On January 5, Troutman Sanders filed an amicus brief on behalf of the National Association of Professional Background Screeners (“NAPBS”) in support of Spokeo, Inc.’s second petition for certiorari to the United States Supreme Court in Spokeo, Inc. v. Robins (U.S. No. 17-806). The new petition requests that the Court revisit its prior ruling and add clarity to the divergence in lower court rulings over the past two years.
The NAPBS’s amicus brief contends that the Ninth Circuit’s Spokeo decision on remand misapplied the Court’s instruction to limit federal court jurisdiction to actual cases and controversies under Article III by allowing plaintiffs to file technical, no-injury claims or claims based on bare procedural violations. In the class action context, such technical claims led to in terrorem settlements under the FCRA’s statutory damages scheme which does not cap the damages multiplier in a class case. The NAPBS and its members “face a practical reality in which ruinous potential liability and litigation expense grossly outweigh any harm actually caused to consumers – which oftentimes is no injury whatsoever.” In turn, the divergence in interpretations of Spokeo I coupled with the ability to command in terrorem settlements has resulted in forum shopping by plaintiffs in favorable jurisdictions like the Ninth Circuit. “Clarity is warranted,” according to the NAPBS.
The NAPBS is a trade association representing over 900 small and large background screening firms whose mission is to advance excellence in the screening profession and provide a unified voice in the development of national, state, and local regulation of professional screening services.
A copy of the amicus brief can be found here.