Spokeo Speedwagon: Employers Forced To Take Privacy Breach Cases On The Run

By now, most everyone has heard it from a friend who, heard it from a friend who, heard it from another about the U.S. Supreme Court's 2016 decision in Spokeo, Inc. v. Robins. It is the case being cited across the country in privacy litigation cases - primarily data breach and Fair Credit Reporting Act (FCRA) class actions - to determine whether those impacted by data breaches and other privacy violations have proper "standing" to bring their claim in court. Depending on the court of appeals claiming jurisdiction, both plaintiffs and defendants have used this decision to their advantage.

Now, however, another court has weighed in with a pivotal decision in this ongoing saga, and let's just say companies don't want it around. On remand from the Supreme Court, the 9th Circuit Court of Appeals recently gave a boost to individuals seeking to sue companies collectively for intangible harms in privacy cases. Although Thomas Robins did not suffer harm in the traditional sense when Spokeo published incorrect information about him on their online database, the 9th Circuit agreed on August 15 that Robins' allegations the company violated procedural requirements of the FCRA were sufficiently concrete to confer standing under Article III of the U.S. Constitution.

In privacy cases like those involving the FCRA and data breaches, demonstrating "actual or imminent" harm at the pleading stage proves difficult. Often, plaintiffs' information has not yet been used in a way that has caused any actual harm. Companies have successfully used this fact, along with the reasoning in the Supreme Court's Spokeo decision, to challenge plaintiffs' standing when they bring claims alleging intangible harms, such as those alleged by Robins.

Such quick wins save companies hundreds of thousands of dollars. The new decision from the 9th Circuit and cases like it, however, give plaintiffs a path to defeat such challenges. Now companies are certainly under the gun and must prepare to take it on the run.

Setting The Stage: Talk Is Cheap When The Story Is Good

Spokeo operates a "people search engine" that generates background reports about individuals upon request, using information it gathers from various public records, social media, and other online sources. You can search for people by name, social media account, phone number, and address. Spokeo's website states that it should be used for "research" and to "reconnect" with friends and family.

Robins sued Spokeo after...