The United States Supreme Court recently decided Spokeo, Inc v. Robins, which stated that a plaintiff has to prove an actual “injury in fact” occurred from a violation of the Fair Credit Reporting Act, rather than merely alleging that a party has violated the Act.  578 U.S. ____ (2016) 2016 WL 2842447.  In reversing the Ninth Circuit’s ruling, the Supreme Court stated that the appellate court had failed to consider both aspects of the Article III standing requirements.  A mere violation of the statute is not enough for a plaintiff to satisfy standing.  Instead, a plaintiff must either allege an actual concrete injury or an injury that is “actual or imminent, not conjectural or hypothetical” in order to have standing to bring a claim.

Fair Credit Reporting Act

The Fair Credit Reporting Act was created to ensure “fair and accurate credit reporting.” 15 USC §1681(a)(1). In order to do this, the Act regulates the creation and use of consumer reports by  credit reporting agencies for certain purposes, including credit transactions, insurance, licensing, consumer-initiated business transactions, and employment.  (See our previous article discussing using the FCRA to make employment decisions.)  Relevant to this decision, the Act requires agencies to follow reasonable procedures to ensure the accuracy of the reports.  It also imposes damages on any person who willingly fails to comply with the Act.

Violation of FRCA Alone, Not Enough to Bring Suit

While the Ninth Circuit found that Robins had proven a violation, the Ninth Circuit Court failed to consider the second aspect of Article III that addresses injury. The Supreme Court did not make a finding as to whether this Plaintiff had suffered an injury, but stated this aspect of the standing issue needed to be addressed.  However, the Supreme Court made a point to state that mere procedural violations do not amount to an “injury in fact”.   The Court utilized the example of an incorrect zip code.  While this is a violation of the FCRA, it is difficult to articulate the harm or “injury in fact” from such a violation.

The Court’s decision in Spokeo, should have an impact on other standing arguments that businesses may have, including cases that involve data breaches, FCRA, Fair Debt Collections Act as well as the Telephone Consumer Protection Acts.  Mere procedural violations alone are not enough to prove an injury in fact.

Allen & Gooch is providing this legal update for informational purposes only. This article should not be construed as legal advice or a legal opinion as to any specific facts or circumstances. You should consult your own attorney concerning your particular situation and any specific legal questions you may have.