Weiner Brodsky Kider PC

The Eighth Circuit recently ruled that a plaintiff failed to allege a concrete injury-in-fact sufficient for Article III standing in a suit alleging violations of certain procedural requirements under the Fair Credit Reporting Act (FCRA) in connection with the handling of a consumer report the plaintiff had agreed to provide as part of an application for employment.

The circuit court applied Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), in which the Supreme Court emphasized that Article III standing requires a concrete injury even in the context of a statutory violation.  Although the plaintiff alleged harm to her privacy, reputation, and security interests based on a number of statutory violations in connection with the procuring, using, and furnishing of her consumer report under FCRA, the court found that, because the plaintiff had consented to the report, there was no intangible injury sufficient to confer standing.

The Eighth Circuit is at least the fourth circuit court to consider similar standing issues in the wake of the Supreme Court’s Spokeo decision.  Like the Eighth Circuit, the Fourth Circuit, in Dreher v. Experian Info. Solutions (4th Cir. 2017), and the Seventh Circuit, in Groshek v. Time Warner Cable (7th Cir. 2017), have both denied Article III standing in cases alleging procedural FCRA violations. On the other hand, the Ninth Circuit, in considering the Spokeo case on remand (9th Cir. 2017), found the plaintiff alleged a sufficiently concrete injury-in-fact in connection with FCRA violations to confer standing.

The case is Auer v. CBCInnovis, Inc., et al., Case No. 17-2413 (8th Cir. 2018), and the opinion may be found here.

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