On Remand From Supreme Court in Spokeo, Ninth Circuit Holds FCRA Violation Satisfies Article III Standing
The Ninth Circuit finally weighed in again on Article III standing issues after the remand of the Spokeo case from the United States Supreme Court. The Supreme Court in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), addressed whether a willful violation of the Fair Credit Reporting Act (“FCRA”), absent proof of actual damages, constituted sufficient harm to confer Article III standing to a FCRA plaintiff. The Court ultimately declined to resolve the question, instead remanding the case back to the Ninth Circuit to consider whether the Spokeo plaintiff’s injuries were sufficiently “concrete” to confer Article III standing. In so doing, the Court advised that a statutory cause of action does not automatically empower courts to resolve alleged violations of the statute; rather, Article III requires that the statutory violation must cause the plaintiff to suffer harm that “actually exist[s]” and is not merely “abstract” or “procedural.” 136 S. Ct. at 1548-49.
On Tuesday, August 15, 2017, the Ninth Circuit issued its decision on remand, holding that FCRA plaintiff Robins satisfied Article III’s concrete harm requirement. See Robins v. Spokeo, Inc., No. 11-58643 (“Spokeo II”). Writing for a unanimous panel, Judge O’Scannlain distilled the Court’s discussion of Article III’s concrete harm requirement in Spokeo as requiring a two-step inquiry:
- (1) Were the statutory provisions at issue established to protect the plaintiff’s concrete (as opposed to procedural) rights?; and
- (2) Did the specific procedural violations alleged in the case actually harm, or present a material risk of harm, to those interests?
The Ninth Circuit answered positively to both questions. First, surveying the FCRA’s legislative history, the court concluded that the interests the FCRA were intended to protect—namely, to protect consumers from the dissemination of false information regarding their credit ratings—were concrete in nature. Op. at 10-15. Second, the Ninth Circuit held that the Spokeo II plaintiff Robins alleged FCRA violations that presented a legitimate and material risk of actual harm to him. The court reasoned that the nature of the information that was allegedly reported falsely—essentially, misstating Robins’ marital status, educational background, and employment history—is the type that could be important to employers or others making use of a consumer report, even when it portrayed these characteristic more favorable than the reality. The court specifically referenced the amicus brief filed in support of Robins by the Consumer Financial Protection Bureau, which argued that making Robins appear wealthier and more educated than he was could have dissuaded potential employers from hiring Robins because he appeared—incorrectly—overqualified. Op. at 18.
Whether or when this case or issue is likely to head back to the Supreme Court is unclear. In the meantime, while Spokeo II provides some guidance within the Ninth Circuit on Article III standing of FCRA litigants, its factual emphasis on the allegations and injuries claimed by Robins makes it difficult to discern how other statutory violation claims, and even according to the Ninth Circuit, certain FCRA claims will be treated from a standing perspective. Indeed another key unresolved question is whether courts must conduct an Article III standing analysis for all class members litigating in the class action context, as the Eighth Circuit, for example, has held. See, e.g., Avritt v. Reliastar Life Ins. Co., 615 F.3d 1023 (8th Cir. 2010). While such a rule makes sense in the context of a predominance analysis, especially when it is apparent that not all class members will have been hurt by a challenged practice, this principle is far from universal acceptance.
A collection of our writings on Spokeo can be found below.
- Supreme Court Vacancy Leaves Spokeo Outcome Even More Uncertain
- Reply Brief filed in Spokeo v. Robins – Oral Argument next on Nov. 2
- Response from Robins in the Spokeo Case at the U.S. Supreme Court
- U.S. Supreme Court Accepts Review of Robins v. Spokeo, Inc.
- Ninth Circuit Remands FCRA Case – Actual Injury Not Required for Article III Standing