We are disappointed that the United States Supreme Court recently denied certiorari to review the Ninth Circuit's remand opinion in Spokeo, Inc. v. Robins.

Spokeo Inc. operates a “people search engine” which provides information about potential employees. Plaintiff Thomas Robins filed a federal class action against Spokeo alleging that it provided inaccurate information about him in violation of the federal Fair Credit Reporting Act, which requires the implementation of procedures to assure maximum accurate reporting. A district court in California dismissed the case for lack of Article III standing, but the U.S. Court of Appeals for the Ninth Circuit reversed.

In May 2016, the U.S. Supreme Court vacated the Ninth Circuit's judgment and remanded to that court to determine whether plaintiff had suffered a concrete injury, or “injury in fact,” which required plaintiff to establish “an invasion of a legally protected interest” that is both “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.” The Supreme Court found that the circuit had failed to consider the “concreteness” requirement and erroneously focused only on the separate and distinct “particularization” prong of the “concreteness and particularization” test. A concrete injury generally requires more than a mere procedural violation of a statute, or of a statutory right providing the ability to file a suit. Accordingly, the court remanded to the Ninth Circuit to determine (in the first instance) whether Spokeo's false reporting or inaccurate information relating to Robins' education, family and job status was sufficiently concrete.

In August 2017, a Ninth Circuit panel unanimously found that Robins had standing because the FCRA violations were actually alleged to cause, and could cause, real or concrete harm to the plaintiff's employment opportunities. The court stated that the alleged inaccuracies were more likely to cause concrete injury, than for example, reporting his zip code incorrectly. Although the errors in the credit report tended to overstate Robins' income, job and educational status, that did not preclude his allegation that prospective employers passed over his application thinking he appeared overqualified for the jobs for which he was applying.

Spokeo petitioned for certiorari again. It argued that there has been “widespread confusion” in application of the standing requirements and that Robin's injuries are too speculative. That confusion is well-illustrated by the fact that on a single day in January, the Third Circuit revived a putative class action under the FCRA based on a data breach with no alleged misuse of the data (In re Horizon Healthcare Services, Inc.), and the the Seventh Circuit affirmed dismissal of a class action under the Cable Communications Policy Act because former customers had not alleged any concrete injury stemming from improper retention of personal information. (Gubala v. Time Warner Cable). We hope that the Supreme Court grants certiorari to develop and clarify the “concrete and particularized” pleading requirements of Article III standing as soon as another case with a similar issue is before the court.