Thomas Robins v. Spokeo, Inc. , 867 F.3d 1108 ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THOMAS ROBINS, individually and on No. 11-56843
behalf of all others similarly situated,
Plaintiff-Appellant, D.C. No.
2:10-cv-05306-
v. ODW-AGR
SPOKEO, INC., a California corporation,
Defendant-Appellee. OPINION
On Remand from the
Supreme Court of the United States
Argued and Submitted December 13, 2016
San Francisco, California
Filed August 15, 2017
Before: Diarmuid F. O’Scannlain, Susan P. Graber,
and Carlos T. Bea, Circuit Judges.
Opinion by Judge O’Scannlain
2 ROBINS V. SPOKEO
SUMMARY *
Article III Standing / Fair Credit Reporting Act
On remand from the United States Supreme Court,
Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), the panel
reversed the district court’s dismissal of an action brought
by Thomas Robins against Spokeo, Inc., alleging willful
violations of the Fair Credit Reporting Act (“FCRA”); held
that Robins’ alleged injuries were sufficiently concrete for
the purposes of Article III standing; and concluded that
because the alleged injuries were also sufficiently
particularized to Robins and caused by Spokeo’s alleged
FCRA violations that were redressable in court, Robins
adequately alleged the elements necessary for Article III
standing.
The Supreme Court held that to establish Article III
standing, there must be an injury that is “real” and not
“abstract” or merely “procedural.” Spokeo, Inc., 136 S. Ct.
at 1549.
Robins alleged that Spokeo published an allegedly
inaccurate report about him on its website, and further
alleged that Spokeo willfully violated various procedural
requirements under FCRA, including failing to follow
reasonable procedures to assure the accuracy of the
information in his consumer report.
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
ROBINS V. SPOKEO 3
First, the panel held that Congress established the FCRA
provisions at issue to protect consumers’ concrete interests
(as opposed to purely procedural rights). Specifically, the
panel concluded that the FCRA provisions in this case were
crafted to protect consumers’ (like Robins’s) concrete
interests in accurate credit reporting about themselves.
Second, the panel held that Robins alleged FCRA violations
that actually harmed his concrete interest. Specifically, the
panel held that Robins alleged inaccuracies by Spokeo
concerning his age, marital status, educational background,
and employment history that could be deemed a real harm to
his employment prospects.
The panel rejected Spokeo’s suggestion that Robins’s
allegations of harm were too speculative to establish a
concrete injury. The panel held that both the challenged
conduct and attendant injury had already occurred, where
Spokeo published an inaccurate consumer report about
Robins and the alleged intangible injury caused by the report
had also occurred. The panel concluded that Robins had
alleged injuries that were sufficiently concrete for purposes
of Article III standing.
COUNSEL
William S. Consovoy (argued), Consovoy McCarthy Park
PLLC, Arlington, Virginia; Jay Edelson, Rafey S.
Balabanian, Ryan D. Andrews, Roger Perlstadt, and J. Aaron
Lawson, Edelson PC, Chicago, Illinois; Patrick Strawbridge,
Consovoy McCarthy Park PLLC, Boston, Massachusetts;
for Plaintiff-Appellant.
Andrew J. Pincus (argued), Archis A. Parasharami, Stephen
C.N. Lilley, and Daniel E. Jones, Mayer Brown LLP,
4 ROBINS V. SPOKEO
Washington, D.C.; John Nadolenco, Mayer Brown LLP, Los
Angeles, California; Donald M. Falk, Mayer Brown LLP,
Palo Alto, California; for Defendant-Appellee.
Daniel J. McLoon, Jones Day, Los Angeles, California; Meir
Feder, and Joshua S. Stillman, Jones Day, New York, New
York; for Amicus Curiae Experian Information Solutions,
Inc.
A. James Chareq, Hudson Cook LLP, Washington, D.C., for
Amicus Curiae Consumer Data Industry Association.
