The Supreme Court has vacated the decision in Spokeo, Inc. v. Robins and remanded it to the Ninth Circuit. Apparently, the Justices felt that the Ninth Circuit botched their legal analysis and is sending it back for a “do over.” Wait! After biting my nails to stubs, sleepless nights, head scratching and countless conversations with colleagues about what Spokeo portends for the background screening industry and class action litigation, this is all we get! I want a refund to this rodeo show.
Justice Alito wrote the majority opinion (6-2 decision with Justice Thomas filing a concurring opinion and Justices Ginsburg and Sotomayor filing a dissenting opinion).
The holding — “because the Ninth Circuit failed to consider both aspects of the injury-in-fact requirement, its Article III standing analysis was incomplete.” And this case is all about standing (not about “that bass”). The central issue is whether Mr. Robins had standing to bring this claim for alleged violation of the Fair Credit Reporting Act (FCRA) if no concrete harm is suffered. According to the Court, the Ninth Circuit’s analysis was “incomplete” because they did not “consider both aspects of the injury-in-fact requirement.” What did the Ninth Circuit fail to consider in its injury-in-fact analysis? Whether Robins suffered “‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.'” (Slip Opinion p. 7)
Concrete = meaning the injury must actually exist.
Particularized = an injury that affects the plaintiff in a personal and individual way.
Skipping ahead to the end and what this means for background screening companies. A plaintiff such as Mr. Robins cannot satisfy Article III standing by alleging a “bare procedural violation” because such may not result in harm. (Slip Opinion p. 10) This is good news for all of us who filed Spokeo motions to stay proceedings based on this decision because we arguably can continue to do so since the Court appears to open the door to that by saying that a mere technical violation of the FCRA is not sufficient to establish standing. In other words, plaintiffs who allege violations of the FCRA need to show concrete and particularized harm to bring a claim.
What’s next? The Ninth Circuit has to review the case again. Regardless of the outcome, it will likely be appealed to the Supreme Court again. The question framed by the Court’s opinion is “whether the particular procedural violations alleged in this case entail a degree of risk sufficient to meet the concreteness requirement.” (Slip Opinion p. 10) Therefore, the Ninth Circuit must conduct a full analysis of the injury-in-fact requirements paying special attention to the concreteness prong as the Court indicates that the “particularized” element of the analysis has been satisfied by Mr. Robins.
