This past May, the U.S. Supreme Court, in Spokeo, Inc. v. Robins, ruled 6-2 that a plaintiff alleging a Fair Credit Reporting Act violation does not have standing under Article III of the U.S. Constitution to sue for statutory damages in federal court unless the plaintiff can show that he or she suffered “concrete,” “real” harm as a result of the violation.  The U.S. Court of Appeals for the Ninth Circuit had concluded that it was constitutionally permissible for Congress to treat FCRA violations as “concrete, de facto injuries” that automatically satisfy the injury in fact requirement for Article III standing.  The Supreme Court found the Ninth Circuit’s standing analysis to be incomplete.  While it addressed the particularization of the plaintiff’s alleged injury necessary to establish an injury in fact, the Ninth Circuit did not address the concreteness of the alleged injury.  As a result, the Supreme Court vacated the Ninth Circuit’s judgment and remanded the case for the Ninth Circuit to consider whether “the particular procedural violations alleged in this case entail a degree of risk sufficient to meet the concreteness requirement” for Article III standing.

In the case, the plaintiff claims that the defendant website operator willfully violated the FCRA by allegedly publishing inaccurate personal information about him at a time when he was seeking employment.  More specifically, the plaintiff alleges that the defendant willfully violated the FCRA requirement to “follow reasonable procedures to assure maximum possible accuracy of the information” in a consumer report.

Briefs addressing the concreteness requirement have now been filed in the Ninth Circuit by the plaintiff and defendant.  In addition, the CFPB has filed an amicus brief in the Ninth Circuit in support of the plaintiff.  (The CFPB and DOJ 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.  Following the Supreme Court’s grant of certiorari, the CFPB, together with the DOJ, filed a merits stage amicus brief in support of the plaintiff.)

In its Ninth Circuit amicus brief, the CFPB asserts that in Spokeo, the Supreme Court reaffirmed that intangible injuries can satisfy the concrete injury standard and indicated that, in assessing whether a particular intangible injury satisfies that standard, a court should consider whether Congress made a judgment that particular harms should be sufficient to institute an action in court.  The CFPB argues that Congress’s decision to grant consumers a right of redress for the dissemination of a false consumer report if it resulted from a consumer reporting agency’s willful failure to follow reasonable procedures reflects Congress’s judgment that disseminating an inaccurate consumer report presents an unacceptable risk of real harm to the individual whose information is falsely described and being subjected to that risk is in itself an intangible injury for which individuals can obtain redress in court.

As further support for its position, the CFPB argues that historical practice “confirms that the publication of a consumer report with the kinds of inaccuracies alleged here amount to concrete, actionable harm—for that harm is analogous to harms that have historically provided a basis for suit in common law defamation actions.”