On March 29, 2017, a judge in the United States District Court for the Eastern District of Virginia dismissed a Fair Credit Reporting Act claim against Equifax Information Services, LLC alleging that Equifax provided the plaintiff’s consumer report to a third party without an FCRA permissible purpose. Dilday v. DIRECTV, LLC et al., No. 3:16CV996-HEH. Plaintiff Michael Dilday filed suit in December 2016 against Equifax and DIRECTV alleging that Equifax had provided DIRECTV with Dilday’s consumer report despite Dilday having no account or relationship with DIRECTV (and thus arguing DIRECTV and Equifax each lacked a permissible purpose to receive or furnish that report, respectively).
Both Equifax and DIRECTV asserted, as an affirmative defense, lack of standing. Because that defense called into question subject matter jurisdiction, the court sua sponte ordered briefing on the issue. Following briefing, in its March 29 order, the court concluded it lacked subject matter jurisdiction, applying the Supreme Court’s 2016 analysis in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016). Walking through the particularities of standing, the court explained that unless a statutory claim is the congressional codification of a common law intangible injury, “standing only exists for a statutory violation where the plaintiff has also alleged an additional concrete harm.”
Turning to Dilday’s claim that Equifax violated 15 U.S.C. § 1681b(a) when providing his report to DIRECTV, the court concluded Dilday had not alleged sufficient facts to show he had suffered a cognizable injury. Noting Dilday had not alleged any harm, the court looked to whether the statutory violations pled were, standing alone, sufficient to constitute concrete injury. The court analyzed that question through the lens of whether Dilday could argue Equifax’s report violated his privacy rights. In doing so, it turned to the common law tort for invasion of privacy, but rejected the idea that the FCRA is a codification of the same because the FCRA, unlike common law, does not require publicity. Instead, a consumer reporting agency violates the FCRA “for simply publishing one copy of a consumer report to a single user without a permissible purpose.” Noting that common law invasion of privacy requires more than mere single-recipient publication, the court concluded that the FCRA’s cause of action is much broader than traditional common law invasion of privacy.
The court thus concluded that because the FCRA was not a codification of common law right-to-privacy claims and because the plaintiff had alleged no harm owing to the alleged impermissible production of his consumer report, the plaintiff lacked Article III standing and the court had to dismiss the claim. Interestingly, the court noted in its order that Dilday failed to file any response to Equifax’s arguments against standing. On March 30, 2017, the day after the court issued its order, Dilday filed a motion to vacate, arguing he had earlier dismissed his claims against DirecTV and mistakenly thought only DIRECTV had made a standing challenge, thus resulting in him inadvertently failing to oppose Equifax’s arguments with respect to standing. He also stated in his March 30 filing that he had reached a settlement with Equifax that warranted vacating the court’s order. That motion remains pending.