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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.
Continue Reading Ninth Circuit Holds Alleged FCRA Violation Satisfies Article III Standing

As courts continue to grapple with close calls on standing following the U.S. Supreme Court’s seminal decision in Spokeo v. Robins, another court has given defendants a win for intangible injuries and risk of future harm.  On June 6, the District of New Jersey dismissed – for the second time – a putative class action lodged against J. Crew for a technical violation of the Fair and Accurate Credit Transactions Act (“FACTA”) because the alleged damages were too speculative to establish Article III standing.  In Kamal v. J. Crew, et al., 2017 WL 2443062 (D.N.J. June 6, 2017), U.S. District Judge William Martini granted J. Crew’s motion to dismiss plaintiff Ahmed Kamal’s Second Amended Complaint alleging the retailer printed too many credit card digits on receipts because – pursuant to Spokeo and a 2017 Third Circuit decision applying Spokeo – plaintiff failed to allege a sufficiently concrete injury.

Plaintiff alleged that J. Crew wilfully violated FACTA by printing the first six and last four digits of plaintiff’s credit card number on receipts, as FACTA directs that businesses shall not “print more than the last 5 digits of the card number.” As described by Judge Martini, the Complaint’s allegations boiled down to two distinct injuries: (1) disclosure of information considered “intrinsically private” by law; and (2) increased risk of future credit card fraud or identity theft.  Ultimately, though, neither injury was a “concrete” harm, and thus plaintiff failed to establish constitutional standing, leading to the dismissal.
Continue Reading J. Crew Credit Card Digit Class Action Dismissed Again Because of Overly Speculative Identity Theft, Fraud Risks

In a case demonstrating the ongoing difficulties of applying the Spokeo decision to interpret injury-in-fact, a Massachusetts federal court last week denied a motion to dismiss by USA Today parent company, Gannett Satellite Information Network Inc., where the company allegedly disclosed personal data about a user’s video-viewing history to a third-party analytics firm.

The putative class action was brought in 2014 by a man who alleges Gannett violated the Video Privacy Protection Act (“VPPA”) by recording the titles of videos he viewed on the USA Today app, his Android ID, and the GPS coordinates of his device at the time videos were watched, and sending that information to Adobe, its analytics vendor, without his permission.
Continue Reading VPPA Suit Over Sharing Users’ Video-Viewing Data Continues as Gannett’s Motion to Dismiss Is Denied

In an instructive opinion on how intangible harms can cause injuries sufficient to confer standing on plaintiffs—and a rare example of the U.S. Supreme Court’s latest ruling on standing aiding plaintiffs—a West Virginia federal court ruled June 30 that computer-dialed telemarketing calls caused concrete, particularized privacy invasions such that plaintiff’s Telephone Consumer Protection Act (“TCPA”) putative class action claim could move forward.

The ruling in Mey v. Got Warranty, Inc., et al., No. 5:15-cv-00101 (N.D. W.Va. June 30, 2016) provides a contrast to the growing number of dismissals issued by courts across the country finding that, after the U.S. Supreme Court’s opinion in Spokeo v. Robins, 136 S. Ct. 1540 (2016), plaintiffs in various cases failed to allege concrete, particularized injuries sufficient for Article III standing.1   Because of this, it may provide guidance for plaintiffs—particularly in the area of technology-related statutes and data breaches, where standing is often an issue—on how to avoid summary dismissal of their claims.  Given the court’s detailed opinion, the import of the holding may extend well beyond the context of the case, in which plaintiff alleged she received numerous robocalls in violation of TCPA provisions barring autodialed, prerecorded messages and calls to those on the National Do Not Call Registry.Continue Reading Federal Court Finds Intangible Harm Caused by Robocalls Sufficient for Post-Spokeo Standing in TCPA Claim Alleging Privacy Invasion

Just days after the Supreme Court’s ruling in Spokeo v. Robins, the highly anticipated decision is already impacting data breach class actions across the country. The defendant in the Spokeo case contended that the plaintiff had suffered no concrete injury, and that a mere statutory violation is not enough of an injury to…