On remand from the United States Supreme Court, the Ninth Circuit today addressed the issue of whether plaintiff adequately established standing for his claims asserting violations of the federal Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. (the "FCRA"), in Robins v. Spokeo, Inc., No. 11-56843. Although the Ninth Circuit held that plaintiff adequately alleged a "concrete" injury arising from his sole claim that defendant violated Section 1681e(b) of the FCRA by failing to "'follow reasonable procedures to assure maximum possible accuracy' of the information in his consumer report," the opinion is limited in scope and leaves certain issues open.
Last May, the United States Supreme Court vacated the Ninth Circuit's initial opinion which held that plaintiff sufficiently alleged Article III standing. The Supreme Court held that the Ninth Circuit's analysis of standing was incomplete because it failed to consider both aspects of the injury-in-fact requirement: (1) whether plaintiff alleged a "particularized" injury; and (2) whether plaintiff alleged a "concrete" injury. Instead, the Supreme Court noted that the Ninth Circuit's analysis focused solely on whether plaintiff alleged a "particularized" injury. Today, the Ninth Circuit addressed the second prong of the analysis, i.e., whether plaintiff sufficiently alleged a "concrete" injury.
Answering in the affirmative, the Ninth Circuit, citing recent decisions by the Second Circuit (Strubel v. Comenity Bank), the Fourth Circuit (Dreher v. Experian Info. Sols., Inc.) and the Sixth Circuit (Lyshe v. Levy), held that a procedural violation of a statute where the plaintiff suffers "the type of harm Congress sought to prevent" may properly be the basis of a "concrete" injury. Because plaintiff confirmed that his sole cause of action involved an allegation that defendant reported inaccurate information about him, the Ninth Circuit held that "the FCRA procedures at issue in this case were crafted to protect consumers' (like [plaintiff]'s) concrete interest in accurate credit reporting about themselves."
Turning to the actual alleged inaccuracies, the Ninth Circuit made clear that an inquiry into standing requires "some examination of the nature of the specific alleged reporting inaccuracies to ensure that they raise a real risk of harm to the concrete interests that FCRA protects." The Court, however, had little trouble concluding that the alleged inaccuracies here were material, as they included categories "that may be important to employers or others making use of a consumer report," such as age, marital status, educational background and employment history. In a footnote, the Ninth Circuit cautioned that its opinion on plaintiff's allegations "does not mean that every inaccuracy in these categories of information [ ] will necessarily establish concrete injury under FCRA." The Ninth Circuit also expressly avoided deciding other important issues, such as whether standing could be satisfied by alleged violations of other provisions of the FCRA that do not affect a report's accuracy, or whether a consumer could sue based on an inaccurate report that was prepared but never published.
The Court did reject defendant's arguments based on Clapper v. Amnesty International USA, that plaintiff's allegations were too speculative. The Ninth Circuit disposed of Clapper out of hand, noting that Clapper involved "threatened conduct," whereas "both the challenged conduct and the attendant injury have already occurred" in the case at hand—defendant published the alleged inaccurate information about plaintiff and plaintiff suffered concrete intangible injury by virtue of defendant's publication. "It is of no consequence how likely [plaintiff] is to suffer additional concrete harm as well (such as the loss of a specific job opportunity)," the Court explained.
We expect defendant to seek en banc review and perhaps petition the Supreme Court to once again review the Ninth Circuit's analysis. What remains is how this decision will impact pending litigation, both in the FCRA context and beyond. The attorneys of Stroock's Financial Services Litigation, Regulation and Enforcement Group are well positioned to answer any questions that you may have about the scope and impact of today's ruling as well as related issues.
On remand from the United States Supreme Court, the Ninth Circuit today addressed the issue of whether plaintiff adequately established standing for his claims asserting violations of the federal Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. (the "FCRA"), in Robins v. Spokeo, Inc., No. 11-56843. Although the Ninth Circuit held that plaintiff adequately alleged a "concrete" injury arising from his sole claim that defendant violated Section 1681e(b) of the FCRA by failing to "'follow reasonable procedures to assure maximum possible accuracy' of the information in his consumer report," the opinion is limited in scope and leaves certain issues open.
Last May, the United States Supreme Court vacated the Ninth Circuit's initial opinion which held that plaintiff sufficiently alleged Article III standing. The Supreme Court held that the Ninth Circuit's analysis of standing was incomplete because it failed to consider both aspects of the injury-in-fact requirement: (1) whether plaintiff alleged a "particularized" injury; and (2) whether plaintiff alleged a "concrete" injury. Instead, the Supreme Court noted that the Ninth Circuit's analysis focused solely on whether plaintiff alleged a "particularized" injury. Today, the Ninth Circuit addressed the second prong of the analysis, i.e., whether plaintiff sufficiently alleged a "concrete" injury.
Answering in the affirmative, the Ninth Circuit, citing recent decisions by the Second Circuit (Strubel v. Comenity Bank), the Fourth Circuit (Dreher v. Experian Info. Sols., Inc.) and the Sixth Circuit (Lyshe v. Levy), held that a procedural violation of a statute where the plaintiff suffers "the type of harm Congress sought to prevent" may properly be the basis of a "concrete" injury. Because plaintiff confirmed that his sole cause of action involved an allegation that defendant reported inaccurate information about him, the Ninth Circuit held that "the FCRA procedures at issue in this case were crafted to protect consumers' (like [plaintiff]'s) concrete interest in accurate credit reporting about themselves."
Turning to the actual alleged inaccuracies, the Ninth Circuit made clear that an inquiry into standing requires "some examination of the nature of the specific alleged reporting inaccuracies to ensure that they raise a real risk of harm to the concrete interests that FCRA protects." The Court, however, had little trouble concluding that the alleged inaccuracies here were material, as they included categories "that may be important to employers or others making use of a consumer report," such as age, marital status, educational background and employment history. In a footnote, the Ninth Circuit cautioned that its opinion on plaintiff's allegations "does not mean that every inaccuracy in these categories of information [ ] will necessarily establish concrete injury under FCRA." The Ninth Circuit also expressly avoided deciding other important issues, such as whether standing could be satisfied by alleged violations of other provisions of the FCRA that do not affect a report's accuracy, or whether a consumer could sue based on an inaccurate report that was prepared but never published.
The Court did reject defendant's arguments based on Clapper v. Amnesty International USA, that plaintiff's allegations were too speculative. The Ninth Circuit disposed of Clapper out of hand, noting that Clapper involved "threatened conduct," whereas "both the challenged conduct and the attendant injury have already occurred" in the case at hand—defendant published the alleged inaccurate information about plaintiff and plaintiff suffered concrete intangible injury by virtue of defendant's publication. "It is of no consequence how likely [plaintiff] is to suffer additional concrete harm as well (such as the loss of a specific job opportunity)," the Court explained.
We expect defendant to seek en banc review and perhaps petition the Supreme Court to once again review the Ninth Circuit's analysis. What remains is how this decision will impact pending litigation, both in the FCRA context and beyond.
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