Spokeo II : On Remand from Supreme Court, Ninth Circuit Finds Statutory Violation of Fair Credit Reporting Act Sufficient to Confer Article III Standing

King & Spalding

On August 15, 2017, in a much-anticipated opinion in a case that has drawn national attention in the past three years, the United States Court of Appeals for the Ninth Circuit held that an alleged violation of the Fair Credit Reporting Act (“FCRA”) constitutes a sufficiently concrete injury-in-fact for purposes of Article III standing to sue notwithstanding the absence of any actual harm. In 2016, the United States Supreme Court had vacated the Ninth Circuit’s 2014 decision permitting the plaintiff to sue for the statutory FCRA violation on the basis that, in its “injury-in-fact” analysis, the Ninth Circuit had failed to consider whether the alleged injury was sufficiently concrete to confer Article III standing. The Supreme Court remanded the case back to the Ninth Circuit, which held oral argument in the fall of 2016 on the concreteness issue before issuing its decision on August 15, 2017, in an opinion destined to be called “Spokeo II.”

Background -

Thomas Robins brought suit against Spokeo, Inc., a “people search engine,” after discovering allegedly incorrect information about him on Spokeo’s website. In a class-action complaint, Robins claimed that, by publishing incorrect information, Spokeo violated the FCRA. Because the FCRA permits an award of statutory damages in a range of $100 to $1,000 for each proven violation, Robins asserted that he was not required to allege any actual injury or harm in order to recover statutory damages.

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