Robins v. Spokeo, Inc.

• Decision Date: 15 August 2017
• Docket Number: No. 11-56843,11-56843
• Citation: 867 F.3d 1108
• Parties: Thomas ROBINS, individually and on behalf of all others similarly situated, Plaintiff–Appellant, v. SPOKEO, INC., a California corporation, Defendant–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

867 F.3d 1108

Thomas ROBINS, individually and on behalf of all others similarly situated, Plaintiff–Appellant,

v.SPOKEO, INC., a California corporation, Defendant–Appellee.

No. 11-56843

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 13, 2016 San Francisco, California

Filed August 15, 2017

William S. Consovoy (argued), Consovoy McCarthy Park PLLC, Arlington, Virginia; Jay Edelson, Rafey S. Balabanian, Ryan D. Andrews, Roger Perlstadt, and J. Aaron Lawson, Edelson PC, Chicago, Illinois; Patrick Strawbridge, Consovoy McCarthy Park PLLC, Boston, Massachusetts; for Plaintiff–Appellant.

Andrew J. Pincus (argued), Archis A. Parasharami, Stephen C.N. Lilley, and Daniel E. Jones, Mayer Brown LLP, Washington, D.C.; John Nadolenco, Mayer Brown LLP, Los Angeles, California; Donald M. Falk, Mayer Brown LLP, Palo Alto, California; for Defendant–Appellee.

Daniel J. McLoon, Jones Day, Los Angeles, California; Meir Feder, and Joshua S. Stillman, Jones Day, New York, New York; for Amicus Curiae Experian Information Solutions, Inc.

A. James Chareq, Hudson Cook LLP, Washington, D.C., for Amicus Curiae Consumer Data Industry Association.

Marcy McLeod, General Counsel; John R. Coleman, Assistant General Counsel; Nandan M. Joshi and Kristin Bateman, Counsel; Consumer Financial Protection Bureau, Washington, D.C., for Amicus Curiae Consumer Financial Protection Bureau.

Before: Diarmuid F. O'Scannlain, Susan P. Graber, and Carlos T. Bea, Circuit Judges.

OPINION

O'SCANNLAIN, Circuit Judge:

On remand from the Supreme Court, we must determine whether an alleged violation of a consumer's rights under the Fair Credit Reporting Act constitutes a harm sufficiently concrete to satisfy the injury-in-fact requirement of Article III of the United States Constitution.

I

A

Spokeo, Inc., operates a website by the same name that compiles consumer data and builds individual consumer-information profiles. At no cost, consumers can use spokeo.com to view a report containing an array of details about a person's life, such as the person's age, contact information, marital status, occupation, hobbies, economic health, and wealth. More detailed information is available for users who pay subscription fees. Spokeo markets its services to businesses, claiming that its reports provide a good way to learn more about prospective business associates and employees.

At some point, Thomas Robins became aware that Spokeo had published an allegedly inaccurate report about him on its website. Robins then sued Spokeo for willful violations of the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681 et seq . FCRA imposes a number of procedural requirements on consumer reporting agencies to regulate their creation and use of consumer reports.¹ The statute gives consumers affected by a violation of such requirements a right to sue the responsible party, including the right to sue (and to recover statutory damages) for willful violations even if the consumer cannot show that the violation caused him to sustain any actual damages. See id. §§ 1681n, 1681o.

Robins's suit alleged that Spokeo willfully violated various procedural requirements under FCRA, including that Spokeo failed to "follow reasonable procedures to assure maximum possible accuracy" of the information in his consumer report. Id. § 1681e(b). He alleged that, as a result, Spokeo published a report which falsely stated his age, marital status, wealth, education level, and profession, and which included a photo of a different person. Robins alleged that such errors harmed his employment prospects at a time when he was out of work and that he continues to be unemployed and suffers emotional distress as a consequence.

B

The district court dismissed Robins's First Amended Complaint, upon its determination that he lacked standing to sue under Article III of the United States Constitution. Specifically, the district court concluded that Robins alleged only a bare violation of the statute and did not adequately plead that such violation caused him to suffer an actual injury-in-fact.

Robins appealed to this court, and we reversed. Robins v. Spokeo, Inc. (Spokeo I ), 742 F.3d 409, 414 (9th Cir. 2014). We held that Robins's allegations established a sufficient injury-in-fact—that is, that he allegedly suffered a concrete and particularized injury—because Robins alleged that Spokeo violated specifically his statutory rights, which Congress established to protect against individual rather than collective harms. Id . at 413. Likewise, we concluded that the alleged harm to Robins's statutory rights was certainly "caused" by Spokeo's alleged violations of FCRA and that FCRA's statutory damages could redress such injury. Id . at 414. We ordered the case to be remanded to the district court for further proceedings.

