Last week, the US Supreme Court heard arguments in one of the most closely watched cases of this term, Spokeo, Inc. v. Robins, a putative class action seeking statutory damages for an alleged violation of the Fair Credit Reporting Act (“FCRA”). The plaintiff, Robins, alleged that Spokeo, which operated a “people search engine” that aggregates publicly available information about individuals into an on-line database, reported inaccurate information about him that could negatively impact his job prospects. He brought an action under an FCRA provision that required credit reporting companies to follow “reasonable procedures to assure maximum accuracy of the information concerning the individual about whom the report relates.” The FCRA provides for statutory damages of “not less than $100 and not more than $1,000,” for “willful” violations of the statute.

The district court had dismissed the action, finding that Robins lacked Article III standing because he failed to allege an injury in fact, i.e., he had not alleged any “actual or imminent harm.” Reversing, the United States Court of Appeals for the Ninth Circuit held that Robins had Article III standing because “the statutory cause of action does not require a showing of actual harm when a plaintiff sues for willful violations.” Instead, “the violation of a statutory right is usually a sufficient injury in fact to confer standing.”

During the argument, most of the justices appeared to agree that some sort of concrete harm was necessary to confer Article III standing beyond the violation of a statute, but they disagreed as to whether the publication of inaccurate statements was sufficient. For example, Justice Kagan asked Spokeo’s counsel why wouldn’t the dissemination of false information in a credit report be a concrete injury?” She continued: It “seems like a concrete injury to me. If someone did it to me, I would feel harmed.” Justice Stephen Breyer agreed, adding that there can be economic harm, but also psychic harm, from the publication of incorrect information. Justice Samuel Alito was more skeptical, asking whether there was any evidence that anyone other than Robins himself conducted a search for his information and if not, would not any harm be purely speculative? Chief Justice Roberts asked whether a plaintiff should be able to recover under a law prohibiting the publication of false information if the defendant published an inaccurate phone number, but the plaintiff had requested an unlisted number anyway.

The justices also touched on the issue of whether the harm alleged had to flow from the alleged violation. For example, Justice Scalia rejected the assertion that Congress had intended to identify misinformation as actionable harm under the FCRA. “It identified as the harm the failure to follow the procedures that it imposed upon credit reporting agencies. It said nothing about people who have been hurt by misinformation being able to sue.” Justice Kagen agreed that the FCRA imposes procedural requirements, but suggested that in enacting the FCRA Congress had identified the dissemination of false credit information as a harm and so Robin’s injury fell within the scope of the protections afforded. Justice Scalia disagreed, noting that the FCRA has some provisions that have nothing to do with accuracy, such as the requirement to provide an 800 number. He asked whether false information would provide sufficient injury to sue under a provision requiring companies to publish an 800 number? On this point, Justice Kagen appeared to concede a plaintiff could not sue in that case since the harm (false information) would not be linked to the violation (failure to have a 800 number).

Although the issue that was certified for appeal was whether a statutory violation alone is sufficient to confer Article III standing, it appears unlikely that a ruling will address this directly and more likely that the decision will focus on whether Robins suffered actual harm as a result of Spokeo’s alleged publication of false information about him.

Find the copy of the transcript of the argument.