On March 1, 2017, the United States District Court for the District of Minnesota granted a motion to dismiss a lawsuit predicated on alleged violations of the Fair Credit Reporting Act (“FCRA” or the “Act”). If a person plans to run a consumer report, including a criminal background check for employment purposes, the Act requires the person to (1) provide a clear and conspicuous written disclosure, in a document that only contains that disclosure, that a consumer report is allowed to be obtained for employment purposes; and (2) obtain written authorization to procure the report from the target of the report. The Act permits plaintiffs who have suffered no actual damages to obtain statutory damages for willful violations of the Act.
The plaintiff, Maxine Fields, is a former employee of Golden LivingCenter-Hopkins, one of the defendants to the action. While going through the logistics of being hired, the plaintiff completed a background check authorization form. After completing that form, Golden LivingCenter-Hopkins directed an affiliate to obtain a criminal background check on the plaintiff.
According to the plaintiff, the defendants willfully violated the FCRA because they failed to (1) tell her what type of report they planned to obtain; (2) tell her who would obtain the report; and (3) provide her those two pieces of information clearly and conspicuously through a stand-alone disclosure document. Moreover, the plaintiff contended that those three failures amounted to three informational injuries and one invasion-of-privacy injury, all of which were concrete for the purposes of the injury-in-fact requirement of Article III.
The defendants moved to dismiss and argued, among other things, that the court lacked subject matter jurisdiction. According to the defendants, because of Spokeo, Inc. v. Robins, the plaintiff’s alleged injuries were not concrete and therefore did not satisfy the injury-in-fact requirement of Article III standing.
After taking account of Spokeo, the court concluded that the FCRA gives consumers a substantive right to receive certain information in a non-confusing manner. The court, however, determined that the plaintiff’s three alleged informational injuries did not satisfy the injury-in-fact requirement of Article III standing because they were not concrete.
First, the plaintiff argued that she suffered a concrete injury by not knowing who would procure the report. To evaluate that contention, the court examined the statute and found nothing that obligated the defendants to tell the plaintiff the identity of who would procure the report. Because the defendants were not obligated to share that information with the plaintiff, the court concluded that not sharing that information with the plaintiff did not cause her to suffer a concrete injury.
Second, the plaintiff argued that she suffered a concrete injury by not knowing what type of report the defendants planned to obtain. Specifically, the plaintiff contended that the authorization form she completed did not indicate that the defendants would obtain a criminal background check. The court, however, observed that the authorization form, in two places, indicated that a criminal background check would be performed. Because the authorization form did indicate the type of report the defendants planned to obtain, the court concluded that the plaintiff’s second alleged informational injury was not a concrete injury.
Third, the plaintiff argued that she suffered a concrete injury because the defendants did not give her a stand-alone disclosure document that was clear and conspicuous. To evaluate that contention, the court observed that for a plaintiff to predicate a FCRA violation on the presentation of a disclosure, the plaintiff must demonstrate that the disclosure deprived her of information she was entitled to receive or the disclosure confused her. According to the court, the disclosure did not deprive the plaintiff of information she was entitled to receive. Additionally, the court determined that the plaintiff did not allege that the disclosure confused her. The court, therefore, concluded that the defendants’ presentation of the disclosure did not cause the plaintiff to suffer a concrete injury.
In addition to concrete informational injuries, the plaintiff argued that she suffered a concrete invasion-of-privacy injury. Specifically, the plaintiff contended that the defendants invaded her privacy when they obtained information about her criminal history without her statutorily required consent. Because the plaintiff voluntarily disclosed her criminal history — which was that she did not have any criminal history — and the defendants’ criminal background check showed that the plaintiff had no criminal history, the court concluded that the plaintiff had not suffered a concrete invasion-of-privacy injury.
This case is noteworthy because it adds to the ongoing discussion among courts about what, in the post-Spokeo world, counts as a concrete injury for the injury-in-fact requirement of Article III standing. This case joins others that have concluded that for an alleged FCRA informational injury to be a concrete injury, the plaintiff must demonstrate that the disputed disclosure confused her or lacked information she was statutorily entitled to receive. This area of the law, however, is still developing, and several courts have reached conflicting conclusions about what counts as a concrete injury for the purposes of the injury-in-fact requirement of Article III standing.
A copy of the Court’s decision is available here.
