Thomas Robins v. Spokeo, Inc.

OPPOSITION to MOTION to Certify THE MAY 11, 2011 ORDER FOR INTERLOCUTORY APPEAL AND STAY ACTION PURSUANT TO 28 U.S.C. SECTION 1292

C.D. Cal.July 18, 2011

Plaintiff’s Opposition to Defendant’s Motion 10-CV-5306-ODW (AGRx) To Certify the May 11, 2011 Order for Interlocutory Appeal i 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SEAN REIS (sreis@edelson.com) - SBN 184044 EDELSON MCGUIRE, LLP 30021 Tomas Street, Suite 300 Rancho Santa Margarita, California 92688 Telephone: (949) 459-2124 Facsimile: (949) 459-2123 RAFEY BALABANIAN (rbalabanian@edelson.com) BRADLEY BAGLIEN (bbaglien@edelson.com) EDELSON MCGUIRE, LLC 350 North LaSalle Street, Suite 1300 Chicago, Illinois 60654 Telephone: (312) 589-6370 Facsimile: (312) 589-6378 Attorneys for Plaintiff THOMAS ROBINS UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION THOMAS ROBINS, an individual, on behalf of himself and all others similarly situated, Plaintiff, v. SPOKEO, INC., a California corporation, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 10-CV-5306 ODW (AGRx) PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO CERTIFY THE MAY 11, 2011 ORDER FOR INTERLOCUTORY APPEAL AND STAY ACTION PURSUANT TO 28 U.S.C. § 1292(b) Judge Otis D. Wright II Date: Monday, August 8, 2011 Time: 1:30 p.m. Location: Courtroom 11 Action Filed: July 20, 2010 Case 2:10-cv-05306-ODW-AGR Document 62 Filed 07/18/11 Page 1 of 21 Page ID #:728 Plaintiff’s Opposition to Defendant’s Motion 10-CV-5306-ODW (AGRx) To Certify the May 11, 2011 Order for Interlocutory Appeal ii 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS I. INTRODUCTION .............................................................................................. 1 II. FACTUAL BACKGROUND ............................................................................ 2 III. ARGUMENT ................................................................................................... 4 A. The Order Denying Dismissal Does not Involve a Controlling Question of Law ........................................................................................................................ 5 B. There is No Substantial Ground for Difference in Opinion Regarding Standing ................................................................................................................ 7 1. There is No Difference of Opinion Regarding Whether Plaintiff has Adequately Pleaded Injury-in-Fact Under FCRA ............................................. 9 2. There is No Difference of Opinion Regarding Whether Plaintiff has Adequately Pleaded Causation and Redressability .......................................... 12 C. Immediate Appeal of the Court’s May 11, 2011 Order is Unnecessary to Advance the Ultimate Termination of the Litigation .......................................... 13 D. Proceedings Should Not Be Stayed Pending the Ninth Circuit’s Resolution of the Certification Petition ................................................................................. 14 IV. CONCLUSION .............................................................................................. 15 Case 2:10-cv-05306-ODW-AGR Document 62 Filed 07/18/11 Page 2 of 21 Page ID #:729 Plaintiff’s Opposition to Defendant’s Motion 10-CV-5306-ODW (AGRx) To Certify the May 11, 2011 Order for Interlocutory Appeal iii 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES CASES Ahrenholz v. Board of Trustees of the University of Illinois, 219 F.3d 674 (7th Cir. 2000) ................................................................................................................... 6 Alps S., LLC v. Ohio Willow Wood Co., 08-CV-1893T33TGW, 2010 WL 2293286 (M.D. Fla. June 8, 2010) .................................................................................... 7 American Federation of Government Employees v. Clinton, 180 F.3d 727 (6th Cir. 1999) ............................................................................................................ 11-13 Assoc. of Irritated Residents v. Fred Schakel Dairy, 634 F. Supp. 1081 (E.D. Cal. 2008) ................................................................................................................. 15 Botefur v. City of Eagle Point, Oregon, 7 F.3d 152 (9th Cir. 1993) .......................... 11 Camacho v. Puerto Rico Ports Authority, 369 F.3d 570 (1st Cir. 2004) ..................... 4 Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978) ........................................ 4, 5, 14 Couch v. Telescope Inc., 611 F.3d 629 (9th Cir. 2010) ............................................ 5, 8 Couch v. Wan, No. CV 08-1621, 2010 WL 3582519 (E.D. Cal. Sept. 10, 2010) ...... 11 Day v. Kaiser Aluminum & Chemical Corp., 905 F.2d 1540 (9th Cir. 1990) .............. 7 Doe v. Unocal Corp., 67 F. Supp. 2d 1140 (C.D. Cal. 1999) ..................................... 13 Edwards v. First American Corp., 610 F.3d 514 (9th Cir. 2010) ...................... 9-10, 14 Estate of Kennedy v. Bell Helicopter Textron, Inc., 283 F.3d 1107 (9th Cir. 2002) .... 6 Filtrol Corp. v. Kelleher, 467 F.2d 242 (9th Cir. 1972) ............................................. 15 Fulfillment Services Inc. v. United Parcel Serv., Inc., 528 F.3d 614 (9th Cir. 2008) .. 9 Grand Lodge of Pennsylvania v. Peters, No. 07-CV-479, 2008 WL 2790237 (M.D. Fla. July 18, 2008) .............................................................................................. 7 Guerrero v. Gates, 442 F.3d 697 (9th Cir. 2003) ....................................................... 