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On August 15, 2017, the U.S. Court of Appeals for the Ninth Circuit issued another opinion in the saga of Robins v. Spokeo, Inc.—a case dealing with the question of what violations of a federal statute are sufficient to confer Article III standing. The plaintiff alleges Spokeo violated the federal Fair Credit Reporting Act (“FCRA”) by reporting inaccurate information about him. While the district court dismissed for lack of standing, the Ninth Circuit reversed and found that the plaintiff established an injury-in-fact. In May 2016, the U.S. Supreme Court vacated the Ninth Circuit’s opinion and declared that a plaintiff does not “automatically” have the requisite injury-in-fact “whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right.” The Supreme Court held that the Ninth Circuit’s standing analysis was incomplete because it did not address the “concreteness” element—i.e., whether the statutory violation cause some “real” harm that “actually exists in the world.”1 On remand from the Supreme Court, the Ninth Circuit has now determined that the plaintiff 's allegations of inaccurate reporting of information about his marital status, age, education background and employment history constitute harm sufficiently concrete to satisfy the injury-in-fact requirement for standing.
Summary of the Allegations and Prior Decisions
Spokeo provides a “people search engine” that compiles consumer data and builds individual consumer profiles. Spokeo generates search results, in response to an inquiry, that contain an array of details about a person’s life, including name, age, e-mail address, marital status, occupation, hobbies and finances. Spokeo allegedly markets to companies, claiming its search results provide a way to learn more about prospective business associates and employees.
The plaintiff alleges that Spokeo, in the capacity of a “consumer reporting agency” (“CRA”) subject to the FCRA, published a report on him that falsely stated his age, marital status, wealth, education level and profession. These search results contained “flattering inaccuracies,” which portrayed the plaintiff as the holder of a master’s degree, relatively affluent, and married with children. Still, the plaintiff filed a FCRA suit alleging Spokeo failed to “follow reasonable procedures to assure maximum possible accuracy” of the information in violation of 15 U.S.C. § 1681e(b). The plaintiff alleges that the reporting errors had in fact harmed his employment prospects at a time when he was out of work, and caused him resulting emotional distress.
The district court dismissed the case for lack of standing, finding the plaintiff alleged only a bare violation of the statute divorced from any actual injury. The Ninth Circuit, reversing the district court, determined that the plaintiff did allege an injury sufficient to confer standing. The Ninth Circuit explained that the plaintiff “alleges that Spokeo violated his statutory rights not just the statutory rights of other people,” and that his “personal interests in the handling of the credit information are individualized rather than collective.”
The U.S. Supreme Court rejected the Ninth Circuit’s analysis as incomplete. The Court explained that standing requires a plaintiff to plead an injury-in-fact that is both “particularized” and “concrete.” The Ninth Circuit, however, addressed only the “particularized” nature of the alleged injury, and not whether the injury was “concrete”—i.e., “‘real’ and not ‘abstract.’” In this regard, the Ninth Circuit erred by implicitly relying on Spokeo’s alleged statutory violation, without more, to find concreteness. The Supreme Court explained that “Article III standing requires a concrete injury even in the context of a statutory violation.” The Court also reasoned that “not all inaccuracies cause harm or present any meaningful risk of harm” and “[a] violation of one of the FCRA’s procedural requirements may result in no harm.” The Court therefore remanded to the Ninth Circuit to address the “concreteness requirement.”
The Ninth Circuit’s New Decision
On remand, the Ninth Circuit determined that the plaintiff has sufficiently pled a concrete injury under the Supreme Court’s rubric. The panel began by noting “that some statutory violations, alone, do establish concrete harm.” The Ninth Circuit endorsed the Second Circuit’s standard for determining concreteness in the context of a statutory violation: “an alleged procedural violation [of a statute] can by itself manifest concrete injury where Congress conferred the procedural right to protect a plaintiff’s concrete interests and where the procedural violation presents ‘a risk of real harm’ to that concrete interest.” Therefore, to establish concrete harm, a plaintiff must demonstrate that (1) “the statutory provisions at issue were established to protect his concrete interests (as opposed to purely procedural rights);” and, if so, (2) “the specific procedural violations alleged in the case actually harm, or present a material risk of harm to, such interests.”
