August 20, 2017
Authored by: Eric Martin and Johnathon Nicol
Editor’s Note: The Bankruptcy Cave is just about ready to return from summer vacation (which is our lame way of saying we got really busy with work for actual clients, and blogging just fell by the wayside). But rest assured, we have a lot of great posts tee’d up for the next several weeks, and The Bankruptcy Cave looks forward to re-joining the cadre of practical, semi-academic, and occasionally critical commentators on restructuring and bankruptcy matters. In the meantime, here is a great cross-post based on a Bryan Cave client advisory issued last week by our Bryan Cave Consumer Financial Services colleagues Eric Martin and Jonathan Nicol – Spokeo shows up a lot in consumer class actions, but this Supreme Court opinion is equally important to anyone dealing with FDCPA, FCRA, or other types of claims brought by a Chapter 7 debtor.
On August 15, 2017, the Ninth Circuit Court of Appeals held once again (“Spokeo III”) that Thomas Robins had standing to assert a claim based upon the Fair Credit Reporting Act (“FCRA”) against Spokeo, Inc., the operator of a website that aggregates public information regarding individuals. Robins alleged that Spokeo violated § 1681e(b) of the FCRA, which requires “reasonable procedures to assure maximum possible accuracy of the information,” because his Spokeo profile contained inaccuracies regarding his personal information. Robins claimed that the inaccuracies harmed his employment prospects but did not identify the loss of any specific job opportunity. Following the Ninth Circuit’s original decision in 2014 (“Spokeo I”) that reversed the lower court and found sufficient standing, the United States Supreme Court accepted certiorari and held that the Ninth Circuit had not properly analyzed the “injury-in-fact” requirement and remanded for further consideration (“Spokeo II” or “Spokeo”). To establish an injury-in-fact, a plaintiff must show “an invasion of a legally protected interest” that is “concrete and particularized.” The Supreme Court found that the Spokeo I decision satisfied the “particularized” requirement but did not sufficiently analyze the “concrete” requirement.
In determining whether an intangible harm arising from a statutory claim satisfies the injury-in-fact requirement, Spokeo II provides two considerations: (1) whether the defendant is alleged to have violated a statute resulting in the plaintiff suffering the type of harm that Congress sought to prevent by enacting the statutory requirement allegedly violated; or (2) whether the plaintiff seeks relief for a type of harm that has a close relationship to one that provides a basis for a suit at common law. Even then, the plaintiff must allege a “real” and not “abstract” injury. As the Ninth Circuit summarized in Spokeo III, “[E]ven when a statute has allegedly been violated, Article III requires such violation to have caused some real – as opposed to purely legal – harm to the plaintiff.”
In Spokeo III, after examining the history and purpose of the FCRA, the Ninth Circuit agreed with Robins that the procedural FCRA provisions at issue were “real,” rather than purely legal. Thus, even though Robins could not identify any specific lost job opportunity and, in some respects, the inaccurate information reported by Spokeo was arguably more favorable for Robins in terms of estimated wealth and educational credentials, the Ninth Circuit concluded that consumers had a “concrete interest in accurate credit reporting about themselves.”
Having found a concrete interest for Robins in accurate credit reporting, the Ninth Circuit examined a second hurdle to his claim; namely, whether Robins alleged FCRA violations that actually harmed or created a material risk of harm to his concrete interest. Because Robins alleged that Spokeo prepared an inaccurate report and published it online, Robins’s claim implicated the concrete interest. But the Ninth Circuit disagreed with Robins that any inaccuracy in the report would satisfy the harm element. Borrowing an example from the Supreme Court, Spokeo III noted that reporting an incorrect zip code would be inaccurate but would not cause concrete harm. Here, however, because the nature of the reporting inaccuracies (wealth, education level, etc.) is the “type that may be important to employers” in matters such as making hiring decisions, Robins sufficiently established harm to his concrete interest in accurate credit reporting.
The Ninth Circuit’s decision is the latest and most notable entry into the injury-in-fact standing jurisprudence that has developed in the fifteen months since the Supreme Court’s decision. Courts of Appeals and District Courts have applied Spokeo with varying results: some courts have viewed Spokeo as strengthening standing requirements while others view it as simply restating them. The Spokeo III decision seems to fall into the latter category.
