Judge Beth Labson Freeman for the United States District Court for the Northern District of California recently joined numerous other courts across the country in staying a putative FCRA class action pending the outcome of the Supreme Court’s decision in Spokeo Inc. v. Robins.

The underlying action in the California court challenged the defendant’s alleged failure to use an employment background screening disclosure form that consisted “solely” of the disclosure.  The plaintiffs also alleged that the defendants rescinded their conditional offers of employment following the results of a criminal background check, without giving them notice prior to taking “adverse action,” as required under the FCRA.

The defendant moved to stay, and the Court granted the motion, holding, “Should the Supreme Court reverse the Ninth Circuit’s decision in Spokeo, such a decision may have serious implications not only for Plaintiffs’ own individual standing, but also for the predominance and superiority requirements necessary for Rule 23(b)(3) class certification.”

The Court also rejected the plaintiff’s “prudential” arguments that memories could “fade” and witnesses could become “unavailable” in the event of a stay.  Specifically, the court held, “The allegations in this litigation primarily concern documents regarding Defendants’ compliance or non-compliance with the FCRA.  Such documentary evidence can be preserved and may be discovered in the due course of litigation … .  Moreover, to the extent Plaintiffs expect to rely on witnesses, the Court finds that the period of several months from now until Spokeo is decided is not substantial, and is unlikely to cause material harm.”

This decision is only one of numerous cases where courts have granted stays based on the pending Spokeo decision.  Although other courts have denied Spokeo-based stays, seeking a stay of a consumer case, even a class action, pending the outcome of Spokeo has gained traction in recent months as a potentially successful litigation strategy for defendants.