What better time than now – only a few weeks away from the New Year – to discuss an important case currently before the U.S. Supreme Court, which has the capacity to significantly change the future landscape of Fair Credit Reporting Act (FCRA) litigation in 2016. The issue before the Court is whether or not an individual has a right to sue under the FCRA due to the reporting of false information about them, if they have suffered little to no injury as a result of that false information. Often times, the answer to that question is “no,” since the injury needs to be concrete and factual in nature; not speculative or hypothetical. These days personal information flows from public sources more than ever though. This gives employers and financial institutions access to personal information they’ve previously not had before, or were allowed access to. Because of this, wouldn’t the harm or “injury” begin the moment the misinformation is published, and people have access to it? And wouldn’t that make the “potential” for injury far more plausible, and less speculative?
The case at the root of all this discussion is Robins v. Spokeo, Inc., a class action filed in California on July 20, 2010 in federal district court, alleging that the public search engine, Spokeo, violated the FCRA by publishing information misrepresenting Robins’ financial and marital status on its website. Specifically, Spokeo’s website stated that Robins was wealthy and had a graduate degree, when in fact he was unemployed and had no such degree. Robins claimed that this harmed his employment prospects, which in turn cost him money and emotional distress.
In May of 2011, the district court ruled in favor of Robins, stating that he adequately supported his claims for injury based Spokeo’s marketing of inaccurate information about him. The court reconsidered that decision shortly after, however, and in September of 2011, ruled that Robins’ claims for injury were speculative, and not traceable to Spokeo’s misrepresentations about him after all. The case was dismissed in its entirety after that. Robins appealed this decision to the 9th Circuit Court of Appeals, and in 2014, the Appellate Court issued a ruling in favor of Robins. He was allowed to continue to pursue his FCRA claims in district court. Defendant, Spokeo, disagreeing with the Appellate Court’s ruling, promptly filed a request (petition) with the U.S. Supreme Court, seeking further review. The Supreme Court accepted Spokeo’s petition, and heard oral argument on the matter in November 2015. Until a ruling is issued, the Spokeo case, along with a handful of others presented with the same FCRA question, are on hold.
Depending on how this shakes out, consumers will either have an increased or decreased list of legal remedies available to them from here on out in the event misinformation is reported about them and they have no concrete proof they were harmed from it. In a positive sense, this could make consumers police their information more, and hold businesses more accountable for correcting misinformation. The only problem with that is you often don’t know how long that misinformation has been out there, and who the original source of it is. So even if you were to correct it with one entity, how do you know the same issue isn’t going to resurface with another entity who purchased that same misinformation? These are just a few of the questions being asked of the U.S. Supreme Court right now.
We can expect to see a ruling on this sometime in 2016. In the meantime, the handfuls of cases waiting for an answer on this important issue are holding their breath…as are we.