Circuit courts across the country have grappled with the U.S. Supreme Court’s decision on standing last year in Spokeo v. Robins, granting both sides some victories and setbacks here and there. But on Tuesday before the U.S. Court of Appeals for the Ninth Circuit, the plaintiffs hit a home run.
Last year, the Supreme Court ruled in Spokeo that a plaintiff must show more than a mere procedural violation to establish standing to sue in federal courts. Rather, the court held, a plaintiff must allege an injury that is “particularized” and “concrete.” The court said the plaintiff in the case, Thomas Robins, had established injuries particular to him when he claimed the online “people search” website Spokeo published inaccurate information about him. But it remanded the case to the U.S. Court of Appeals for the Ninth Circuit to conduct a more thorough analysis over whether his claimed injury was “concrete.”
On Tuesday, the Ninth Circuit found that he had made a showing of concrete harm.
“It does not take much imagination to understand how inaccurate reports on such a broad range of material facts about Robins’s life could be deemed a real harm,” wrote Diarmuid O’Scannlain. “Ensuring the accuracy of this sort of information thus seems directly and substantially related to FCRA’s goals.”
William Consovoy, a partner at Consovoy McCarthy Park in Arlington, Virginia, who argued for the plaintiffs, referred requests for comment to Jay Edelson, of Edelson PC in Chicago.
“We believe the Ninth Circuit issued what will be seen as the definitive decision articulating Article III standing in the wake of the Supreme Court’s ruling,” Edelson wrote in an emailed statement. “The Court firmly rejected the ‘something more’ doctrine that Spokeo has been pushing for years. As the court explained, litigants need not show ‘additional injury’ beyond what Congress has articulated.”
Andrew Pincus, a Washington, D.C., partner at Mayer Brown, argued for Spokeo.
Spokeo didn’t say whether it would seek a rehearing before the Ninth Circuit or, if need be, petition the U.S. Supreme Court again. In a press statement, Spokeo said the “case will now return to the district court, where Spokeo will … vigorously defend the merits.”
It was a big win for plaintiffs who file class actions, which are often brought over violations of statutes such as the U.S. Fair Credit Reporting Act, the statute at issue in Spokeo. The defense bar, which has heralded the Supreme Court’s holding as a win, has accused plaintiffs lawyers of bombarding the courts with cases where there are no concrete injuries.
Tuesday’s ruling, which was joined by Ninth Circuit Judges Susan Graber and Carlos Bea, raises the prospects that the case could go back to the Supreme Court, particularly since circuit courts have struggled with how to define concrete injuries.
Both sides on remand in Spokeo cited the numerous circuit decisions in support of their arguments.
The Ninth Circuit on Tuesday appeared persuaded by the U.S. Court of Appeals for the Second Circuit’s decision last year in Strubel v. Comenity Bank. In that case, the Second Circuit ruled that a plaintiff who had opened a Victoria’s Secret credit card had standing to sue the issuing bank over two violations under the Truth in Lending Act because she could have been harmed in being uninformed about her credit. The panel also turned to the U.S. Court of Appeals for the Third Circuit’s Jan. 20 decision in In re: Horizon Healthcare Services Data Breach Litigation, which revived a data breach class action after concluding that the plaintiffs’ personal information was a “cognizable injury” that established standing.
In Spokeo, Robins claimed the inaccurate information about him hurt his job prospects. A district judge dismissed the class action, but the Ninth Circuit reversed in 2014.
Taking up the case again, the panel on Tuesday focused on a portion of the Supreme Court’s holding on which many plaintiffs have relied that found a “concrete” injury needn’t be tangible so long as it relied on a harm that Congress recognized or bore a “close relationship” to a harm recognized in English or U.S. courts, such as libel or slander claims.
“We recognize, of course, that there are differences between the harms that FCRA protects against and those at issue in common-law causes of action like defamation or libel per se,” O’Scannlain wrote. But the “relevant point is that Congress has chosen to protect against a harm that is at least closely similar in kind to others that have traditionally served as the basis for lawsuit.”
And although not “every trivial or meaningless inaccuracy” causes harm, the Supreme Court gave little guidance as to what misinformation might be harmless, he added.
The panel also shut down Spokeo’s argument that the harm was speculative, noting that the injuries already have occurred.
“We have explained why, in the context of FCRA, this alleged intangible injury is itself sufficiently concrete,” O’Scannlain wrote. “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).”
Spokeo’s statement expressed disappointment with the Ninth Circuit decision but pointed to one area where it said the court backed its position.
“The Ninth Circuit, in its decision on remand from the Supreme Court, agreed that alleging a statutory violation is not sufficient to establish standing,” the statement reads. “Spokeo is disappointed that the Ninth Circuit concluded that the alleged inaccuracies about Mr. Robins satisfied the Supreme Court’s actual harm standard.”
Contact the reporter at email@example.com. On Twitter: @abronstadlaw.