August 17, 2017
On remand from the United States Supreme Court’s decision in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) (“Spokeo”), the United States Court of Appeals for the Ninth Circuit found that Plaintiff had standing to bring his claims under the federal Fair Credit Reporting Act (“FCRA”) in Robins v. Spokeo, Inc., Case No. 2:10-cv-05396-ODW-AGR (C.D. Cal.).
The Spokeo saga continues. Plaintiff Thomas Robins (“Robins”) brought a putative class action alleging violations of the FCRA, claiming that the website, Spokeo.com, “reports inaccurate consumer information that is marketed to entities performing background checks” and that this inaccurate reporting caused Robins to be “concerned that his ability to obtain credit, employment, insurance and the like will be adversely affected.”
After the lower court dismissed Robins’ claims for lack of an Article III injury and the Ninth Circuit reversed, the Supreme Court took up the question of whether a bare statutory violation, without more, constituted sufficient injury to confer Article III standing. In a landmark decision issued in May 2016, the Supreme Court held that “a bare procedural violation, divorced from any concrete harm” was insufficient. Spokeo, 136 S. Ct. at 1549. To suffice, the injury must be “real” and not “abstract.” Id. With little discussion, the Court left the door open to the possibility, however, that “the violation of a procedural right granted by statute can be sufficient in some circumstances to constitute injury in fact.” Id.
In a unanimous ruling, the Ninth Circuit found that Robins had sufficient injury in fact. The Ninth Circuit first acknowledged the high Court’s conclusion that Article III requires the plaintiff to “allege a statutory violation that caused him to suffer some harm that ‘actually exist[s] in the world” and that “is ‘real’ and not ‘abstract’ or merely ‘procedural.’” Robins v. Spokeo, Inc., Case No., 11-56843, slip op., at 8 (9th Cir. Aug. 15, 2017) (quoting Spokeo, 136 S. Ct. at 1549). However, the court seized upon the door left open in Spokeo, pointing out that there are some cases in which Congress may elevate an intangible harm into a concrete injury. Id. at 9. The Ninth Circuit joined the Second Circuit in reading Spokeo to advise that “an alleged procedural violation [or a statute] can by itself manifest concrete injury where Congress conferred the procedural right to protect a plaintiff’s concrete interests and where the procedural violation presents ‘a risk of real harm’ to that concrete interest.” Id. at 10 (quoting Strubel v. Comenity Bank, 842 F.3d 181, 190 (2d Cir. 2016)). Thus, in order to determine whether Robins’s particular injury satisfied Article III, the court asked: “(1) whether the statutory provisions at issue were established to protect [Robins’] concrete interests (as opposed to purely procedural rights), and if so, (2) whether the specific procedural violations alleged actually harm, or present a material risk of harm, to such interests.” Id. at 10-11.
The Ninth Circuit answered the first question in the affirmative, finding that Congress had created FCRA “to protect consumers’ concrete interests”—specifically, their interest in being protected from the transmission of inaccurate information in consumer reports. Id. at 11. These interests are “real” because the “real-world implications of material inaccuracies” in consumer reports, and their impact on employment, loan application, and other decisions, “seem patent on their face.” Id. at 12. The court compared these interests to other, similar reputational and privacy interests protected under the law, such as common law protections against defamation and libel. Id. at 13.
Addressing the second inquiry, the Ninth Circuit emphasized that “in many instances, a plaintiff will not be able to show a concrete injury simply by alleging that a consumer-reporting agency failed to comply with one of FCRA’s procedures.” Id. at 15. This is so because the Supreme Court’s Spokeo decision makes clear that “even if Congress determined that inaccurate credit reporting generally causes real harm to consumers, it cannot be the case that every trivial or meaningless inaccuracy does so.” Id. at 17. “Thus, [Spokeo] requires some 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.” Id. at 17.
In Robins’ case, the court found that the inaccuracies were so substantial as to constitute actual harm, or at least a material risk of harm, to Robins: “Robins specifically alleged that Spokeo falsely reported that he is married with children, that he is in his 50s, that he is employed in a professional or technical field, that he has a graduate degree, and that his wealth level is higher than it is.” Id. at 17-18. The level and materiality of these inaccuracies meant that they were not “the sort of ‘mere technical violation[s]’ which are too insignificant to present a sincere risk of harm to the real-world interests that Congress chose to protect with FCRA.” Id. at 19. The court thus reversed the lower court’s dismissal of Robins’ claims for lack of standing.
The Ninth Circuit’s decision appears, at first blush, to tip the scales in favor of plaintiffs seeking to establish standing to bring FCRA and other similar statutory claims. Plaintiffs may now be able to establish standing simply by pleading a statutory violation that amounts to anything more than a “trivial” or “meaningless” technicality. But because the decision rests heavily upon the facts particular to Robins’ case, only time will tell how far-reaching its effects will be. And although the Ninth Circuit is the most recent court to weigh in on the standing analysis, it is not likely to be the last in this fast-developing area of law.
Also of note is that in the class action context, Plaintiff may have won the battle but lost the war. Because the Ninth Circuit’s decision emphasizes the need for an individualized inquiry into standing in statutory cases, it may be more difficult for plaintiffs to convince a court that the requirements of Rule 23(a) and (b) can be satisfied.
For further analysis of the impact Spokeo may have on your business or on class actions generally, contact one of our class action attorneys.