By Perry Cooper
Dec. 8 — How concrete a plaintiff’s injury must be to sue in federal court will be back before the Ninth Circuit Dec. 13 when it hears oral arguments in a consumer privacy case on remand from the U.S. Supreme Court ( Robins v. Spokeo Inc., 9th Cir., No. 11-56843, oral arguments 12/13/16 ).
The Supreme Court held in May that the U.S. Court of Appeals for 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 court have disagreed over its meeting in subsequent decisions.
Attorneys for both parties were confident in interviews with Bloomberg BNA after the May decision that their sides would win on remand.
Jay Edelson of Edelson P.C. in Chicago, counsel for plaintiff Thomas Robins, pointed to Justice Ruth Bader Ginsburg’s dissent, in which she argued that the lower court already held that Robins’s injury—the publication of inaccurate biographical information—was concrete.
Andrew J. Pincus of Mayer Brown LLP in Washington, who represents defendant Spokeo Inc., which published the information online, also expects to win.
And even if Spokeo doesn’t win the concreteness question on remand, he told Bloomberg BNA class certification will be a challenge for plaintiffs because they will have to show standing with respect to each class member.
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.”
After the Supreme Court ordered the Ninth Circuit to take another look, Ninth Circuit Judges Diarmuid F. O’Scannlain, Susan P. Graeber and Carlos T. Bea ordered the parties to brief the concreteness issue in Robins’s case.
Robins argues in his brief that his injury was concrete because “Spokeo committed rampant and persistent procedural violations that led to the dissemination of the types of false information about him that create a ‘material risk of harm’ to the interest the FCRA protects.”
Spokeo argues in its brief that “no concrete harm or sufficiently certain risk of concrete harm automatically results from every alleged violation of” the FCRA.” Robins’s “pleaded apprehension about potential actions by unknown third parties is too speculative and indistinct to satisfy the risk-of-harm test,” Spokeo says.
Edelson P.C. and Consovoy McCarthy Park PLLC represent the plaintiff.
Mayer Brown represents Spokeo.
To contact the reporter on this story: Perry Cooper in Washington at firstname.lastname@example.org
To contact the editor responsible for this story: Steven Patrick at email@example.com
Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)