Marcy McLeod, General Counsel; John R. Coleman,
Assistant General Counsel; Nandan M. Joshi and Kristin
Bateman, Counsel; Consumer Financial Protection Bureau,
Washington, D.C., for Amicus Curiae Consumer Financial
Protection Bureau.
OPINION
O’SCANNLAIN, Circuit Judge:
On remand from the Supreme Court, we must determine
whether an alleged violation of a consumer’s rights under the
Fair Credit Reporting Act constitutes a harm sufficiently
concrete to satisfy the injury-in-fact requirement of Article
III of the United States Constitution.
I
A
Spokeo, Inc., operates a website by the same name that
compiles consumer data and builds individual consumer-
information profiles. At no cost, consumers can use
ROBINS V. SPOKEO 5
spokeo.com to view a report containing an array of details
about a person’s life, such as the person’s age, contact
information, marital status, occupation, hobbies, economic
health, and wealth. More detailed information is available
for users who pay subscription fees. Spokeo markets its
services to businesses, claiming that its reports provide a
good way to learn more about prospective business
associates and employees.
At some point, Thomas Robins became aware that
Spokeo had published an allegedly inaccurate report about
him on its website. Robins then sued Spokeo for willful
violations of the Fair Credit Reporting Act (“FCRA”),
15 U.S.C. § 1681 et seq. FCRA imposes a number of
procedural requirements on consumer reporting agencies to
regulate their creation and use of consumer reports. 1 The
statute gives consumers affected by a violation of such
requirements a right to sue the responsible party, including
the right to sue (and to recover statutory damages) for willful
violations even if the consumer cannot show that the
1
“Consumer reports”—also commonly referred to as credit
reports—are any communications of information by a consumer
reporting agency that bear on issues such as a consumer’s credit-
worthiness, character, or general reputation, and which are used or
expected to be used in establishing the consumer’s eligibility for credit,
insurance, employment, and other similar purposes. 15 U.S.C.
§ 1681a(d)(1).
“Consumer reporting agencies” are entities that regularly assemble
or evaluate consumer information “for the purpose of furnishing
consumer reports to third parties.” Id. § 1681a(f). Although Spokeo has
questioned whether it qualifies as a consumer reporting agency under the
statute, we assume that it does for purposes of this appeal. See Spokeo,
Inc. v. Robins (Spokeo II), 136 S. Ct. 1540, 1546 n.4 (2016).
6 ROBINS V. SPOKEO
violation caused him to sustain any actual damages. See id.
§§ 1681n, 1681o.
Robins’s suit alleged that Spokeo willfully violated
various procedural requirements under FCRA, including that
Spokeo failed to “follow reasonable procedures to assure
maximum possible accuracy” of the information in his
consumer report. Id. § 1681e(b). He alleged that, as a result,
Spokeo published a report which falsely stated his age,
marital status, wealth, education level, and profession, and
which included a photo of a different person. Robins alleged
that such errors harmed his employment prospects at a time
when he was out of work and that he continues to be
unemployed and suffers emotional distress as a
consequence.
B
The district court dismissed Robins’s First Amended
Complaint, upon its determination that he lacked standing to
sue under Article III of the United States Constitution.
Specifically, the district court concluded that Robins alleged
only a bare violation of the statute and did not adequately
plead that such violation caused him to suffer an actual
injury-in-fact.
Robins appealed to this court, and we reversed. Robins
v. Spokeo, Inc. (Spokeo I), 742 F.3d 409, 414 (9th Cir. 2014).
We held that Robins’s allegations established a sufficient
injury-in-fact—that is, that he allegedly suffered a concrete
and particularized injury—because Robins alleged that
Spokeo violated specifically his statutory rights, which
Congress established to protect against individual rather than
collective harms. Id. at 413. Likewise, we concluded that
the alleged harm to Robins’s statutory rights was certainly
“caused” by Spokeo’s alleged violations of FCRA and that
ROBINS V. SPOKEO 7
FCRA’s statutory damages could redress such injury. Id. at
414. We ordered the case to be remanded to the district court
for further proceedings.