11 In re Carter, 533 F.3d 919 (6th Cir. 2009) ................................................................. 10 Case 2:10-cv-05306-ODW-AGR Document 62 Filed 07/18/11 Page 3 of 21 Page ID #:730 Plaintiff’s Opposition to Defendant’s Motion 10-CV-5306-ODW (AGRx) To Certify the May 11, 2011 Order for Interlocutory Appeal iv 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In re Cement Antitrust Litigation, 673 F.2d 1020 (9th Cir. 1982) ............................... 4 In re Static Random Access Memory (SRAM) Antitrust Litigation, 07-MD-01819, 2011 WL 250317 (N.D. Cal. Jan. 25, 2011) ...................................................... 6 Linda R.S. v. Richard D., 410 U.S. 614 (1973) .......................................................... 10 McFarlin v. Conesco Services, LLC, 381 F.3d 1251 (11th Cir. 2004) .................. 4-5, 8 Radack v. U.S. Dept. of Justice, No. 04-01881, 2006 WL 2024978 (D.D.C. Jul. 17, 2006) ................................................................................................................. 11 Simons v. Akanno, No. 09 CV 00659, 2011 WL 1566583 (E.D. Cal. Apr. 22, 2011) . 4 Sisley v. Sprint Communications Co., 284 Fed. Appx. 463 (9th Cir. 2008) ............ 9-10 Warth v. Seldin, 422 U.S. 490 (1975) ...................................................................... 9-10 Weber v. U.S. Trustee, 484 F.3d 154 (2d Cir. 2007) .................................................... 4 STATUTES 15 U.S.C. §§ 1681 et seq ................................................................................... 3, 10-11 28 U.S.C. § 1292 ................................................................................................. passim OTHER AUTHORITIES Howard B. Eisenberg & Alan B. Morrison, Discretionary Appellate Review of Non- Final Orders: It’s Time to Change the Rules, 1 J. App. Prac. & Process 285 (1999) ............................................................................................................... 14 Case 2:10-cv-05306-ODW-AGR Document 62 Filed 07/18/11 Page 4 of 21 Page ID #:731 Plaintiff’s Opposition to Defendant’s Motion 10-CV-5306-ODW (AGRx) To Certify the May 11, 2011 Order for Interlocutory Appeal 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION In its May 11, 2011 order denying Defendant Spokeo’s Motion to Dismiss, this Court correctly concluded that Plaintiff has standing to maintain this action because Plaintiff alleged an injury in fact - “the marketing of inaccurate consumer reporting information about Plaintiff” - that “is fairly traceable to Defendant’s conduct - alleged FCRA violations.” May 11, 2011 Minute Order (the “Order”), Dkt. No. 52 at 3. The Court’s decision was in line with well-established Ninth Circuit and Supreme Court precedent establishing that a plaintiff has Article III standing when he asserts a violation of his federal statutory rights. In the time since the Court issued the Order, Defendant has answered the First Amended Complaint and the Parties have agreed on a proposed schedule for Class discovery and briefing on Plaintiff’s motion for class certification. Spokeo now seeks to halt the progress of this litigation by asking for permission to appeal this Court’s Order to the Ninth Circuit Court of Appeals. Spokeo’s request for certification should be rejected because this is not the “exceptional” and “extraordinary” circumstance for which section 1292(b) review is appropriate. In particular, Spokeo’s request should be denied because Defendant improperly seeks interlocutory review of a mixed question of law and fact, and because the Ninth Circuit has provided clear direction on the applicable controlling law so as to leave no legitimate argument that Plaintiff does not have standing to pursue his claims against Spokeo. As a result, granting Spokeo’s motion would be contrary to the purposes of section 1292(b) because it would delay, rather than expedite, the ultimate resolution of this case. Accordingly, Spokeo cannot meet its substantial burden in establishing that the requirements of § 1292(b) have been met, and this Court should deny Spokeo’s request for an interlocutory appeal in its entirety. Case 2:10-cv-05306-ODW-AGR Document 62 Filed 07/18/11 Page 5 of 21 Page ID #:732 Plaintiff’s Opposition to Defendant’s Motion 10-CV-5306-ODW (AGRx) To Certify the May 11, 2011 Order for Interlocutory Appeal 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. FACTUAL BACKGROUND Defendant is the operator of the website Spokeo.com, which provides in-depth consumer reports containing highly detailed, personal information about millions of individuals. (FAC ¶ 2) (Dkt. No. 40). Defendant’s website is supported by software that allows it to quickly collect, process and organize consumer data from a wide range of sources, and then to display conclusions and predictions based on inferences from that data. (Id. ¶¶ 3, 11-13.) Spokeo purportedly draws information from numerous public, undisclosed sources and aggregates this data into detailed individual reports about consumers. Among the information provided by Defendant’s reports are numerous pieces of data that bear on a consumer’s financial well being and personal reputation and character, including an address, phone number, employment information, and descriptors such as “seeks opportunity,” “cares about healthy living,” and “loves to read.” (Id. at ¶¶ 16-17). In addition to the extensive demographic information that Spokeo provides, its