Below is a summary of notable factors considered in the standing analysis in post-Spokeo decisions under two frequent sources of procedural statutory claims: the FCRA and the Telephone Consumer Protection Act (“TCPA”).
Given that Spokeo involved a claim under the FCRA, the opinion has been used by parties on both sides of such disputes. Courts are split when faced with questions of standing under this statute.
A number of courts have applied Spokeo and determined that there was no standing under the FCRA in certain situations. The following allegations were found to be insufficient for standing purposes:
- A putative class action alleging violations by a credit reporting agency for listing a defunct credit card company, rather than the name of the company’s servicer, as the source of information on the plaintiffs’ credit reports.
- A class action alleging failure to comply with the FCRA requirements for an employer to provide a disclosure for obtaining a consumer report on prospective employees.
- Where the consumer report disclosure was not given in the correct form.
- Where the plaintiff failed to support a claim for the statutory award of punitive damages without any further showing of a concrete injury.
- Where the plaintiffs claimed defendants willfully and/or negligently violated the FCRA by maintaining and disseminating allegedly incomplete information in a database containing information on commercial truck drivers’ safety records.
Other courts have found standing under Spokeo in FCRA suits. These cases include ones where the plaintiff alleged an identifiable taking (intentional theft of personal information) and did not have to wait to suffer an adverse impact resulting from the taking. Similarly, allegations showing unauthorized disclosure of a proposed class’ private information satisfies standing. Standing was also established where a job applicant sought relief from a prospective employer for failing to disclose its intent to procure the job applicant’s credit report. Other cases include where the plaintiff alleged that the defendant actually disseminated inaccurate information about the consumer, and where the defendant failed to disclose to the consumer the source of inaccurate information. Other cases determined there was Article III standing when the allegations supported a material risk of real harm including denial of credit. Still other cases held there was standing based on an invasion of privacy for claims related to pulling credit reports without proper disclosures or authorization. Another decision found that standing was established when the plaintiff alleged the defendant procured a consumer report without following the FCRA’s disclosure and authorization requirements.
For the TCPA, there are Spokeo-guided decisions on both sides of the standing issue, but the majority of courts favor standing.
Courts hold there is standing when a plaintiff alleges receiving unsolicited telemarketing or text messages prohibited by the TCPA. These courts hold that the TCPA codifies the application of a long-recognized common law tort of invasion of privacy and the interests of peace and quiet that Congress intended to protect. Finding the right to be substantive, the courts also cite to the wasted time suffered by a plaintiff in answering or otherwise addressing robocalls. That being said, some of these same courts hold that calls made to a neglected phone that go unnoticed or calls that are dropped before they connect may violate the TCPA, but may not cause any concrete injury.
As to TCPA cases where the courts found there was no standing under Spokeo, the reasons have been more case-specific. One court granted a motion to dismiss in a junk fax case based on a single line included in a solicited four-page fax, where the plaintiff merely identified its injury as the alleged statutory infraction. Another court dismissed the suit when the plaintiff could not allege that the use of an autodialer system to dial his number caused him to incur a charge that he would not have incurred had defendants manually dialed his number, which would not have violated the TCPA. Other courts have found no standing when there was no “connection” between the use of an autodialer and the claimed concrete harm. Still another dismissed for lack of standing where the complaint alleged only that the plaintiff suffered “statutory damages, in addition to actual damages, including but not limited to those contemplated by Congress and the [Federal Communications Commission]”).
The Supreme Court’s Spokeo decision affirmed that plaintiffs cannot satisfy the injury-in-fact test for standing by alleging bare procedural violations. Instead, plaintiffs’ allegations must satisfy both a particularity and concreteness analysis. Whether Spokeo enhanced the standing requirements or merely restated them will continue to play out in federal court decisions. Regardless, Spokeo III demonstrates the rigorous analysis that courts are employing in analyzing the concrete injury requirement for claims based on statutory violations. As the Spokeo III decision shows, even intangible harms arising from alleged procedural statutory violations can rise to the level of concrete injuries if the harm is one that Congress sought to address and the violations caused or created a material risk of harm to the plaintiff.