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SCOTUS’s Decision May Prohibit Plaintiff’s From Suing for Intangible Injury Under the FCRA

Yarelyn Mena and Edgar M. Rivera, Esq.

Have you ever wondered if a potential employer found information about you on the Internet that cost you the job? Thomas Robins believed so, and sued Spokeo, Inc. (Spokeo), creators of, a search engine that collects and sells publicly available data about people.  Spokeo incorrectly described 20-year old Mr. Robins as a wealthy 50-year old man with children, as well as a myriad of other inaccuracies about his professional and personal life on the Spokeo website. Robins sued Spokeo pursuant to the Fair Credit Reporting Act (FCRA), under which malicious statutory violations are actionable even without causing a plaintiff actual harm.

Spokeo argued that Mr. Robins had no standing to sue. Standing requires that (1) the plaintiff has suffered an ‘injury in fact,’ (2) the injury is traceable to defendant’s actions, and (3) it is likely that the injury will be redressed by a favorable decision. Courts characterize an injury in fact as concrete and actual or imminent. The district court agreed with Spokeo, holding that Mr. Robins could not prove with concrete and actual evidence that inaccurate information about him on the Internet had any adverse effect on his employment, credit or any other prospect. As such, the district court dismissed the action.

Mr. Robins appealed to the Court of Appeals for the Ninth Circuit, which overruled the district court’s decision. The Ninth Circuit noted that Congress may create a statutory right that does not require proof of actual damages; it must only be significant enough so that Congress can “elevate [it] to the status of legally cognizable injuries.” In creating such a statutory right, Congress is bound by several constitutional limitations: the plaintiff must be among those injured, and the statutory right at issue must protect against individual harm, not collective harm. The Ninth Circuit found that Mr. Robins met both prongs because his injury was sufficiently concrete to where Congress could elevate it and Mr. Robin’s personal interests were vested in Spokeo’s inaccurate information much like “an individual’s personal interest in living in a racially integrated community.” The Ninth Circuit held that Mr. Robins had standing to bring his claim.

Spokeo appealed to the Supreme Court of the United States (SCOTUS), which granted certiorari. During oral arguments before SCOTUS, several of the justices sided with Mr. Robin’s view, including Justice Sotomayor, who stated, “I will tell you I know plenty of single people who look at whether someone who’s proposed to date is married or not. So if you’re not married and there’s a report out there saying you are, that’s a potential injury.” Justice Kagan also agreed, noting that the FCRA’s purpose is to prevent people from being harmed due to the distribution of false information even if the injury is intangible.

If SCOTUS holds that Robins does not have standing, Plaintiffs will be prohibited from bringing claims to redress intangible injury under the FCRA, or many other statutes that provide for statutory damages absent actual damages.

If you believe your FCRA rights have been violated, please contact The Harman Firm, LLP.

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