In order to sustain a California consumer lawsuit, a plaintiff must be able to demonstrate that they have standing to sue. “Standing” refers to the legal capacity to bring a claim in a particular capacity. Statutes that permit civil lawsuits to recover damages for violations often establish criteria for standing, and the courts have identified general rules for determining whether a plaintiff has standing, including the requirement of an “injury-in-fact.” See Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). A case arising in California under the Fair Credit Reporting Act (FCRA) resulted in a question about the “injury-in-fact” requirement. The Ninth Circuit ruled that the plaintiff had established standing, Robins v. Spokeo, Inc. (“Spokeo I”), 742 F.3d 409 (9th Cir. 2014), but the Supreme Court vacated this ruling and remanded the case. Spokeo, Inc. v. Robins (“Spokeo II”), 578 U.S. ___ (2016). Earlier this year, the Ninth Circuit again ruled in the plaintiff’s favor. Robins v. Spokeo, Inc. (“Spokeo II”), 867 F.3d 1108 (9th Cir. 2017).
The FCRA regulates the collection, use, and distribution of consumer information related to matters like “credit worthiness,…character, general reputation, [and] personal characteristics.” 15 U.S.C. § 1681a(d)(1). This type of information regularly appears in credit reports, which are used not only in credit and lease applications but also by potential employers. The statute requires “consumer reporting agencies” (CRAs), defined as businesses that collect consumer information and package it in reports for a fee, to “follow reasonable procedures to assure maximum possible accuracy” of the reports they produce. Id. at § 1681e(b). It allows consumers to seek damages in court for violations, with additional penalties for willful or knowing noncompliance. Id. at §§ 1681n, 1681o.
The defendant in Spokeo “operates a website that provides users with information about other individuals.” Spokeo I, 742 F.3d at 410. This may include contact information, economic and work history, and other personal details. The plaintiff filed suit under the FCRA for allegedly failing to confirm the accuracy of the information provided about him by the website. The district court dismissed the lawsuit for lack of standing, finding that he had failed to demonstrate an injury-in-fact. He had not, according to the court, alleged that the information on the website had actually caused him an injury, but instead that the presence of allegedly inaccurate information only created the risk of future harm.
The Ninth Circuit’s Spokeo I ruling reversed the lower court and reinstated the case. The Supreme Court, however, ruled in Spokeo II that the Ninth Circuit failed to apply both elements of the injury-in-fact test, which would require it to find that the plaintiff alleged an injury that is “concrete and particularized.” Spokeo II, 136 S.Ct. at 1548, citing Lujan, 504 U.S. at 560. The Ninth Circuit only considered “particularity” in finding that the allegedly inaccurate information was specific to the plaintiff. On remand, the Ninth Circuit ruled that a “concrete” injury may occur from a statutory violation that “presents a risk of real harm to [a] concrete interest.” Spokeo III, 867 F.3d at 1113, quoting Strubel v. Comenity Bank, 842 F.3d 181, 190 (2d Cir. 2016).
For more than 40 years, business litigation attorney James G. Schwartz has represented businesses and business owners in the Bay Area. Contact us online or at (925) 463-1073 today to schedule an initial confidential consultation with a member of our experienced and knowledgeable team.
More Blog Posts:
Social Media Reference Searches by Employers Do Not Violate the FCRA, According to California Federal Court, Pleasanton Business & Commercial Law Blog, June 30, 2015
U.S. Supreme Court Will Review Ninth Circuit Decision Involving Consumers’ Standing to Sue Without Evidence of Financial Harm, Pleasanton Business & Commercial Law Blog, May 29, 2015
Why Businesses Should Resist Any Temptation to Create Fake Online Reviews, Pleasanton Business & Commercial Law Blog, August 29, 2014