C
On certiorari, the Supreme Court vacated our opinion,
and held that our standing analysis was incomplete. See
Spokeo, Inc. v. Robins (Spokeo II), 136 S. Ct. 1540 (2016).
The Supreme Court noted that although our analysis
properly addressed whether the injury alleged by Robins was
particularized as to him, we did not devote appropriate
attention to whether the alleged injury is sufficiently
concrete as well. Id. at 1548. The Court emphasized that
particularity and concreteness are two separate inquiries, and
it vacated our opinion and remanded the case with
instructions to consider specifically whether Robins’s
alleged injuries “meet the concreteness requirement”
imposed by Article III. Id. at 1550. The Court did not call
into question our conclusions on any of the other elements
of standing.
D
On remand to this court, and after further briefing and
oral argument, the question before us is whether Robins has
sufficiently pled a concrete injury under the Spokeo II rubric.
II
Robins argues that Spokeo’s alleged violation of
FCRA—specifically its failure reasonably to ensure the
accuracy of his consumer report—is, alone, enough to
establish a concrete injury. Robins contends that he has no
need to allege any additional harm caused by that statutory
violation because FCRA exists specifically to protect
8 ROBINS V. SPOKEO
consumers’ concrete interest in credit-reporting accuracy.
Thus, Robins argues, so long as Spokeo’s alleged FCRA
violations harm this real-world and congressionally
recognized interest, he has standing to sue.
A
Robins’s argument requires us to consider, following the
Supreme Court’s guidance in Spokeo II, the extent to which
violation of a statutory right can itself establish an injury
sufficiently concrete for the purposes of Article III standing.
1
Robins is certainly correct that FCRA purportedly allows
him to sue for willful violations without showing that he
suffered any additional harm as a result. See 15 U.S.C.
§ 1681n. But the mere fact that Congress said a consumer
like Robins may bring such a suit does not mean that a
federal court necessarily has the power to hear it.
In Spokeo II, the Supreme Court made clear that a
plaintiff does not “automatically satisf[y] the injury-in-fact
requirement whenever a statute grants a person a statutory
right and purports to authorize that person to sue to vindicate
that right.” 136 S. Ct. at 1549. Even then, “Article III
standing requires a concrete injury.” Id. To establish such
an injury, the plaintiff must allege a statutory violation that
caused him to suffer some harm that “actually exist[s]” in
the world; there must be an injury that is “real” and not
“abstract” or merely “procedural.” Id. at 1548–49 (internal
quotation marks omitted). In other words, even 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.
ROBINS V. SPOKEO 9
2
The Court emphasized, however, that congressional
judgment still plays an important role in the concreteness
inquiry, especially in cases—like this one—in which the
plaintiff alleges that he suffered an intangible harm.
Although they are often harder to recognize, intangible
injuries—for example, restrictions on First Amendment
freedoms or harm to one’s reputation—may be sufficient for
Article III standing. See id. at 1549. And in this somewhat
murky area, Congress’s judgment as to what amounts to a
real, concrete injury is instructive. The Court explained, “In
determining whether an intangible harm constitutes injury in
fact, both history and the judgment of Congress play
important roles.” Id. Indeed, “because Congress is well
positioned to identify intangible harms that meet minimum
Article III requirements, its judgment is . . . instructive and
important.” Id. “Congress may ‘elevate to the status of
legally cognizable injuries concrete, de facto injuries that
were previously inadequate in law.’” Id. (alteration omitted)
(quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 578
(1992)). And “Congress has the power to define injuries and
articulate chains of causation that will give rise to a case or
controversy where none existed before.” Id. (internal
quotation marks omitted). In some areas—like libel and
slander per se—the common law has permitted recovery by
victims even where their injuries are “difficult to prove or
measure,” and Congress may likewise enact procedural
rights to guard against a “risk of real harm,” the violation of
which may “be sufficient in some circumstances to
constitute injury in fact.” Id.
