9thCirIn addition to an America-only total solar eclipse, August has brought us a remarkable flurry of significant federal appeals court decisions. Among those decisions were two that addressed a hotly contested procedural issue: plaintiff’s standing to sue for violation of a federal statute.

The rulings, both of which interpreted and applied the 2016 US Supreme Court Spokeo, Inc. v. Robins decision, further clarified that decision’s main holding while also exacerbating the confusion over what constitutes a “concrete and particularized” injury.

We’ve written quite a bit about Spokeo and its progeny here. There, the Court held that plaintiffs alleging a “bare procedural violation” of a federal statute do not meet the “case or controversy” standing requirement of Article III of the US Constitution. Such litigants must also claim an injury-in-fact, i.e. a harm that is concrete and particularized to them. Justice Alito’s opinion offered very little guidance on how courts should make that determination.

As explained in a January WLF Legal Backgrounder and a Webinar broadcast in May, a divergent body of caselaw has emerged from federal district and appellate courts in Spokeo‘s wake. The two August decisions, one from the US Court of Appeals for the Ninth Circuit and the other from the Seventh Circuit, both construed claims under the Fair Credit Reporting Act (FCRA), a popular no-injury class-action vehicle.

Robins v. Spokeo, Inc.

The Supreme Court’s decision to vacate and remand Spokeo to the Ninth Circuit gave rise to that court’s August 15, 2017 ruling in Robins v. Spokeo, Inc.  The same three-judge panel that originally decided Spokeo in 2014 once again unanimously held that Robins had standing to sue under the Fair Credit Reporting Act (FCRA).

The decision acknowledged the Supreme Court’s holding that Spokeo’s alleged FCRA violation did not automatically satisfy Article III’s injury-in-fact requirement. The Ninth Circuit panel had to determine whether the risk that Robins would suffer an indefinite, future harm was sufficiently concrete.

The court reasoned that through the FCRA and the procedures it mandated, Congress intended to protect consumers’ concrete interest in accurate consumer reports. The nature of the inaccuracies in Spokeo’s report on Robins, the court continued, are important because “real harm” does not arise from “every trivial or meaningless inaccuracy.”

“It does not take much imagination,” the Spokeo panel explained on remand, to understand how a report that incorrectly represented Robins as married with children, holding a graduate degree, and relatively affluent “could be deemed real harm” (though the court acknowledged the inaccuracies “could seem worse”). The court concluded by rejecting Spokeo’s argument that the harm Robins alleged was speculative. The harm occurred, the panel reasoned, when Spokeo failed to follow FCRA procedures.

7th circuitGroshek v. Time Warner Cable, Inc.

The Seventh Circuit’s August 1, 2017 Groshek v. Time Warner Cable, Inc. decision arose from serial FCRA plaintiff Groshek’s claim that when he applied for a job with Time Warner, the company failed to provide him a statutorily-required “clear and conspicuous disclosure” that it would be obtaining his credit report. According to Groshek, the liability waiver Time Warner included in the disclosure form rendered the disclosure unlawfully unclear.

The Seventh Circuit panel followed Spokeo dictate that even if Time Warner technically violated the FCRA, to establish standing, Groshek also needed to show he suffered a concrete injury. The court concluded he could not.

Groshek, the court explained, failed to allege that the supposedly extraneous information in the form prevented him from understanding that he was consenting and that Time Warner would obtain a credit report. He suffered neither an informational injury, because Time Warner provided the information he sought, nor a privacy harm, because despite his supposed misgivings about the consent form, he signed it.

The Groshek court also reasoned that the FCRA did not protect against the type of harm the plaintiff alleged. The law safeguards consumers’ concrete interest in privacy by ensuring that they knowingly consent to third-party release of credit reports. It does not, the court explained, guard against extraneous information in consent forms.

Abstractions Etched into Concrete

Those seeking clarity or guidance on whether a harm is “concrete” from Spokeo on remand or Groshek will regrettably find little. A harm does not arise simply from a technical statutory violation—both circuit courts were clear on that. The plaintiff in Groshek made no attempt to identify even an abstract harm or risk of future harm beyond his claim of an FCRA transgression, so the Seventh Circuit’s decision was frankly an obvious one.

One issue that the Spokeo panel did make less clear, though, is when a material risk of future harm is sufficiently concrete for Article III standing purposes.

The most that Robins could muster to show future harm was that he suffered “anxiety” about how a report that made him look more favorable might impact his employment prospects. He offered no proof that any prospective employer had read the Spokeo report, or had even searched for it. He did not make out a case, as the Supreme Court requires when risk of harm is in question, that the threatened injury was “certainly impending.”

The Spokeo panel reasoned around Robins’s lack of proof, arguing that the inaccuracies were sufficiently harmful in the abstract, and “imagin[ing]” that a prospective employer could be misled thanks to Spokeo’s misreporting. In addition, as the Ninth Circuit panel saw it, the harm occurred when Spokeo published its report. The harm was thus not speculative, so Robins didn’t need to prove his injury was “certainly impending.”

The court did helpfully drop a few footnotes explaining what it was not deciding, which hint at what would not constitute a concrete injury. Footnote 3 relates that the court would not have found concrete injury had Spokeo never published the inaccurate report. Footnote 4 cautions that some inaccuracies are so trivial (“misreporting a person’s age by a day or … wealth by a dollar”) that concrete injury could not occur. Such statements, however, do little to narrow what was a rather broad interpretation of “concrete” harm.

One would hope that at a minimum, the Seventh Circuit’s decision will put an end to the type of FCRA lawsuit manufacturing that Groshek admitted to in his deposition. But thanks to the Ninth Circuit’s recent decision in Spokeo, which has injected further confusion into the statutory standing jurisprudence, business enterprises of all sizes can expect no abatement to other types of no-injury class actions.

Also published by Forbes.com at WLF’s contributor page.