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Volume X, Number 299

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FCRA Allegations Dismissed Due to Plaintiff’s Lack of [Alleged] Confusion

Kenn v. Eascare, Civil Action No. 20-cv-10070-ADB, 2020 U.S. Dist. LEXIS 158820 (D. Mass. Sep. 1, 2020) is a Fair Credit Reporting Act (“FCRA”) standing case. Here, the Court concluded that a mere technical violation of the FCRA (specifically, the disclosure requirement) does not automatically confer standing. The Court also discusses Plaintiff Nicole Kenn’s (“Plaintiff”) insufficient pleading of an informational injury or invasion of privacy; ultimately dismissing Plaintiff’s FCRA allegations. What follows is the case background and a more detailed analysis.

On December 5, 2019, Plaintiff sued her previous employer, Eascare, LLC (“Eascare”), an Eascare manager, Mark E. Brewster (“Brewster”), and her former supervisor, Joseph Hughes (“Hughes”) (collectively, “Defendants”). Plaintiff’s lawsuit alleged four counts; including, Eascare and Brewster violating Massachusetts’ wage laws under Mass. Gen. Laws ch. 149, §§ 148, 150 (“Count I”), Eascare and Brewster engaging in sexual discrimination in violation of Mass. Gen. Laws ch. 151B, § 4 (“Count II”), and two violations of the Fair Credit Reporting Act (“FCRA”) as a result of running a background check on Plaintiff and others during the hiring process (“Count III” and “Count IV”). Notably, Plaintiff seeks to bring a class action against Eascare as a result of its alleged FCRA violations; however, before the Court in Kenn v. Eascare is Eascare’s motion to dismiss Counts III and IV for failure to state a claim, and Plaintiff’s motion to remand Counts I and II to state court.

Regarding Counts III and IV, Plaintiff alleges that, “Eascare violated the FCRA … by including a liability waiver and other extraneous language on [a] stand-alone disclosure form and by subsequently running a background check without proper authorization.” Plaintiff believes this allegation is a violation of the FCRA sufficient to constitute an injury “because her privacy was invaded.” Eascare, believing the opposite, argued that Plaintiff lacked standing to bring a claim because her alleged FCRA violations failed to show she suffered “a sufficiently concrete or particularized injury.”

In its analysis, the Court recognized that Plaintiff’s FCRA allegations stem from “two distinct, substantive rights that Congress sought to protect: first, an informational right, and second, a right to privacy.” With a split of authority as to whether a violation of the FCRA’s standalone disclosure or authorization requirements are sufficient to constitute a concrete harm, the Court here was unconvinced that Plaintiff’s allegations rose to the level required of an “informational injury.” In particular, the Court noted that, “Plaintiff has not alleged that she was confused by, or unaware of, the document she was signing and  Plaintiff’s conclusory allegations are insufficient to allow the Court to infer confusion or misapprehension.” Ultimately, the Court noted, “Plaintiff’s allegation of an informational injury fails because she has not alleged that … extraneous information, allegedly contained in the Disclosure Form, caused any actual confusion about whether her personal information would be made available for a background check.” The Court similarly held that because Plaintiff “consented to the [background check] and has not sufficiently pled that she suffered an informational injury in that she misunderstood the form … or the subsequent authorization, Plaintiff cannot sustain an argument for an invasion of privacy.” Accordingly, the Court granted Eascare’s motion to dismiss Counts III and IV because Plaintiff did not sufficiently allege, “confusion, distraction, or misunderstanding of the form [that she signed].”

With Plaintiff’s federal law claims dismissed, the Court chose not to exercise supplemental jurisdiction over the remaining state law claims and remanded the remaining counts to state court pursuant to 28 U.S.C. § 1367(c)(3).

© Copyright 2020 Squire Patton Boggs (US) LLPNational Law Review, Volume X, Number 252
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About this Author

Jacob M. Davis Litigation Attorney Squire Patton Boggs Denver, CO
Associate

Jacob Davis is an associate who focuses his practice on litigation matters.

While earning his law degree, Jacob supported the US Attorney’s Office for the Southern District of California as a summer extern and the US District Court for the Central District of California as a judicial extern to the Honorable S. James Otero. Jacob was also a member of Loyola’s International and Comparative Law Review staff, a member of Loyola’s Student Advisory Board and a member of Loyola’s Student Animal Legal Defense Fund. He also accepted two offers to work as a summer associate in our...

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