The Ninth Circuit issued its long-awaited decision in Robins v. Spokeo, Inc., No. 11-56843, 2017 WL 3480695 (9th Cir. Aug. 15, 2017), yesterday—on remand from the Supreme Court. This is the lawsuit in which Mr. Robins alleges that Spokeo, a “people search engine,” published inaccurate information about him that injured his employment prospects. The Ninth Circuit held that Robins’s complaint alleged a sufficiently concrete injury to give him Article III standing to pursue his claim in federal court—but not because of any particular facts or details it included on how the inaccuracies hurt his employment prospects. Here, it was the statutory violation Robins alleges—a violation of the Fair Credit Reporting Act (“FCRA”)—coupled with the types of facts Spokeo reported incorrectly about him (his age, marital status, wealth, education level, and profession) that sufficed to confer Article III standing.

In its earlier opinion, the same Ninth Circuit panel (Judges O’Scannlain, Graber, and Bea) held that Robins had standing because his allegation of a violation of a statutorily created right was, by itself, a sufficient allegation of injury to confer standing. Robins v. Spokeo, Inc., 742 F.3d 409, 412-14 (9th Cir. 2014). The Supreme Court vacated that decision in May 2016, explaining that “Article III standing requires a concrete injury even in the context of a statutory violation” and that the Ninth Circuit had failed to adequately address Article III’s requirement that an alleged injury be concrete. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1549-50 (2016). Since then, courts have endeavored to apply the Supreme Court’s guidance in Spokeo in determining whether particular statutory violations can, by their very nature, inflict concrete injury or whether something more is required for the statutory violation being alleged. See, e.g., In re Horizon Healthcare Servs. Inc. Data Breach Litig., 846 F.3d 625 (3d Cir. 2017) (alleged violation of FCRA involving the theft of two laptops containing the plaintiffs’ personal information was sufficient, by itself, to confer standing because preventing the unauthorized dissemination of personal information was the harm FCRA was intended to prevent); Strubel v. Comenity Bank, 842 F.3d 181 (2d Cir. 2016) (two of the alleged Truth In Lending Act violations involved concrete injuries and thus sufficed for standing; two other alleged violations did not); Braitberg v. Charter Communications, Inc., 836 F.3d 925 (8th Cir. 2016) (alleged violations of Cable Communication Policy Act did not suffice to confer standing because they involved no concrete harm to the plaintiff).

The Ninth Circuit has now expressly adopted the Second Circuit’s decision in Strubel and will follow a two-step approach to analyzing whether a claimed statutory violation can, by itself, involve a concrete injury:

  • In evaluating Robins’s claim of harm, we thus ask: (1) whether the statutory provisions at issue were established to protect his 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.

Robins v. Spokeo, Inc., 2017 WL 3480695, at *4. The court had no trouble concluding that the FCRA provision at issue in the case was established to protect consumers’ concrete interest in accurate reports. Id. And while it acknowledged that some FCRA violations “would not materially affect the consumer’s protected interests in accurate credit reporting[,]” it concluded that the type of inaccuracies Robins alleges (his age, marital status, education background, and employment history) are “the type that may be important to employers or others making use of a consumer report.” Id. at *6, *7.

By focusing its Article III analysis on the question of whether Spokeo’s alleged FCRA violation created “a material risk of harm” to Robins, the Ninth Circuit was not concerned that his allegation of harm to his employment prospects was conclusory and unsupported by any facts that, if true, would show that his employment prospects had indeed been diminished or injured. The Ninth Circuit considered that “additional” injury unnecessary to standing. It explained:

  • As alleged in the complaint, Spokeo has indeed published a materially inaccurate consumer report about Robins. And, as we have discussed, the alleged intangible injury caused by that inaccurate report has also occurred. We have explained why, in the context of FCRA, this alleged intangible injury is itself sufficiently concrete. It is of no consequence how likely Robins is to suffer additional concrete harm as well (such as the loss of a specific job opportunity).

2017 WL 3480695, at *8.

The Supreme Court’s Spokeo decision recognized that an intangible injury—and, in particular, the creation of a “risk of real harm”—can satisfy Article III’s requirement that a plaintiff suffer an injury in fact that is concrete and not conjectural or hypothetical. 136 S. Ct. at 1549. Exactly what distinguishes a risk that is real from a risk that is hypothetical will, as usual, require further case-by-case development. It may need further clarification by the Supreme Court. For now, the Ninth and Second Circuits have agreed on an approach to analyzing whether an alleged statutory violation can, by itself, suffice as a concrete injury. Both courts acknowledge that some statutory violations do not confer standing. But some do. In that arena, litigants and their lawyers will continue to fight about the threshold issue of Article III standing.

Of course, as the Supreme Court noted in Spokeo, one factor in determining whether an intangible harm constitutes an injury in fact for Article III standing purposes is “whether an alleged intangible harm has a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English and American courts.” 136 S. Ct. at 1549. The Ninth Circuit found that the risk Spokeo created by publishing inaccurate information about the kinds of things an employer would likely consider important in making hiring decisions was sufficiently close to the harms the common law causes of action for defamation or libel per se protect against—even though Robins’s claim does not exactly track the common law. 2017 WL 3480695, at *5. But, as my colleague Peter Breslauer recently pointed out in a post on this blog about the Third Circuit’s decision that a single ignored voicemail message suffices to confer standing in a case under the Telephone Consumer Protection Act, seeThird Circuit Rules Unauthorized Call Actionable Under TCPA,” there is room for reasoned argument in some cases that the gap between what the common law has historically protected and a claimed intangible injury alleged by a plaintiff asserting a statutory violation is simply too great to confer Article III standing.