Takeaway: In Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) (“Spokeo II”), the Supreme Court ruled that not every statutory violation gives rise to a concrete injury for standing purposes. An inaccurate report of a person’s zip code, for example, might be a technical violation of the Fair Credit Reporting Act (“FCRA”), but such a violation does not cause the concrete injury required for Article III standing. On remand from the Supreme Court, the Ninth Circuit addressed the concrete injury requirement in Spokeo III (Robins v. Spokeo, Inc., No. 11-56843, 2017 WL 3480695 (9th Cir. Aug. 15, 2017)), ruling that Spokeo’s dissemination of information to the effect that the plaintiff was employed (when he was actually unemployed), and that he was wealthier and better-educated than he actually was, gave rise to a concrete injury. While it may be that Spokeo III is a fact-specific decision, it does appear that, in the Ninth Circuit, a FCRA-alleged inaccuracy must be trivial in the extreme to fall short of Article III’s concrete injury requirement.
As background, the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et. seq., requires consumer reporting agencies to do a number of things, such as “follow reasonable procedures to assure maximum possible accuracy” of the information contained in a consumer report. Id. at § 1681e(b).
Spokeo operates a website that aggregates personal information about individuals and generates individual profiles about them, for use by anyone, including employers. Thomas Robins discovered that Spokeo had a profile about him that contained incorrect information. The profile “falsely stated his age, marital status, wealth, education level, and profession, and … included a photo of a different person.” Spokeo III, 2017 WL 3480695, at *2. Claiming that the report harmed his employment prospects and caused him emotional distress, Robins sued Spokeo in federal court, alleging violations of FCRA and seeking to represent himself and a putative class.
Spokeo’s procedural history is now well-known. The district court dismissed Robin’s complaint for lack of standing, specifically, for failure to allege an actual injury-in-fact. The Ninth Circuit reversed, ruling that Robin’s alleged injuries were sufficiently “particularized” to him, that they were caused by the FCRA violation, and that they were “redressable” in court. Robins v. Spokeo, Inc., 742 F.3d 409 (9th Cir. 2014) (“Spokeo I”). The Supreme Court granted certiorari and reversed, holding in Spokeo II that the Ninth Circuit had not analyzed whether Robin’s injuries were sufficiently “concrete” for standing purposes.
On remand, the Ninth Circuit held that Robin’s alleged injuries were sufficiently concrete to satisfy Article III standing. Following the Supreme Court’s reasoning in Spokeo II, the Ninth Circuit observed that “Robins may not show an injury-in-fact merely by pointing to a statutory cause of action.” Spokeo III, 2017 WL 3480695, at *4. Some statutory violations, however, are by themselves sufficient to constitute concrete harm. Adopting the Second Circuit’s recent formulation of the concrete injury standard in Strubel v. Comenity Bank, 842 F.3d 181 (2d Cir. 2016), the Ninth Circuit boiled the analysis down to two questions: “(1) whether the statutory provisions at issue were established to protect [Robin’s] concrete interests (as opposed to purely procedural rights), and if so, (2) whether the specific procedural violations alleged in this case actually harm, or present a material risk of harm to, such interests.” Spokeo III, 2017 WL 3480695, at *4.
As to the first question, “given the ubiquity and importance of consumer reports in modern life,” and given that FCRA’s protections “resemble other reputational and privacy interests that have long been protected in the law,” the Ninth Circuit concluded “that the FCRA procedures at issue in this case were crafted to protect consumers’ (like Robins) concrete interest in accurate credit reporting about themselves.” Id. at *4-*5 (emphasis added).
As to the second question, the Ninth Circuit acknowledged that any inaccuracy would not suffice, referencing the “incorrect zip code” example given by the Supreme Court in Spokeo II. Id. at *6 (citing Spokeo, II, 136 S.Ct. at 1550). Spokeo II, according to Ninth Circuit, demanded an examination of the nature of the credit reporting inaccuracies “to ensure that they raise a real risk of harm to the concrete interests that FCRA protects.” Id.
According to the Ninth Circuit, Robin’s allegations met this test, “because it is clear to us that Robin’s allegations relate facts that are substantially more likely to harm his concrete interests than the Supreme Court’s example of an incorrect zip code.” Id. at *7. Robins alleged Spokeo incorrectly reported (among other things) that he is employed in a technical or professional field, that he has a graduate degree, and that he is wealthier than he actually is, when in fact he is unemployed and searching for a job. In light of Robin’s allegations of harm to his employment prospects and the anxiety the Spokeo report caused him, and that the information involved was of “the type that may be important to employers or others making use of a consumer report,” the Ninth Circuit was satisfied that Robins’ allegations “present[ed] a sincere risk of harm to the real-world interests that Congress chose to protect with FCRA.” Id.