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Fourth Circuit Strikes a Blow to FCRA Plaintiffs

Recently, the Fourth Circuit reversed an $11.7 million verdict in a 69,000 member Fair Credit Reporting Act (FCRA) class action. In Dreher v. Experian Info. Solutions, Inc., 856 F.3d 337 (4th Cir. 2017), the Fourth Circuit applied the Supreme Court’s decision in Spokeo, Inc. v. Robins, 136 S.Ct. 1540 (2016) and concluded that the plaintiffs failed to demonstrate a concrete injury and thus lacked Article III standing to pursue the claims. The plaintiff in Dreher underwent a background and credit check to obtain a federal government security clearance, which revealed a delinquent credit card account. The plaintiff alleged that Experian violated the FCRA by listing the incorrect name (but the correct address) of the delinquent account holder on his credit report. 

The district court, in a decision pre-dating Spokeo, awarded summary judgment to the plaintiff. When finding that plaintiff had standing, the district court reasoned that “any violation of the [FCRA] sufficed to create an Article III injury in fact.” 

The Fourth Circuit – applying Spokeo – reversed, concluding that the plaintiff failed to demonstrate a concrete injury. While Experian may have denied plaintiff access to statutorily-required information (i.e., the correct name of the account holder), that was insufficient to satisfy Article III. Rather, a plaintiff must demonstrate an injury cognizable at common law, or a statutory violation coupled with the kind of injury Congress sought to prevent by enacting the statute in question. The plaintiff in Dreher demonstrated neither.

Specifically, the misidentification of the account holder did not impede the credit resolution process, or plaintiff’s ability to obtain a security clearance. The plaintiff’s mere “nebulous frustration resulting from a statutory violation” that was “divorced from any real world effect” did not satisfy Article III.

What Does This Mean for Employers?

The Fourth Circuit is the latest appellate court to weigh in on standing under the FCRA after the Supreme Court’s decision in Spokeo. Drehermay serve as useful ammunition for employers defending against increasingly common FCRA class actions which seek to predicate standing upon technical statutory violations, such as:

  • Including “extraneous” information in FCRA disclosures.
  • Failing to follow statutory procedures before taking an adverse action based on information contained in a background check (e.g., providing a pre-adverse action notice).
  • Failing to provide the FCRA “notice of rights.”
© Polsinelli PC, Polsinelli LLP in California

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About this Author

Shareholdermclardy@polsinelli.com

Michelle Clardy Dobbs prides herself in keeping clients informed on case developments and strategy. She works with businesses of all sizes to solve their commercial litigation, product liability, and financial lending needs. She has counseled corporate clients in a variety of product liability disputes and Consumer Product Safety Commission regulatory compliance matters ranging from sporting goods, including recreational hunting devices and sporting wear apparel, to consumer products, including hand tools, power tools, and other household hardware products.

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Associate

Brian Morris is an associate in Polsinelli’s Labor and Employment Litigation practice. He received his J.D. from the New York University School of Law in 2011, where he was a Staff Editor for New York University Journal of Law and Liberty.

Our attorneys have extensive experience providing employers with cost-efficient advice and aggressive defenses on employment and labor law matters. We have represented Fortune 500 corporations and privately owned entrepreneurial firms, and were ranked by Chambers USA in Labor & Employment, May 2016. The practice was also rated as a Standout in both complex and everyday employment litigation in the 2017 BTI Litigation Outlook, based on a survey of more than 300 general counsel at companies with more than $1 billion in revenue.

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