On May 16, the Supreme Court in Spokeo, Inc. v. Robins found that the Ninth Circuit had not adequately addressed whether the named plaintiff had sufficiently alleged a “concrete” injury in connection with his putative FCRA class action against Spokeo, Inc.  In Spokeo, the plaintiff (Robins) sued the “people search engine” for alleged violations of the FCRA. Robins alleged that Spokeo published inaccurate (though not harmful per se) information about him, including that Robins had a graduate degree and was married and had children.  

At issue was the fact that the Complaint alleged only statutory violations and no physical injury-in-fact.  Spokeo argued that this statutory violation alone was insufficient to confer Article III standing because it does not meet the “irreducible constitutional minimum” to establish standing, which requires a plaintiff to have suffered an injury-in-fact by sustaining an “actual or imminent” harm that is “concrete and particularized.”  The U.S. District Court for the Central District of California originally dismissed the case, holding that Robins failed to allege any injury-in-fact and, therefore, did not have Article III standing.  The Ninth Circuit reversed, holding that the alleged violation of Robins’ statutory rights alone was sufficient to satisfy Article III’s requirements, regardless of whether the plaintiff can show a separate actual injury.  On April 27, 2015, the Supreme Court granted certiorari.  The Supreme Court vacated the Ninth Circuit’s decision and remanded the case to determine whether “the particular procedural violations alleged in this case entail a degree of risk sufficient to meet the concreteness requirement” for Article III standing.  Both parties have now filed supplemental briefs in the Ninth Circuit addressing whether the “concreteness” element of standing, as identified by the Supreme Court, has been satisfied by the plaintiff’s allegations.  In addition, the CFPB has filed an amicus brief urging the Ninth Circuit to find consumer standing. 

The Ninth Circuit amicus brief filed by the CFPB argues that Spokeo expressly confirmed that “intangible” injuries can support standing, and that the “real risk of harm” can also be enough.  It further emphasizes the language of the Supreme Court’s decision regarding the deference that can be afforded to Congress in elevating intangible injuries, such as those under the FCRA.  The CFPB also drew on historical precedent, arguing that history “confirms that the publication of a consumer report with the kinds of inaccuracies alleged here amount to concrete, actionable harm—for that harm is analogous to harms that have historically provided a basis for suit in common law defamation actions.”

We will continue to monitor this decision, amicus participation, and like precedent in the wake of the Spokeo decision.