United States: 9th Circuit Clarifies Standard For Article III Standing Based On Statutory Violations

Key Points

  • The 9th Circuit held that an alleged procedural violation of a statute can by itself manifest concrete injury sufficient for Article III standing where Congress conferred the procedural right to protect a plaintiff's concrete interests, and the procedural violation presents a "risk of real harm" to that concrete interest. 
  • The 9th Circuit's decision adds to the apparent circuit split in resolving issues of Article III standing.  Based on recent decisions in data breach cases from February and May of this year, courts within the 2nd and  4th Circuits are more likely to hold that consumers lack standing under Article III where consumers' data was not actually misused because the threat of harm is insufficient to establish standing. 
  • This issue is ripe for review and the Supreme Court is expected to resolve this apparent conflict in the near future.   

 On August 15, 2017, the 9th Circuit, in Thomas Robins v. Spokeo, Inc., reversed the district court's dismissal of an action alleging willful violations of the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq. The 9th Circuit held that plaintiff Thomas Robins' alleged injuries were sufficiently "concrete" for purposes of Article III standing, in part because Robins alleged harm to his employment prospects beyond a bare procedural violation.


According to Robins' complaint, Spokeo, Inc. operates a website that compiles consumer data and builds individual profiles based on that data. At no cost, consumers can use spokeo.com to view a report containing 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.

Robins alleged that Spokeo published an inaccurate report about him on its website. Specifically, Robins alleged that Spokeo's report falsely stated his age, marital status, wealth, education level and profession. Robins further alleged that these errors harmed his employment prospects and that he continues to be unemployed and suffers emotional distress.

According to Robins, Spokeo willfully violated various procedural requirements of the FCRA, including failing to follow reasonable procedures to ensure the accuracy of the information in his consumer report. In certain circumstances, consumers may recover statutory damages pursuant to the FCRA for willful violations, even in the absence of actual damages.

The district court dismissed Robins' complaint, holding that he lacked standing under Article III because he alleged only a bare violation of the FCRA. In 2014, the 9th Circuit reversed, holding that Robins suffered a "concrete" and "particularized" injury in part because he alleged that Spokeo violated his statutory rights as opposed to collective harms. In 2016, the Supreme Court vacated the 9th Circuit's opinion (Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016)) on the grounds that the 9th Circuit did not properly analyze whether Robins' alleged injury was sufficiently "concrete."

The 9th Circuit's Decision In Spokeo

On remand from the Supreme Court, the 9th Circuit again held that Robins' alleged injuries were sufficiently "concrete" for purposes of Article III standing.

First, the 9th Circuit held that Congress established the FCRA provisions at issue to protect consumers' concrete interests (as opposed to purely procedural rights). In particular, the 9th Circuit concluded that the FCRA provisions in this case were crafted to protect consumers' concrete interests in "accurate credit reporting" about themselves. The 9th Circuit was persuaded in part by the legislative record, which included "pages of discussion of how such inaccuracies may harm consumers in light of the increasing importance of consumer reporting." The 9th Circuit found that "Congress's judgment as to what amounts to a real, concrete injury is instructive."

Second, the 9th Circuit held that Robins alleged FCRA violations resulting in "concrete" injury to him. To establish this 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.'" Robins met this standard because Spokeo's alleged inaccuracies about Robins' age, marital status, educational background and employment history were alleged to constitute a real harm to his employment prospects.

Lastly, the 9th Circuit rejected Spokeo's contention that Robins' allegations of harm were too "speculative" to establish concrete injury, based on Robins' allegations that Spokeo had already published an allegedly inaccurate consumer report about Robins and that the alleged "harm" or "material risk of harm" caused by the report had thus already occurred. The 9th Circuit also held that Robins did not need to allege any "additional concrete harm," such as the loss of a specific job opportunity. The 9th Circuit found that Robins has a concrete interest in a truthful credit report, and, thus, the publishing of false and material information in that report creates a "material risk of real harm" sufficient for concrete injury under Article III.

The 9th Circuit distinguished Spokeo's allegations from the "many instances [in which] 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." As an example of an instance that would not confer standing, the 9th Circuit pointed to an FCRA violation that "may not result in the creation or dissemination of an inaccurate consumer report," which, in turn, "would not materially affect the consumer's protected interests in accurate credit reporting." Additionally, while an inaccurate credit report generally causes real harm to consumers, "it cannot be the case that every trivial or meaningless inaccuracy does so."


The 9th Circuit's opinion holds that an alleged procedural violation of a statute can, by itself, manifest concrete injury where (1) Congress conferred the procedural right to protect a plaintiff's concrete interests, and (2) the procedural violation presents a "risk of real harm" to that concrete interest.

One open question is whether the 9th Circuit's decision is consistent with Supreme Court precedent. In its earlier decision in Spokeo, the Supreme Court cautioned that the publishing of minor falsehoods, such as incorrect zip codes, does not raise a "material risk of harm," but left open the possibility that meaningful inaccuracies (such as those likely to impact employment) are sufficient. On the other hand, the 9th Circuit's decision arguably runs contrary to the Supreme Court's holding in Clapper v. Amnesty Int'l USA, 568 U.S. 398 (2013) that an alleged injury must be "imminent" and "certainly impending." Hypothetical harms, including an undefined risk of injury, arguably fall short of the "actual" or "imminent" injury required.

Defendants challenging Article III standing within the 9th Circuit are not without recourse. It is far from clear whether the 9th's Circuit opinion will have implications beyond FCRA cases alleging material falsehoods impacting potential employment. The 9th Circuit's opinion rests on the nature of the FCRA and the harms that it was designed to protect against. Courts may narrowly construe that holding as inapplicable to other statutory violations, such as violations of the Telephone Consumer Protection Act, where injuries are arguably trivial and may not present a "risk of real harm." Moreover, defendants are most likely to successfully attack Article III standing where a series of speculative events must occur in order for plaintiffs to actually be injured, as was the case in Clapper.

Lastly, the 9th Circuit's opinion adds to the apparent circuit split in resolving issues of Article III standing. Based on recent decisions in data breach cases from February and May of this year, courts within the 2nd and 4th Circuits are more likely to hold that consumers lack standing under Article III where consumers' data was not actually misused because the threat of harm is insufficient to establish standing. This issue is ripe for review, and the Supreme Court is expected to resolve this apparent conflict in the near future.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.