and granted Spokeo’s motion to dismiss, holding that the plaintiff had failed to allege an “injury-in-fact” and therefore lacked Article III standing. However, in a February 4, 2014 opinion (here), the Ninth Circuit reversed the district court, holding that the plaintiff’s allegations were sufficient to satisfy Article III’s standing requirement. Spoke filed petition to the U.S. Supreme Court for a writ of certiorari. The Court agreed to take up the case.
In a 6-2 opinion written by Justice Samuel Alito, the Supreme Court vacated the Ninth Circuit’s opinion and remanded the case for further considerations to determine whether or not the claimant’s allegations were sufficient “concrete” to satisfy the requirements for Article III standing. Robins could not “allege a bare procedural violation, divorced from any concrete harm, and satisfy the injury-in-fact requirement of Article III,” as “a violation of one of the FCRA’s procedural requirements may result in no harm.” Justice Alito noted that not all consumer information inaccuracies “cause harm or present any material risk of harm.” For example, an incorrect zip code, without more, would not represent concrete harm.
The Ninth Circuit, Justice Alito said, did not “address whether the particular procedural violations alleged in this case entail a degree of risk sufficient to meet the concreteness requirement.” The Supreme Court itself took no position on the question whether or not the Ninth Circuit’s ultimate conclusion that Robins adequately alleged an injury in fact was correct, but remanded the case to the Ninth Circuit for further proceedings.
The August 15, 2017 Ninth Circuit Opinion
In an August 15, 2017 opinion by Judge Diarmuid O’Scannlain for a unanimous three judge panel, the Ninth Circuit concluded that Robins’ allegations were sufficiently concrete to meet the Supreme Court’s standard. The appellate court held that Spokeo’s alleged inaccuracies about Robins’ age, marital status, educational background, and employment history could be deemed a real harm to his employment prospects. The court found that Robins had alleged FRCA violations that clearly implicated his “concrete interests in truthful credit reporting” that Congress had protected in enacting the statute. “It does not take much imagination to understand how inaccurate reports on such a broad range of material facts about Robins’s life could be deemed a real harm,” the Court said. “Ensuring the accuracy of this sort of information thus seems directly and substantially related to FCRA’s goals.”
The appellate court rejected Spokeo’s suggestion that Robins’s allegations of harm were too speculative to establish a concrete injury. The court held that both the allegedly harmful conduct and allegedly resulting injury had already occurred, where Spokeo published an inaccurate consumer report about Robins and the alleged intangible injury caused by the report had also occurred. The panel concluded that Robins had alleged injuries that were sufficiently concrete to satisfy Article III standing requirements.
The Ninth Circuit’s ruling will be most important in cases where plaintiffs are asserting claims based on allegedly statutory violation where they are attempting to establish that they were harmed in the way that Congress had sought to protect against in enacting the statute. Examples of these kinds of cases include claims, like the one Robins asserted, under the Fair Credit Reporting Act, or under the Telephone Consumer Protection Act.
As noted in an August 15, 2017 article on Law 360 (here), the ruling, “sets a fairly low standing bar for claims of failing to ensure maximum possible accuracy in credit reports and is likely to tip the balance toward plaintiffs at least when it comes to similar statutory claims.”
As several commentators quoted in the Law 360 article also noted, however, the Ninth Circuit’s ruling was very fact-specific, which arguably will limit the ruling’s usefulness for other claimants in other cases, even other FCRA cases. Not every error is going to be sufficient to establish standing for a FCRA claim, and courts will still have to determine whether the line is between a trivial error (such as the zip code mistake Justice Alito noted) and the kind of violation that harms the interests the statute was meant to protect.
The fact-specific nature of the decision ensures that standing issues will remain and these kinds of issues will continue to be debated in the courts in the context of specific cases. Indeed in her August 15, 2017 article in The Recorder, Amanda Bronstad suggested that the Ninth Circuit’s decision “raises the prospects that the case could go back to the Supreme Court, particularly since circuit courts have struggled with how to define concrete injuries.”
In FCRA cases and other cases alleging statutory violations, the plaintiffs will seek to rely on the Ninth Circuit’s decision on remand in the Ninth Circuit in support of their claims that the alleged statutory violation supports their claims for standing.