Jennifer Jackson, Kristin Petersen, and Jay Warren of Bryan Cave write:
On January 22, 2018, the United States Supreme Court denied a petition for writ of certiorari in Spokeo v. Robins – bringing an end to an appellate saga that started in the Ninth Circuit Court of Appeals before heading up to the Supreme Court, back to the Ninth Circuit on remand, and then finally back to the Supreme Court on Spokeo’s petition.
Spokeo, Inc. (“Spokeo”), a consumer reporting agency, filed the writ petition after the Ninth Circuit, considering the case on remand from the Supreme Court, decided in 867 F.3d 1108 (9th Cir. 2017) (“Spokeo III”) (see Client Alert here), that Spokeo’s publication of inaccurate information about the plaintiff in violation of the Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq. (“FCRA”), constituted concrete injuries to the plaintiff’s interest in accurate credit reporting for purposes of standing under Article III of the Constitution.
In denying Spokeo’s petition, the Supreme Court declined to provide further clarity around its decision in 136 S. Ct. 1540 (2016) (“Spokeo II”) regarding the standard for determining what constitutes a “concrete harm,” which must be established in addition to a particularized harm, as part of the injury-in-fact requirement for Article III standing. While the loop is now closed on the Ninth Circuit’s evaluation of this plaintiff’s standing, Spokeo I-IV left federal district and appellate courts split over how the “concreteness” standard is properly applied when analyzing a plaintiff’s Article III standing, particularly under federal consumer protection statutes such as the FCRA, the Fair Debt Collection Practices Act (“FDCPA”), and the Telephone Consumer Protection Act (“TCPA”).
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