The Supreme Court Declines to Entertain Spokeo Round 2

On January 22, 2018, the United States Supreme Court declined to weigh in on the Article III standing bar set in its seminal 2016 decision, Spokeo v. Robins, in a dispute over alleged inaccuracies on a credit report when it denied a petition for writ of certiorari from Spokeo Inc. (Spokeo) to resolve what Spokeo termed “widespread confusion” over what types of intangible injuries can establish standing.

Although the 2016 Spokeo decision had created a pathway for the lower courts to stem the tidal wave of claims under the Fair Credit Reporting Act (FCRA), the Fair Debt Collection Practice Act (FDCPA) and the Telephone Communications Protection Act (TCPA) where the plaintiffs had inconsequential, if any, damages, the Supreme Court failed to provide substantive guidance in its 2016 decision as to when a case should be dismissed for lack of injury. Consequently, the lower courts approached this issue in different, sometimes inconsistent, ways.

The Supreme Court’s decision not to revisit the issue and provide substantive guidance undoubtedly means that these claims will continue to proliferate.

Background

In 2016, the Supreme Court held that plaintiffs must allege some tangible or intangible concrete harm and could not rely solely on a “bare procedural violation” to establish Article III standing. The Supreme Court, however, declined to apply that standard to plaintiff Thomas Robins' claims under the Fair Credit Reporting Act (FCRA) that Spokeo unlawfully reported inaccurate information about Robins’ education, wealth and job status. Instead, the Supreme Court ordered the Ninth Circuit to reconsider its initial ruling in May 2016 that Robins had established standing.

On remand, the Ninth Circuit re-evaluated Robins’ standing to bring suit, and once again found that Robins had established standing. In its August, 2017 decision, the Ninth Circuit concluded that Robins’ claim of an intangible statutory injury – without pleading any additional harm – was sufficient for Article III standing purposes because Congress had crafted the FCRA to protect consumers’ concrete interests in accurate credit reporting about themselves.

Supreme Court Request – Round 2

In response, Spokeo again requested the Supreme Court to weigh in, arguing in December 2017 that the justices' pronouncement that some intangible injuries could meet the standing threshold has spurred “widespread confusion” that “cried out” for an immediate resolution. The high court, which considered Spokeo's petition during its January 19 conference, denied certiorari without comment on January 22.

The decision to pass on revisiting Spokeo was in spite of Spokeo receiving support from several outside parties for its review bid. In six separate amicus briefs filed on January 5, 2018, TransUnion LLC, the U.S. Chamber of Commerce, the National Association of Professional Background Screeners, a group of real estate trade associations, the Consumer Data Industry Association and the Retail Litigation Center argued that the Court’s input was necessary to clear up widespread “chaos and confusion” prompted by its initial determination.

The Supreme Court’s failure to revisit the issues presented by its 2016 Spokeo decision will leave unresolved the current circuit split regarding what is necessary to establish Article III standing, although recent decisions are trending towards the Ninth Circuit’s view. It also will do little to curb the avalanche of litigation for alleged violations of the Fair Credit Reporting Act, the Fair Debt Collection Practice Act and the Telephone Communications Protection Act.