After the Supreme Court vacated and remanded the Ninth Circuit’s decision in Spokeo, Inc. v. Robins, the parties again appeared before the lower court, arguing over whether a purely technical violation of the Fair Credit Reporting Act is sufficient to satisfy the concreteness requirement for Article III standing.  

As we previously reported, on May 16, the Supreme Court issued its decision in the Spokeo matter, holding that while the Ninth Circuit had considered whether Robins’ harm was particularized, the lower court had failed to consider whether the “invasion of a legally protected interest” was “concrete.”  The high court instructed the Ninth Circuit to consider “whether the particular procedural violations alleged in this case entail a degree of risk sufficient to meet the concreteness requirement.”   

In its supplemental brief filed on July 11, Spokeo argued that “[n]either the statutory violations alleged here nor the factual allegations of the complaint demonstrate that Robins suffered the required concrete harm or faced a ‘certainly impending’ risk of harm.”  “The presence of inaccurate information on a website, by itself, does not constitute concrete harm,” Spokeo continued.   

Robins, on the other hand, claimed that the procedural violations alleged entail a degree of risk to Congress’s interest in fair and accurate credit reports sufficient to meet the concreteness requirement.  “Congress has created a concrete statutory right,” and a plaintiff “need not allege any additional harm beyond the one Congress has identified,” argued Robins. 

The Consumer Financial Protection Bureau also filed an amicus brief, saying that the Bureau has a “substantial interest in the issue presented in this case” as “[a]n unduly narrow conception of Article III standing would limit consumers’ ability to exercise [their] private right of action” under the FCRA. 

Troutman Sanders will continue to monitor the status of the Spokeo decision and report on the Ninth Circuit’s ultimate decision.