Concrete Enough to Stand: Ninth Circuit Upholds FCRA Claims in Spokeo

On August 15, 2017, the Ninth Circuit delivered the latest episode in the Robins v. Spokeo saga, reaffirming on remand from the Supreme Court that plaintiff Robins had alleged an injury in fact sufficient for Article III standing to bring claims under the Fair Credit Reporting Act (FCRA).

Robins had brought a putative class action against Spokeo, which operates a "people search engine" that compiles consumer data into online reports of individuals' personal information. Robins alleged that Spokeo had willfully violated the FCRA's procedural requirements, including that consumer reporting agencies must "follow reasonable procedures to assure maximum possible accuracy of the information" in consumer reports, because Spokeo's report on Robins allegedly listed the wrong age, marital status, wealth, education level, and profession, and included a photo of a different person. According to Robins, the inaccuracies in the report about him harmed his employment prospects and caused him emotional distress.

A California district court first dismissed Robins' claims against Spokeo, finding that Robins had alleged only a bare procedural violation of the FCRA, not an "injury in fact" sufficient to confer Article III standing. On appeal, the Ninth Circuit disagreed, finding that Robins had alleged an injury in fact and therefore did have standing to bring his claims.

The Supreme Court reviewed the Ninth Circuit's decision last May. It held that an injury in fact must be both particularized – affecting the plaintiff in a "personal and individual" way – and concrete – "real, not abstract." It ruled that a plaintiff does not "automatically" satisfy the injury requirement whenever acting on a statutory cause of action to redress a technical statutory violation: a concrete and particularized injury in fact is still required. However, according to the Supreme Court, some statutory violations can themselves establish a cognizable injury in fact where Congress enacted procedural rights to guard against a risk of "real" – as opposed to purely legal – harm. The Supreme Court instructed the Ninth Circuit to take another look at its standing analysis, because while the Ninth Circuit had previously determined that Robins' injuries were sufficiently particularized to confer standing, it had not analyzed their concreteness in the initial appeal.

On remand, then, the Ninth Circuit considered whether Robins' intangible injuries were concrete enough to confer standing. It...