reports include detailed information about consumers’ economic wealth and purported creditworthiness, including a chart reporting the consumer’s “Economic Health” (formerly titled “Credit Estimate”) and an estimate of the consumer’s “Wealth Level.” (Id. ¶¶ 18-20). These financial determinations and representations are created independently by Spokeo and are not available from sources other than Defendant’s website. (Id.) At Defendant’s own admission, a significant portion of the information included in its consumer reports is wholly inaccurate. (Id. ¶ 22.) Despite these known inaccuracies, Spokeo has marketed its services directly to employers, human resource professionals, law enforcement agencies, and entities performing background checks as a means to investigate consumers. (Id. ¶¶ 26-29.) These individuals and entities pay a fee to subscribe to Spokeo’s services and view full reports that include, among other things, the consumer’s “economic health” and Case 2:10-cv-05306-ODW-AGR Document 62 Filed 07/18/11 Page 6 of 21 Page ID #:733 Plaintiff’s Opposition to Defendant’s Motion 10-CV-5306-ODW (AGRx) To Certify the May 11, 2011 Order for Interlocutory Appeal 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 “credit estimate” assessments as well as numerous descriptors about the consumer’s lifestyle and personal reputation. Based on Spokeo’s conduct of collecting, evaluating and analyzing consumer credit information, and its marketing of such information to third parties for a fee, Plaintiff brought this action against Spokeo for violations of the Fair Credit Reporting Act, 15 U.S.C. §§ 1681 et seq. (“FCRA”). On January 27, 2011, this Court dismissed Plaintiff’s claims without prejudice, finding that the facts alleged in Plaintiff’s initial complaint did not establish that Plaintiff had the requisite Article III standing. Plaintiff timely filed an amended complaint, which provided additional detail regarding Spokeo’s compilation, creation, and marketing of consumer reports and how such conduct violated Plaintiff’s rights under FCRA, caused harm to Plaintiff’s employment prospects, and caused Plaintiff to suffer anxiety and concern as a result of his diminished employment prospects. Based on Plaintiff’s amended allegations, the Court denied Spokeo’s second Motion to Dismiss, concluding that Plaintiff properly alleged sufficient facts to confer Article III standing and to state a claim under FCRA. (Dkt. No. 52). With respect to standing, the Court found that: “Specifically, Plaintiff has alleged an injury in fact - the ‘marketing of inaccurate consumer reporting information about Plaintiff” - that is fairly traceable to Defendant’s conduct - alleged FCRA violations - and that is likely to be redressed by a favorable decision from this Court.” Order at 3. On June 3, 2011, Spokeo answered Plaintiff’s First Amended Complaint and asserted a number of affirmative defenses. On June 9, 2011, the Parties participated in a Rule 26(f) conference and agreed on a proposed discovery schedule and briefing schedule for Plaintiff’s Motion for Class Certification. (See Parties Joint 26(f) Report; Dkt. No. 59.) On June 17, 2011, Spokeo filed the instant Motion to Certify the Court’s May 11, 2011 Order for Interlocutory Appeal, challenging the Court’s finding of Article III standing. Case 2:10-cv-05306-ODW-AGR Document 62 Filed 07/18/11 Page 7 of 21 Page ID #:734 Plaintiff’s Opposition to Defendant’s Motion 10-CV-5306-ODW (AGRx) To Certify the May 11, 2011 Order for Interlocutory Appeal 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 III. ARGUMENT Defendant has failed to meet the substantial burden required to justify an interlocutory appeal of this Court’s finding that Plaintiff has Article III standing. Pursuant to 28 U.S.C. § 1292(b), district courts have discretion to allow an interlocutory appeal of a non-final order only if (1) the order involves a controlling question of law; (2) the question of law involves a substantial ground for difference of opinion; and (3) an immediate appeal from the order may materially advance the ultimate termination of the litigation. Appeals under § 1292(b) are exceedingly rare. The Ninth Circuit has made clear that district courts should certify interlocutory appeals “sparingly,” and only in cases presenting “exceptional situations in which allowing an interlocutory appeal would avoid protracted and expensive litigation.” In re Cement Antitrust Litigation, 673 F.2d 1020, 1026 (9th Cir. 1982). Interlocutory appeals depart from “basic” policies of appellate procedure, which typically “postpone[e] appellate review until after the entry of a final judgment.” Id. (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 475 (1978)). Given the Ninth Circuit’s narrow “exceptional circumstances” standard, interlocutory appeals granted under § 1292(b) are “hen’s teeth rare.” Simons v. Akanno, No. 09 CV 00659, 2011 WL 1566583 at *2 (E.D. Cal. Apr. 22, 2011) (citing Camacho v. Puerto Rico Ports Authority, 369 F.3d 570, 573 (1st Cir. 2004). See also McFarlin v. Conesco Services, LLC, 381 F.3d 1251, 1259 (11th Cir. 2004) (“Because permitting piecemeal appeals is bad policy, permitting liberal use of § 1292(b) interlocutory appeals is bad policy”); Weber v. U.S. Trustee, 484 F.3d 154, 159, n. 3 (2d Cir. 2007) (“Congress did not intend 28 U.S.C. § 1292(b) to serve an error- correction function”). The party seeking review of the nonfinal order must first obtain the consent of the trial judge, a screening