The CFPB, together with the DOJ, has filed a second amicus brief in Spokeo, Inc. v. Robins, the case pending before the U.S. Supreme Court in which the issue is whether a plaintiff who cannot show any actual harm from a violation of the Fair Credit Reporting Act (FCRA) nevertheless has standing under Article III of the U.S. Constitution to sue for statutory damages in federal court.  The consequences of the Supreme Court’s eventual decision will likely extend significantly beyond FCRA litigation, and affect numerous other statutes and the viability of class actions where alleged technical violations did not cause any actual harm.  The Supreme Court is scheduled to hear oral argument on November 2, 2015.

In Spokeo, the plaintiff claimed that the defendant website operator willfully violated the FCRA by allegedly publishing inaccurate personal information about him. After initially denying the defendant’s motion to dismiss based on standing, the district court reconsidered and dismissed the action.  The court ruled that the plaintiff had failed to plead an injury in fact, and any injuries pled were not traceable to the defendant’s alleged FCRA violations.  Reversing the district court, the U.S. Court of Appeals for the Ninth Circuit ruled that the defendant’s alleged violation of the plaintiff’s FCRA statutory rights established an injury sufficient to satisfy Article III.

The CFPB and DOJ  previously filed an amicus brief opposing the Supreme Court’s grant of certiorari.  The brief was filed in response to a Supreme Court order inviting the Solicitor General to file a brief to express the Obama administration’s views on whether certiorari should be granted.  The court granted certiorari on April 27, 2015.

In their new merits stage amicus brief in support of the plaintiff, the CFPB and DOJ argue that a plaintiff can satisfy the “injury in fact” requirement for Article III standing “by demonstrating an invasion of his own legally protected interests” provided the invasion is “actual and concrete.”  They assert such requirement is satisfied by the Spokeo plaintiff’s allegation that the defendant’s failure to exercise due care resulted in the actual dissemination of inaccurate personal information about him.

Among their other arguments is that courts have historically found that the violation of a plaintiff’s personal rights provides a constitutionally sufficient basis for Article III standing even if the plaintiff has identified no consequential harm beyond the violation itself.  They characterize the plaintiff’s claim that the defendant violated his FCRA rights by disseminating false information about him as “closely analogous to a common-law defamation claim.”  Based on that characterization, they argue that allowing the plaintiff’s suit to proceed would be consistent with traditional judicial practices in adjudicating common-law actions for written defamation without proof of reputational harm or other actual loss.