Written By ESR News Blog Editor Thomas Ahearn
On August 15, 2017, the Ninth U.S. Circuit Appeals Court ruled in the case of Robins v. Spokeo on remand from the Supreme Court of the United States that a man who claimed an online “people search engine” violated the federal Fair Credit Reporting Act (FCRA) by providing inaccurate information about him has sufficient “concrete injury” to meet the Article III standing established by a Supreme Court ruling in May of 2016.
The original case of Robins v. Spokeo involved a man named Thomas Robins who filed a class action lawsuit against Spokeo – a company that sells publicly available information about individuals – for alleged violations of the FCRA. The class action lawsuit claimed Spokeo violated the FCRA by publishing inaccurate information about the age, education, marital status, and professional experience of Robins.
The Ninth Circuit Appeals Court ruled 3-0 in favor of Robins and the lawsuit may proceed. In the opinion, Circuit Judge Diarmuid O’Scannlain wrote: It does not take much imagination to understand how inaccurate reports on such a broad range of material facts about Robins’s life could be deemed a real harm… Ensuring the accuracy of this sort of information thus seems directly and substantially related to FCRA’s goals.
Judge O’Scannlain addressed whether inaccurate information in a background check report could help or harm an individual: Even if their likelihood actually to harm Robins’s job search could be debated, the inaccuracies alleged in this case do not strike us as the sort of “mere technical violation[s]” which are too insignificant to present a sincere risk of harm to the real-world interests that Congress chose to protect with FCRA.
O’Scannlain concluded that the Court was satisfied that Robins had alleged injuries that are sufficiently concrete for the purposes of Article III of the United States Constitution. The opinion in the case of Thomas Robins v. Spokeo, Inc., No. 11-56843 in the U.S. Court of Appeals for the Ninth Circuit on August 15, 2017, is available at: http://cdn.ca9.uscourts.gov/datastore/opinions/2017/08/15/11-56843.pdf.
On May 16, 2016, the Supreme Court ruled in the case of Spokeo, Inc. v. Robins that consumers must prove “concrete injury” in lawsuits for alleged “bare” violations of a federal statute. The ruling sent the case back to the Ninth Circuit Court stating its Article III standing analysis in a February 2014 decision to reverse a dismissal was incomplete because it “failed to consider both aspects of the Article III injury-in-fact requirement.”
In a 6-2 decision – with Justices Alito, Roberts, Kennedy, Thomas, Breyer, and Kagan concurring, and Justices Ginsburg and Sotomayor dissenting – 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.”
Despite the Supreme Court ruling, some background check experts warned FCRA class action lawsuits would remain a threat to employers. “In no way did the Spokeo decision mean employers could relax when it comes to FCRA compliance,” said Attorney Lester Rosen, founder and CEO of Employment Screening Resources® (ESR). “They still need to remain in compliance and work with background check firms that understand the FCRA.”
In response to the rising trend of FCRA class action lawsuits, Rosen wrote a whitepaper entitled Common Ways Prospective or Current Employees Sue Employers Under the FCRA that includes the top nine reasons why businesses face FCRA lawsuits from both applicants and employees. The complimentary whitepaper is available at: www.esrcheck.com/Whitepapers/Ways-Employees-Sue-Employers-Under-FCRA/.
Rosen also wrote a second whitepaper for employers who work with third party Consumer Reporting Agencies (CRAs) to obtain background checks entitled Common Ways Consumer Reporting Agencies are Sued Under the FCRA that describes eighteen practices that can give rise to class action lawsuits against CRAs. The complimentary whitepaper is available at www.esrcheck.com/Whitepapers/Ways-CRAs-Sued-Under-FCRA/.
More Information about the FCRA from ESR
Employment Screening Resources® (ESR) is a leading global background check provider that can help employers remain in compliance with the FCRA. ESR is accredited by the National Association of Professional Background Screeners (NAPBS®) and undergoes annual SOC 2® audits to ensure the privacy, security, and confidentiality of consumer information. For more blogs about the FCRA, visit www.esrcheck.com/wordpress/tag/fcra/.
NOTE: Employment Screening Resources® (ESR) does not provide or offer legal services or legal advice of any kind or nature. Any information on this website is for educational purposes only.
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