The Ninth Circuit added another chapter to the storied tale of Article III standing jurisprudence on August 15 when, on remand from the Supreme Court, the appellate court unanimously revived a plaintiff’s Fair Credit Reporting Act (“FCRA”) suit in Robins v. Spokeo, Inc., __ F.3d __, 2017 WL 3480695 (9th Cir. Aug. 15, 2017).
The single FCRA claim asserted by Thomas Robins is premised upon the Spokeo website, which collects data to build consumer-information profiles. Profiles may allegedly include such details, as the court noted, as a “person’s age, contact information, marital status, occupation, hobbies, economic health, and wealth.” Robins’ website profile allegedly included his inaccurate age, marital status, reported wealth and profession, and even his photo (of a different person).
He sued Spokeo for willful violation of section 1681e(b) of the FCRA, alleging that it had “failed to ‘follow reasonable procedures to assure maximum possible accuracy’ of the information in his credit report.” A willful violation allows for a statutory award, even in the absence of actual damages. See id. 15 U.S.C. § 1681n. Robins alleged that the publication of the inaccurate information hurt his job prospects and caused him to suffer emotional distress. Whether such alleged injuries satisfied the Article III test for standing has been the focus of the litigation, which is now in its seventh year.
On the first appeal, the Ninth Circuit reversed the district court’s dismissal of the suit, finding that Robins had pleaded a “concrete and particularized” injury, i.e., an injury-in-fact, because he had alleged Spokeo violated his individual statutory rights (Spokeo I). The Supreme Court in May 2016 vacated the Ninth Circuit’s decision (Spokeo II). While the Court agreed Robins’ alleged injury was particularized to him, it held that a mere alleged statutory violation was not enough to establish a concrete injury necessary for Article III standing.
On remand, the Ninth Circuit’s decision last week re-examined this issue, and held that Robins had pleaded a concrete injury.
The court recognized the Supreme Court’s rejection of the Ninth Circuit’s earlier view that mere proof of a statutory violation is sufficient to show a concrete injury. However, the appellate court noted that “the Supreme Court also recognized that some statutory violations, alone, do establish concrete harm.” The Ninth Circuit held that the statutory violation alleged here was that sort because the FCRA provision at issue was specifically crafted to protect consumers’ (like Robins’) concrete interest “in accurate credit reporting about themselves.” In so holding, the Court both noted that “the legislative record [of the FCRA] includes pages of discussion of how . . . inaccuracies may harm consumers in light of the increasing importance of consumer reporting nearly fifty years ago,” and that the law has long recognized the interest that individuals have against their reputation being injured by defamation. “Just as Congress’s judgment about an intangible harm is important to our concreteness analysis, so is the fact that the interest Congress identified is similar to others that traditionally have been protected.”
Although acknowledging that whether the alleged FCRA violation actually harmed Robins, by describing him as better-educated and wealthier than he really was, “could be debated,” the alleged violation still implicated “real-world interests that Congress chose to protect with the FCRA.” Robins therefore, according to the Ninth Circuit, sufficiently had pleaded a concrete injury necessary for Article III standing.
The ultimate implications of the Ninth Circuit’s decision on Article III standing still may be limited. The decision illustrates the approach federal courts – following the Supreme Court’s Spokeo II decision – have taken in examining whether a particular statute’s history protects a concrete interest such that its violation confers standing. With regard to the specific FCRA provision at issue in Spokeo, the Ninth Circuit concluded the answer was “yes.” However, the decision did not resolve whether this is true for other FCRA provisions or other federal statutes. Therefore, Article III standing will remain an open question that will turn on the specific statutory provision at issue, its history, and related common law, and the effectiveness of the arguments raised.