CUSTOMER RESOURCES

Plaintiff need not proof that defendant is a CRA under the FCRA to survive a motion to dismiss

Robins v. Spokeo, Inc., 2011 U.S. Dist. LEXIS 54102 (C.D. Cal. May 11, 2011) Facts: On January 27, 2011 , the Court dismissed Plaintiff's Complaint for lack of standing and gave Plaintiff twenty days to amend to meet the standing requirements. On February 16, 2011 , Plaintiff filed an amended complaint and alleged that Defendant operated its website, Spokeo.com, in violation of the FCRA. Specifically, Plaintiff claimed that reports generated by Defendant contained inaccurate consumer information that was marketed to entities performing background checks. As a result of Defendant's FCRA violations, Plaintiff alleged that Defendant caused him actual and/or imminent harm by creating, displaying, and marketing inaccurate consumer reporting information about Plaintiff. In response to Plaintiff’s amended complaint, Defendant brought a second Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and (12(b)(6) arguing that it could not be sued for FCRA violations because it was not a consumer reporting agency (“ CRA ”). Defendant’s Motion to Dismiss was denied. · Subject Matter Jurisdiction. Defendant argued that the Court did not have subject matter jurisdiction to consider Plaintiff's claims. The Court disagreed. A plaintiff has Article III standing to sue where the plaintiff alleges facts showing that (1) it has suffered an injury in fact; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely that the injury would be redressed by a favorable decision. In light of Plaintiff's amended complaint, the Court found that Plaintiff alleged sufficient facts to confer Article III standing. Specifically, Plaintiff alleged that Defendant marketed inaccurate consumer reporting information about Plaintiff in violation of the FCRA, which was likely to be redressed by a favorable decision from this Court. Thus, Plaintiff established the requisite standing to sue and the Court had subject matter jurisdiction over Plaintiff's claims. · Motion to Dismiss . Alternatively, Defendant moved to dismiss Plaintiff's amended complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim, asserting, among other things, that Defendant was not a CRA under the FCRA. · Consumer Reporting Agency. Defendant contended that it was not a CRA as defined by 15 U.S.C. § 1681a(f) because it did not regularly engage in providing consumer credit information for the purpose of furnishing consumer reports. Conversely, Plaintiff alleged that Defendant fell within the scope of FCRA because Defendant collected and created consumer information consisting of consumers’ economic wealth and creditworthiness for the purpose of furnishing it to paid subscribers who regularly provide monetary fees in exchange for Defendants s reports. The Court denied Defendant’s Motion to Dismiss Plaintiff’s FCRA claims holding that Plaintiff’s complaint needed only to contain sufficient factual matters that, if accepted as true, would state a claim to relief that was plausible on its face. Plaintiff did not need to prove that Defendant was in fact a CRA at the initial dismissal phase of the litigation. Thus, Plaintiff’s allegations that Defendant regularly accepted money in exchange for reports that contained data and evaluations regarding consumers’ economic wealth and creditworthiness were sufficient to support a plausible inference that Defendant’s conduct fell within the scope of the FCRA. About Strasburger & Price Attorneys from Strasburger & Price, LLP involved in FCRA litigation have been monitoring and analyzing the legislative and caselaw developments related to this area of the law. This group of lawyers will continue to follow these developments throughout the coming months to help you understand how it impacts your business as well as to help you make the necessary decisions to succeed under this ever changing area of credit reporting and employment screening/criminal and credit background check compliance. Click here to find out about our authors.

backgroundchecks.com Legislation and Compliance Update - Louisiana Enacts E-Verify Legislation

On July 1, 2011, Governor Bobby Jindal signed HB 646 into law, creating Act 402. Act 402 revises Louisiana’s existing immigration provisions to require employers to perform some form of employment eligibility verification to check on the immigration status of their employees.

Federal Trade Commission Issues New Guidance on the Fair Credit Reporting Act

FTC Says Screening of Volunteers is for Employment Purposes Under the FCRA

North & South Carolina and Oklahoma Enacts E-Verify Bill

backgroundchecks.com Legislationand Compliance update - Louisiana bill forcing contractors to use E-Verify unanimously passes state House

Alabama Governor Signs Law Requiring All Businesses to Begin Using E-Verify

Employers Settle FCRA Documentation Class Actions for $5.9 Million

backgroundchecks.com Legislation and Compliance Update - Social Security Administration (SSA) to Begin Randomizing Social Security Numbers (SSNs)

The Social Security Administration (SSA) has announced plans to begin randomizing Social Security Numbers (SSNs). This move will change the way in which third-party providers like backgroundchecks.com can verify SSNs.

District Court Allows Class Action Suit Based On Technical Failures to Comply with FCRA

Georgia and Indiana Pass Laws Requiring Employers to Utilize E-Verify

Both Georgia and Indiana have enacted laws requiring some or all employers in their states to use E-Verify to check the work eligibility status of new employees.

Social Security Administration (SSA) to Begin Randomizing Social Security Numbers (SSNs)

The Social Security Administration (SSA) has announced plans to begin randomizing Social Security Numbers (SSNs). This move will change the way in which third-party providers such as GIS can verify SSNs.

Legislation and Compliance Update: New Guidance from Office of Inspector General on permissive exclusion authority

The Department of Health and Human Services Office of Inspector General (OIG) has released a new guidance on the implementation of its permissive exclusion authority. This new guidance outlines four factors that will be considered when determining whether to exclude an individual.

Federal Reserve Board Issues New Report Studying the Disparate Impact of Credit Histories

The use of credit reports in employment decisions has recently become a controversial issue. It has been put up for debate whether or not making hiring decisions based on credit history could have a disparate impact on racial and ethnic minorities with the end result of hiring fewer minority applicants. A recent report from the Federal Reserve Board calls into question the generally held belief that hiring decisions based in part on credit histories have a disparate impact on racial and ethnic minorities. Rather than analyzing the potential disparate impact in hiring decisions, the October 12, 2010 report analyzed a parallel question: whether the use of credit scores in lending would have a disparate impact on applicants for loans. An important distinction between these two questions is that employment-purpose credit reports do not show a credit score; but they do show the types of information that credit bureaus use in their calculations of credit scores.

Legislation and Compliance Update: North Carolina Administrative Office of the Courts Proceeds with Proposed Data Changes

The North Carolina Administrative Office of the Courts (AOC) has proceeded with their plans announced last December to change the manner in which data is returned to third-party providers such as backgroundchecks.com. This change reduces instant results for criminal records to basic elements (name, DOB, case number, etc) without an indication of the charges or disposition. While a court case is pending to return the results to their previous standard, an injunction has been denied, allowing North Carolina to provide the significantly limited data pending the lawsuit’s final judgment.