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Written By ESR News Blog Editor Thomas Ahearn

On November 2, 2015, the Supreme Court of the United States (SCOTUS) heard oral arguments in the case of Spokeo, Inc. v. Robins which could decide whether or not a plaintiff has the legal right, or “standing,” to bring a class action lawsuit for a technical violation of the Fair Credit Reporting Act (FCRA) if that individual suffered no actual concrete harm from the violation.

The case Spokeo, Inc. v. Robins involves a Virginia man named Thomas Robins who filed a class action lawsuit against Spokeo – an online “people search engine” selling publicly available information about individuals – alleging that the company violated the FCRA by publishing inaccurate information about his age, education, marital status, and professional experience.

Under the FCRA, consumers may claim damages from $100 to $1000 if a company publishes inaccurate information about them. Spokeo could pay millions to consumers such as Robins with inaccurate information published if the Supreme Court upholds a ruling in the U.S. Court of Appeals for the Ninth Circuit that held Robins had Article III standing to sue under the FCRA.

According to analysis of the arguments on the SCOTUS blog, a ruling that plaintiffs only have to allege a violation of a right created by a statute without needing to show concrete real world harm from the violation “did not seem likely.” Of the nine Supreme Court Justices, only two – Justice Sonia Sotomayor and Justice Ruth Bader Ginsburg – seemed open to that possibility.

Conversely, the analysis found Justice Antonin Scalia and Justice John Roberts seemed ready to agree that plaintiffs “need to be able to point to actual harm from a violation of a statute, rather than just the violation of the statute itself.” For example, would the failure of a credit reporting agency to provide an FCRA required 1-800 number allow anyone to sue if it did not affect them?

However, Justice Elena Kagan focused on a third option where “Robins was actually injured when Spokeo published false information about him.” While Justice Kagan agreed “you need a concrete injury,” she stated the publishing of false information in a credit report “seems like a concrete injury to me. If someone did it to me, I would feel harmed.” According to the analysis:

This would allow Robins’s lawsuit to go forward, without forcing the Court to choose between opening the federal courts to frivolous but possibly massive class-action lawsuits (Spokeo’s prediction if Robins were to prevail) and closing the courthouse doors to potentially important privacy, civil rights, environmental, and patent lawsuits (Robins’s prediction if Spokeo were to prevail).

The analysis concludes that even if a majority of five Justices agree that Robins suffered a “concrete” and “real world” injury, it is unclear how the Court will rule since “the question technically before the Court is whether Congress can authorize lawsuits based on the violation of a statute when the plaintiff has not actually been harmed.” The full analysis is available here.

Andrew J. Pincus argued on behalf of the petitioner Spokeo Inc., while William S. Consovoy argued on behalf of respondent Thomas Robins. A decision by the U.S. Supreme Court in the case of Spokeo, Inc. v. Robins is not expected until 2016. Updates on the case are available on the SCOTUS website at

Source: Amy Howe, Argument analysis: Second time around no easier for Justices in standing case, SCOTUSblog (Nov. 2, 2015, 4:23 PM),

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