Written By ESR News Blog Editor Thomas Ahearn
A Wisconsin federal judge has dismissed a class action lawsuit against Time Warner Cable, Inc. over alleged violations of the federal Fair Credit Reporting Act (FCRA) by finding the plaintiff could not show he suffered “concrete harm” from the background check process in a decision that cited a ruling in the case of Spokeo v. Robins by the Supreme Court of the United States.
In granting the defendant’s Motion to Dismiss, U.S. District Judge Pamela Pepper found that since the plaintiff, Cory Groshek, who claimed Time Warner violated the FCRA during a background check for employment, “has not alleged a concrete harm resulting from the defendant’s alleged violation,” he “does not have standing, and the court must dismiss the case.”
Judge Pepper wrote: In Spokeo, the Court emphasized the distinction between concreteness and particularization. The latter is “necessary to establish injury in fact, but it is not sufficient. . . . We have made it clear time and again that an injury in fact must be both concrete and particularized.” A concrete injury must be “‘de facto’; that is, it must actually exist. (Pg. 3)
The named plaintiff alleges that he applied for employment with the defendant, and that in the course of considering his application, the defendant obtained a consumer report on him “without first providing [him] a clear and conspicuous written disclosure, in a document consisting solely of the disclosure, that a consumer report may be obtained for employment purposes.” (Pg. 4)
He alleges that this failure to disclose violated §1681(b)(2)(A)(i) of the Fair Credit Reporting Act. Id. While the complaint alleges, in several places, that the defendant’s action violated the Fair Credit Reporting Act, it makes no mention of any concrete harm the plaintiff (or any putative class members) suffered as a result of the alleged violation. (Pg. 4)
The plaintiff has not alleged that he did not get the job he applied for as a result of the consumer report the defendant obtained. He has not alleged that the defendant released the information in the report to other people, causing him embarrassment or damaging his credit. He has not alleged that the defendant used the consumer report against him in any way. (Pg. 6)
In fact, in his October 7, 2015 deposition, when defense counsel asked him if he was aware of anything that might entitle him to actual damages, the plaintiff responded, “I do not know of any actual damages that I am claiming nor do I believe I’ve ever actually claimed actual damages against [the defendant] nor do I intend to.” In short, he has not alleged a concrete harm. (Pg. 6)
The full text of the Decision and Order by U.S. District Judge Pamela Pepper granting the defendant’s Motion to Dismiss in Groshek v. Time Warner Cable, Inc., Case No. 15-C-157, dated August 9, 2016, in the United States District Court, Eastern District of Wisconsin, is available at www.esrcheck.com/file/Groshek-v-Time-Warner-Cable-Opinion.pdf.
As reported by ESR News, on May 16, 2016, the Supreme Court ruled in the Spokeo case that consumers must prove “concrete injury” in class action lawsuits for alleged “bare” violations of a federal statute, sending the case back to the Ninth Circuit Court of Appeals stating its Article III standing analysis in a February 2014 decision to reverse a dismissal of the case was incomplete.
Spokeo, Inc. v. Robins involves a Virginia man who claimed Spokeo, an online “people search engine” that sells publicly available information about individuals, violated the FCRA, a federal law that regulates background checks for employment purposes, by publishing inaccurate information about his age, education, marital status, and professional experience.
In a 6-2 decision in the opinion delivered by Justice Samuel Alito, the Supreme Court stated that “Article III standing requires a concrete injury even in the context of a statutory violation. For that reason, Robins could not, for example, allege a bare procedural violation, divorced from any concrete harm, and satisfy the injury-in-fact requirement of Article III.”
In July 2016, ESR News also reported that Groshek had won at least $230,000 in settlements from employers across the country involving alleged violations of the FCRA – which regulates background checks for employment purposes in the United States – by applying for 562 jobs over an 18 month period in an effort to catch companies in alleged FCRA violations.
Complimentary FCRA Whitepaper from ESR
Employment Screening Resources® (ESR) is offering a complimentary whitepaper – “Common Ways Prospective or Current Employees Sue Employers Under the FCRA” – in response to the rising trend of class action lawsuits filed against employers for alleged violations of the FCRA at www.esrcheck.com/Whitepapers/Ways-Employees-Sue-Employers-Under-FCRA/.
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