Spokeo on Remand: The Ninth Circuit Finds Plaintiff’s FCRA Injury Is Concrete
Fifteen months after the U.S. Supreme Court’s landmark decision in Spokeo, Inc. v. Robins (Spokeo II), 136 S. Ct. 1540 (2016), the Ninth Circuit issued its opinion on remand. The only question before the Ninth Circuit was whether the plaintiff’s allegations regarding his injuries – resulting from Spokeo’s alleged violation of the Fair Credit Reporting Act (the “FCRA”) – were sufficiently concrete to confer Article III standing. In Spokeo III, the Ninth Circuit answered that question in the affirmative, finding that (1) the relevant provisions of the FCRA were established to protect the concrete interests of consumers like plaintiff, and (2) plaintiff alleged actual harm to his concrete interests resulting from Spokeo’s publication of an inaccurate report about him.
In arriving at its conclusions, the Ninth Circuit observed that the FCRA “was crafted to protect consumers from the transmission of inaccurate information about them,” and that the interests created by the statute are “real, rather than purely legal creations.” According to the court, the “ubiquity and importance of consumer reports in modern life” means that the very existence of an inaccurate report is a “threat to a consumer’s livelihood.” And that is exactly what the plaintiff alleged – that Spokeo’s inaccurate report about him caused actual harm to his employment prospects (as well as causing “anxiety, stress, concern and/or worry” stemming from those diminished prospects). According to the court, plaintiff’s allegations that “both the challenged conduct and the attendant injury have already occurred” distinguish him from the plaintiffs in Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 (2013), who instead alleged that they would suffer future injuries due to threatened conduct.
The Ninth Circuit cautioned that not every inaccuracy in a consumer report amounts to a concrete harm. An incorrect zip code, for example, is not likely to harm a consumer’s interests; in contrast, the court stated that “[i]t does not take much imagination to understand how” Spokeo’s inaccurate statements regarding plaintiff – that he is married with children, in his 50s, employed in a professional or technical field, has a graduate degree, etc. – “could be deemed a real harm.” However, the court declined to further explain that conclusion: “We express no opinion on the circumstances in which alleged inaccuracies of this nature would or would not cause a concrete harm.”
Despite its long-anticipated arrival, the Ninth Circuit’s opinion in Spokeo III is likely to have a more symbolic impact than a substantive one. Since Spokeo II was decided more than a year ago, hundreds of court decisions have already discussed, analyzed, and distinguished it (with inconsistent approaches and conflicting results), and the Ninth Circuit’s decision here is simply one more data point in the quest to determine when a violation of a federal statute gives rise to a concrete injury under Spokeo II.