Could there be a split brewing with regard to standing to pursue FCRA claims against potential employers for violating the stand-alone disclosure requirement contained in 15 U.S.C. § 1681(b)(2)(A)(i)?  Maybe.

Section 1681(b)(2)(A)(i) states as follows:  “Except as provided in subparagraph (B), a person may not procure a consumer report, or cause a consumer report to be procured, for employment purposes with respect to any consumer, unless-- (i) a clear and conspicuous disclosure has been made in writing to the consumer at any time before the report is procured or caused to be procured, in a document that consists solely of the disclosure, that a consumer report may be obtained for employment purposes. . .”

As Thomas Cull noted in this blog a few days ago, the Central District of California certified a 5,000,000 member class action against Wal-Mart Stores for allegedly violating § 1681(b)(2)(A)(i) by including extraneous information in the supposedly stand-alone disclosure.  See Pitre v. Wal-Mart Stores, Inc., 2019 WL 365897 (C.D. Cali. Jan. 17, 2019).  In doing so, the Pitre court rejected Wal-Mart’s argument that the Plaintiffs could not demonstrate that common questions or law or fact predominated because since some class members knew that Wal-Mart would conduct a background check on them, those class member could not show a concrete injury sufficient to have Article III standing under Spokeo, causing that standing issue to predominate over all others.  Instead, the Pitre court focused on the Ninth Circuit’s decision after the Spokeo remand and held that class members could acquire standing simply by showing Wal-Mart accessed their protected information in violation of their protected rights, which constituted a concrete harm and not a mere technical violation of the FCRA.

On the other hand, the District of New Jersey rejected a similar claim on the basis of lack of standing in Baccay v. Heartland Payment Sys., LLC, 2019 WL 337585 (D. N.J. Jan. 28, 2019).  In Baccay, Plaintiff attempted to bring a putative class action claim against her former employer for failing to provide a stand-alone disclosure.  Critically, however, the Baccay court focused on the fact that Plaintiff admitted that she knew that the former employer would run a background check on her prior to allowing her to begin employment and that she went forward with the employment application anyway.  Because of her knowledge, the Baccay court held that, at most, its Plaintiff only suffered a bare procedural statutory violation – the receipt of a disclosure notice containing extraneous information – that did not rise to the level of a concrete injury sufficient to ground Article III standing.  Thus, the Baccay court granted summary judgment to the former employer.

The Baccay opinion contains a listing of cases that purport to apply what it terms to be the majority rule – the one that it followed – and the minority rule – the one followed by the Pitre court.