Client Alert
April 28, 2015
Second Time’s the Charm? Supreme Court
Takes Up Landmark FCRA Case to Address
Whether Congress Can Create Standing
By Angela Kleine and Nancy Thomas
Zombie or no-injury plaintiffs seeking to represent zombie or no-injury classes are on the rise. In these suits,
plaintiff was not injured, and there’s no way to prove who, if anyone, in the class was. Thomas Robins is one of
those plaintiffs who brought suit on behalf of a class of similarly situated consumers against Spokeo for alleged
violations of the Fair Credit Reporting Act (FCRA). The Ninth Circuit found Robins had standing to pursue his
claim for statutory damages authorized by the FCRA and, of course, attorney’s fees for class counsel.
The Supreme Court tried once before to consider whether Congress can create Article III standing by including a
right to recover statutory damages. Edwards v. First American Corp., 610 F.3d 514 (9th Cir. 2010), cert. granted,
131 S. Ct. 3022 (2011), cert. dismissed as improvidently granted, 132 S. Ct. 2536 (2012). After agreeing to hear
the case despite the Solicitor General’s view otherwise, and after hearing oral argument, the Court dismissed
certiorari without explanation.
The Supreme Court has now decided to consider the issue again, granting certiorari on “Whether Congress may
confer Article III standing upon a plaintiff who suffers no concrete harm, and who therefore could not otherwise
invoke the jurisdiction of a federal court, by authorizing a private right of action based on a bare violation of a
federal statute.” Spokeo, Inc. v. Thomas Robins, No. 13-1339. If the Court reaches the finish line this time, the
decision could have significant implications for claims brought under the FCRA and numerous other statutes.
THE BACKDROP
Spokeo operates a website where users can find information about individuals. The information ranges from
address and phone number to things like “economic health” and online purchases, which Spokeo collects from
various public sources. Spokeo allegedly markets and sells this information to employers evaluating possible
hires, among other purchasers.
Thomas Robins sued in federal court under the FCRA’s express private right of action, alleging that Spokeo
displayed a “consumer report” about him that inaccurately reported his age, wealth, employment, marital status,
and education, which he contends harmed his employment prospects. Robins v. Spokeo, Inc. (“Spokeo”), Case
No. CV10-05306 ODW (AGRx) (C.D. Cal. filed July 20, 2010). Robins asserts that this allegedly inaccurate
information violated the FCRA because the information published about him qualified as a “consumer report”
under the FCRA and Spokeo is a “consumer reporting agency” that failed to follow the statute’s accuracy and
procedural requirements.
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