#case preview

Okay, ready? As always: facts first. Spokeo, Inc., is a (truly awful) company that sells personal information gathered from the internet. That information can include: your name, address, marital status, financial prospects, job history, and even a picture. It is also really bad at data collection, so much of this information is, in a word, wrong. Even the picture.

Enter Mr. Thomas Robins. Robins, according to Spokeo, is a (a) rich, (b) married, (c) fifty year old man. The problem is, Robins is actually (a) not rich, (b) not married, (c) not fifty years old, and (d) doesn't look like his Spokeo picture at all. Robins contends this is really problematic for him, as he is also unemployed, and prospective employers may look him up on Spokeo and not hire him because (a) they think he'll want more money than they're willing to give, (b) they think he'll be took focused on his home life to devote himself to the company, and (c) his age means the company won't get a return on its investment in training him before he retires.* So he's now suing Spokeo under the Fair Credit Reporting Act (FCRA), which requires companies that give out credit information to report that information honestly.**

Now, the FCRA has two provisions that grant a plaintiff such as Robins the right to sue. First, if a reporting agency is negligent in reporting bad information, the plaintiff can sue for actual damages. That means that the plaintiff must not only show negligence, but also show that, because of the negligence, he suffered a specific injury that can be fixed by a particular dollar amount. For example, if someone looked up Robins on Spokeo, and charged him an extra $100 for whatever because of the age that's listed, Robins would have suffered $100 in actual damages.

This can be hard to prove. Robins can't show, for instance, that an employer actually passed him over because of Spokeo information, and the law generally doesn't allow for people to recover for potential wages, because actual wage amounts are hard to ascertain. Thankfully, the FCRA has a second provision that's a little more helpful, not to mention apparently designed to reach just this sort of situation. Where a reporting agency has willfully given out bad information -- that is, it knows that the information it has is bad, could take reasonable steps to fix that, and refuses to do so -- the FCRA entitles a plaintiff to recover either actual damages or statutory damages (that is, damages fixed by statute) of between $100 and $1000. This is, clearly, what Robins is asking for. Robins is also seeking class certification -- that means, he wants this to be a class action lawsuit, so everyone listed on Spokeo with false information would also get to recover. If he wins, Spokeo will lose a staggering amount of money.

Spokeo counters, however, that Robins (and, by extension, every member of the class) lacks standing to bring a lawsuit. As you'll recall, standing requires that a plaintiff have suffered an injury, defendant caused the injury, and the court can order some sort of relief for the injury. The actual claim at stake is whether Robins suffered an injury (though Spokeo has a really bad argument that the 9th Circuit -- the court from which it is appealing -- incorrectly collapsed the three part test down to one part, but it's just flat wrong about that).

The arguments go like this. An 'injury' is a recognizable harm. Person A may call Person B a terrible parent, but that doesn't mean that Person B has an 'injury.' Person B might sue for defamation, but if he can't show that he was in some way harmed by being called a bad parent (and, in some circumstances, that he wasn't, actually, a bad parent), he wasn't injured. Spokeo contends that Robins is asserting an injury never recognized: that bad information, of itself, is enough for an injury even though he can't show any adverse consequences of the bad information. Robins has not, after all, shown that anyone didn't hire him because Spokeo said he was fifty (as I said, he really can't).

Robins counters that Congress, in passing the RCFA, created the injury of which he complains. After all, it said that if a reporting agency willfully reports bad information, it's liable for statutory damages. He compares it to defamation (and you thought that example was just random, didn't you?) where a defendant is liable for certain false words even when the plaintiff can't show any specific damage. It's also very similar to a lot of anti-discrimination statutes (like the Fair Housing Act) that let people who have been discriminated against sue a business that has discriminated against them.

Spokeo's argument really boils down to: Congress can't just create a right to sue without attaching that right to some injury. In a defamation suit, a plaintiff usually has to show damages, and in a discrimination suit, the harm is self-evident (if a landlord doesn't rent you an apartment because of your skin color, then clearly you have lost out on an apartment). If Spokeo is right, however, it means a huge curtailment on Congress's ability to create legal rights for which a plaintiff can sue. The Fair Housing Act is a pretty good example; it's almost impossible to show that you lost money for being unable to rent any specific apartment, after all. You may have been forced to rent an apartment that costs more, but that's a function of being a different apartment, not the discrimination.

It also has huge consequences for class action lawsuits. Robins is not, as far as I can tell, suing as part of a class, but most of the 'friend-of-the-court' briefs*** filed on Spokeo's behalf argue that ruling for Robins will allow "abusive" class action suits. It's not far-fetched. If Robins suit is granted class certification, the plaintiff list could include everyone in Spokeo's database, which, theoretically, is everyone in America who hasn't opted out. Even at the lowest allowable statutory damages, would be billions of dollars Spokeo would have to pay out.

The problem here is, quite frankly, Spokeo isn't right. Congress has all of the power in the world (well, in the Constitution) to create legal rights. It does that all the time. Violation of a legal right, whether it comes from statute or common law or any other source of law we have in this country,**** is an injury by every imaginable consideration. What Spokeo is actually complaining about is whether the court has the authority, under the FCRA, to redress an injury that has no actual damages. The plain text of the FCRA (remember: a plaintiff gets to choose between actual damages or statutory damages, and there is no contest that a court can order a defendant to pay back statutory damages) seems to say that, yes, the court can order the damages that Robins is hoping for.

