Virginia District Court Relies on Spokeo in Dismissing FCRA Claim for Lack of Article III Standing

In Frazier v. First Advantage Background Services Corp., No. 3:17cv30, 2019 WL 4601616 (E. D. Va. Sep. 23, 2019), the Eastern District of Virginia issued an erudite opinion offering guidance on when the Supreme Court’s Spokeo decision might apply to the challenge of a Fair Credit Reporting Act (“FCRA”) claim.

The plaintiff in Frazier was applying for a job with Wells Fargo. As part of the application, Wells Fargo directed applicants to the portal of defendant First Advantage Background Services Corp. to input information to allow First Advantage to generate a consumer report. The report was then placed online and accessible to both First Advantage and Wells Fargo.

Plaintiff contended, among other claims, that First Advantage furnished a consumer report for employment purposes without receiving a valid certification from Wells Fargo in violation of 15 U.S.C. § 1681b(b)(1)(A) of the FCRA. Not so, according to the district court, because the plaintiff consented to providing personal information to Wells Fargo when it voluntarily input that information into the First Advantage portal. Thus, because there was no claim for invasion of privacy, the plaintiff “did not suffer a harm that Congress sought to protect through the FCRA.” The district court, relying on Spokeo, dismissed the 15 U.S.C. § 1681b(b)(1)(A) claim for lack of Article III standing because the plaintiff failed to sufficiently allege a concrete injury.

The court also dismissed a second claim for failure to provide notice before taking an adverse action under 15 U.S.C. § 1681b(b)(3), rejecting the plaintiff’s contention that First Advantage was acting as a user of a consumer report (as opposed to only a Consumer Reporting Agency (“CRA”)) when it generated the consumer report for Wells Fargo. The dismissal of this claim was pursuant to F.R.C.P. 12(b)(6) for failure to state plausible facts that First Advantage acted beyond its role as a CRA.

This case provides insight on when a technical FCRA claim may be subject to a Spokeo challenge, which requires that there be a an invasion of a legally protected interest that is concrete and particularized and actual or imminent, not conjectural or hypothetical.

For more information, please contact Paul Grammatico with Katten at (213) 443-9017 or via email at paul.grammatico@katten.com.