On December 13, the Ninth Circuit Court of Appeals heard arguments in the long‑simmering Robins v. Spokeo Inc. putative class action, following reversal of the appellate court’s previous opinion by the Supreme Court.  Robins alleges that Spokeo violated the Fair Credit Reporting Act by maintaining various inaccurate data points about the plaintiff in an online Spokeo profile.  Spokeo sought to dismiss the case, arguing (among other things) that Robins had no standing because he could not show that he had been injured by the supposed inaccuracies in his Spokeo file.  The District Court ultimately granted that motion, Robins appealed, and the Ninth Circuit reversed, sending the case to the Supreme Court.  In a May 2016 decision that has continued to see mixed application by the lower courts, the Supreme Court reversed, finding that the Ninth Circuit had not thoroughly analyzed the requirement that Robins show a concrete and particularized injury beyond Robins’s allegation of mere statutory violation, which it held was not necessarily sufficient to confer Article III standing. 

The Ninth Circuit is now left to reconsider whether Robins has sufficiently pled concrete and particularized injury owing to Spokeo’s alleged wrongdoing.  At arguments on December 13, Robins’s attorney argued that all the plaintiff needs to show is that the statute protects a concrete interest and that that interest has been violated, not that he needs to show injury in the traditional sense.  From that, he argued that Robins has identified various inaccuracies in the information Spokeo maintains and that those inaccuracies cut to the heart of what the FCRA is designed to protect.  Conversely, Spokeo’s counsel urged the court to require a showing that Robins was himself personally harmed by Spokeo’s inaccuracies – an inquiry that may prove fatal to his attempts to maintain his case as a class action.   

In questions to counsel, the Ninth Circuit panel wondered whether Robins should be made (or permitted) to amend his pleading to state with more specificity the harms he supposedly suffered, an invitation that Robins’s counsel dismissed as unnecessary and one that Spokeo encouraged.  The panel also pressed the parties to explain precisely how, in their view, the Ninth Circuit had erred in its original standing analysis, thus resulting in the Supreme Court’s decision.  Again, Robins’s counsel was careful to argue that the Supreme Court was looking only for more depth from the Ninth Circuit and for it to confirm anew that the right infringed here was a foundational FCRA-protected right, while counsel for Spokeo argued that the Supreme Court is looking for an inquiry into what happened to Robins and whether his experience was sufficient for Article III purposes. 

The case is now fully briefed and argued, and the Ninth Circuit’s opinion is expected sometime in 2017.  Given the stakes in the case, which has attracted a slate of amicus briefs on both sides, it is possible that whatever the Ninth Circuit decides will result in another petition for certiorari to the Supreme Court.