procedure that ensures that such an extraordinary measure Case 2:10-cv-05306-ODW-AGR Document 62 Filed 07/18/11 Page 8 of 21 Page ID #:735 Plaintiff’s Opposition to Defendant’s Motion 10-CV-5306-ODW (AGRx) To Certify the May 11, 2011 Order for Interlocutory Appeal 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 will be confined only to appropriate cases and avoid time-consuming jurisdictional determinations in the court of appeals. Coopers & Lybrand, 437 U.S. at 474-75. The party seeking an interlocutory appeal bears the burden of establishing that such atypical relief is warranted. Couch v. Telescope Inc., 611 F.3d 629, 633 (9th Cir. 2010). Here, each of the § 1292(b) factors counsels against certifying the Court’s Order for immediate review. Accordingly, and as explained fully below, Spokeo cannot demonstrate that “exceptional circumstances” exist to warrant an interlocutory appeal. A. The Order Denying Dismissal Does not Involve a Controlling Question of Law Contrary to Spokeo’s argument, the question of Plaintiff’s standing is not a “controlling issue of law” for purposes of the Court’s § 1292(b) analysis. In particular, Spokeo challenges the factual basis underlying the Court’s ruling, arguing that Plaintiff “cannot allege that Spokeo marketed to HR professionals the version of its search engine that is at issue in this case.” But by framing its attack as a factual challenge to the Court’s order, Spokeo itself demonstrates why the issue of Plaintiff’s standing is not a “controlling question of law” appropriate for interlocutory review. Appeals under § 1292(b) are reserved for “situations in which the court of appeals can rule on a pure, controlling question of law without having to delve beyond the surface of the record in order to determine the facts,” and requires that “resolution of a controlling legal question would serve to avoid a trial or otherwise substantially shorten trial. Simmons 2011 WL 1566583 at *3 (citing McFarlin, 381 F.3d at 1259). The purpose of §1292(b) is to act as a “safety valve for serious legal questions taking the case out of the ordinary run.” Estate of Kennedy v. Bell Helicopter Textron, Inc., 283 F.3d 1107, 1116 (9th Cir. 2002). Case 2:10-cv-05306-ODW-AGR Document 62 Filed 07/18/11 Page 9 of 21 Page ID #:736 Plaintiff’s Opposition to Defendant’s Motion 10-CV-5306-ODW (AGRx) To Certify the May 11, 2011 Order for Interlocutory Appeal 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Mixed questions of law and fact or challenges to a court’s factual findings are not controlling questions of law appropriate for interlocutory review. The term “question of law” does not mean the mere application of settled law to fact; instead, “[t]he legal question must be stated at a high enough level of abstraction to lift the question out of the details of the evidence or facts of a particular case and give it general relevance to other cases in the same area of law.” Simmons 2011 WL 1566583 at *3 (quoting Ahrenholz v. Board of Trustees of the University of Illinois, 219 F.3d 674, 676 (7th Cir.2000)) “The antithesis of a proper § 1292(b) appeal is one that turns on whether there is a genuine issue of fact, or whether the district court properly applied settled law to the facts.” Simmons, 2011 WL 1566583 at *3 (finding that plaintiff’s challenge to the court’s application of Fed. R. Civ. P. 8 to plaintiff’s factual allegations was not a controlling question of law); see also Ahrenholz, 219 F.3d at 576 (noting that “question of law means an abstract legal issue” rather than a factual challenge). In fact, if an issue is truly a “question of law,” it will not require a reviewing court to “root through the record” searching for genuine issues of fact, but rather the court can decide the question “quickly and cleanly without having to study the record.” Id. “While courts have certified for interlocutory appeal orders deciding standing, the mere existence of the standing issue, alone, has not prompted courts to grant certification.” In re Static Random Access Memory (SRAM) Antitrust Litigation, 07-MD-01819, 2011 WL 250317 at *2 (N.D. Cal. Jan. 25, 2011). Here, Spokeo seeks certification to challenge the Court’s finding that Plaintiff adequately alleged injury in fact based on Defendant’s “marketing of inaccurate consumer information about Plaintiff.” But Spokeo frames its challenge to Plaintiff’s standing in large part on a factual dispute - that Plaintiff cannot allege facts establishing that Spokeo marketed the current version of its reports to employers, HR professionals, and other third parties. (Spokeo Mem. at 1, 7). Thus, Defendant essentially challenges the Court’s factual basis underlying its determination that Case 2:10-cv-05306-ODW-AGR Document 62 Filed 07/18/11 Page 10 of 21 Page ID #:737 Plaintiff’s Opposition to Defendant’s Motion 10-CV-5306-ODW (AGRx) To Certify the May 11, 2011 Order for Interlocutory Appeal 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff has Article III standing - a challenge that presents a mixed question of law and fact, and not a pure “controlling issue of law” as required by § 1292(b). Such questions are inappropriate for interlocutory review, and Spokeo’s request should be denied on this basis alone. See Day v. Kaiser Aluminum & Chemical Corp., 905 F.2d 1540 (9th Cir. 1990) (noting that the court was likely to exercise its discretion and deny interlocutory appeals that presented “primarily questions of fact and not controlling questions of law”); Alps