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Spokeo providing a successful basis for challenging plaintiffs’ standing in no-harm FCRA cases

Although the Supreme Court’s May 16, 2016, decision in Spokeo, Inc. v. Robins did not decide the case before it, Spokeo has recently been applied by a number of federal district courts to dismiss Fair Credit Reporting Act (FCRA) cases in which the plaintiffs failed to show they suffered concrete harm.

In the past few weeks, courts have held that alleged failures to provide proper notice or other similar procedural or technical violations, standing alone, are not sufficient to maintain Article III standing to sue in federal court. Among the recent cases finding a lack of standing are Nokchan v. Lyft, Inc., 2016 U.S. Dist. LEXIS 138582 (N.D. Cal. Oct. 5, 2016); Baker v. Microbilt Corp., 2016 U.S. Dist. LEXIS 137946 (M.D. Pa. Oct. 3, 2016); Frankenfield v. MicroBilt Corp., No. 4:14-CV-1112, 2016 U.S. Dist. LEXIS 137944 (M.D. Pa. Oct. 3, 2016); Salvatore v. Microbilt Corp., No. 4:14-CV-1848, 2016 U.S. Dist. LEXIS 137943 (M.D. Pa. Oct. 3, 2016); Owner-Operator Indep. Drivers Ass’n, Inc. v. United States DOT, 2016 U.S. Dist. LEXIS 135630 (D.D.C. Sept. 30, 2016); and Disalvo v. Intellicorp Records, Inc., 2016 U.S. Dist. LEXIS 133344 (N.D. Ohio Sep. 27, 2016).

These courts have noted that where plaintiffs cannot show that the alleged FCRA violations resulted in the loss of a job opportunity or the unlawful disclosure of private information, for example, they cannot show the “concrete harm” Spokeo requires to maintain standing. On the whole, these recent decisions do not seem to be receptive to arguments that technical FCRA violations ipso facto cause concrete harm based on theories of invasion of privacy or “informational injury”; instead, they read Spokeo to require some real-life harm beyond the violation of the statute itself. Decisions like these should significantly limit—if not eliminate—the viability of harm-free FCRA suits seeking only statutory damages, including putative class actions, in federal court.


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