Spokeo Redux: Ninth Circuit Finds Inaccurate Information Posted in Profile Provides Grounds to Sue

Thomas Robins has been down and now he’s up again in his seminal privacy case. On August 15, 2017 U.S. Court of Appeals for the Ninth Circuit ruled again, on August 15, 2017, that his case may proceed, notwithstanding the U.S. Supreme Court decision that remanded it to determine whether he had a sustained a sufficient injury to have standing to sue.

The Court held in May 2016 that the Federal Credit Reporting Act (FCRA) violation he alleged, specifically the entry to demonstrably incorrect information about him, was not a sufficiently “concrete” injury to confer standing. The Court remanded the case to the 9^th Circuit for a determination of whether Robins met the standard in the Court’s opinion. We wrote at that time that the dissent by Justice Ruth Bader Ginsburg, noting that the incorrect information in Robins’ profile could “affect his ability to find employment,” coupled with Justice Alito’s majority opinion that conceded that an injury need not be tangible to afford standing, could prove prescient.

Indeed, the 9^th Circuit unanimously held on remand that the incorrect information posted by Spokeo, Inc, an organization that operates a website that “builds individual consumer information profiles,” sufficiently injured Robins to permit his suit to proceed.  Robins’ Spokeo profile was markedly inaccurate. It noted that Robins was married (he wasn’t); had a graduate degree (he didn’t); was in his 50s (he wasn’t); and had wealth level that exceeded Robins’ net worth. The profile even “included a photo of a different person.”

The court, after reciting the long and somewhat tortuous appellate history of the case, held that in following the Supreme Court’s guidance it concluded that while violation of a statute such as FCRA “does not automatically satisfy the injury-in-fact requirement. . . some statutory violations, alone do establish concrete harm.” The court noted that FCRA is just such as statute, observing that it was “crafted to protect consumers from the transmission of inaccurate information about them.” Noting the “ubiquity and importance of consumer reports in modern life – in employment decisions, in loan applications, in home purchases and much more,” the reporting of inaccurate information is indeed a concrete harm that satisfies the injury-in-fact requirement generally. In Robins’ case, the court held that he had been harmed because the inaccurate information had a direct impact on his search for employment.

If you have questions regarding misrepresentation of information, please contact Kenneth N. Rashbaum.