FCRA: No Harm, No Worries?
By: Emma Bechara
[Current events article: http://www.scotusblog.com/2015/11/argument-analysis-second-time-around-no-easier-for-justices-in-standing-case/]
A pending case before the United States Supreme Court, considered in a United States Supreme Court (SCOTUS) blog, brings to the forefront the question of whether or not a consumer plaintiff has legal standing to bring a class action lawsuit for a technical violation of the Fair Credit Reporting Act (FCRA). On 2 November 2015, SCOTUS heard oral arguments in Spokeo, Inc. v Robins, where the petitioner, Robins, alleged that Spokeo – a consumer reporting agency – published inaccurate information about him, which adversely affected his ability to get a job and such inaccurate publishing was a violation of the FCRA. There was no evidence presented that Robins suffered actual “concrete harm”.
The legal question before SCOTUS is:
“Whether Congress may confer Article III standing upon a plaintiff who suffers no concrete harm, and who therefore could not otherwise invoke the jurisdiction of a federal court, by authorizing a private right of action based on a bare violation of a federal statute.”
The answer to this question, if in the affirmative, will undoubtedly have important legal and commercial ramifications for data privacy law, and the future of consumer class actions in this sphere. An affirmative answer will inevitably open the floodgates for consumers across the United States to bring suits against consumer credit agencies and Internet companies for Federal privacy law violations. More alarmingly, as Robins could not show that he had suffered “actual harm” as a result of the alleged violations, a finding for him may also set a dangerous precedent that would allow consumers to have standing to sue for a violation of the FCRA, despite being unable to show that they had suffered harm.
This case considers an interesting dichotomy between the growing interests of consumer privacy, and the traditional views of the law requiring injury to a person. Currently, the FCRA provides consumers with up to $1000 in damages for inaccurate published reports. Is this enough? Perhaps dicta in from the court will shed light on this. Nonetheless, Spokeo argued that allowing consumers to sue, despite sustaining no concrete injuries, would invite class action abuse. According to the SCOTUS blog, this view is likely to be upheld by 7 of the Justices, with only two Justices- Justice Sonia Sotomayor and Justice Ruth Bader Ginsburg – “open to the possibility” of a plaintiff not being to show a “concrete, ‘real world’ harm”. Sadly, the passing of his Honor Justice Scalia has brought an element of uncertainty to the decision, and as Scott Flaherty notes, his Honor “penned three majority opinions that left an indisputable mark on the class action landscape, but now the court must grapple with key issues that linger”.