Standing to sue, a venerable piece of American jurisprudence for sure, continues to draw attention in recent class action cases, including in the Fourth Circuit. In its second decision this year evaluating last term’s Supreme Court decision, Spokeo v. Robins, 136 S. Ct. 1540 (2016), a unanimous panel of the Fourth Circuit found insufficient “an informational injury” the lead plaintiff advanced under the Fair Credit Reporting Act—the same statute under review in Spokeo. Dreher v. Experian Information Solutions, Inc., 856 F. 3d 337 (4th Cir. May 11, 2017). See also Beck v. McDonald, 848 F. 3d. 262 (4th Cir. 2017) (affirming the dismissal of a class action lawsuit for lack of subject-matter jurisdiction based on the plaintiffs’ failure to establish a non-speculative, imminent injury-in-fact under the federal Privacy Act for purposes of Article III standing).
Dreher presented a high-stakes controversy—the trial court had certified a class of 69,000 members and had awarded $11,700,000 in damages. The lead plaintiff, pursuing a security clearance for government employment, had tried to expunge an inaccurate credit card debt in a credit report an Experian affiliate maintained on him. The affiliate listing his bad debt in error went into receivership but continued to list Dreher’s debt. Some 15 months elapsed between Dreher’s starting efforts and the deletion of the inaccurate credit information from his report, but this delay did not affect Dreher’s security clearance. The government granted his clearance in eight days.
Dreher persuaded the trial court that Experian and its affiliate had willfully violated the FCRA by failing to provide “the sources” of Dreher’s credit report. “When a consumer reporting agency fails to disclose those sources, it violates [the statutory] right, thus creating a sufficient injury-in-fact for constitutional standing.” Dreher, 71 F. Supp. 3d 572, 574 (E. D. Va. 2014). Notably for the Fourth Circuit, the trial court—declining to analyze whether Dreher’s injury was specific and concrete—ruled that “any violation of the statute sufficed to create an Article III injury-in-fact.” 856 F. 3d at 342 (emphasis in original).
Reminding that the burden to establish all of the Spokeo elements of standing falls on the plaintiff, the Fourth Circuit concluded that Dreher “stumbles on the first of the[ ] requirements: injury in fact.” Id. at 343. The court then provided details that will be instructive for future analyses of class action standing:
To establish injury in fact, “a plaintiff must show that he or she suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized.’” Spokeo, 136 S. Ct. at 1548 … The Supreme Court vacated the Ninth Circuit’s decision because that court “failed to fully appreciate the distinction between concreteness and particularization.” Spokeo, 136 S. Ct. at 1550. The Court found that in analyzing the “particular and concrete” aspect of the standing requirement, the Ninth Circuit “elided” the “independent requirement” of concreteness. Id. at 1548. … A concrete injury is “de facto,” meaning that “it must actually exist” and is “real, and not abstract.” Id. at 343, 344.
Acknowledging that an intangible injury can be concrete, the Fourth Circuit specified that one cannot “allege a bare procedural violation, divorced from any concrete harm, and satisfy the injury-in-fact requirement.” 856 F. 3d at 344 (quoting Spokeo, 136 S.Ct. at 1548).
Applying these principles, the Fourth Circuit unpacked Dreher’s claim that he suffered a “cognizable informational injury” because Experian, a consumer reporting agency, denied him clear and accurate disclosure of the source of the entity reporting his credit. Dreher failed to show how his having the right information – accurate identification of the entity with whom he was corresponding—“would have made any difference at all in the ‘fairness or accuracy’ of his credit report, or that it would have made the credit resolution process more efficient.” Id. at 346. Granted there is “value in knowing who it is you’re dealing with,” id., but a consumer’s speaking to an employee without knowing the employee works for a different affiliate of Experian did not create a “real world harm” Congress was seeking to prevent through the FCRA. Dreher did not show a concrete and adverse effect from the violation of the statute, a clear requirement for standing under Spokeo.
Looking at the national scene, we see a real increase in the spokes on the Spokeo wheel. Dreher joins the Seventh and Eight Circuits which have ruled, three times since Spokeo, that procedural, technical violations of statutory rights will not sustain Article III standing. In contrast, rulings by three other circuits, the Third, Ninth, and Eleventh, all this year, evaluating violations of the FCRA, Telephone Consumer Protection Act, Fair Debt Collection Practices Act, and Video Privacy Protection Act, have upheld Article III standing based on technical violations of the statutes.
With six circuits now reporting, when the Supreme Court will return to this field looms as a more urgent question.