Alleged FCRA Violation Sufficiently Concrete for Article III Standing, Ninth Circuit Holds in Spokeo II

by Ballard Spahr LLP

Ballard Spahr LLP

On remand from the U.S. Supreme Court, the U.S. Court of Appeals for the Ninth Circuit has held in Spokeo v. Robins that an alleged Fair Credit Reporting Act (FCRA) violation was sufficiently concrete to support Article III standing. In its closely watched decision in Spokeo last year, the Supreme Court held that an alleged statutory violation does not automatically give a plaintiff standing, and instead the plaintiff must allege that the violation caused a concrete injury.

In Spokeo, the plaintiff alleged that the defendant, a website operator that compiles consumer data and builds individual consumer profiles, published false information about him on its website in violation of the FCRA. The alleged false information included the plaintiff's age, marital status, wealth, education level, and profession, as well as a photo of a person someone other than the plaintiff.

On remand, the Ninth Circuit was charged with determining whether the plaintiff's alleged harm was concrete enough for standing. The court began by noting the Supreme Court's recognition that some statutory violations, standing alone, establish concrete harm. The court then adopted the Second Circuit's rubric for determining when a statutory violation constitutes sufficiently concrete harm. Specifically, a court must determine whether the statutory provisions at issue were established to protect the plaintiff's concrete interests (as opposed to purely procedural rights), and, if so, whether the specific violations alleged actually harm—or present a material risk of harm to—such interests.

Regarding the first question, the Ninth Circuit concluded that the dissemination of false information in consumer reports—i.e., the harm that the FCRA's procedural requirements were designed to prevent—is concrete harm given the ubiquity and importance of consumer credit reports in many facets of modern life, such as in employment decisions, home purchases, and loan applications. The court also noted that the interests protected by the FCRA resemble other reputational and privacy interests that have long been protected under the law, such as in the areas of defamation and libel.

As for the second question, the Ninth Circuit acknowledged that not every FCRA violation will actually harm—or create a material risk of harm to—the plaintiff's concrete interests. For example, the court stated that an FCRA violation that does not result in the creation or dissemination of an inaccurate consumer report, or one that results in a trivial or meaningless inaccuracy, does not satisfy the applicable standard.

The court, however, did not set forth a bright-line test for when an inaccuracy becomes something more than trivial or meaningless because it concluded that the inaccurate information published about the plaintiff, specifically material inaccuracies about his age, marital status, education, wealth level, and profession, demonstrated a harm to the real-world interests—in this case, the plaintiff's employment prospects—that Congress sought to protect through the FCRA.

The Ninth Circuit's fact-specific analysis of the standing issue may ultimately make it difficult for plaintiffs to obtain class certification, because individualized proof may be required to establish whether each class member suffered sufficiently concrete harm. Also, the court's fact- and statute-specific analysis may limit its applicability to cases arising under other statutes.

This decision is the latest in a number of conflicting circuit court opinions analyzing standing in the wake of the Supreme Court's Spokeo decision, and it remains to be seen whether the Supreme Court will once again step in to try to provide further guidance and clarity to courts, practitioners, and parties.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Ballard Spahr LLP | Attorney Advertising

Written by:

Ballard Spahr LLP

Ballard Spahr LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.