SAN FRANCISCO (Legal Newsline) - In October, two U.S. district
courts came to opposite conclusions regarding Spokeo’s interpretation regarding the disclosure requirements of proving
concrete injury under the Fair Credit Reporting Act’s (FCRA).
The U.S. District Court for the Southern District of Florida and the Northern
District of California issued conflicting rulings in similar cases arguing
standing under Spokeo. The legal standing under
III of the U.S.
Constitution requires an injury that is traceable to the
challenged conduct of the defendant and likely to be redressed by a favorable
The Spokeo defense continues to be raised in cases surrounding the plaintiffs proving they
suffered an “injury in fact.”
The U.S. Supreme Court, in Spokeo,
Inc. v. Robins,
ruled that to grant standing, an injury must be both particularized and
affect the plaintiff in a “personal and individual” way and must be “concrete.”
Although defendants and plaintiffs alike tend
to use the case, decisions from courts continue to conflict in their interpretation
of injury to achieve standing under Spokeo.
Shortly after Spokeo’s ruling, in Yershov
V. Gannett, Gannett argued
Yershov didn't prove a concrete injury to achieve standing under Spokeo. However,
the court ruled under the law that Yershov argued, the Video Privacy Protection
Action (VPPA) “plainly” provides plaintiffs who allege wrongful disclosure of their
personally identifiable information (PII) with standing and a right to relief.
other words, the intangible harm allegedly suffered by Yershov from Gannett’s alleged
disclosure of his PII was considered by the court a concrete injury in fact.
Along similar lines, both recent cases
this month argue intangible harm and relate to privacy under but under the FCRA.
District of Florida’s ruling
v. Ascenda USA Inc., the
plaintiffs alleged Ascenda, their employer, failed to comply with FCRA
disclosure requirements by not providing a stand-alone disclosure, although
they acknowledged that a “disclosure and authority to release information”
document had been provided and signed.
The FCRA permits pre-hire
background checks only when a clear and conspicuous written disclosure is made
to the applicant before the report is procured, in a stand-alone document that
“consists solely of the disclosure”; and the applicant authorizes the
procurement of the report in writing.
The complaint argued
plaintiffs suffered a concrete informational injury because Ascenda failed to
provide them with information to which they were entitled to by statute, which
was a disclosure form required by the FCRA.
“Through the FCRA, Congress has created a
new right — the right to receive the required disclosure as required by law. The
required disclosures were not made, causing plaintiffs an informational injury,”
the Southern District of Florida’s ruling
The court reasoned that the plaintiffs’
consumer reports contained a wealth of private information, which Ascenda had
no right to access absent a specific congressional license to do so. It ruled
that by Ascenda procuring reports containing private information without
complying with the FCRA’s disclosure requirements, Ascenda illegally invaded
the plaintiffs’ right to privacy.
“Based on the foregoing, the court holds the plaintiffs have sufficiently alleged a concrete and particularized injury
and thus have standing to sue pursuant to Spokeo,”
the decision states in its denial of Ascenda’s motion to dismiss.
However, the same day, revealing the continued
conflicting decisions relating to Spokeo,
the Northern District of California dismissed similar claims in Nokchan
v. Lyft, Inc.
District of California’s ruling
Nokchan alleged he was employed by Lyft and when he applied for employment, he was
required to "fill out and sign a document requiring background
check." He contended the disclosures required under the FCRA were embedded
in the document, which contained "extraneous information," and therefore,
Lyft failed to comply with the FCRA and other state laws.
Nokchan argued Lyft procured his credit,
background reports based on these inadequate disclosures and that in doing so,
it injured him by violating his privacy and statutory rights under the FCRA and
Referencing Spokeo, Lyft argued in its motion to dismiss Nokchan had failed to
demonstrate concrete harm that resulted from its alleged failure to provide
disclosures in a stand-alone document or failure to provide a summary of rights
stating he failed to show how these actions "affected him in any way, much
less caused him concrete harm."
The court also referenced Spokeo to support its decision, writing,
“Under Spokeo, a plaintiff who seeks
to assert a claim under the FCRA is required to allege facts showing a concrete
injury. While procedural violations that have resulted in real harm — or even a
risk of real harm — may be sufficient to meet this requirement, Plaintiff in
this case has alleged no such injury.”
the court "implicitly recognized" that certain types of
"informational" injuries are "sufficient to support Article III
standing," however, the court also rejected Nokchan’s "informational
injury" claims were sufficiently concrete to meet the requirements of Spokeo.
The differences in each ruling
Regarding the inconsistencies in these two
recent rulings, Tiffany
Woo, an attorney with Proskauer Law Firm, told Legal Newsline, “Spokeo
clarified the requirement that in order to have Article III standing, a
plaintiff must have suffered a 'concrete' and 'particularized' injury in fact.
Supreme Court in Spokeo made two
statements about when statutory violations can give rise to a concrete and
particularized injury-in-fact sufficient to confer standing on a plaintiff that
are relevant here.”
Woo said the Northern District of California
found that Nokchan’s allegations that Lyft’s pre-employment background check
materials failed to meet the requirements of a section of the FCRA fell into
the first category, “bare procedural violation, divorced from any concrete
While the Southern District of Florida found that the Moody plaintiffs’
allegations fell into the second category, “violation of the statute that is
itself sufficient to constitute injury in fact.”
“The Northern District of California and
the Southern District of Florida disagreed on where the line is between
statutory violations that are not themselves sufficient to confer standing on
one hand, and statutory violations that are sufficient to confer standing on
the other,” Woo said.
of injury interpretations across the nation
Woo said there is a possibility of conflict between appellate courts if these
two plaintiffs and similar cases are appealed.
“There is a fair amount of
disagreement on this topic," she told Legal Newsline. "The 11th Circuit has already taken the position
that ‘informational’ injury is broad: where the plaintiff received a letter
from a hospital that did not include certain disclosures required under the
Fair Debt Collection Practices Act, the 11th Circuit found ‘informational’
injury based on plaintiff’s allegations that she was ‘very angry’ and ‘cried a
lot’ upon receiving the letter, although the plaintiff did not allege that she
suffered any ‘actual’ damages as a result of the failure to include the FDCPA
Other courts have decided similar cases differently too.
“Courts that have found standing in similar factual circumstances include,
in addition to the Southern District of Florida in Moody, the Eastern District
of California, the Western District of Texas, and the Eastern District of Virginia,
while courts that have found no standing in similar cases include, in addition
to the Northern District of California in Nokchan and one other case, the Southern
District of Ohio and the Eastern District of Missouri,” Woo said.