S., LLC v. Ohio Willow Wood Co., 08-CV- 1893T33TGW, 2010 WL 2293286 (M.D. Fla. June 8, 2010) (where the court determined that a patent license agreement conferred standing on the plaintiff to sue for patent infringement, defendant’s argument that the agreement did not in fact transfer sufficient rights necessary to grant standing was not appropriate for interlocutory review because the proposed question challenged the court’s application of facts to settled law); Grand Lodge of Pennsylvania v. Peters, No. 07-CV-479, 2008 WL 2790237 (M.D. Fla. July 18, 2008) (defendant’s challenge to the court’s finding that an investment advisor had standing to sue on behalf of its clients was not a controlling question of law because it required the court to “consider and apply the allegations and facts to the law”). Accordingly, because Spokeo’s challenge to the Court’s Order does not involve a controlling question of law, the request for interlocutory review should be denied. B. There is No Substantial Ground for Difference in Opinion Regarding Standing Similarly, Defendant’s claim that “substantial ground for difference of opinion” exists regarding Plaintiff’s standing is without merit. To determine whether “substantial ground for difference of opinion exists under § 1292(b), courts must examine to what extent the controlling law is unclear.” Couch, 611 F.3d at 633. Case 2:10-cv-05306-ODW-AGR Document 62 Filed 07/18/11 Page 11 of 21 Page ID #:738 Plaintiff’s Opposition to Defendant’s Motion 10-CV-5306-ODW (AGRx) To Certify the May 11, 2011 Order for Interlocutory Appeal 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Examples of when a substantial ground for difference of opinion exists include: when the circuits are in dispute and the court of appeals has not spoken on the point, when foreign law has given rise to complicated questions, or when novel or difficult questions of first impression are at issue. Id. at 633-34; see also McFarlin, 381 F.3d at 1259 (“In determining whether to grant review, we should ask if there is substantial dispute about the correctness of any of the pure law premises the district court actually applied in its reasoning leading to the order sought to be appealed”). However, “a party’s strong disagreement with the Court’s ruling is not sufficient for there to be a substantial ground for difference.” Couch, 611 F.3d at 633. Similarly, “that settled law might be applied differently does not establish a substantial ground for difference of opinion.” Id. “[J]ust because counsel contends that one precedent rather than another is controlling does not mean there is such a substantial difference of opinion as will support an interlocutory appeal.” Id. at 633- 34. Section 1292(b) is not a vehicle to question the correctness of a district court’s ruling or to obtain a second, more favorable opinion. McFarlin, 381 F.3 at 1256. Here, Spokeo can demonstrate nothing more than its disagreement with the Court’s ruling that Plaintiff has Article III standing. In an effort to create the appearance of uncertainty, Spokeo attempts to craft the issue of Plaintiff’s standing in exceptionally narrow - and inaccurate - terms. See Spokeo Mem. (Dkt. No. 58) at 6 (“Whether an unemployed plaintiff has adequately pleaded injury-in-fact by alleging only that an Internet search engine may compile inaccurate, publicly-available information bout him from other sources is one of first impression in the Ninth Circuit”). Leaving aside the fact that Defendant’s proposed fact-intensive question presents an issue inappropriate for interlocutory appeal, Spokeo’s formulation mischaracterizes the issue that it could potentially seek to challenge on appeal. Put simply, the issue presented by the Court’s ruling - whether a Plaintiff has Article III standing when he has properly pleaded a violation of his statutory rights - has been Case 2:10-cv-05306-ODW-AGR Document 62 Filed 07/18/11 Page 12 of 21 Page ID #:739 Plaintiff’s Opposition to Defendant’s Motion 10-CV-5306-ODW (AGRx) To Certify the May 11, 2011 Order for Interlocutory Appeal 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 unequivocally answered in the affirmative by the Ninth Circuit. See Edwards v. First American Corp., 610 F.3d 514, 516-17 (9th Cir. 2010); Sisley v. Sprint Communications Co., 284 Fed. Appx. 463, 466 (9th Cir. 2008); Fulfillment Services Inc. v. United Parcel Serv., Inc., 528 F.3d 614, 618-19 (9th Cir. 2007). Because the overwhelming weight of authority supports the Court’s May 11, 2011 Order, Spokeo cannot demonstrate that a substantial ground for a difference of opinion exists to warrant interlocutory appeal. 1. There is No Difference of Opinion Regarding Whether Plaintiff has Adequately Pleaded Injury-in-Fact Under FCRA As this Court properly determined, Plaintiff adequately alleged injury in fact in the form of “the marketing of inaccurate consumer reporting information about Plaintiff” - conduct that caused Plaintiff concrete, actual harm and itself violated FCRA. Outside of unsupported, conclusory statements, Spokeo offers no authority that brings the Court’s ruling into question, much less demonstrates the existence of a substantial ground for difference of opinion. The standing issue presented in this case is not one of “first impression” within the Ninth Circuit, nor have courts within this Circuit applied the applicable legal standards inconsistently. Rather, it is well-established that “the injury required by Article III may exist solely by