In a recent Eighth Circuit case, the appellate court vacated the district court’s orders, holding that the plaintiff lacked Article III standing to bring her Fair Credit Reporting Act claims in federal court. 

In Auer v. Trans Union, LLC, plaintiff Colleen Auer had accepted a job as city attorney for the City of Minot, North Dakota.  Several days later, Auer signed an authorization form permitting the City to run a background check on her.  The City later terminated Auer’s employment.  

Auer then filed a lawsuit against several defendants, including the City, the City’s law firm, and the consumer reporting agency that provided the background report, alleging violations of a number of obligations under the FCRA.  Specifically, Auer asserted that the City procured her consumer report without making “a clear and conspicuous disclosure” that her “consumer report may be obtained for employment purposes;” that the City did not obtain her written authorization to do so; and that the City procured and used her report for purposes not authorized by the FCRA.  Auer claimed that these purported violations “caused her to suffer injury to her privacy, reputation, personal security, the security of her identity information and loss of time spent trying to prevent further violations of her rights under the FCRA.”  The district court dismissed Auer’s claims on the merits and Auer appealed. 

On appeal, the Eighth Circuit first considered whether Auer had standing to assert her claims.  The Court held that “[b]ecause Auer consented to the City’s background check, she failed to plead an intangible injury to her privacy that is sufficient to confer Article III standing.”  Auer’s argument that she did not authorize or consent to the procurement and use of her consumer report “is belied by her well-pleaded allegation that she completed the City’s authorization form.”  In sum, Auer’s conclusory and speculative allegations of some undefined harm were insufficient to establish Article III standing.  The Eighth Circuit therefore vacated the district court’s orders dismissing Auer’s claims on the merits and remanded with instructions to dismiss for lack of jurisdiction.

 

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Photo of Julie D. Hoffmeister Julie D. Hoffmeister

Julie is a partner primarily focusing on financial services litigation. She defends consumer-facing companies of all types in individual claims and class actions, including claims under the Fair Credit Reporting Act (FCRA), the Driver’s Privacy Protection Act (DPPA), and the Telephone Consumer Protection…

Julie is a partner primarily focusing on financial services litigation. She defends consumer-facing companies of all types in individual claims and class actions, including claims under the Fair Credit Reporting Act (FCRA), the Driver’s Privacy Protection Act (DPPA), and the Telephone Consumer Protection Act (TCPA). Julie also applies her litigation knowledge in assisting businesses in developing compliance processes and procedures for the myriad federal consumer protection laws.

Photo of Michael E. Lacy Michael E. Lacy

Michael heads the firm’s Consumer Financial Services practice, and handles class actions and high-stakes consumer litigation on a nationwide basis. He represents banks, mortgage servicers, debt buyers and collectors, and lenders against claims under consumer protection statutes, including the FCRA, TCPA, RESPA, RICO,

Michael heads the firm’s Consumer Financial Services practice, and handles class actions and high-stakes consumer litigation on a nationwide basis. He represents banks, mortgage servicers, debt buyers and collectors, and lenders against claims under consumer protection statutes, including the FCRA, TCPA, RESPA, RICO, and state UDAP laws. He has significant experience litigating and trying corporate governance disputes, including shareholder derivative claims, corporate dissolution cases, and corporate divorce matters. Michael also represents public utility companies in litigation and regulatory matters, including condemnation and land use cases.

Photo of David N. Anthony David N. Anthony

David Anthony handles litigation against consumer financial services businesses and other highly regulated companies across the United States. He is a strategic thinker who balances his extensive litigation experience with practical business advice to solve companies’ hardest problems.