A particularly difficult type of class action litigation arises where Congress has provided a private right of action for violations of the federal Fair Credit Reporting Act (“FCRA”) (15 USC § 1681). Courts must determine who may have the requisite constitutional standing to act as the named representatives of a proposed class allegedly injured by a reporting error, faulty notification or data breach that might violate the FCRA. Congress may have wanted to encourage proper corporate conduct, but how far can it legislate regarding the need for a plaintiff to show standing to serve as a representative for the class? Efforts to draw that line, and ensure that FCRA class actions focus on harm to the plainitffs, are playing out in two cases pending in New Jersey.
The U.S. Supreme Court attempted to provide guidance regarding FCRA standing last year in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016). Spokeo operated a search engine for employers and others needing information about applicants for employment, loans, and credit. Robins was wrongly described in a report issued by Spokeo, and he alleged that his job search was inhibited by this wrong information being circulated.
