On August 15, 2017, the Ninth Circuit ruled in Robins v. Spokeo (“Spokeo II”) that the violation of a consumer’s statutory rights under the Fair Credit Reporting Act (“FCRA”) was sufficient to constitute “injury-in-fact” for the purpose of establishing Article III standing. The case involved claims brought by a consumer under the FCRA alleging that Spokeo—an online search engine that compiles and publishes data about individuals including their employment information, education, names of family members and marital status—had published false information about him. As discussed previously on this blog, the Supreme Court in 2016 remanded the case after determining that the Ninth Circuit had failed to properly consider the “concreteness” component of the “injury-in-fact” requirement. In its opinion, the Supreme Court emphasized that a procedural statutory violation alone would not necessarily suffice and that a concrete injury must be “real” and not merely “abstract.”
In Spokeo II, the Ninth Circuit zeroed in on the question of whether an FCRA violation represents the type of statutory violation that can itself constitute a cognizable injury, notwithstanding the Supreme Court’s admonition that a plaintiff does not “automatically satisf[y] the injury-in-fact requirements whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right.”
Aligning with the Second Circuit in Strubel v. Comenity Bank, the Ninth Circuit adopted a two-part test to determine whether the alleged violation of the FCRA was sufficient to fulfill the injury requirement under Article III. First, it asked “whether the statutory provisions at issue were established to protect [the plaintiff’s] concrete interests (as opposed to purely procedural rights),” and, second, it asked “whether the specific procedural violations alleged . . . actually harm, or present a material risk of harm to, such interests.” Under step one, the Court examined the purpose of the FCRA and concluded that its procedural protections “were crafted to protect consumers’ . . . concrete interest in accurate credit reporting about themselves.” Under step two, the Court acknowledged that in some circumstances a “violation alone would not materially affect the consumer’s protected interests in accurate credit reporting[,]” and therefore would be insufficient to satisfy the injury-in-fact requirement. Here, however, the Court concluded that the requirement was met because the plaintiff’s claim “turns on whether Spokeo properly ensured the accuracy of his consumer report, and to prevail [the plaintiff] will have to show that Spokeo did prepare a report that contained inaccurate information about him.”
The Ninth Circuit’s opinion underscores the narrowness of the Supreme Court’s holding in Spokeo. Because the Supreme Court did not hold that a violation of a procedural right granted by statute could not fulfill Article III’s concreteness requirement, lower courts remain free to conclude—as the Ninth Circuit did here—that, on the facts of the particular case presented, such a violation suffices. It is now up to the district and circuit courts to determine whether an alleged statutory violation “presents ‘a risk of real harm’” to the interests Congress sought to protect under the statute at issue. The Supreme Court itself offered little guidance on this front. Accordingly, as we have already seen in the months since the Supreme Court’s decision in Spokeo, results are likely to vary as lower courts attempt to define the precise contours of the concreteness requirement.