3
Accordingly, while Robins may not show an injury-in-
fact merely by pointing to a statutory cause of action, the
10 ROBINS V. SPOKEO
Supreme Court also recognized that some statutory
violations, alone, do establish concrete harm. As the Second
Circuit has summarized, Spokeo II “instruct[s] that an
alleged procedural violation [of a statute] can by itself
manifest concrete injury where Congress conferred the
procedural right to protect a plaintiff’s concrete interests and
where the procedural violation presents ‘a risk of real harm’
to that concrete interest.” Strubel v. Comenity Bank, 842
F.3d 181, 190 (2d Cir. 2016) (quoting Spokeo II, 136 S. Ct.
at 1549). Other circuits—and our own—have suggested
similar interpretations of standing in this context. See, e.g.,
Dreher v. Experian Info. Sols., Inc., 856 F.3d 337, 346 (4th
Cir. 2017) (concrete harm may be shown by FCRA violation
that causes the plaintiff to “suffer[] . . . the type of harm
Congress sought to prevent when it enacted the FCRA”);
Lyshe v. Levy, 854 F.3d 855, 859 (6th Cir. 2017) (“Spokeo
[II] allows for a bare procedural violation to create a concrete
harm . . . [based on] the failure to comply with a statutory
procedure that was designed to protect against the harm the
statute was enacted to prevent.”); Van Patten v. Vertical
Fitness Grp., LLC, 847 F.3d 1037, 1043 (9th Cir. 2017)
(recognizing standing where alleged statutory violations
“present[ed] the precise harm and infringe[d] the same
privacy interests Congress sought to protect in enacting the
[Telephone Consumer Protection Act]”). And we now agree
that the Second Circuit’s formulation in Strubel best
elucidates the concreteness standards articulated by the
Supreme Court in Spokeo II.
B
In evaluating Robins’s claim of harm, we thus ask: (1)
whether the statutory provisions at issue were established to
protect his concrete interests (as opposed to purely
procedural rights), and if so, (2) whether the specific
ROBINS V. SPOKEO 11
procedural violations alleged in this case actually harm, or
present a material risk of harm to, such interests.
1
As to the first question, we agree with Robins that
Congress established the FCRA provisions at issue to protect
consumers’ concrete interests. We have previously observed
that FCRA “was crafted to protect consumers from the
transmission of inaccurate information about them” in
consumer reports. Guimond v. Trans Union Credit Info. Co.,
45 F.3d 1329, 1333 (9th Cir. 1995); see also Spokeo II, 136
S. Ct. at 1550 (Congress enacted FCRA to “curb the
dissemination of false information”); S. Rep. No. 91-517, at
1 (1969) (“The purpose of the fair credit reporting bill is to
prevent consumers from being unjustly damaged because of
inaccurate or arbitrary information in a credit report.”). Put
differently, FCRA aims “to ensure fair and accurate credit
reporting” and to “protect consumer privacy.” Safeco Ins.
Co. of Am. v. Burr, 551 U.S. 47, 52 (2007); see 15 U.S.C.
§ 1681; Van Patten, 847 F.3d at 1042. “To achieve this
end,” FCRA imposes on consumer-reporting agencies “a
host of [procedural] requirements concerning the creation
and use of consumer reports” and, as mentioned, allows
individuals to sue those which are non-compliant. Spokeo
II, 136 S. Ct. at 1545. Relevant to Robins’s claims,
§ 1681e(b) of the statute specifically requires reporting
agencies to “follow reasonable procedures to assure
maximum possible accuracy” of the information contained
in an individual’s consumer report. 15 U.S.C. § 1681e(b).
a
We have little difficulty concluding that these interests
protected by FCRA’s procedural requirements are “real,”
rather than purely legal creations. To begin, the Supreme
12 ROBINS V. SPOKEO
Court seems to have assumed that, at least in general, the
dissemination of false information in consumer reports can
itself constitute a concrete harm. See Spokeo II, 136 S. Ct.