C

On certiorari, the Supreme Court vacated our opinion, and held that our standing analysis was incomplete. See Spokeo, Inc. v. Robins (Spokeo II ), ––– U.S. ––––, 136 S.Ct. 1540, 194 L.Ed.2d 635 (2016). The Supreme Court noted that although our analysis properly addressed whether the injury alleged by Robins was particularized as to him, we did not devote appropriate attention to whether the alleged injury is sufficiently concrete as well. Id. at 1548. The Court emphasized that particularity and concreteness are two separate inquiries, and it vacated our opinion and remanded the case with instructions to consider specifically whether Robins's alleged injuries "meet the concreteness requirement" imposed by Article III. Id . at 1550. The Court did not call into question our conclusions on any of the other elements of standing.

D

On remand to this court, and after further briefing and oral argument, the question before us is whether Robins has sufficiently pled a concrete injury under the Spokeo II rubric.

II

Robins argues that Spokeo's alleged violation of FCRA—specifically its failure reasonably to ensure the accuracy of his consumer report—is, alone, enough to establish a concrete injury. Robins contends that he has no need to allege any additional harm caused by that statutory violation because FCRA exists specifically to protect consumers' concrete interest in credit-reporting accuracy. Thus, Robins argues, so long as Spokeo's alleged FCRA violations harm this real-world and congressionally recognized interest, he has standing to sue.

A

Robins's argument requires us to consider, following the Supreme Court's guidance in Spokeo II , the extent to which violation of a statutory right can itself establish an injury sufficiently concrete for the purposes of Article III standing.

Robins is certainly correct that FCRA purportedly allows him to sue for willful violations without showing that he suffered any additional harm as a result. See 15 U.S.C. § 1681n. But the mere fact that Congress said a consumer like Robins may bring such a suit does not mean that a federal court necessarily has the power to hear it.

In Spokeo II , the Supreme Court made clear that a plaintiff does not "automatically satisf[y] the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right." 136 S.Ct. at 1549. Even then, "Article III standing requires a concrete injury." Id. To establish such an injury, the plaintiff must allege a statutory violation that caused him to suffer some harm that "actually exist[s]" in the world; there must be an injury that is "real" and not "abstract" or merely "procedural." Id. at 1548–49 (internal quotation marks omitted). In other words, even when a statute has allegedly been violated, Article III requires such violation to have caused some real—as opposed to purely legal—harm to the plaintiff.

The Court emphasized, however, that congressional judgment still plays an important role in the concreteness inquiry, especially in cases—like this one—in which the plaintiff alleges that he suffered an intangible harm. Although they are often harder to recognize, intangible injuries—for example, restrictions on First Amendment freedoms or harm to one's reputation—may be sufficient for Article III standing. See id. at 1549. And in this somewhat murky area, Congress's judgment as to what amounts to a real, concrete injury is instructive. The Court explained, "In determining whether an intangible harm constitutes injury in fact, both history and the judgment of Congress play important roles." Id. Indeed, "because Congress is well positioned to identify intangible harms that meet minimum Article III requirements, its judgment is ... instructive and important." Id. "Congress may ‘elevate to the status of legally cognizable injuries concrete, de facto injuries that were previously inadequate in law.’ " Id. (alteration omitted) (quoting Lujan v. Defs. of Wildlife , 504 U.S. 555, 578, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ). And "Congress has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before." Id. (internal quotation marks omitted). In some areas—like libel and slander per se—the common law has permitted recovery by victims even where their injuries are "difficult to prove or measure," and Congress may likewise enact procedural rights to guard against a "risk of real harm," the violation of which may "be sufficient in some circumstances to constitute injury in fact." Id.

Accordingly, while Robins may not show an injury-in-fact merely by pointing to a statutory cause of action, the Supreme Court also recognized that some statutory violations, alone, do establish concrete harm. As the Second Circuit has summarized, Spokeo II "instruct[s] that an alleged procedural violation [of a statute] can by itself manifest concrete injury where Congress conferred the procedural right to protect a plaintiff's concrete interests and where the procedural violation presents ‘a risk of real harm’ to that concrete interest." Strubel v. Comenity Bank , 842 F.3d 181, 190 (...