So, from my perspective, Spokeo has a crazy loser of a case. This is not a good argument (in fact, it's really hard to see why SCOTUS even granted certiorari for it). Worse is the state of their brief. I am not a credit lawyer, I know very little about the FCRA or the law involved in Article III standing (aside from what I learned in law school, after all). Generally, when you read a brief, you have at least a sense of 'okay, they're correct.' That's why, in our system of law, it's important to read the briefs together, so you can evaluate the arguments they make (this is what I do when I'm preparing these posts, after all). Reading just one will generally leave you with a sense of 'oh, of COURSE this guy is correct.'

That didn't happen with Spokeo. At the end of their brief, I already thought they had lost. Now, SCOTUS clerks will pull up the appropriate law and prepare memos for their justices to read that will explain the state of the applicable law in much greater detail than I had going into this, so it could be that there's some weird quirk of standing that I don't know that makes Spokeo's brief more forceful, but that does seem really unlikely. If the justices start in on Robins' brief with the same 'man, Spokeo just isn't right' mentality I have, then it seems pretty good odds that Robins has already won.

Oral argument in on Tuesday, and it'll be interesting to see what questions the justices will have. I, coincidentally, have the day off, and this is one of the cases I'm really focused on, so expect more next week!

* This may seem flippant, but there's two things to keep in mind. One, people do actually get passed over for jobs for these reasons (well, maybe not (b), at least for men, so much), and, two, at this stage, Robins just needs to allege that these things are true, he doesn't have to prove it (yet).

** Spokeo contests that it is a reporting agency under the FCRA (and it may be right). That's really a fact issue, and will probably have to be resolved by the jury. As it stands now, the Court is just going to assume that the FCRA applies. That assumption won't be binding on anyone else, but it's necessary in order to deal with what's really at stake.

*** Amicus curiae (ah MEE kus coo reye ee, plural: amici curiae) are briefs filed, by permission from the Court, by people who aren't involved in the lawsuit, but believe they may be affected by the ruling. Seventeen amici curiae were filed on Spokeo's behalf, primarily from large businesses, including eBay, and both Experian and Trans Union and, for some reason, the state of Alabama.

Facts first (a common refrain!). Actually, Montgomery starts waaaay back in 2012 with another case: Miller v. Alabama. In Miller, the Supreme Court struck down Alabama’s system of mandating a life sentence without the possibility of parole for juvenile offenders.

That’s complicated, so let me unpack that. In Alabama, certain kinds of murder carried a mandatory life-without-parole sentence. That meant that juveniles (individuals less than 18 at the time of the crime) could spend the rest of their lives in prison with no opportunity or hope of ever getting out. As the Supreme Court has held on numerous occasions, when it comes to punishment, juveniles are different, and the rules that hold sway for adult offenders don’t always do so for minors. One such minor sued and, in 2012, SCOTUS held that a juvenile offender cannot receive a *mandatory* sentence of life imprisonment. It’s not important for this case, but do note that doesn’t mean that a juvenile can’t receive that sentence, only that it can’t be mandatory. The Court did say that it should be a rare occasion, however.

So, that takes care of Miller, but what about all of the other juvenile defendants in jail? That brings us to yet another case: Teague v. Lane. Teague is a pretty complicated procedural case, but the take-away is this: when it comes to a rule of criminal law, it will not be retroactive unless either it places certain conduct beyond the power of the legislature to prohibit or to punish, or if it’s not truly a new rule -- that is, the announced rule is required by the rules that already exist.

That brings us around to Montgomery. In 1963, when Montgomery was just 17 years old, he murdered a deputy sheriff in East Baton Rouge, Louisiana. The murder of a law enforcement officer triggered the mandatory sentencing scheme, and Montgomery was sentenced to life without the possibility of parole. He has been in prison since. He is currently 69 years old.

Montgomery now contends that Miller announced a substantive new rule limiting the kind of punishment that punishment that may be pronounced -- the first Teague exception. If SCOTUS agrees with Montgomery, his sentence gets vacated* and so does every other person in his shoes, a not insignificant number.

That’s not the only wrinkle in this case, either. Teague is federal law, not state law, and states do not have to follow Teague. Neither Montgomery (obviously) nor Louisiana (less obviously) contended that federal law was inapplicable, so SCOTUS assigned a lawyer to argue that it couldn’t hear the case.** That lawyer, Richard D. Bernstein, Esq., argued that Louisiana had previously decided, under state law, that Miller would not retroactively apply to Louisiana sentencing schemes. If SCOTUS agrees and finds that the Louisiana Supreme Court decided that Miller is not retroactive based on state, not federal, law, then it will rule that it doesn’t have jurisdiction and dismiss the case.**

That wouldn’t end the inquiry, though, because Montgomery appealed directly from the Louisiana Supreme Court. He *still* has the opportunity to start over in federal trial court and work his way *back* up to SCOTUS. Just in case you thought this was all too straightfoward.

Oral argument was today, and the transcript is already up, but, as I said, I haven’t had a chance to read it. I probably won’t until the weekend, but once I do, I’ll discuss the three sides’*** arguments.

* It doesn’t matter for the case, but it should be noted that, if Montgomery wins, his conviction stands; it’s only the sentence that’s struck down. He would have to return to trial court for a new sentencing hearing, and even under Miller, the possibility of life without parole remains -- what Miller prohibits is the mandatory sentence.

** Bernstein isn’t arguing what lawyers would call the merits of the case; that is, whether Montgomery is right or wrong. He is only arguing that SCOTUS can’t actually hear the case.