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Supreme Court Watch: Justices Seek Briefing on Potential Application of Spokeo

Here at FCRAland, we frequently discuss cases applying the Supreme Court’s 2016 case Spokeo v. Robbins.  That case specified that, for a plaintiff to have standing under FCRA, the plaintiff would need to allege an injury that is concrete (rather than a “bare procedural violation”).

The import of Spokeo goes beyond FCRA, and the case has become a leading precedent in federal court decisions regarding standing in an array of topics.  Recently, one such case came before the Supreme Court, and now the Supreme Court appears poised to provide further interpretation of Spokeo—interpretation which may well impact how Spokeo is applied in FCRA cases going forward.

In Frank v. Gaos, the appellant challenged a proposed class-action settlement associated with non-FCRA claims.  Rather than addressing the fairness of the class-settlement, the Supreme Court found itself more interested in the class representatives’ standing to assert the claims undergirding the settlement.  The Court therefore ordered follow-up briefing on the question of whether Spokeo precluded the class representatives from raising their claims in the first place (since the injuries alleged were statutory injuries associated with somewhat nebulous privacy-related harms).

Assuming the Supreme Court applies or distinguishes Spokeo in Frank, that decision will likely have a broad impact on questions of standing going forward, including in the FCRA context.  We will be following the case closely and providing commentary on any shift in the post-Spokeo landscape.

Copyright © 2020 Womble Bond Dickinson (US) LLP All Rights Reserved.National Law Review, Volume VIII, Number 352


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Scott is a business-focused attorney who delivers practical solutions for his clients. Scott listens to his clients’ goals and starts with those in mind. A strategic thinker, he regularly works with private equity principals, business owners and management teams to help them chart efficient paths through transactions, commercial negotiations and board-level decisions.

Scott leads executives and deal teams on major transactions and advises businesses as general outside counsel on a daily basis. He has particular depth in technology-enabled...