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By Perry Cooper
Dec. 13 — Questions from the Ninth Circuit about how inaccurate online information actually affected a plaintiff’s job prospects could derail a putative class action ( Robins v. Spokeo Inc., 9th Cir., No. 11-56843, argued 12/13/16 ).
Judge Carlos T. Bea even suggested at oral argument in the U.S. Court of Appeals for the Ninth Circuit Dec. 13 that the court allow the plaintiff to file an amended complaint at this late date to add more details about his reputation and how it was harmed. And Judge Diarmuid F. O’Scannlain latched onto the idea.
The U.S. Supreme Court held in May that the Ninth Circuit wasn’t thorough enough on the first go-round in its analysis of whether the plaintiff’s injury was concrete as well as particular to him.
The decision has implications for class actions based on a number of consumer, privacy and other federal statutes, but district courts have disagreed over its meaning in subsequent decisions.
William S. Consovoy, counsel for plaintiff Thomas Robins, warned at oral argument that the court’s new inquiry seemed too focused on the specific harm to Robins rather than the type of interest protected by Congress. Consovoy is a partner at Consovoy McCarthy Park PLLC in Arlington, Va.
But Andrew J. Pincus, who argued for online aggregator Spokeo.com, welcomed the suggestion of adding more details. More information on Robins’s injury would erase his standing problems, but would put class certification at risk. Pincus is a partner at Mayer Brown LLP in Washington.
Judge Susan P. Graber said it was the Ninth Circuit’s job just to determine if Robins’s complaint contained enough facts to get him into federal court without making law for future cases and for purposes of class certification, as the parties wanted.
But Pincus said the “real-world fact is that this case is about class-ability.” In other words, if Robins’s standing comes down to individual facts about his situation, each class member would have to provide those facts. Such individualized questions would defeat class certification.
Spokeo.com aggregates personal information about individuals from around the web. Robins filed a class action against the company alleging it violated the Fair Credit Reporting Act, 15 U.S.C. § 1681, by posting inaccurate information about him.
The Supreme Court said that to establish an injury in fact, a plaintiff must prove his injury was “concrete and particularized.”
But the Ninth Circuit elided these two requirements, the court said. It determined that Robins’s injury was particularized, but didn’t address its concreteness.
The Supreme Court further defined concrete to include certain intangible harms and the “risk of real harm.”
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