Ninth Circuit’s Latest Spokeo Ruling Raises More Questions About Standing
Last year, the Supreme Court vacated the Ninth Circuit’s 2014 ruling that plaintiff Thomas Robins had Article III standing to bring his Fair Credit Reporting Act (“FCRA”) action against background check company Spokeo, Inc. The Supreme Court held that the Ninth Circuit had erred in failing to separately determine whether the plaintiff had adequately alleged the existence of a concrete injury, i.e. an injury that is “real,” and not “abstract” or “procedural.” Earlier this week, on remand, the Ninth Circuit again found plaintiff Robins had Article III standing.
Robins alleged that Spokeo published an allegedly inaccurate consumer report about him on its website and violated various procedural requirements of the FCRA. He alleged the Spokeo report misstated his age, marital status, wealth, education level, and profession, and included a photo of a different person. He argued that such errors harmed his employment prospects and caused him emotional distress. The District Court found that Robins lacked standing. The Ninth Circuit reversed. The Supreme Court then vacated and remanded.
On remand, in a tempered decision that relied on the particular factual circumstances between Robins and Spokeo, the Ninth Circuit agreed with Robins. The court adopted the standard set forth by the Second Circuit, holding that alleged procedural violations of a statute alone give rise to concrete injury where (1) Congress conferred the procedural right to protect a plaintiff’s concrete interest and (2) the procedural violation actually harms or presents a real risk of harm to that concrete interest.
On the first part of the analysis, the Ninth Circuit had “little difficulty” determining that the interest protected by the FCRA’s procedural requirements were real. The legislative record, observed the court, included much discussion of how inaccuracies in consumer reports may harm consumers. The court thus found that the mere existence of inaccurate information is a threat to a consumer’s livelihood. On the second part of the analysis, the Ninth Circuit ruled that Robins had indeed alleged that the Spokeo violations at issue created a material risk of harm to this concrete interest. Allegations that Spokeo failed to comply with the FCRA and published a report on the Internet that contained inaccurate information about Robins sufficed to show a material risk of harm to plaintiff. The Ninth Circuit then rejected Spokeo’s argument that Robins’s alleged injury was too speculative. The court determined that, by publishing a materially inaccurate consumer report, the injury has already occurred. Whether Robins would suffer additional concrete harm is irrelevant.
Significantly, however, the Ninth Circuit tempered the weight of its decision by making a few other observations. First, the court emphasized that standing cannot be supported by any FCRA violation premised on any inaccurate disclosure. Wrongfully reporting a zip code, for example, would likely not support a finding of concrete injury. Second, the court stated that it did not express an opinion on whether a plaintiff could allege concrete harm if he alleged only that a materially inaccurate report was prepared, but never published. Third, the court urged “caution” in interpreting the opinion, noting that not “every inaccuracy in the categories of information [identified by plaintiff] will necessarily establish concrete injury under FCRA.” These observations suggest that Article III standing arguments will continue to have greater success for purely technical violations that are not closely related to the statute’s central purpose.