Concrete Enough to Stand: Ninth Circuit Upholds FCRA Claims in Spokeo
On August 15, 2017, the Ninth Circuit delivered the latest episode in the Robins v. Spokeo saga, reaffirming on remand from the Supreme Court that plaintiff Robins had alleged an injury in fact sufficient for Article III standing to bring claims under the Fair Credit Reporting Act (FCRA).
Robins had brought a putative class action against Spokeo, which operates a “people search engine” that compiles consumer data into online reports of individuals’ personal information. Robins alleged that Spokeo had willfully violated the FCRA’s procedural requirements, including that consumer reporting agencies must “follow reasonable procedures to assure maximum possible accuracy of the information” in consumer reports, because Spokeo’s report on Robins allegedly listed the wrong age, marital status, wealth, education level, and profession, and included a photo of a different person. According to Robins, the inaccuracies in the report about him harmed his employment prospects and caused him emotional distress.
A California district court first dismissed Robins’ claims against Spokeo, finding that Robins had alleged only a bare procedural violation of the FCRA, not an “injury in fact” sufficient to confer Article III standing. On appeal, the Ninth Circuit disagreed, finding that Robins had alleged an injury in fact and therefore did have standing to bring his claims.
The Supreme Court reviewed the Ninth Circuit’s decision last May. It held that an injury in fact must be both particularized – affecting the plaintiff in a “personal and individual” way – and concrete – “real, not abstract.” It ruled that a plaintiff does not “automatically” satisfy the injury requirement whenever acting on a statutory cause of action to redress a technical statutory violation: a concrete and particularized injury in fact is still required. However, according to the Supreme Court, some statutory violations can themselves establish a cognizable injury in fact where Congress enacted procedural rights to guard against a risk of “real” – as opposed to purely legal – harm. The Supreme Court instructed the Ninth Circuit to take another look at its standing analysis, because while the Ninth Circuit had previously determined that Robins’ injuries were sufficiently particularized to confer standing, it had not analyzed their concreteness in the initial appeal.
On remand, then, the Ninth Circuit considered whether Robins’ intangible injuries were concrete enough to confer standing. It held that they were, because the alleged injuries implicated the same concrete harm that Congress sought to prevent in enacting the FCRA. First, the Ninth Circuit found that Congress had established the FCRA provisions at issue to protect consumers’ concrete interests “in accurate credit reporting about themselves.” The provisions, the court explained, were designed “to protect consumers from the transmission of inaccurate information about them in consumer reports,” which carries a risk of real harm because consumer reports are “ubiquit[ous] and importan[t]” in “employment decisions,” “loan applications,” “home purchases,” and “much more.” Furthermore, the court noted that Congress’ protection of these concrete interests was consistent with the historical protection of other reputational and privacy interests. Next, the court determined that Robins had alleged FCRA violations that actually harmed the relevant concrete interests targeted by Congress, because Spokeo had allegedly “published…on the Internet” inaccurate information about Robins that was of the type that may be important to employers or others making use of a consumer report. The court contrasted its finding of standing in Robins’ case with hypothetical procedural violations that would not have (without more) given rise to concrete-enough injuries in fact: (1) a credit reporting agency’s failure to comply with FCRA requirements that did not result in the creation or dissemination of an inaccurate consumer report; or (2) minor inaccuracies not of a type that consumer report users would care about, such as an inaccurate zip code. In evaluating standing to sue based on inaccuracies in consumer reports, the Ninth Circuit emphasized that the Supreme Court’s May 2016 decision requires examination of the “nature of the specific alleged reporting inaccuracies to ensure that they raise a real risk of harm to the concrete interests that FCRA protects.”
The ongoing effort to sort the statutory violations that are sufficient to constitute intangible but cognizable injuries in fact from those that are merely procedural and insufficient to confer standing has given rise to a rash of standing decisions, which have occasionally come to seemingly inconsistent conclusions. The Ninth Circuit’s most recent Spokeo opinion is an important data point in this effort, with consequences for cases brought under the FCRA and the Telephone Consumer Protection Act, as well as for consumer class actions that allege intangible harms more generally. Further developments are certain to be forthcoming.