Lies on Credit Report Enough to Sue: Spokeo Take Two

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By Perry Cooper

A putative class action alleging Spokeo.com posted inaccurate credit information is back online after the Ninth Circuit held that the information created a sufficiently concrete injury to sue ( Robins v. Spokeo, Inc. , 2017 BL 284734, 9th Cir., No. 11-56843, 8/15/17 ).

The case was back before the Ninth Circuit after the U.S. Supreme Court held in May that the appeals court wasn’t thorough enough on the first go-round in analyzing whether the plaintiff’s injury was concrete as well as particular to him.

“Both the challenged conduct and the attendant injury have already occurred,” Judge Diarmuid F. O’Scannlain wrote for the U.S. Court of Appeals for the Ninth Circuit. “We are satisfied that Robins has alleged injuries that are sufficiently concrete for the purposes of Article III.”

“The Ninth Circuit issued what will be seen as the definitive decision articulating Article III standing in the wake of the Supreme Court’s ruling,” Jay Edelson, counsel for the plaintiff told Bloomberg BNA in an email.

“While the case establishes an important legal precedent, we think it is important to keep in mind that our client Thomas Robins did not ask for Spokeo to publish any information about him, let alone wildly inaccurate information that we believe violates federal law,” Edelson, partner at Edelson P.C. in Chicago, said. “He and others who have had their rights violated deserve their day in court and we are happy they will now have it.”

Spokeo is disappointed with the outcome but said the ruling will make it very difficult for the plaintiffs to certify a class action, the company said in a statement.

It pointed to the court’s holding that “every inaccuracy is not sufficient to establish standing, and that there must be ‘examination of the nature of the specific alleged reporting inaccuracies to ensure that they raise a real risk of harm.’”

“Because every claimant will have to meet this standard, individualized inquiries will be necessary,” the company said.

Concrete and Particularized

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.

On remand, the Ninth Circuit found that Congress established the FCRA provisions at issue to protect consumers’ concrete interests. And an inaccurate credit report has “real-world implications,” the court said.

“The threat to a consumer’s livelihood is caused by the very existence of inaccurate information in his credit report and the likelihood that such information will be important to one of the many entities who make use of such reports,” the court said.

The court pushed back on Robins’s argument that any inaccurate disclosure of his information would be sufficient.

But here it is “clear to us that Robins’s allegations relate facts that are substantially more likely to harm his concrete interests than the Supreme Court’s example of an incorrect zip code,” the court said, referring to Justice Samuel A. Alito Jr.'s sole example of what wouldn’t constitute concrete harm.

‘Strong Win for Privacy’

The decision could have major implications for privacy cases.

The ruling “appears to undercut a lot of the decisions that refused standing in data breach cases by claiming that the harm to the user was too ‘speculative’ without actual proof of identity theft,” Warren Stramiello, of counsel & chief information security officer at Gallo LLP in New York told Bloomberg BNA in an email.

Stramiello called the decision “a strong win for privacy and a vindication of the right of individuals to protect their privacy using the civil courts.”

Civil lawsuits are the only real way to protect privacy, he said. “Between the FCC throwing consumers to the corporate wolves and Congress allowing ISPs to sell your private information, there aren’t any real alternatives to individual, mass, or class actions.”

Fight Isn’t Over

The Ninth Circuit said this wasn’t a ruling on the merits of the case, only on the standing issue.

Spokeo said in its statement that it will vigorously continue to defend itself, including arguing its services don’t violate FCRA.

It will also “seek to confirm Justice Kagan’s observation during the oral argument that ‘the class, as [Plaintiff] defined it, is not going to be certified,’” Spokeo said.

Judges Susan P. Graber and Carlos T. Bea joined the opinion.

Edelson P.C. and Consovoy McCarthy Park PLLC represented the plaintiff.

Mayer Brown LLP represented Spokeo.

To contact the reporter on this story: Perry Cooper in Washington at pcooper@bna.com

To contact the editor responsible for this story: Steven Patrick at spatrick@bna.com

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