9th Cir. Gets the Last Word in Spokeo Saga

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Last month, the Ninth Circuit Court of Appeals issued its definitive ruling in Robins v. Spokeo, Inc., the closely-watched saga of what constitutes “concrete injury” in the world of consumer privacy actions. No. 11-56843 (9th Cir. Aug. 15, 2017) (slip op. available here). While businesses were hopeful that the conservative-leaning U.S. Supreme Court would effectively gut consumer class actions when the case was heard earlier this year, instead, the Court punted on the key issue of whether a plaintiff can suffer concrete and particularized harm without any clear monetary damages, holding that Article III standing is not conferred upon a plaintiff simply by “alleging a bare procedural violation,” yet acknowledging that the required injury may be intangible.

In Robins’ case, personal data aggregator Spokeo posted false information about him online, concerning his marital status, employment status, and annual salary. The plaintiff sued Spokeo under the FCRA (Fair Credit Reporting Act), alleging the company willfully violated certain procedural requirements of the FCRA, resulting in an erroneous report that harmed his job prospects at a time when he was unemployed and, as a result, he suffered emotional distress. While the district court found that Spokeo likely committed a statutory violation of the FCRA, it dismissed the case, finding that the alleged harm to Robins (diminishing employment prospects, stress, and anxiety) was too attenuated to confer standing. On appeal, the Ninth Circuit reversed and remanded the case, only to be reversed on a narrow issue by the Supreme Court. While the Supreme Court found that the Ninth Circuit’s analysis addressed whether the injury alleged by the plaintiff was particularized as to him, the Court also noted that the panel had not devoted enough attention to whether the alleged injury was sufficiently concrete, and ordered the Ninth Circuit to reevaluate whether Robins’ harm met the “concreteness” standard laid out by the Court.

Luckily for consumer plaintiffs, the Ninth Circuit reinforced its earlier findings and determined that harm of the kind suffered by Robins is indeed concrete enough to confer Article III standing. First, it held that while a mere statutory violation is not sufficient for a plaintiff to show injury-in-fact, some statutory violations, alone, are enough to show concrete harm. Slip op. at 8-10. Second, the court found that the statutory provisions at issue were established to protect Robins’ and other consumers’ concrete interests (as opposed to only procedural rights) and that these violations of the FCRA actually harm or present a material risk of harm to those interests. Id. at 15-19. Although the court acknowledged that not every inaccuracy in a credit report, such as an incorrect zip code, would rise to the level of “real harm,” here, Robins had made specific allegations that his marital status, age, education/degrees, and wealth level were incorrectly reported, and that these inaccuracies caused actual harm to his employment prospects as he was unemployed at the time, as well as causing him anxiety and worry. Id. at 17-18. Finally, the court rejected Spokeo’s argument that the plaintiff’s alleged harm was too speculative to amount to a concrete injury. Id. at 19-20.

This ruling should be the last word in a case that has been court-hopping since 2010, and is expected to have wide-ranging impact on various types of statutory privacy litigation.

Authored by:
Robin Hall, Associate