On May 16, 2016, the U.S. Supreme Court held in Spokeo, Inc. v. Robins that a bare procedural violation of a statutory requirement, divorced from any concrete harm, does not establish the injury-in-fact necessary to maintain a lawsuit in federal court. The Court acknowledged, however, that an alleged violation of a procedural statutory right could establish the requisite concrete injury if the violation creates “a risk of real harm.”
The Supreme Court’s ruling has been much anticipated by both sides of the class-action bar. All interested parties must continue to watch and wait, it appears, as the Ninth Circuit will now consider on remand whether the risks created by the alleged violations in this case are sufficient to make the harm to the plaintiff “concrete.”
Plaintiff Thomas Robins alleged that defendant Spokeo, Inc. compiled a personal information report on him that contained inaccurate information—wrongly listing him as married, affluent, and holding a graduate degree. According to the plaintiff, that misinformation violated several provisions of the Fair Credit Reporting Act (FCRA), including a requirement to follow reasonable procedures to assure maximum possible accuracy of consumer reports.
The Supreme Court vacated the Ninth Circuit’s prior ruling that the plaintiff had established standing simply by alleging the defendant violated his individualized statutory rights under the FCRA. The law requires that an injury-in-fact be both concrete and particularized to support Article III standing, and the six-Justice majority of the Supreme Court held that the Ninth Circuit’s analysis focused solely on the “particularized” component, thus failing to determine whether the harm was “concrete.”
So what harms are “concrete”? The Supreme Court’s ruling does not preclude the possibility that the violation of a statutory procedural right could constitute an injury-in-fact—provided that it leads to concrete harm. The Court emphasized that harm need not be “tangible” in order to be concrete, and that the risk of real harm may be sufficient to establish concreteness.
But what does “concrete” mean in this context? The Supreme Court left this issue to the Ninth Circuit to resolve, directing it to consider on remand “whether the particular procedural violations alleged in this case entail a degree of risk sufficient to meet the concreteness requirement.” The Supreme Court provided further guidance by noting that a report containing an incorrect zip code, while undoubtedly inaccurate, may not create the risk of any real harm.
Under the facts alleged and the statute at issue, the steps of the Ninth Circuit’s analysis on remand seem fairly predictable. (Indeed, Justice Ginsburg’s dissent, joined by Justice Sotomayor, considered the analysis to be so straightforward that it did not require remand.) The Ninth Circuit will likely examine the type of allegedly inaccurate information in the plaintiff’s personal report, and then determine whether it could create a risk of harm to the plaintiff.
The effect of this decision on class-action standing jurisprudence going forward is more difficult to ascertain, and will almost certainly be context-dependent. Some statutory procedural violations may readily suggest an ensuing risk of harm to the plaintiff. On the other hand, plaintiffs bringing putative class actions arising from technical violations of a statute (e.g., noncompliance with the font-size requirements of the FCRA, or the inclusion of a reference number on the outside envelope of a debt collection letter under the Fair Debt Collection Practices Act) may have a bit more work to do in their pleadings to try to show a concrete harm.