Written By ESR News Blog Editor Thomas Ahearn
On January 22, 2018, the Supreme Court of the United States denied a petition for a writ of certiorari that sought a review of the Court’s ruling on May 16, 2016, in the case of Spokeo, Inc. v. Robins that found a mere “technical” violation of a federal statute such as the Fair Credit Reporting Act (FCRA) does not constitute a “concrete injury” or “injury-in-fact” as required under Article III of the U.S. Constitution.
In July 2010, a man named Thomas Robins filed a class action lawsuit against Spokeo – an online “people search engine” that compiles and sells public data about individuals – claiming violations of the FCRA after Spokeo compiled a consumer report about him that contained inaccurate information about his age, education, marital status, and employment. The FCRA regulates the accuracy of information contained in consumer reports.
The petition filed by Spokeo follows an August 15, 2017 ruling by the Ninth U.S. Circuit Appeals Court on remand from the Supreme Court that the claim by Robins that Spokeo violated the FCRA by providing inaccurate information about him had sufficient concrete injury to meet the Article III standing: “Ensuring the accuracy of this sort of information thus seems directly and substantially related to FCRA’s goals.”
The Supreme Court’s denial of a review of its ruling in the Spokeo case adds to the confusion in courts over what constitutes concrete harm under Article III. The fact that employers continue to be targeted in lawsuits for technical violations of the FCRA even after the Spokeo ruling is one of the “ESR Top Ten Background Check Trends” for 2018 selected by global background check firm Employment Screening Resources® (ESR).
Since the Supreme Court ruling in the Spokeo case, many class action lawsuits filed against employers involving alleged violations of the FCRA have had varying degrees of success in the courts. In November 2017, ESR News reported that Avis agreed to pay $2.7 million to settle a lawsuit claiming the car rental company violated the FCRA when conducting background checks on job applicants for employment purposes.
However, in October 2017, ESR News reported that a California federal judge granted a Motion to Dismiss in a proposed class action lawsuit against Home Depot that claimed the retailer violated the federal FCRA for failing to make proper disclosures, explaining the lawsuit failed to demonstrate actual harm and did not allege a “concrete” injury as required under the U.S. Supreme Court ruling in Spokeo.
In August 2017 – the same month the Ninth Ciruit Appeals Court ruled the FCRA Lawsuit against Spokeo had sufficient concrete injury to meet Article III standing – ESR News reported that the U.S. Court of Appeals for the Seventh Circuit held that a plaintiff who filed an FCRA class action lawsuit “has not alleged facts demonstrating a real, concrete appreciable risk of harm” and “lacks Article III standing.”
Also in August 2017, ESR News reported that a company operating a network of couriers agreed to pay a $2.5 million to settle a class action lawsuit for alleged violations of the FCRA. In June 2017, ESR News reported a Judge in the Northern District of Texas dismissed a FCRA class action lawsuit, holding the plaintiff lacked Article III standing: “A ‘concrete’ injury must be ‘de facto’; that is, it must actually exist.”
Passed by Congress in 1970, the FCRA 15 U.S.C. § 1681 promotes the accuracy, fairness, and privacy of consumer information contained in the files of consumer reporting agencies (CRAs), protects consumers from the willful and/or negligent inclusion of inaccurate information in their credit reports, and regulates the collection, dissemination, and use of consumer information, including consumer credit information.
ESR Whitepaper on Ways Employers are Sued Under FCRA
In response to the rising trend of class action lawsuits filed for alleged violations of FCRA – and to help employers deal with the current state of confusion surrounding these lawsuits – Employment Screening Resources® (ESR) offers a complimentary whitepaper written by ESR founder and CEO Attorney Lester Rosen entitled “Common Ways Prospective or Current Employees Sue Employers Under the FCRA.”
Rosen – author of “The Safe Hiring Manual” and noted background checks expert – explains how, more often than not, employers are sued for violating FCRA 101 – simple rules and procedures that are clearly set out in the law. The complimentary whitepaper is available at: www.esrcheck.com/Tools-Resources/Whitepaper-Library/Ways-Employees-Sue-Employers-Under-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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