at 1550. Moreover, given the ubiquity and importance of
consumer reports in modern life—in employment decisions,
in loan applications, in home purchases, and much more—
the real-world implications of material inaccuracies in those
reports seem patent on their face. Indeed, the legislative
record includes pages of discussion of how such inaccuracies
may harm consumers in light of the increasing importance
of consumer reporting nearly fifty years ago. See, e.g.,
116 Cong. Rec. 35,941 (1970) (statement of Sen. Proxmire);
id. at 36,570 (statement of Rep. Sullivan); id. at 36,574
(statement of Rep. Wylie); 115 Cong. Rec. 2410–15 (1969);
see also Dalton v. Capital Associated Indus., Inc., 257 F.3d
409, 414 (4th Cir. 2001) (“Employers [in 1970] were placing
increasing reliance on consumer reporting agencies to obtain
information on the backgrounds of prospective employees.
Congress found that in too many instances agencies were
reporting inaccurate information that was adversely
affecting the ability of individuals to obtain employment.”).
In this context, it makes sense that Congress might choose to
protect against such harms without requiring any additional
showing of injury. The threat to a consumer’s livelihood is
caused by the very existence of inaccurate information in his
credit report and the likelihood that such information will be
important to one of the many entities who make use of such
reports. Congress could have seen fit to guard against that
threat (and, for example, against the uncertainty and stress it
could cause to the consumer’s life), especially in light of the
difficulty the consumer might have in learning exactly who
has accessed (or who will access) his credit report.
ROBINS V. SPOKEO 13
b
As other courts have observed, the interests that FCRA
protects also resemble other reputational and privacy
interests that have long been protected in the law. See, e.g.,
In re Horizon Healthcare Servs. Inc. Data Breach Litig.,
846 F.3d 625, 638–40 (3d Cir. 2017) (comparing FCRA’s
privacy protections to common law protections for “a
person’s right to prevent the dissemination of private
information”); Gambles v. Sterling Infosystems, Inc., No. 15
Civ. 9746, — F. Supp. 3d — , 2017 WL 589130, at *8
(S.D.N.Y. Feb. 13, 2017) (discussing the “significant history
. . . of lawsuits based on (1) the unauthorized disclosure of a
person’s private information, and (2) the disclosure of
adverse information claimed to have been misleading or
false”). For example, the common law provided remedies
for a variety of defamatory statements, including those
which falsely attributed characteristics “incompatible with
the proper exercise of [an individual’s] lawful business,
trade, profession, or office.” Restatement (First) of Torts
§ 570 (1938). The first Restatement of Torts explained that
the publication of such a libel was “actionable per se, that is
irrespective of whether any special harm has been caused to
the plaintiff’s reputation or otherwise,” because the
“publication is itself an injury.” Id. § 569 cmt. c. As is true
with respect to FCRA, the “social value of this rule” was to
prevent the false publication from causing further harm by
allowing the “defamed person to expose the groundless
character of a defamatory rumor before harm to the
reputation has resulted therefrom.” Id. § 569 cmt. b. Just as
Congress’s judgment about an intangible harm is important
to our concreteness analysis, so is the fact that the interest
Congress identified is similar to others that traditionally have
14 ROBINS V. SPOKEO
been protected. See Spokeo II, 136 S. Ct. at 1549; Van
Patten, 847 F.3d at 1042–43.
