Spokeo Returns to Ninth Circuit: Was Injury ‘Concrete?’

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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.

‘Concrete and Particularized’ Elided

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.”

Arguments on Remand

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 pcooper@bna.com

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

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