On August 1, the Seventh Circuit Court of Appeals in Groshek v. Time Warner Cable, Inc. affirmed the Eastern District of Wisconsin’s dismissal of a putative Fair Credit Reporting Act class action on the basis of Article III standing. Specifically, applying the Supreme Court’s decision in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), the Seventh Circuit held that FCRA disclosure and authorization claims without any allegation of actual or threatened concrete injury were insufficient to permit a claim in federal court.
The plaintiff, Cory Groshek, submitted 562 job applications over a year-and-a-half period, including one to Time Warner. After applying, Groshek sued Time Warner (as well as at least one other employer in Wisconsin, in a case that was consolidated on appeal), alleging it had provided him with a background check disclosure and authorization form that failed to meet the requirements of the FCRA because it contained extraneous information and a release of liability. Groshek brought his claims on behalf of himself and a putative nationwide class of applicants. Time Warner moved to dismiss, arguing Groshek lacked Article III standing in light of Spokeo. In response, Groshek claimed he had suffered cognizable informational and privacy injuries, and the District Court granted Time Warner’s motion.
The Seventh Circuit affirmed, noting Groshek had made no allegations that Time Warner (or the other defendant whose case was considered on appeal) had failed, by way of their disclosures, to in fact inform Groshek that Time Warner would be ordering a report about him as part of the application process. The Court observed, “His complaint contained no allegation that any of the additional information caused him to not understand the consent he was given; no allegation that he would not have provided consent but for the extraneous information on the form; no allegation that additional information caused him to be confused; and, no allegation that he was unaware that a consumer report would be procured.” In short, the Court found he had alleged nothing more than a statutory violation “completely removed from any concrete harm or appreciable risk of harm,” exactly what Spokeo disallowed.
The Court rejected Groshek’s claims of informational injury, finding he was not claiming he was denied any information, but was instead provided extra improper information. It also held that the purpose of the FCRA’s disclosure requirement is not to prevent someone from merely receiving a non-compliant disclosure, but to decrease the risk that an applicant would unknowingly consent to a background check – a harm Groshek did not allege he suffered. The Court similarly dismissed claims of a privacy injury, noting Groshek admitted to signing the form, thus authorizing the procurement of a consumer report.
Ultimately, because Groshek had not pled any other actual or threatened concrete injury, the Seventh Circuit held that dismissal of his claims was appropriate.