The United States Supreme Court is back in session and considering issues relevant to advertisers.
During the first week of the 2014-2015 term, the Court issued an order inviting the United States Solicitor General to weigh in on the pending cert. petition in Spokeo, Inc. v. Robins, which is on appeal from the Ninth Circuit. The issue is whether a plaintiff asserting a private right of action under the Fair Credit Reporting Act (FCRA) has requisite Article III standing when his complaint alleges no concrete harm other than the violation of the statutory right itself and he could not otherwise invoke the jurisdiction of a federal court.
The lawsuit was filed by plaintiff Thomas Robins in 2010, alleging that data aggregator Spokeo violated the FCRA by displaying incorrect information about his age, marital status and employment. The plaintiff claimed that he was looking for a job and was concerned that the errors damaged his employment prospects. He sought to represent a class of individuals in a similar situation.
The district court dismissed the suit, holding that the plaintiff failed to allege that he suffered any actual harm.
But the Ninth U.S. Circuit Court of Appeals reversed and let the putative class action move forward. The three-judge appellate panel held that the plaintiff did not have to establish economic harm because the FCRA provides for a private right of action with no damages requirement.
“When, as here, the statutory cause of action does not require proof of actual damages, a plaintiff can suffer a violation of the statutory right without suffering actual damages,” the panel wrote.
Spokeo filed a writ of certiorari with the nation’s highest court in May, in which he argued that the plaintiff must show actual harm rather than a mere fear that potential employers may rely on the allegedly inaccurate data. Since there is a split in the Circuits, the Supreme Court invited the U.S. Solicitor General to file a brief to set forth the views of the federal government – an indication that the Supreme Court will grant certiorari.
In another case, the Supreme Court rejected a petition from Electronic Arts to consider whether its use of college athletes’ names and likenesses is entitled to First Amendment protection. Sam Keller, a starting quarterback for Nebraska and Arizona State, argued that Electronic Arts violated his right of publicity under California law by featuring an avatar at his position wearing his jersey and number with the same height, weight, skin tone, hair color, hair style, handedness, home state, play style (pocket passer), visor preference, facial features, and school year.
EA responded with an anti-SLAPP counterclaim, arguing that Keller’s suit was a strategic lawsuit against public participation and that the company had a First Amendment right to make use of publicly available information for its NCAA College Football video game.
Although a dissenting member of the three-judge panel chided the majority for engaging in “excessive deconstruction” in lieu of a “more holistic examination,” the Ninth Circuit affirmed the denial of EA’s motion to strike Keller’s complaint.
EA “elected to use avatars that mimic real college football players for a reason,” the majority wrote. “If EA did not think there was value in having an avatar designed to mimic each individual player, it would not go to the lengths it does to achieve realism in this regard. Having chosen to use the players’ likenesses, EA cannot now hide behind the numerosity of its potential offenses or the alleged unimportance of any one individual player.”
By denying EA’s motion to intervene in the litigation, the Supreme Court let the opinion stand.
To read the Ninth Circuit decision in Robins v. Spokeo, click here.
To read Spokeo’s petition for writ of certiorari, click here.
To read the Ninth Circuit decision in Keller v. Electronic Arts, click here.
Why it matters: While the Supreme Court denied the cert. petition in the publicity rights lawsuit, the Court’s request for the Solicitor General to file a brief in the Spokeo case indicates a serious interest to grant certiorari. The issue of whether a plaintiff must allege “actual harm” has become increasingly important in the age of data breaches and privacy violations, and companies such as eBay, Google, Yahoo, and the U.S. Chamber of Commerce, have filed amicus briefs in support of Spokeo’s appeal, arguing that such suits have a negative impact on business.