CFPB Files Amicus Brief in Ninth Circuit in Remanded Article III Standing Case

This article previously appeared on Ballard Spahr’s CFPB Monitor and is re-published here with permission.

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.