In the closely-watched case of Spokeo, Inc. v Robins, the Solicitor General recently filed an amicus brief urging the Court to deny certiorari and leave in place the 9th Circuit’s holding, which could encourage the rising tide of privacy class action litigation.  The Solicitor General’s brief—coauthored by the Consumer Financial Protection Bureau—argued that the dissemination of inaccurate information in violation of a plaintiff’s statutory right is a cognizable injury giving rise to Article III standing, even absent an allegation of any independent harm.  As many privacy plaintiffs continue to rely on statutory violations to clear Article III’s “case or controversy” threshold—a prerequisite to bringing suit in any Federal Court—any resulting opinion by the Supreme Court may have significant down-stream implications.

In Spokeo, the defendant operated a directory website that compiles publicly-available information to create a profile on individuals.  The Ninth Circuit found that under the Fair Credit Reporting Act, the plaintiff had standing to sue the defendant for displaying allegedly inaccurate information, despite the plaintiff’s failure to allege he had suffered any actual resulting harm.  That is, the Fair Credit Reporting Act created a statutory right, the violation of which was sufficient to confer standing.  Spokeo is currently seeking certiorari, arguing that Article III of the United States Constitution requires a concrete harm independent of any Congressionally-created right.  And last October—after Facebook, Google, eBay, the Chamber of Commerce, and others filed Amicus briefs—the Supreme Court asked the Solicitor General whether it should grant certiorari, a move that often indicates the Court’s increased willingness to consider a case.

The Solicitor General’s brief provides two new insights into how this case may unfold.  First, in cases where the Supreme Court has asked the Solicitor General for an opinion, the Supreme Court has followed the Solicitor General’s recommendation and denied certiorari about 80% of the time.  See Margaret Meriwether Cordray & Richard Cordray, The Solicitor General’s Changing Role in Supreme Court Litigation, 51 B.C. L. Rev. 1323, 1334 n.51 (2010) (collecting studies from 1998 through the present).  Thus, at least as a statistical matter, the new filing significantly decreases the chance that the Court takes up this case.

Second, the Solicitor General’s brief attempts to reframe the question for the Court.  While Spokeo seeks to review Congress’s authority (or lack thereof) to create a justiciable controversy absent any actual, concrete harm, the Solicitor General focuses instead on the specific statutory right discussed in the Ninth Circuit’s opinion—the right to prevent the dissemination of inaccurate information, and particularly that right under the Fair Credit Reporting Act.  If the Court accepts this formulation and nonetheless grants cert and hears the case, any holding would be significantly narrower and may have limited impact on other privacy and consumer protection statues that do not regulate the dissemination of inaccurate information.

This is not the first time the Court has flirted with clarifying the Article III standing requirements in privacy class actions.  As previously covered by Inside Privacy, in 2012, the Court granted certiorari but then later dismissed as improvidently granted a similar class action under the Real Estate Settlement Procedures Act, First American Financial Corp. v. Edwards, even though neither plaintiff nor any member of the putative class could allege that he personally was overcharged because of defendant’s conduct.  Only time will tell whether Spokeo will put this issue to rest, but Inside Privacy will continue to monitor the case for new developments.