On January 22, 2018, the United States Supreme Court denied a petition for writ of certiorari in Spokeo v. Robins – bringing an end to an appellate saga that started in the Ninth Circuit Court of Appeals before heading up to the Supreme Court, back to the Ninth Circuit on remand, and then finally back to the Supreme Court on Spokeo’s petition.

Spokeo, Inc. (“Spokeo”), a consumer reporting agency, filed the writ petition after the Ninth Circuit, considering the case on remand from the Supreme Court, decided in 867 F.3d 1108 (9th Cir. 2017) (“Spokeo III”) (see Client Alert here), that Spokeo’s publication of inaccurate information about the plaintiff in violation of the Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq. (“FCRA”), constituted concrete injuries to the plaintiff’s interest in accurate credit reporting for purposes of standing under Article III of the Constitution.

In denying Spokeo’s petition, the Supreme Court declined to provide further clarity around its decision in 136 S. Ct. 1540 (2016) (“Spokeo II”) regarding the standard for determining what constitutes a “concrete harm,” which must be established in addition to a particularized harm, as part of the injury-in-fact requirement for Article III standing. While the loop is now closed on the Ninth Circuit’s evaluation of this plaintiff’s standing, Spokeo I-IV left federal district and appellate courts split over how the “concreteness” standard is properly applied when analyzing a plaintiff’s Article III standing, particularly under federal consumer protection statutes such as the FCRA, the Fair Debt Collection Practices Act (“FDCPA”), and the Telephone Consumer Protection Act (“TCPA”).

Spokeo I – The First Ninth Circuit Decision

The Spokeo dispute arose when Thomas Robins (“Robins”) sued Spokeo after discovering that Spokeo had allegedly published a report on its website that contained inaccurate (but suggestively positive) information about Robins’ age, marital status, wealth, education level, and profession. Robins sought to recover statutory damages provided by the FCRA, alleging that the inaccuracy harmed his employment prospects at a time when he was unemployed, and that Spokeo had willfully violated Section 1681e(b) of the FCRA, which imposes requirements on credit reporting agencies to ensure the accuracy of their credit reports. Robins did not allege that he had suffered any actual, tangible harm. Judge Otis D. Wright II of the U.S. District Court for the Central District of California dismissed the case for lack of standing, and Robins appealed.

The Ninth Circuit reversed in 742 F.3d 409 (9th Cir. 2014) (“Spokeo I”), holding that Robins had pled an injury-in-fact to satisfy Article III standing because he had alleged a particularized harm that involved Robins’ personal interests in the handling of his credit information. Spokeo appealed that decision to the Supreme Court.

Spokeo II – The Supreme Court Decision

In Spokeo II, which was entered on May 16, 2016, and revised on May 24, 2016, the Supreme Court – with eight justices, prior to the appointment and confirmation of Justice Neil Gorsuch – explained that Congress cannot legislate Article III standing by merely inserting into a federal statute, such as the FCRA, a private right of action. Article III standing requires the “irreducible constitutional minimum” of (1) an injury-in-fact, (2) fairly traceable to the challenged conduct, (3) that is likely to be redressed by a favorable judgment. To establish an injury-in-fact, a plaintiff must have suffered “an invasion of a legally protected interest” that is “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.”

The Supreme Court reiterated that the injury-in-fact element of Article III standing requires that the plaintiff’s injury be concrete and particularized, and that these are separate types of injuries that need to be evaluated independently, “even in the context of a statutory violation.” See 136 S. Ct. at 1547-48. The Supreme Court instructed that a “concrete” injury must be real, not abstract, though the harm can be tangible or intangible. Id. A plaintiff that alleges a statutory violation without suffering any tangible harm can prove a concrete injury for purposes of Article III standing if the intangible injury “has a close relationship” to harms that were traditionally regarded as providing the basis for a lawsuit at common law. Id. at 1549. The Supreme Court noted that Congress can elevate an intangible harm to a concrete injury, but cautioned that “Congress’ role in identifying and elevating intangible harms does not mean that a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right.” Id. at 1550. The plaintiff’s injury must still be real, and a plaintiff does not satisfy Article III standing by alleging a “bare procedural violation, divorced from any concrete harm.” Id. at 1549-50. The Supreme Court remanded the case to the Ninth Circuit to evaluate, in light of these instructions, whether Robins had suffered a concrete injury.

Spokeo III – Ninth Circuit’s Decision on Remand

In Spokeo III, which was entered on August 15, 2017, the Ninth Circuit considered whether Robins had suffered a concrete injury, in addition to an injury that was particularized to him, and concluded that he had.

First, the Ninth Circuit considered whether the procedural mechanisms of the FCRA’s Section 1681e(b) were established to protect Robins’ concrete interests. The Ninth Circuit answered that question in the affirmative, holding that Section 1681e(b) was enacted to protect consumers’ concrete interest in accurate credit reporting. The Ninth Circuit interpreted Spokeo II to hold that “some” statutory violations alone can constitute concrete harms, and that, in making that determination, Congress’ judgment as to what injuries constitute concrete harms can be instructive, but is not dispositive. In the context of Section 1681e(b), the Ninth Circuit held that a violation could be a concrete harm for purposes of Article III standing because the FCRA was adopted to protect consumers from the transmission of inaccurate credit information, credit reports are of growing importance in modern life, and Section 1681e(b)’s protections resemble common law protections against defamation and the publication of defamatory statements. In doing so, the Ninth Circuit recognized that, while the harms protected against by Section 1681e(b) and common law defamation are not identical, they have a “close relationship” to a degree that meets the concreteness standard set forth by the Supreme Court.