Answering the first question, the Ninth Circuit determined that Congress established the FCRA provision at issue (§ 1681e(b)) to protect consumers’ concrete interests—i.e., to protect consumers from the transmission of inaccurate information in consumer reports. The Ninth Circuit found that the interests protected by the FCRA’s procedural requirements are “‘real,’ rather than purely legal creations,” and that the “dissemination of false information in consumer reports can itself constitute a concrete harm” and has “real-world implications.” The Ninth Circuit compared the interests the FCRA protects to “other reputational and privacy interests that have long been protected in the law,” including data breach and defamation. As the Ninth Circuit explained, the similarities between FCRA claims and these common law causes of action show that “Congress has chosen to protect against a harm that is at least closely similar in kind to others that have traditionally served as the basis for lawsuit.” The Ninth Circuit determined that “the FCRA procedures at issue in this case were crafted to protect consumers’ (like Robins’s) concrete interests in accurate credit reporting about themselves.”
As to the second question—whether the alleged violation harms, or present a material risk of harm to, the concrete interest—the Ninth Circuit initially noted: “This second requirement makes clear that, in many instances, a plaintiff will not be able to show a concrete injury simply by alleging that a consumer reporting agency failed to comply with one of the FCRA’s procedures.” The Ninth Circuit used the hypothetical of a CRA whose failure to follow certain FCRA requirements does not result in creation of an inaccurate report. Under this scenario, the statute would have been violated, but the violation alone would not have affected the protected interests in accurate reporting. The Ninth Circuit also rejected the plaintiff’s argument that any FCRA violation premised on some inaccurate disclosure of information is sufficient for standing. As the Ninth Circuit explained, “every minor inaccuracy” (such as an incorrect zip code or misreporting a person’s age by a day or their wealth by a dollar) will not create the risk of real harm.
Thus, the concreteness determination “requires some examination of the nature of the specific alleged reporting inaccuracies to ensure that they raise a real risk of harm to the concrete interests that FCRA protects.” The Ninth Circuit found that the plaintiff had alleged facts “substantially more likely to harm his concrete interests than the Supreme Court’s example of an incorrect zip code.” The alleged inaccuracies relate to the plaintiff’s age, marital status, employment, graduate degrees and wealth level. The plaintiff also alleges that the inaccurate report “‘caused actual harm to [his] employment prospects’ by misrepresenting facts that would be relevant to employers.” While the Ninth Circuit acknowledged that the “misrepresentations could seem worse,” and that many of the inaccuracies were actually “flattering,” the court agreed with the plaintiff that this was the type of information important to employers—the accuracy of which the FCRA seeks to protect. The Ninth Circuit further reasoned that such inaccuracies “can hurt an individual’s employment prospects as they may cause a prospective employer to questions the applicant’s truthfulness or to determine that he is overqualified for the position sought.” In sum, the Ninth Circuit found that the alleged inaccuracies were not the sort of “‘mere technical violations’ which are too insignificant to present a sincere risk of harm to the real-world interests that Congress chose to protect with FCRA.” Therefore, the Ninth Circuit found that the plaintiff adequately alleged the elements necessary for standing and remanded the case to the district court.
The FCRA is a fertile source of nationwide class action litigation against consumer reporting agencies and employers.2 Standing to proceed with FCRA claims in federal court is an evolving area of the law. While the Ninth Circuit has generally adopted a plaintiff-friendly standard, it remains to be seen whether its generous interpretation will find acceptance in other courts.
1 See Rod Fliegel and Phil Gordon, U.S. Supreme Court Holds Not Every Violation of a Federal Statute is a Ticket to File a Federal Court Lawsuit, Littler Insight (May 17, 2016).
2 See Rod Fliegel, California Court Certifies FCRA Class of Over 40,000 Applicants (Jul. 17, 2017); Rod Fliegel, Ninth Circuit is the First Appellate Court to Rule on “Extraneous Text” in a FCRA Background Check Disclosure, Littler Insight (Jan. 25, 2017); Rod Fliegel, Weathering the Sea Change in Fair Credit Reporting Act Litigation in 2014, Littler Insight (Jan. 6, 2014); Rod Fliegel and William Simmons, The Swelling Tide of Fair Credit Reporting Act (FCRA) Class Actions: Practical Risk-Mitigating Measures for Employers, Littler Report (Aug. 1, 2014).