This week the Ninth Circuit offered plaintiffs who wish to bring both individual and class actions a potentially broad path to establish Article III standing based on mere allegations of procedural statutory violations. In Robins v. Spokeo, Inc., the Ninth Circuit held that alleging just a procedural violation of the Fair Credit Reporting Act (FCRA) pled a sufficiently concrete injury to establish Article III standing. The court was considering the issue of standing for the second time after the U.S. Supreme Court remanded the matter while finding an allegation of a bare procedural violation insufficient to establish standing. The Court directed the Ninth Circuit to consider the issue of concrete injury.
Plaintiff alleged that FCRA procedural violations occurred when the defendant published incorrect information about him on its website relating to his income, age, marital status, profession, and education, harming his employment prospects at a time when he was unemployed. The Ninth Circuit explained that this alleged procedural violation was enough to establish a concrete injury, adopting a test the Second Circuit articulated in Strubel v. Comenity Bank. That test considers "(1) whether the statutory provisions at issue were established to protect his concrete interests (as opposed to purely procedural rights), and if so, (2) whether the specific procedural violations alleged in this case actually harm, or present a material risk of harm to, such interests." The Ninth Circuit found that the FCRA satisfies both of these requirements and that the particular violation alleged by plaintiff risked causing the type of harm the FCRA was meant to prevent.
While this decision was specific to the FCRA, plaintiffs are sure to use it to argue that allegations of procedural violations of other statutes are sufficient to satisfy Article III's concrete injury requirement for standing. Defendants must therefore be prepared to distinguish particular violations of particular statutes from those the Ninth Circuit found sufficient in this matter. The issue will likely require future clarification of this standard by the Ninth Circuit and perhaps the Supreme Court.
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