Second, the Ninth Circuit considered whether Spokeo’s alleged violations of Section 1681e(b) harmed, or presented a risk of harm to, Robins’ concrete interests in accurate credit reporting. The Ninth Circuit also answered this question in the affirmative. It recognized that a violation of Section 1681e(b) would not result in a concrete harm if the violation did not result in the dissemination of an inaccurate consumer report because, if there was no dissemination or publication of the information, the alleged violation would not materially affect the consumer’s protected interest in accurate credit reporting. The Ninth Circuit further recognized that not all violations based on the dissemination of false information would result in a concrete harm for purposes of standing because the Supreme Court had expressly recognized that certain violations, such as the publication of an incorrect zip code, would not cause any concrete injury. The Ninth Circuit therefore concluded that determination of whether Robins had asserted a concrete injury based on the violation of Section 1681e(b) required examination of the alleged inaccuracies. The Ninth Circuit then analyzed Robins’ specific claims and concluded that he had pled the existence of a concrete injury because the inaccurate facts Spokeo had published about him were a “real harm” to his employment prospects. The Ninth Circuit limited its holding in two ways: first, by cautioning that this analysis is highly factual and not every inaccurate reporting of the characteristics alleged by Robins – age, wealth, and marital status – would establish a concrete injury under the FCRA; and second, by declining to consider whether its holding would apply to cases that did not involve the publication or dissemination of the inaccurate credit reporting.

Finally, the Ninth Circuit evaluated whether Robins’ allegations of harm were too speculative to establish concrete injury, and concluded that they were not. Because Spokeo’s conduct and Robins’ injury had “already occurred,” they were outside the scope of the “certainly impending” standard set forth in Clapper v. Amnesty International USA, 133 S. Ct. 1138 (2013).

Spokeo IV – The Supreme Court Denies Spokeo’s Petition

Spokeo sought Supreme Court review of the Ninth Circuit’s decision in a writ petition filed on December 4, 2017. Spokeo pointed to the circuit splits that had resulted from Spokeo II, and argued that the Supreme Court’s review and further guidance was required to quell “widespread confusion” over how and when intangible injuries would constitute “concrete” harms for purposes of Article III standing.

On January 22, 2018, the Supreme Court denied Spokeo’s petition without comment or discussion.

Conclusion – The Circuit Splits Left Behind

The Supreme Court’s denial of Spokeo’s petition ends the Spokeo I-IV saga and closes the loop on whether Robins’ FCRA claim based on publication of inaccurate credit reporting constitutes a concrete harm for purposes of Article III standing. After Spokeo, we know that intangible injuries can be deemed concrete if the harm was traditionally regarded as providing the basis for a lawsuit at common law. However, federal district and circuit courts remain split as to how Spokeo II’s concreteness standard should be applied. As of February 14, 2018, 1,303 court opinions have cited Spokeo II in the 631 days since the decision was entered and amended by the Supreme Court. That amounts to more than two court opinions per day over that period.

The circuit splits range from the manner in which the federal courts apply the “degree of risk” standard for impending injuries, to the way that the concreteness standard is applied to intangible injuries arising from alleged violations of consumer statutes.

• For instance, the Fourth, Fifth, Seventh, Eighth, and Eleventh Circuits have interpreted Spokeo II’s concreteness standard to require a showing of actual harm or risk of impending harm to the named plaintiff, whereas the Second and Third Circuits require only a risk of harm to someone, not necessarily the named plaintiff.
• In the context of data breach claims, the Third, Sixth, Seventh, Ninth, Eleventh, D.C., and Federal Circuits have held that victims of personal data theft have suffered a concrete harm if their personal data is stolen, whereas the Second, Fourth, and Eighth Circuits require more than just stolen data to establish a concrete harm, particularly when there has been a lengthy passage of time from the breach to the filing of the complaint.
• Differences have also arisen in how courts apply the Spokeo standard to claims under various federal consumer statutes. The Second, Fourth, Seventh, Eighth, and D.C. Circuits have found that statutory violations of the FCRA, without more, do not meet the concreteness requirement of standing, while the Third and Ninth Circuits have reached the opposite conclusion. A similar circuit split has arisen under the FDCPA, with the Sixth Circuit holding that a violation of the FDCPA, without more, does not constitute a concrete injury sufficient for purposes of Article III standing, while the Second, Eighth, and Eleventh Circuits hold that it does. Likewise, the Third, Ninth, and Eleventh Circuits have held that a violation of the TCPA, without more, satisfies the concreteness requirement of standing, whereas a number of federal district courts, including the United States District Courts for the Eastern District of Missouri, Eastern District of Louisiana, and Western District of Louisiana, have reached the opposite conclusion. In the context of the Fair and Accurate Credit Transactions Act, the Second and Seventh Circuits have held that bare statutory violations do not satisfy Spokeo’s standard for a concrete harm, whereas a number of federal district courts, including the United States District Courts for the Southern District of Florida and the Northern District of Georgia, have found that a statutory violation alone is enough. Similar splits have emerged under the Video Privacy Protection Act and Consumer Credit Protection Act, though the majority of courts have found that a violation of those statutes, without any further injury, is sufficient to confer standing.

These district and circuit splits raise concerns regarding forum shopping, and confirm that Article III standing is an issue that should be analyzed by all parties in federal court – both at the beginning of litigation and throughout the pendency of the case. The Supreme Court will have an opportunity resolve certain of these circuit splits and revisit the issue of what constitutes a concrete harm in the context of data breach cases if it grants a pending petition for writ of certiorari to review the D.C. Circuit’s decision in Attias v. CareFirst Inc., 865 F.3d 620 (D.C. Cir. 2017).

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