On March 11, the U.S. District Court for the Central District of California approved a settlement stipulation between the parties in the long-running Fair Credit Reporting Act litigation involving Spokeo, Inc. See Thomas Robins v. Spokeo, Inc., Case No. 2:10-cv-05306 (C.D. Cal.). The settlement brings an end to the dispute that led to the U.S. Supreme Court’s landmark 2016 ruling on the contours of Article III jurisdiction and the ability of courts to hear cases alleging statutory, technical, or procedural damage without actual injury-in-fact. Ultimately, the settlement means that the ongoing dispute – which has generated a wealth of related litigation and motions practice in consumer class actions and similar statute-heavy arenas – has concluded with a whimper.

Troutman Sanders has reported on Spokeo on numerous occasions over the past four years, including here, here, here, here, here, and here.

Background

On May 16, 2016, the Supreme Court of the United States issued its much-anticipated decision in Spokeo, Inc. v. Robins. Spokeo considered whether Congress may confer Article III standing by authorizing a private right of action based on the violation of a federal statute alone, despite a plaintiff having suffered no “real world” harm. The Supreme Court, in a 6-2 decision, vacated and remanded the decision of the Ninth Circuit, the latter of which found the existence of Article III standing in a claim under the FCRA. The Court found that while the Ninth Circuit had considered whether the harm was particularized, the lower court had failed to consider whether the “invasion of a legally protected interest” was “concrete.” After holding that a “violation of one of the FCRA’s procedural requirements may result in no harm,” the Supreme Court instructed the Ninth Circuit to decide “whether the particular procedural violations alleged in this case entail a degree of risk sufficient to meet the concreteness requirement.”

On August 15, 2017, the Ninth Circuit issued its decision on remand, reversing and remanding the case to the California district court after finding that Robins had standing to pursue his claims. Spokeo appealed that ruling to the Supreme Court again, arguing that the Court’s prior opinion created massive uncertainty among lower courts as to the contours of Article III standing – particularly in cases alleging statutory claims based on purely technical or procedural violations.

On January 22, 2018, the Supreme Court denied the second petition for a writ of certiorari filed by Spokeo.

Settlement

Left pending in the California federal district court, the parties engaged in mediation after the Supreme Court’s January 2018 denial and ultimately came to a settlement.

On March 8, 2019, Robins filed a stipulation for relief that was entered by the district court three days later. Per the stipulation:

  • For a period of three years, “Spokeo will not publish any numerical estimates or predictions of consumer credit scores” unless its terms and conditions “specify that Spokeo’s profiles may only be used for [non-FCRA] purposes.”
  • Spokeo will provide “a clear and appropriately-titled hyperlink” to an opt-out form on its privacy page, which will be available from all pages on its website via its “general navigation menu.”
  • A disclaimer on Spokeo’s terms and conditions page is required to state that its site users may not use any information for any FCRA purposes.
  • Spokeo must include additional disclaimers indicating that it is not a consumer reporting agency as defined by the FCRA.
  • Spokeo customers will be required to certify and agree that they will not use the company’s website and its information for any FCRA purpose.

A copy of the stipulation can be found here. The case was dismissed with prejudice by the Court on March 12.