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Robins v. Spokeo, Inc.

United States Court of Appeals, Ninth Circuit

August 15, 2017

Thomas Robins, individually and on behalf of all others similarly situated, Plaintiff-Appellant,
v.
Spokeo, Inc., a California corporation, Defendant-Appellee.

          Argued and Submitted December 13, 2016 San Francisco, California

         On Remand from the Supreme Court of the United States D.C. No. 2:10-cv-05306-ODW-AGR

          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.

         SUMMARY[*]

         Article III Standing / Fair Credit Reporting Act

         On remand from the United States Supreme Court, Spokeo, Inc. v. Robins, 136 S.Ct. 1540 (2016), the panel reversed the district court's dismissal of an action brought by Thomas Robins against Spokeo, Inc., alleging willful violations of the Fair Credit Reporting Act ("FCRA"); held that Robins' alleged injuries were sufficiently concrete for the purposes of Article III standing; and concluded that because the alleged injuries were also sufficiently particularized to Robins and caused by Spokeo's alleged FCRA violations that were redress able in court, Robins adequately alleged the elements necessary for Article III standing.

         The Supreme Court held that to establish Article III standing, there must be an injury that is "real" and not "abstract" or merely "procedural." Spokeo, Inc., 136 S.Ct. at 1549.

         Robins alleged that Spokeo published an allegedly inaccurate report about him on its website, and further alleged that Spokeo willfully violated various procedural requirements under FCRA, including failing to follow reasonable procedures to assure the accuracy of the information in his consumer report.

         First, the panel held that Congress established the FCRA provisions at issue to protect consumers' concrete interests (as opposed to purely procedural rights). Specifically, the panel concluded that the FCRA provisions in this case were crafted to protect consumers' (like Robins's) concrete interests in accurate credit reporting about themselves. Second, the panel held that Robins alleged FCRA violations that actually harmed his concrete interest. Specifically, the panel held that Robins alleged inaccuracies by Spokeo concerning his age, marital status, educational background, and employment history that could be deemed a real harm to his employment prospects.

         The panel rejected Spokeo's suggestion that Robins's allegations of harm were too speculative to establish a concrete injury. The panel held that both the challenged conduct and attendant injury had already occurred, where Spokeo published an inaccurate consumer report about Robins and the alleged intangible injury caused by the report had also occurred. The panel concluded that Robins had alleged injuries that were sufficiently concrete for purposes of Article III standing.

          OPINION

          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 ...


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