As we previously reported, the Supreme Court’s decision in Spokeo v. Robins, has been nearly universally lauded by defense counsel as a new bulwark against class actions alleging technical violations of federal statutes. But Spokeo also poses a significant threat to defendants by defeating their ability to remove exactly the types of cases that defendants most want in federal court.
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On May 16, 2016, the United States Supreme Court issued a decision in Spokeo Inc. v. Thomas Robins, holding that the Ninth Circuit’s ruling applied an incomplete analysis when it failed to consider both aspects of the injury-in-fact requirement under Article III. The Court found that a consumer could not sue Spokeo, Inc., an alleged consumer reporting agency that operates a “people search engine,” for a mere statutory violation without alleging actual injury.
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As reported in the Hunton Employment & Labor Perspectives Blog:

On November 2, 2015, a putative class action was filed against retailer Big Lots Stores, Inc. in Philadelphia, stemming from allegations that the company “systematically” violated the Fair Credit Reporting Act’s (“FCRA’s”) “standalone disclosure requirement” by making prospective employees sign a document used as a background check consent form that contained extraneous information. Among other things, the plaintiff alleges that Big Lots’ form violates the FCRA because it includes the following three categories of extraneous information: (1) an “implied liability waiver” (specifically, a statement that the applicant “fully understand[s] that all employment decisions are based on legitimate nondiscriminatory reasons”); (2) state-specific notices; and (3) information on how background information will be gathered and from which sources, statements pertaining to disputing any information, and the name and contact information of the consumer reporting agency.


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On April 9, 2014, the Federal Trade Commission announced settlements with two data brokers, Instant Checkmate, Inc. and InfoTrack Information Services, Inc. The settlements stem from allegations that the companies violated various provisions of the Fair Credit Reporting Act, including failure to take reasonable steps to ensure that consumer reports were accurate and that their users had a permissible reason to have them.
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On January 16, 2014 the Federal Trade Commission announced a settlement with TeleCheck Services, Inc., and its affiliated debt-collection entity, TRS Recovery Services, Inc. The settlement stems from allegations that the defendants violated various provisions of the Fair Credit Reporting Act, including requirements concerning the accuracy of consumer reports and dispute investigation and resolution procedures.
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