On Monday, a divided panel of the Ninth Circuit rejected what is perhaps the most common allegation asserted by plaintiffs as a way of achieving standing under FCRA: that, as a result of some alleged misconduct, their credit report contained misleading information.

This decision arose in five related cases. Green v. Experian Information Solutions, Inc., No. 17-15987 (9th Cir. 2019); Rydolph v. Experian Information Solutions, Inc., No. 17-15990 (9th Cir. 2019); Contreras v. Experian Information Solutions, Inc., No. 17-15991 (9th Cir. 2019); Hunter v. Experian Information Solutions, Inc., No. 17-15992 (9th Cir. 2019); Jaras v. Equifax Inc., No. 17-15201 (9th Cir. 2019). In these companion cases, the plaintiffs alleged that the notations on their credit reports mischaracterized the legal status of debts which were subject to a Chapter 13 bankruptcy plan. The trial court dismissed the cases based on findings that the notations on the credit reports were accurate and not misleading.

The Ninth Circuit panel, however, did not reach the merits. Instead, the majority held that, pursuant to the United States Supreme Court’s precedent in Spokeo v. Robins, plaintiffs lacked standing to bring suit.

The majority’s analysis focused on the lack of concrete allegations from the plaintiffs. They noted that “Plaintiffs here do not make any allegations about how the alleged misstatements in their credit reports would affect any transaction they tried to enter or plan to try to enter—and it is not obvious that they would” given that other explanations might exist for the lower credit scores alleged by the plaintiffs. Thus, the majority argued, the plaintiffs failed to allege any actual or imminent concrete harm, and that their claims were too amorphous to litigate. They concluded that the plaintiffs’ claims should be dismissed without prejudice.

Judge Berzon dissented. In her dissent, Judge Berzon noted that several of the plaintiffs alleged that the conduct at issue lowered their credit scores, and that it is difficult for individuals to predict when and how their credit reports may be used or accessed. Judge Berzon therefore argued that “adverse information on a credit report, often resulting in a lower credit rating, constitutes a reputational injury creating a material risk of harm, whether or not an individual contemplates a specific, imminent transaction.”