By Colleen M. Svelnis, J.D.
The Consumer Financial Protection Bureau has filed an amicus curiae brief on behalf of a consumer in a case involving standing under the Fair Credit Reporting Act, arguing that the an inaccurate consumer report published about an individual constitutes concrete harm sufficient to satisfy the injury-in-fact requirement of Article III. The brief was filed in the case of Robins v. Spokeo, Inc. Robins alleges that Spokeo’s website displayed a consumer report about him that included inaccurate information while he was "out of work and seeking employment."
The FCRA requires that a credit reporting agency "shall follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates." Under the FCRA, an affected consumer may bring suit against any person who negligently or willfully fails to comply with any requirement imposed under the Act.
Incomplete analysis. The district court found that a mere violation of the FCRA would not confer Article III standing "where no injury in fact is properly pled." However, the Ninth Circuit Court of Appeals found that the FCRA confers statutory rights, and that "the violation of a statutory right is usually a sufficient injury in fact to confer standing." The Ninth Circuit concluded that Robins satisfies the requirements and that the "alleged violations of Robins’s statutory rights are sufficient to satisfy the injury-in-fact requirement of Article III." The Supreme Court vacated that judgment, taking only the position that the Ninth Circuit’s "analysis was incomplete," and remanded for further proceedings. The court must also consider that the injury-in-fact requirement requires a plaintiff to allege an injury that is both "concrete and particularized."
‘Concrete’ harm requirement. In Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), the Supreme Court determined that the U.S. Court of Appeals for the Ninth Circuit’s analysis of the standing to sue issue was insufficient because the appellate court did not consider whether the consumer had outlined a concrete injury that would give him standing under the U.S. Constitution
CFPB brief. The brief argues that publication of false, material information in Robins’ consumer report is a concrete harm supporting his standing to sue. Consumer reports contain information that influences employers’ and other persons’ decisions about the individual, and the "additional harms that may result from an inaccurate report" like losing a job or a loan, could be "difficult to prove or measure," according to the bureau’s brief.
According to the brief, Spokeo reaffirms that "intangible" injuries, including exposure to a "risk of real harm," can satisfy Article III’s concrete injury requirement. The brief points to Congress’ action in putting forth the FCRA, which sought to curb the "dissemination of false information" in consumer reports. Further, the brief states that it was "eminently reasonable" for Congress to "regard the dissemination of an inaccurate consumer report as an injury to the individual whom the report inaccurately describes."
In addition to Congressional action, the brief argues that historical practice indicates that publication of false consumer report information is a sufficiently concrete injury to satisfy Article III.
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