Litigation Update: Appellate Law Review: High Court Limits Standing to Bring FCRA Class Actions, Says Litigants Must Show "Concrete" Injury

The doctrine of standing is a fundamental aspect of federal court jurisdiction which "limits the category of litigants empowered to maintain a lawsuit in federal court to seek redress for a legal wrong." A plaintiff bears the burden of establishing his standing by proving that he "(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision."  The "first and foremost" element of standing is injury in fact, which requires a plaintiff to show that he suffered a violation of a legally protected interest that resulted in a "concrete and particularized" injury which is "actual or imminent, not conjectural or hypothetical." A particularized injury "affect[s] the plaintiff in a personal and individual way."  A concrete injury is one that actually exists.  As used in Supreme Court jurisprudence, the term "concrete" means real as opposed to abstract.

Last month, the Supreme Court handed down its opinion in Spokeo, Inc. v. Robins, No. 13-1339, which held that standing to sue under the Fair Credit Reporting Act (FCRA) requires more than a bare allegation of a statutory violation.  Plaintiff Thomas Robins sued Spokeo, Inc., on his own behalf and on behalf of those similarly situated, for violating their statutory rights under the FCRA.  The FCRA governs the creation and use of consumer reports, requiring consumer reporting agencies to, among other things, ensure the accuracy of the reports they disseminate, 15 U.S.C. §1681e(b); notify providers and users of consumer information of their responsibilities under the FCRA, 15 U.S.C. §1681e(d); limit the circumstances in which they provide consumer reports for employment purposes, 15 U.S.C. §1681b(b)(1); and post toll-free numbers for consumers to request reports, 15 U.S.C. §1681j(a). Willful violations of any requirement of the FCRA creates liability to the affected individual for, among other things, either actual damages or statutory damages, costs, attorneys' fees and, in some cases, punitive damages. 15 U.S.C. §1681n(a).

Spokeo is a web-based consumer reporting agency under the FCRA which searches a wide spectrum of databases, gathers and provides personal, professional and contact information belonging to any individual about whom a user submits an inquiry. Robins alleged that Spokeo disseminated false information about him, including that he is in his fifties, affluent, employed with a graduate degree, and married with children. According to Robins, none of these assertions is true.  A federal district judge in California dismissed Robins's case for lack of standing because Robins failed to allege an injury in fact, but the Ninth Circuit Court of Appeals reversed that decision.

The Supreme Court vacated the Ninth Circuit's decision and remanded the case for further analysis after finding that the appellate court's decision only analyzed whether Robins alleged a "particularized" injury.

Particularization is necessary to establish injury in fact, but it is not sufficient. An injury in fact must also be "concrete." Under the Ninth Circuit’s analysis, however, that independent requirement was elided. As previously noted, the Ninth Circuit concluded that Robins' [sic] complaint alleges "concrete, de facto" injuries for essentially two reasons. First, the court noted that Robins "alleges that Spokeo violated his statutory rights, not just the statutory rights of other people."  Second, the court wrote that "Robins's personal interests in the handling of his credit information are individualized rather than collective." (emphasis added).  Both of these observations concern particularization, not concreteness.

(citations omitted).

While taking no position on the Ninth Circuit's ultimate conclusion that Robins sufficiently alleged an injury in fact, the Court noted that violations of provisions of the FCRA alone may not cause concrete harm to an individual. For instance, disseminating an incorrect zip code for an individual likely causes him no concrete injury.  Similarly, disseminating accurate information but failing to observe the notice requirements of the FCRA likely causes no concrete harm to an individual.  As such, courts cannot simply assume that a plaintiff alleging a statutory violation has standing without first addressing both the particularization and the concreteness of his alleged injury.

While the Court's decision was not a complete victory for businesses and the U.S. Chamber of Commerce, which urged the Court to adopt a "real world" injury requirement in order to bring suit in federal court, the decision does allay fears that allowing the Ninth Circuit’s ruling to stand would open the floodgates for even more “no injury” class actions under various consumer protection statutes.