virtue of statutes creating legal rights, the invasion of which creates standing . . .” Fulfillment Services Inc., 528 F.3d at 618-19 (citing Warth v. Seldin, 422 U.S. 490, 500 (1975)); see also Linda R.S. v. Richard D., 410 U.S. 614, 617, fn 3 (1973) (“Congress may enact statutes creating legal rights, the invasion of which creates standing, even though no injury would exist without the statute”) (emphasis added); Sisley, 284 Fed. Appx. at 466 (reversing dismissal of statutory claim “for lack of cognizable injury” because “[the plaintiff] alleged a violation of her state statutory rights which can constitute a cognizable injury Case 2:10-cv-05306-ODW-AGR Document 62 Filed 07/18/11 Page 13 of 21 Page ID #:740 Plaintiff’s Opposition to Defendant’s Motion 10-CV-5306-ODW (AGRx) To Certify the May 11, 2011 Order for Interlocutory Appeal 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 sufficient to withstand a Rule 12(b)(1) motion”). In these instances, courts are clear that the essential standing question is whether the “constitutional or statutory provision on which the claim rests properly can be understood as granting persons in the plaintiff’s position a right to judicial relief.” Warth, 422 U.S. at 500; see also In re Carter, 533 F.3d 919, 988 (6th Cir. 2009) (“Congress no doubt has the power to create new legal rights, and it generally has the authority to create a right of action whose only injury-in-fact involves the violation of that statutory right.”). The court must look to the underlying statute “to determine whether it prohibited Defendants’ conduct; if it did, then Plaintiff has demonstrated an injury sufficient to satisfy Article III.” Edwards, 610 F.3d at 516- 17. The Ninth Circuit has made clear that FCRA creates a set of individual rights and provides for a private right of action for consumers such as Plaintiff by which to vindicate those rights. Nelson v. Chase Manhattan Mortgage Corp., 282 F.3d 1057, 1059 (9th Cir. 2002) (citing 15 U.S.C. § 1681n & 15 U.S.C. § 1681o). Here, Plaintiff alleges detailed facts demonstrating that Spokeo willfully violated FCRA by widely disseminating consumer reports about Plaintiff without complying with certain notice requirements and ensuring the maximum possible accuracy of the information, thereby violating Plaintiff’s statutory rights. (FAC ¶¶ 48-65.) Specifically, Plaintiff has alleged that Spokeo compiles, creates, and markets consumer reporting information about Plaintiff to third parties for profit, bringing Spokeo within the purview of FCRA. (FAC ¶¶ 1, 35, 65.) However, Spokeo has continually failed to provide Furnisher Notices and User Notices as explicitly required of consumer reporting agencies by FCRA. (Id. ¶¶ 58-62; citing 15 U.S.C. 1681e(d)(1)-e(d)(2).) Moreover, Spokeo has continually failed to follow reasonable procedures to assure the maximum possible accuracy of the consumer credit information that it provides, as required by 15 U.S.C. 1691e(b). (FAC ¶¶ 63-64.) In short, Plaintiff alleges that Spokeo has systematically failed to adhere to the requirements imposed upon consumer reporting Case 2:10-cv-05306-ODW-AGR Document 62 Filed 07/18/11 Page 14 of 21 Page ID #:741 Plaintiff’s Opposition to Defendant’s Motion 10-CV-5306-ODW (AGRx) To Certify the May 11, 2011 Order for Interlocutory Appeal 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 agencies in violation of FCRA. (Id. ¶¶ 58-64.) These allegations demonstrate that Plaintiff has suffered injury in fact sufficient to confer Article III standing under well-established, uncontroverted Ninth Circuit and Supreme Court precedent. Spokeo cites a single Sixth Circuit case in an attempt to create the appearance of a legal conflict with the Court’s Order. See American Federation of Government Employees v. Clinton, 180 F.3d 727 (6th Cir. 1999) (“AFGE”). In AFGE, the Sixth Circuit found that alleged harm to the plaintiffs’ employment prospects was insufficiently concrete and particularized to establishing standing.1 While Plaintiff has demonstrated that several courts, including the Ninth Circuit, have found that harm to employment prospects provides sufficient grounds for standing, Spokeo’s argument improperly presumes that the Court’s ruling was dependent on a finding of actual harm to Plaintiff’s employment prospects. It was not. In contrast to AFGE, the Court here determined that Plaintiff has standing based on Spokeo’s marketing of inaccurate consumer reporting information and Defendant’s alleged FCRA violations. In other words, the Court’s ruling was premised on Spokeo’s marketing of consumer reports and resulting statutory violations, and not solely on alleged harm to Plaintiff’s employment prospects. In contrast, the plaintiffs in AFGE were not seeking statutory damages or relief under FCRA or any other federal statute. For these reasons, AFGE has no bearing on the Court’s ruling and does not establish that substantial ground for difference of opinion exists with respect to Plaintiff’s standing. 