We recognize, of course, that there are differences
between the harms that FCRA protects against and those at
issue in common-law causes of action like defamation or
libel per se. As Spokeo points out, those common-law
claims required the disclosure of false information that
would be harmful to one’s reputation, while FCRA protects
against the disclosure of merely inaccurate information,
without requiring a showing of reputational harm. But the
Supreme Court observed that “it is instructive to consider
whether an alleged intangible harm has a close relationship
to a harm that has traditionally been regarded as providing a
basis for a lawsuit,” not that Congress may recognize a de
facto intangible harm only when its statute exactly tracks the
common law. Spokeo II, 136 S. Ct. at 1549 (emphasis
added); see also Steel Co. v. Citizens for a Better Env’t,
523 U.S. 83, 102 (1998) (judicial power extends to “cases
and controversies of the sort traditionally amenable to, and
resolved by, the judicial process” (emphasis added)). Even
if there are differences between FCRA’s cause of action and
those recognized at common law, the relevant point is that
Congress has chosen to protect against a harm that is at least
closely similar in kind to others that have traditionally served
as the basis for lawsuit. See In re Horizon Healthcare, 846
F.3d at 638–41. Courts have long entertained causes of
action to vindicate intangible harms caused by certain
untruthful disclosures about individuals, and we respect
Congress’s judgment that a similar harm would result from
inaccurate credit reporting. See generally Van Patten,
847 F.3d at 1043 (“We defer in part to Congress’s judgment
[as to an intangible harm].”).
ROBINS V. SPOKEO 15
In short, guided by both Congress’s judgment and
historical practice, we conclude that the FCRA procedures at
issue in this case were crafted to protect consumers’ (like
Robins’s) concrete interest in accurate credit reporting about
themselves. Cf. Dreher, 856 F.3d at 346 (FCRA violations
that undermine “the fairness or accuracy” of an individual’s
credit report are concrete harms (internal quotation marks
and alterations omitted)); In re Horizon Healthcare.,
846 F.3d at 638–41 (unauthorized disclosure in violation of
FCRA’s privacy protections is a concrete harm).
2
Second, we must determine whether Robins has alleged
FCRA violations that actually harm, or at least that actually
create a “material risk of harm” to, this concrete interest. See
Spokeo II, 136 S. Ct. at 1550; Strubel, 842 F.3d at 190.
Robins must allege more than a bare procedural violation of
the statute that is “divorced from” the real harms that FCRA
is designed to prevent. Spokeo II, 136 S. Ct. at 1549; Van
Patten, 847 F.3d at 1042.
This second requirement makes clear that, in many
instances, a plaintiff will not be able to show a concrete
injury simply by alleging that a consumer-reporting agency
failed to comply with one of FCRA’s procedures. For
example, a reporting agency’s failure to follow certain
FCRA requirements may not result in the creation or
dissemination of an inaccurate consumer report. See Spokeo
II, 136 S. Ct. at 1550. In such a case, the statute would have
been violated, but that violation alone would not materially
affect the consumer’s protected interests in accurate credit
reporting.
But Robins argues that Spokeo’s alleged violation of
§ 1681e(b) is enough to show harm to the statute’s
16 ROBINS V. SPOKEO
underlying concrete interests because his claim turns on
whether Spokeo properly ensured the accuracy of his
consumer report, and to prevail Robins will have to show
that Spokeo did prepare a report that contained inaccurate
information about him. 2 See 15 U.S.C. § 1681e(b);
Guimond, 45 F.3d at 1333. Moreover, Robins has alleged
not only that Spokeo prepared such a report, but also that it
then published the report on the Internet. 3 His claim thus
clearly implicates, at least in some way, Robins’s concrete
interests in truthful credit reporting. See also Spokeo II,
136 S. Ct. at 1553–54 (Thomas, J., concurring) (unlike other
FCRA procedural requirements, § 1681e(b) potentially
creates a private duty to protect an individual’s personal
information).
Nevertheless, Robins is not correct that any FCRA
violation premised on some inaccurate disclosure of his
information is sufficient. In Spokeo II, the Supreme Court
explicitly rejected the notion that every minor inaccuracy
reported in violation of FCRA will “cause [real] harm or
2
Robins’s complaint also alleged violations of other FCRA
provisions, which do not turn on any alleged reporting inaccuracy—and
which would thus present great difficulty for his standing argument. But,
following remand from the Supreme Court, Robins now insists that these
“inartfully styled . . . ‘claims’” are not alleged as independent grounds
for relief but instead serve as “merely examples of Spokeo’s willful
failure to use reasonable procedures and to assure maximum possible
accuracy in its published reports.” Robins now states that he has alleged
only “a single claim for relief under Section 1681e(b).” We therefore do
not consider the extent to which Robins would have standing to pursue
claims for relief based on these other violations, given our understanding
that he no longer attempts to do so.
