Ninth Circuit Rules on Spokeo Remand
On August 15, 2017, the Ninth Circuit ruled that a litigant who accused Spokeo of violating the Fair Credit Reporting Act by allegedly reporting inaccurate information about him had claimed a sufficiently concrete injury to meet the Article III standing bar established by the U.S. Supreme Court in the dispute last year.
A unanimous Ninth Circuit panel again reversed the lower court's dismissal of Thomas Robins' putative class action accusing Spokeo of inaccurately publishing a consumer report on its website about his employment history and wealth, among other things. The Ninth Circuit had previously ruled to revive the suit in 2014, but had been tasked with reconsidering its decision after the U.S. Supreme Court, in a landmark decision, ruled that plaintiffs must allege concrete injuries and not rely on mere statutory violations to establish Article III standing.
On remand, the panel rejected Spokeo's argument that Robins' allegations of harm were too speculative to establish a concrete injury. The Ninth Circuit instead concluded that Robins had met the standing bar since he had alleged FCRA violations that clearly implicated his "concrete interests in truthful credit reporting" that Congress had solidified in enacting the statute.
While at first blush, the ruling seems to give plaintiffs a low standing bar and in turn present difficulties for defendants trying to challenge standing for statutory injury cases in the Ninth Circuit, the court's fact-dependent decision and insistence that there must be an "examination of the nature of the specific alleged reporting inaccuracies to ensure that they raise a real risk of harm," may ultimately give companies a boost. Following the ruling, courts may be led to focus greater emphasis on each plaintiff's specific allegations of harm or wrongdoing. This is especially true given the Ninth Circuit's insistence that some harm must be alleged and that not every "minor inaccuracy reported in violation of the FCRA" would give rise to standing.
Interestingly, the emphasis on the need to examine the nature of the specific inaccuracies, may potentially lead to questions of whether individualized issues will ultimately dominate and, in the end, make it more difficult for plaintiffs to meet the requirements for certifying a class action. While this is hashed out in the courts moving forward, we can also likely anticipate that the issue of standing is not finally resolved. Instead, the Ninth Circuit's ruling will likely deepen the divide with other circuits, which may ultimately bring the issue back to the Supreme Court at some point in the future.
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