Spokeo case may return to U.S. Supreme Court after Ninth Circuit ruling about concrete harm, attorney says

By Karen Kidd | Sep 26, 2017

CHICAGO (Legal Newsline) – A closely watched Fair Credit Reporting Act (FCRA) case in which an appeals court recently and again upheld a plaintiff's standing to pursue his claims in federal court might be on its way back to the U.S. Supreme Court, a labor and employment attorney said during a recent interview.

However, that case, Spokeo Inc. v. Robins, isn't the only such case that could attract the high court's attention, Pamela Devata, a partner in the Labor and Employment Practice Group of Seyfarth Shaw in Chicago, said.

"We think there is a high possibility that an FCRA case dealing with concrete harm will likely go to the Supreme Court," Devata said. "But my guess would be that it would be a case dealing with disclosure forms where there is arguably no harm whatsoever, unlike the issue of inaccurate information being reported. I believe the Syed v. M-I case has a petition for certiorari currently before the Supreme Court."

Syed v. M-I questions whether an informational injury would satisfy standing under Article III of the U.S. Constitution as articulated in Spokeo v. Robins.

Pamela Devata, a partner in the Labor and Employment Practice Group of Seyfarth Shaw in Chicago   Photo courtesy of Seyfarth Shaw

The U.S. Court of Appeals for the Ninth Circuit's ruling in Spokeo in August solidified that it has a broad view of what will constitute harm in that case to determine standing in an FCRA case and possibly other types of cases, Devata said. 

"The court did hint at a distinction between a 'material' inaccuracy and any inaccuracy, which is helpful to stop a rush of cases being brought for any inaccuracy on a consumer report that is immaterial," she said. 

"The possible consequences of this ruling may include more FCRA or 'statutory damages' cases being brought in federal court. We’ve seen a number of these cases throughout the country being brought in state court based on the uncertainty of rulings after Spokeo."

Plaintiff in the case, Thomas Robins, claims the so-called "people search engine" Spokeo violated the Fair Credit Reporting Act when it published inaccurate information about him, including wrong information about his age, education, employment status, and details about his personal life.

Robins claims the wrong information Spokeo published about him damaged potential employment opportunities for himself and anyone else covered in his class action.

Spokeo long has claimed that Robins' case doesn't allege sufficient injury.

The case had been remanded back to the Ninth Circuit by the U.S. Supreme Court in May 2016, after the high court considered whether Article III allows a plaintiff to sue over alleged violation of a statute without otherwise suffering concrete injury

In its 6-2 decision, the high court concluded that, whatever statutory violation occurred, standing had not been satisfied, any injury must be real and not abstract or procedural, and directed the 9th Circuit to identify an accompanying concrete harm.

However, the Ninth Circuit, despite the Supreme Court's direction, didn't entirely nail down actual harm in the case, Devata said. 

"The Ninth Circuit really did not determine what actual harm occurred, but instead indicated since the inaccuracy was material, it must have resulted in 'harm,'" she said.

"There were no factual determinations made, and therefore, I believe the Ninth Circuit took a leap by assuming 'concrete harm' must have arisen from inaccurate information."

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