3
We do not consider whether a plaintiff would allege a concrete
harm if he alleged only that a materially inaccurate report about him was
prepared but never published.
ROBINS V. SPOKEO 17
present any material risk of [real] harm.” Id. at 1550
(majority opinion). The Court gave the example of an
incorrectly reported zip code, opining, “It is difficult to
imagine how the dissemination of an incorrect zip code,
without more, could work any concrete harm.” Id. The
Court left open the question of what other sorts of
information would “merit similar treatment.” Id. at 1550
n.8.
Thus, Spokeo II requires some examination of the nature
of the specific alleged reporting inaccuracies to ensure that
they raise a real risk of harm to the concrete interests that
FCRA protects. See Strubel, 842 F.3d at 190 (“[E]ven where
Congress has accorded procedural rights to protect a
concrete interest, a plaintiff may fail to demonstrate concrete
injury where violation of the procedure at issue presents no
material risk of harm to that underlying interest.”). Put
slightly differently, the Court suggested that even if
Congress determined that inaccurate credit reporting
generally causes real harm to consumers, it cannot be the
case that every trivial or meaningless inaccuracy does so.
See id. Unfortunately, the Court gave little guidance as to
what varieties of misinformation should fall into the
harmless category, beyond the example of an erroneous zip
code.
We need not conduct a searching review for where that
line should be drawn in this case, however, because it is clear
to us that Robins’s allegations relate facts that are
substantially more likely to harm his concrete interests than
the Supreme Court’s example of an incorrect zip code.
Robins specifically alleged that Spokeo falsely reported that
he is married with children, that he is in his 50s, that he is
employed in a professional or technical field, that he has a
graduate degree, and that his wealth level is higher than it is.
18 ROBINS V. SPOKEO
It does not take much imagination to understand how
inaccurate reports on such a broad range of material facts
about Robins’s life could be deemed a real harm. For
example, Robins alleged that he is out of work and looking
for a job, but that Spokeo’s inaccurate reports have “caused
actual harm to [his] employment prospects” by
misrepresenting facts that would be relevant to employers,
and that he suffers from “anxiety, stress, concern, and/or
worry about his diminished employment prospects” as a
result. We acknowledge that the alleged misrepresentations
could seem worse—for example, Spokeo could have
reported that Robins had less education or money than he
has. But we agree with Robins that information of this sort
(age, marital status, educational background, and
employment history) is the type that may be important to
employers or others making use of a consumer report.
Ensuring the accuracy of this sort of information thus seems
directly and substantially related to FCRA’s goals.
Further, determining whether any given inaccuracy in a
credit report would help or harm an individual (or perhaps
both) is not always easily done. For example, in support of
Robins, the Consumer Financial Protection Bureau has
argued that even seemingly flattering inaccuracies can hurt
an individual’s employment prospects as they may cause a
prospective employer to question the applicant’s
truthfulness or to determine that he is overqualified for the
position sought. Even if their likelihood actually to harm
Robins’s job search could be debated, the inaccuracies
alleged in this case do not strike us as the sort of “mere
technical violation[s]” which are too insignificant to present
a sincere risk of harm to the real-world interests that
Congress chose to protect with FCRA. In re Horizon
Healthcare, 846 F.3d at 638; see also Spokeo II, 136 S. Ct.
at 1556 (Ginsburg, J., dissenting) (describing Robins’s
ROBINS V. SPOKEO 19
allegations as “[f]ar from an incorrect zip code”). Robins’s
complaint thus sufficiently alleges that he suffered a
concrete injury. 4 See In re Horizon Healthcare, 846 F.3d at
638–41; Strubel, 842 F.3d at 190.
