For almost six years, Spokeo v. Robins has been bouncing around courts at the District level, Appeals level, and most recently the U.S. Supreme Court level. In July 2010, a putative class action was filed by Thomas Robins against Spokeo, a “people search engine.” Robins found himself on Spokeo, which had inaccurate information about him. He then filed the lawsuit, alleging, among other things, that Spokeo had statutorily harmed his credit by maintaining inaccurate data about himself. Allegedly, someone (without specifying who) made a Spokeo search request for information about Robins, and Spokeo trawled its sources and generated a profile.
Launched in 2006, Spokeo “aggregates publicly available information about individuals from phone books, social networks, marketing surveys, real estate listings, business websites and other sources, which it organizes into comprehensive, easy-to-read profiles.” However, Spokeo makes a point to state that it does not “verify or evaluate each piece of data, and makes no warranties or guarantees about the information offered…,”and warns that the information is not to be used for any purpose addressed by the Fair Credit Reporting Act.”
The Fair Credit Reporting Act (FCRA) is nothing new to employers who run background checks on applicants and employees. The FCRA requires that consumer reporting agencies (“CRAs”) follow reasonable procedures to assure maximum possible accuracy of its consumer reports (15 U.S.C. § 1681e[b]), issue specific notices to providers and users of information (1681e[d]), and post toll-free phone numbers to allow consumers to request their consumer reports (1681b[e]).
While Robins could not identify any actual damages that took place, he alleged that Spokeo willfully violated the FCRA by not assuring the maximum possible accuracy of its consumer reports as it was acting as a Consumer Reporting Agency. While it could be argued that Spokeo as a data aggregator does not actually meet the definition of a Consumer Reporting Agency, nor does the information Spokeo provides constitute a Consumer Report, Robins did not raise either of these issues. Instead, he alleged that Spokeo violated the FCRA by providing incorrect information about him and countless others.
In the particular instance of Robins, Spokeo reported high levels of education, professional experience and finances, as well as a “married with children” status. However, Robins had a lower level of education, professional experience, and finances; and was in fact single with no children. Robins alleged that the inaccuracies supplied by Spokeo could cause injury to him and others like him; inflated education, employment and finances could cause him to be overlooked for lower-paying jobs, or his inaccurate family status could cause him to be overlooked for jobs that required relocation.
The case was originally dismissed by the district court, which found that Robins had no standing to sue because there was no injury. In February 2014, the U.S. Court of Appeals for the Ninth Circuit reversed that decision, holding that the “violation of a statutory right is usually a sufficient injury in fact to confer standing” and that “a plaintiff can suffer a violation of the statutory right without suffering actual damages.”
Spokeo was granted certiorari, arguing among many things that the Ninth Circuit’s holding was inconsistent with the Supreme Court’s precedents and the Constitution, and that Robins’ bare allegations of the FCRA violations – without proof of any actual or concrete injury, were not enough to prove any injury or harm.
The Supreme Court agreed with Spokeo and ruled that to establish injury in fact under Article III of the FCRA, a plaintiff must show that he or she suffered “an invasion of a legally protected interest” that is both “concrete and particularized.”. For an injury to be “particularized,” it “must affect the plaintiff in a personal and individual way.” “Concreteness,” the Supreme Court found “is quite different from particularization.” A concrete injury must “actually exist” and must be “real” and not “abstract.” The Court sent the case back to the 9th Circuit Court of Appeals for a determination whether Robins experienced a concrete and particular injury. Presumably, Robins would have to show that employers to whom he applied failed to hire him because of the Spokeo information or something in that nature. Regardless of the result of the 9th Circuit rehearing, it is likely to come back to the Supreme Court to confirm the injury analysis approach that the 9th Circuit will take.
In summary, Spokeo v. Robins clarifies the difference between alleged injury and concrete injury, but only conceptually. SCOTUS will probably still have to rule on the on-the-ground application of that concept. By no means does it gives employers carte blanche to base hiring and promotion decisions on information collected by a data aggregator. Employers need to be wary of such data; far wiser and more economical in the long run to use professional background checking services to vet potential new hires and current employees.
Sources: Justia 5/18/16; Seyfarth Shaw 5/16/16
For information about ASE’s professional background checking services, email Nicole Sitter or call her at 248-223-8058.