Last week, the Office of the Solicitor General urged the U.S. Supreme Court via amicus brief to deny Spokeo Inc.'s appeal of a Ninth Circuit decision that revived a Virginia man's proposed class action accusing the "people search engine" of publishing false information about him.
The Solicitor General said Spokeo's petition for a writ of certiorari should be denied because the Ninth Circuit correctly decided plaintiff Thomas Robins had Article III standing to sue under the Fair Credit Reporting Act.
In October, the Supreme Court invited the Solicitor General to file a brief outlining the government's stance on Spokeo's request for a writ to reverse a Ninth Circuit decision that revived Robins' "statutory damages' lawsuit alleging that Spokeo provided false information from various online and offline sources into reports and sells them to subscribers, all in violation of the FCRA, but without any accompanying allegation of actual damages.
The Ninth Circuit ruled in February 2014 that the alleged violations of Robins' statutory rights under the FCRA sufficiently satisfied Article III's injury-in-fact requirement for standing. Spokeo countered in its appeal petition that there was a circuit split on the issue and that Robins must show actual harm rather than a mere fear that potential employers may rely on the allegedly inaccurate data.
The solicitor general countered last week that "public dissemination of inaccurate personal information about the plaintiff is a form of 'concrete harm' that courts have traditionally acted to redress, whether or not the plaintiff can prove some further consequential injury. Petitioner identified no court of appeals decision that has found such harm to be insufficient to satisfy Article III."
Some observers believe that Spokeo represents an opportunity for the Supreme Court to issue a ruling requiring consumers to have concrete, particularized harm in order to have standing to participate in class actions, which could substantially limit the number and types of class actions that can be pursued. However, based on the amicus brief, the Solicitor General not only supports a finding of standing when a consumer's claim is based on publication of inaccurate information, but also made other statements that indicated that standing should be found in other contexts where the violation did not result in concrete impact on a plaintiff, such as claims based on invasion of protected privacy interests.
The Supreme Court has yet to decide whether to grant Spokeo's petition for appeal.
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