C
Finally, we reject Spokeo’s suggestion that Robins’s
allegations of harm are too speculative to establish a
concrete injury. Relying on Clapper v. Amnesty
International USA, 133 S. Ct. 1138, 1143 (2013), Spokeo
argues that Robins has failed to allege how the “seemingly
flattering but inaccurate information” published about him
would “expose Robins to any injury that was ‘certainly
impending.’” Spokeo argues that, at best, Robins has
asserted that such inaccuracies might hurt his employment
prospects, but not that they present a material or impending
risk of doing so.
Spokeo’s reliance on Clapper is misplaced. In Clapper,
the plaintiffs sought to establish standing on the basis of
harm they would supposedly suffer from threatened conduct
that had not happened yet but which they believed was
reasonably likely to occur—specifically on their belief that
“some of the people with whom they exchange[d] . . .
information [were] likely targets of surveillance” under a
federal statute. Id. at 1145 (emphasis added). The plaintiffs
4
We caution that our conclusion on Robins’s allegations does not
mean that every inaccuracy in these categories of information (age,
marital status, economic standing, etc.) will necessarily establish
concrete injury under FCRA. There may be times that a violation leads
to a seemingly trivial inaccuracy in such information (for example,
misreporting a person’s age by a day or a person’s wealth by a dollar).
We express no opinion on the circumstances in which alleged
inaccuracies of this nature would or would not cause a concrete harm.
20 ROBINS V. SPOKEO
sought to strike down the statute authorizing such
surveillance in order to remove the threat that their
communications would eventually be intercepted. Id. at
1145–46. The question for the Court was how certain such
predicted surveillance needed to be in order to create an
injury in fact. In such a case, the Supreme Court explained
that a plaintiff cannot show injury-in-fact unless the
“threatened injury [is] certainly impending” as opposed to
merely speculative. Id. at 1147–48 (emphasis added)
(internal quotation marks omitted).
Here, by contrast, both the challenged conduct and the
attendant injury have already occurred. As alleged in the
complaint, Spokeo has indeed published a materially
inaccurate consumer report about Robins. And, as we have
discussed, the alleged intangible injury caused by that
inaccurate report has also occurred. We have explained
why, in the context of FCRA, this alleged intangible injury
is itself sufficiently concrete. It is of no consequence how
likely Robins is to suffer additional concrete harm as well
(such as the loss of a specific job opportunity). See Spokeo
II, 136 S. Ct. at 1549; Strubel, 842 F.3d at 190.
Clapper’s discussion of what must be shown to establish
standing based on anticipated conduct or an anticipated
injury is therefore beside the point. Clapper did not address
the concreteness of intangible injuries like the one Robins
asserts, and the Court in Spokeo II did not suggest that
Congress’s ability to recognize such injuries turns on
whether they would also result in additional future injuries
that would satisfy Clapper. Many previous Supreme Court
cases recognize that such statutorily recognized harms alone
may confer standing (without additional resulting harm),
none of which the Court purported to doubt or to overrule in
Spokeo II. See, e.g., Spokeo II, 136 S. Ct. at 1553 (Thomas,
ROBINS V. SPOKEO 21
J., concurring) (collecting cases); id. at 1554–55 (Ginsburg,
J., dissenting) (same).
In short, we need not—and we do not—decide whether
Robins’s allegations of additional harm to his job
opportunities would satisfy the demands of Clapper.
III
We are satisfied that Robins has alleged injuries that are
sufficiently concrete for the purposes of Article III. As
noted, we previously determined that the alleged injuries
were also sufficiently particularized to Robins and that they
were caused by Spokeo’s alleged FCRA violations and are
redressable in court. See Spokeo I, 742 F.3d at 412–14. The
Supreme Court did not question those prior conclusions, and
we do not revisit them now. Robins has therefore adequately
alleged the elements necessary for standing.
REVERSED AND REMANDED.