On November 20, the Illinois Supreme Court narrowly construed private rights of action under the federal Fair Credit Reporting Act (FCRA), creating a de facto “concrete injury” requirement for claims under the FCRA and potentially other federal statutes with similar language authorizing rights of action. Although Article III’s concrete-injury requirement has become familiar in federal courts over the last decade, Illinois courts had not previously imposed such a requirement in cases involving statutory rights of action. The court in Fausett v. Walgreen Co., held that the FCRA does not explicitly authorize consumers to sue for violations, so the law did not authorize consumer lawsuits unless the consumer could show that a violation caused them a concrete injury. This ruling will significantly narrow consumers’ ability to bring no-injury claims under similar statutes in Illinois state courts.

The Decision

Fausett involved an alleged violation of a provision in the FCRA (known as the Fair and Accurate Credit Transactions Act or (FACTA)) that prohibits printing more than the last five digits of a card number on receipts. The plaintiff alleged a violation, and sought statutory damages, but did not allege actual misuse or identity theft.

In Fausett, the Illinois Supreme Court confirmed that an alleged statutory violation can be sufficient to support standing, but only where the statute specifically authorizes a lawsuit for violations, which the court found is not the case with the FCRA.

The court noted that two different types of standing exist in Illinois: (1) common law standing, which requires an injury in fact to a legally cognizable interest; and (2) statutory standing, where the legislature creates a right of action and determines who shall sue and the conditions under which a lawsuit can be filed. After “examining the plain and unambiguous language of the relevant provisions of FCRA,” the court concluded that the FCRA does not explicitly authorize a consumer to bring a suit.

Once it found a lack of statutory standing under the FCRA, the court held that plaintiff must show a concrete injury to create common-law standing, and that the alleged increased risk of identity theft did not suffice. The court therefore remanded with instructions to dismiss for lack of standing.

Implications for Federal Consumer Class Actions in Illinois

The immediate consequence for FCRA litigation is clear. Federal courts will continue to dismiss no-injury claims for lack of Article III standing under Spokeo. And now Fausett forecloses simply refiling those same no-injury claims in Illinois state courts.

Looking ahead, no-injury cases in Illinois state court will depend on the specific statutory language involved. Many federal consumer statutes have private-right-of-action provisions similar to the FCRA, including the FDCPA, RESPA, and TILA. As a result, defendants may be able to rely on Fausett to argue that claims under such statutes in Illinois state courts require showing a concrete injury.