Last month the U.S. Supreme Court released an opinion in the Spokeo, Inc. v. Thomas Robins case that addressed the issue of standing under the Fair Credit Reporting Act (FCRA).
The Court found that in order to establish standing to sue, plaintiffs must show “an invasion of a legally protected interest” that is both “particularized and concrete.” Basically, the Court vacated the Ninth Circuit’s earlier decision that a consumer may bring an action for statutory violations without alleging actual injury.
However, the Court did not reach the issue whether Robins had adequately alleged an injury-in-fact, and it remanded back to the lower court for further consideration. So it remains unresolved whether a plaintiff’s intangible harm alleged from FCRA violations is “concrete” for purposes of Article III standing requirements in future related class actions.
Once that issue is decided it could make it significantly harder or easier for potential plaintiffs to meet standing requirements in future privacy and consumer related lawsuits.
This is a reminder to employers everywhere to carefully review their existing background check procedures to ensure compliance with all laws and regulations.
Supreme Court Sends Spokeo Case Back to Lower Court
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