1 As Plaintiff established in its Opposition to Spokeo’s Motion to Dismiss, AFGE is distinguishable because the harm to the plaintiffs’ employment prospects therein was contingent on further actions beyond the defendant’s control, whereas Plaintiff Robins’ harm had already occurred as a result of Spokeo’s marketing of consumer reports. Moreover, numerous courts, including the Ninth Circuit, have found that an impairment of employment prospects is a sufficient injury to confer standing. See Guerrero v. Gates, 442 F.3d 697, 707 (9th Cir. 2003); Botefur v. City of Eagle Point, Oregon, 7 F.3d 152, 158 (9th Cir. 1993); Couch v. Wan, No. CV 08-1621, 2010 WL 3582519, at *19 (E.D. Cal. Sept. 10, 2010); Radack v. U.S. Dept. of Justice, No. 04-01881, 2006 WL 2024978, at *3, fn. 3 (D.D.C. Jul. 17, 2006). Case 2:10-cv-05306-ODW-AGR Document 62 Filed 07/18/11 Page 15 of 21 Page ID #:742 Plaintiff’s Opposition to Defendant’s Motion 10-CV-5306-ODW (AGRx) To Certify the May 11, 2011 Order for Interlocutory Appeal 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In the end, Spokeo reasserts its fact-based contention that Plaintiff “cannot allege that Spokeo marketed to HR professionals the version of its search engine that is at issue in this case.” Not only does Spokeo’s assertion flatly contradict well- pleaded facts from Plaintiff’s complaint (FAC ¶¶ 26-29), but Spokeo’s attack on the factual basis underlying the Court’s finding of injury in fact necessarily makes the question inappropriate for interlocutory appeal. Such factual disputes do not provide “substantial ground for difference of opinion” on the controlling law supporting the Court’s Order, which Plaintiff has demonstrated is clear and uncontroverted. As a result, Spokeo has failed to demonstrate that there is any difference of opinion as to whether Plaintiff has Article III standing. 2. There is No Difference of Opinion Regarding Whether Plaintiff has Adequately Pleaded Causation and Redressability Defendant similarly relies solely on AFGE in an attempt to demonstrate a conflict with the Court’s finding that Plaintiff’s injuries were traceable to Spokeo’s conduct. But Spokeo’s argument is unavailing because it again improperly assumes that the sole injury-in-fact that Plaintiff claims is his continued unemployment. But as this Court properly held, Plaintiff’s injury in fact - the marketing of consumer reporting information - was directly traceable to Spokeo’s conduct of violating FCRA. Spokeo’s marketing of Plaintiff’s information and failure to comply with FCRA is attributable to Spokeo alone, such that the resulting harm to Plaintiff from these actions is traceable to Spokeo alone. Spokeo simply cannot identify any authority to the contrary that would justify an immediate appeal. Similarly, Spokeo identifies no authority that brings the Court’s finding of redressability into question. Relying solely on AFGE, Spokeo argues that Plaintiff’s injuries are not likely to be redressed by a favorable decision against Defendant because Plaintiff could remain unemployed even if the “publicly available” Case 2:10-cv-05306-ODW-AGR Document 62 Filed 07/18/11 Page 16 of 21 Page ID #:743 Plaintiff’s Opposition to Defendant’s Motion 10-CV-5306-ODW (AGRx) To Certify the May 11, 2011 Order for Interlocutory Appeal 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 information about Plaintiff was removed or made entirely correct on Spokeo’s website. Spokeo’s argument and reliance on AFGE misses two key points. First, because Plaintiff’s FCRA claims stem from Spokeo’s creation of independent content and Defendant’s marketing of consumer reports - conduct entirely within Spokeo’s control and not available from any independent source - a court order ending these practices would properly redress the injuries caused by Defendant’s FCRA violations. Second, Spokeo improperly presumes that Plaintiff’s injuries may be redressed solely through his securing new employment. However, Spokeo ignores the fact that Plaintiff seeks actual and statutory damages (as provided by FCRA), erasing any serious questions regarding redressability. Because Plaintiff’s past injuries would be adequately redressed by a favorable judgment awarding money damages, Spokeo’s argument regarding redressability is without merit. See, e.g., Doe v. Unocal Corp., 67 F. Supp. 2d 1140, 1145, n.3 (C.D. Cal. 1999) (finding that “any question regarding the redressability of equitable relief is cured by plaintiff’s request for money damages”). C. Immediate Appeal of the Court’s May 11, 2011 Order is Unnecessary to Advance the Ultimate Termination of the Litigation An interlocutory appeal is appropriate only when it would conserve judicial resources and spare the parties from needless expense should a district court's ruling be reversed. APCC Services, Inc., 297 F. Supp. 2d at 109. Moreover, an issue may be certified when “[r]esolution of [a] question would also assist many other courts in resolving similar disputes.” Id. Certification here would accomplish neither goal, as the Ninth Circuit has offered this and other courts considerable direction on Article III standing in this context and would be bound by established precedent to affirm the Court’s May 11, 2011 Order. As Plaintiff has demonstrated herein, the question that Spokeo proposes to certify for appeal ultimately presents a factual challenge to the Court’s Order, and not Case 2:10-cv-05306-ODW-AGR Document 62 Filed 07/18/11 Page 17 of 21 Page ID #:744 Plaintiff’s Opposition to Defendant’s Motion 10-CV-5306-ODW (AGRx) To Certify the May 11, 2011 Order for Interlocutory Appeal 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 a controlling question of law appropriate for interlocutory review. Moreover, Spokeo has failed to demonstrate any authority in conflict with the Court’s ruling on Plaintiff’s standing - indeed, the Ninth Circuit decisions on point are all consistent with the Court’s Order. Given Spokeo’s inability to meet these § 1292(b) standards, granting