SAN FRANCISCO — A California federal appeals court's ruling that Thomas Robins and other consumers have actually alleged sufficient injury to pursue their claims in federal court against online personal information listing service Spokeo - the first such ruling in the case since a historic U.S. Supreme Court decision - could have far reaching implications. 

The case stems from a 2015 lawsuit in which Robins sued Spokeo Inc., a search engine website which provides such personal information as address, marital status, age, occupation and economic status. Robins claimed that Spokeo published incorrect information about him on their website in violation of the Fair Credit Reporting Act (FCRA). He also claimed to have suffered actual harm because the site showed him as being wealthy, affecting job prospects.

The district court granted Spokeo’s motion to dismiss for lack of standing under Article III of the FCRA and lack of subject-matter jurisdiction, stating that the alleged harm to his employment prospects was “speculative, attenuated and implausible.” 

The U.S. Ninth Circuit Court of Appeals, however, reversed the district court’s ruling, arguing that a violation of a private statutory right is “usually a sufficient injury in fact to confer standing.” 

The case, however, landed in front of the Supreme Court, which ruled that people cannot sue under the FCRA and similar statutes for "technical violations." The high court said plaintiffs must show a "concrete injury" when filing suit. The Supreme Court then sent the case back to the Ninth Circuit for further deliberation to determine whether Robins’ claims satisfied the "concrete injury" requirement. 

And in August, the Ninth Circuit said Robins' claims of harm are enough to allow the lawsuit to continue, even under the supposedly enhanced Supreme Court holdings.

But showing actual harm has proven to be a challenge for the lower courts, according to Lewis Wiener and Michael Bahar, partners at Eversheds Sutherland, in Washington, D.C.

"Some judges have taken a very narrow approach, while others use a broader application of Spokeo," Wiener told the Cook County Record. “What I see going on is what you see happen often following a Supreme Court decision. Very rarely are they cookie cutter cases, and it’s often left to lower courts to interpret and apply articulations of the Supreme Court view.”

The U.S. Supreme Court had found that "a bare procedural violation, divorced from any concrete harm" would not satisfy the injury-in-fact requirement of Article III. 

Justice Samuel Alito cautioned that both tangible and intangible injuries could satisfy the concreteness requirement, although intangible injuries can be concrete, and the violation of a procedural right can be sufficient in some circumstances. 

“In a broader sense, not just a technical violation can confer standing," Wiener said. "The Supreme Court said that a naked statutory violation alone does not confer Article III standing. It is kind of like the legal equivalent of the tree falling in the woods. If no one was there to see it, can you show harm?”

Weiner, however, said that concrete injury is "not a new concept."

“Spokeo kicked up a bunch of dust, but the flow of cases has not been impacted," he said. "It's just added a few more tools to the defendant counsel’s arsenal, keeping plaintiffs' feet to the fire, and some cases may get weeded out.”

Bahar added that just because you meet the requirements, does not mean that you will prevail in court.

“Even if you beat the concrete requirement, you don’t necessarily have a viable case," Bahar said. "Until a precise rule is fashioned, things may be elusive in the near term."

Courts have appeared to be struggling without a clear rule, and dismissing a case for not showing actual harm could be a violation of a plaintiff’s statutory rights. 

“That’s exactly what the courts are struggling with, and maybe that’s the fault line for district and circuit courts," Bahar said. "Everyone wants to make sure people get their day in court.”

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