The closely watched lawsuit alleging Spokeo, Inc., violated the Fair Credit Reporting Act (“FCRA”) may proceed, after a federal appeals court ruled — on remand from the Supreme Court — that publication of the inaccuracies alleged by the plaintiff would constitute a sufficiently “concrete” harm to give the plaintiff standing to sue in federal court.  As we previously reported, the Supreme Court’s ruling from last year is expected to have significant down-stream implications for standing in privacy class action litigation, because numerous privacy-related federal laws have been construed to allow statutory damages even in the absence of actual injury (e.g., the Telephone Consumer Protection Act).

The Supreme Court held that to establish standing, plaintiffs must allege “a real risk of harm,” rather than only a “bare procedural violation.”  The Court suggested, for instance, that FCRA violations such as failing to notify a user of the user’s FCRA duties, or providing information with trivial inaccuracies, would not constitute sufficiently “concrete” harms.

Applying that guidance on remand from the Supreme Court, a unanimous panel of the U.S. Court of Appeals for the Ninth Circuit held that, “while [the plaintiff] may not show an injury-in-fact merely by pointing to a statutory cause of action,” the FCRA procedures Spokeo was alleged to have violated “were crafted to protect consumers’ (like [the plaintiff’s]) concrete interest in accurate credit reporting about themselves.”  Moreover, the Ninth Circuit found that the inaccuracies Spokeo allegedly reported — that the plaintiff “is married with children, that he is in his 50s, that he is employed in a professional or technical field, that he has a graduate degree, and that his wealth level is higher than it is” — go beyond “the sort of ‘mere technical violation[s]’ which are too insignificant to present a sincere risk of harm to the real-world interests that Congress chose to protect with FCRA.”

The lawsuit now will return to federal district court, unless Spokeo successfully asks the full Ninth Circuit or the Supreme Court for further review on the standing issue.