Defendant’s motion for interlocutory review would unnecessarily prolong this litigation. Even if this Court were to certify the Order, there is a substantial likelihood that the Ninth Circuit would refuse to hear the appeal because it has recently addressed Article III standing requirements in the context of alleged violations of federal or state statutory rights. See e.g. Edwards, 610 F.3d at 516-17; Sisley, 284 Fed. Appx. at 466; see also Howard B. Eisenberg & Alan B. Morrison, Discretionary Appellate Review of Non-Final Orders: It’s Time to Change the Rules, 1 J. App. Prac. & Process 285, 292 (1999) (in a historical review of data regarding § 1292(b) appeal requests, finding that “courts of appeals decline to hear approximately two-thirds of the cases certified by district courts for interlocutory appeal”). When combined with the already-crowded Ninth Circuit docket, judicial economy is best served by denying Defendant’s request for interlocutory review, especially considering that Spokeo is free to appeal the question of Plaintiff’s standing, if necessary, at the conclusion of this litigation. See Coopers, 437 U.S. at 475 (Court congestion is a proper factor to consider in deciding whether to certify a § 1292(b) appeal). Accordingly, certification under § 1292(b) would materially delay the resolution of this litigation, and the Court should deny Spokeo’s request to certify its May 11, 2011 Order for immediate appeal. D. Proceedings Should Not Be Stayed Pending the Ninth Circuit’s Resolution of the Certification Petition This Court has broad discretion to decide whether to order a stay pending Case 2:10-cv-05306-ODW-AGR Document 62 Filed 07/18/11 Page 18 of 21 Page ID #:745 Plaintiff’s Opposition to Defendant’s Motion 10-CV-5306-ODW (AGRx) To Certify the May 11, 2011 Order for Interlocutory Appeal 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 appeal pursuant to § 1292(b). The “filing of an interlocutory appeal does not automatically stay proceedings in the district court;” rather, the court “has broad discretion to decide whether a stay is appropriate to promote economy of time and effort for itself, for counsel, and for litigants.” Assoc. of Irritated Residents v. Fred Schakel Dairy, 634 F. Supp. 1081, 1094 (E.D. Cal. 2008) (quoting Filtrol Corp. v. Kelleher, 467 F.2d 242, 244 (9th Cir. 1972)). Spokeo does not argue that a stay is warranted if the Court declines to certify its Order for interlocutory appeal. Accordingly, and because Plaintiff has in fact demonstrated herein that certification under § 1292(b) is inappropriate, the Court should likewise deny Spokeo’s request that proceedings be stayed. In the event that the Court certifies the May 11, 2011 Order for interlocutory appeal, the Court should withhold ruling on Spokeo’s request to stay proceedings until after the Ninth Circuit rules on Defendant’s subsequent request for review. Given the low acceptance rate, described above, of certified questions by all Courts of Appeal, the factual nature of Spokeo’s challenge, and the absence of conflicting authority within the Ninth Circuit, it is highly likely that the Ninth Circuit will decline Spokeo’s request for an immediate appeal. If a stay is in place when the litigation returns to this Court, Plaintiff would need to seek to remove the stay, and the Parties would need to agree to and propose an entirely new discovery structure and schedule. Accordingly, interests of economy for the court, litigants, and counsel are best served if the Court does not enter a stay, if at all, unless and until the Ninth Circuit allows Spokeo to proceed with an interlocutory appeal. IV. CONCLUSION Based on the foregoing, Plaintiff Thomas Robins respectfully requests that the Court deny Defendant’s Motion to Certify the May 11, 2011 Order for Interlocutory Appeal and Stay Action Pursuant to 28 U.S.C. § 1292(b) in its entirety. Case 2:10-cv-05306-ODW-AGR Document 62 Filed 07/18/11 Page 19 of 21 Page ID #:746 Plaintiff’s Opposition to Defendant’s Motion 10-CV-5306-ODW (AGRx) To Certify the May 11, 2011 Order for Interlocutory Appeal 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: July 18, 2011 Respectfully submitted, THOMAS ROBINS, individually, and on behalf of all others similarly situated, /s/ Sean P. Reis SEAN REIS (SBN 184044) (sreis@edelson.com) EDELSON MCGUIRE, LLP 30021 Tomas Street, Suite 300 Rancho Santa Margarita, California 92688 Telephone: (949) 459-2124 Facsimile: (949) 459-2123 RAFEY S. BALABANIAN (rbalabanian@edelson.com) BRADLEY BAGLIEN (bbaglien@edelson.com) EDELSON MCGUIRE, LLC 350 North LaSalle Street, Suite 1300 Chicago, Illinois 60654 Telephone: (312) 589-6370 Facsimile: (312) 589-6378 Case 2:10-cv-05306-ODW-AGR Document 62 Filed 07/18/11 Page 20 of 21 Page ID #:747 Plaintiff’s Opposition to Defendant’s Motion 10-CV-5306-ODW (AGRx) To Certify the May 11, 2011 Order for Interlocutory Appeal 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF SERVICE I, Sean P. Reis, an attorney, certify that on July 18, 2011, I served the above and foregoing Plaintiff’s Opposition To Defendant’s Motion to Certify the May 11, 2011 Order for Interlocutory Appeal and Stay Action Pursuant to 28 U.S.C. § 1292(b), by causing true and accurate copies of such paper to be filed and transmitted to counsel of record via the Court’s CM/ECF electronic filing system. s/ Sean P. Reis_______________ Sean P. Reis EDELSON MCGUIRE LLC Case 2:10-cv-05306-ODW-AGR Document 62 Filed 07/18/11 Page 21 of 21 Page ID #:748