Spokeo Plot Thickens With 9th Circuit Ruling on Remand

An ‘alleged intangible injury is itself suffi ciently concrete’ under FCRA, court rules

A federal appeals court has issued a new ruling following the U.S. Supreme Court’s remand of Spokeo v. Robins, but it still leaves the issue of concrete harm in the abstract.

In May 2016, the Supreme Court directed the 9th Circuit to have another go at the standing issue in a Fair Credit Reporting Act lawsuit against Spokeo, which defines itself as a “people search engine,” only this time to consider whether the plaintiff’s claimed injuries under the FCRA constituted concrete harm under Article III of the U.S. Constitution.

The lower court on Aug. 15 gave its answer — the plaintiff’s claimed injuries are sufficiently concrete — leaving companies and their counsel wondering where this leaves the Article III standing debate and the myriad law-suits affected by it.

The swath of companies whose business operations fall under the FCRA as well as other consumer protection statutes have been scrutinizing Spokeo v. Robins’ developments. The FCRA requires credit reporting agencies and companies that furnish credit reports to ensure the report information is accurate and complete. It allows for statutory damages between $100 and $1,000 for each willful violation, but it also enables private citizens to sue for damages. Other statutes, such as the Telephone Consumer Protection Act, give consumers a private right of action, but the nature of those violations often makes it difficult for plain-tiffs to show the violation actually caused them injury.

To read this story and other complete articles featured in the August 28, 2017 print edition of Law Week Colorado, copies are available for purchase online.