902 F.3d 873
8th Cir.2018Background
- Colleen Auer signed a City of Minot authorization form allowing representatives of the City to obtain background information, including credit reports, as a condition of her appointment as city attorney.
- The City’s police department obtained Auer’s credit report from CBCInnovis (CBC), which had procured the information from TransUnion.
- Auer was later terminated and requested records; the City gave the Smith law firm copies of her authorization and credit report to assist with the records request and litigation.
- Auer sued the City, the Smith law firm, and CBC under the Fair Credit Reporting Act (FCRA), alleging procedural violations in procuring, using, and disposing of her consumer report and claiming harms to privacy, reputation, security, and lost time.
- The district court dismissed claims against the City and the law firm under Rule 12(b)(6), and entered judgment on the pleadings for CBC under Rule 12(c); it also ordered destruction of electronic copies and transfer of physical copies of the report.
- The Eighth Circuit vacated the district court’s merits rulings and remanded with instructions to dismiss for lack of Article III jurisdiction because Auer failed to plead a concrete, particularized injury fairly traceable to the defendants’ conduct.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Article III standing to sue under FCRA for procurement/use of report | Auer: procedural FCRA violations and resulting privacy, reputational, security harms and lost time constitute concrete injury | Defendants: Auer consented to the background check; alleged harms are speculative or conclusory and thus not concrete | No standing: consent negates claimed privacy injury; other alleged harms speculative or not plausibly pleaded |
| Disclosure to third party (Smith law firm) under FCRA | Auer: law firm received/furnished report without required certification and used it for unauthorized purposes | Defendants: law firm acted as City representative; disclosure covered by Auer’s consent; plaintiff pleads no concrete misuse | No standing: disclosure to law firm fell within consent; no factual enhancement of misuse or resulting injury |
| Failure to reasonably dispose of consumer information (15 U.S.C. §1681w) | Auer: retention of reports by law firm and CBC violated disposal rules and increased risk of misuse | Defendants: mere retention without actual breach is speculative and does not produce concrete injury | No standing: retention alone, without an actual or imminent data access event, is too speculative to confer Article III standing |
| CBC’s procedural duties in obtaining/furnishing report (various FCRA provisions) | Auer: CBC failed to verify permissible purpose, identify reseller relationship, and comply with disclosure/certification requirements | CBC: even if procedural lapses occurred, Auer consented and CBC did not supply her data to unauthorized parties; causation lacking | No standing: any alleged statutory violations did not cause a concrete injury or harm fairly traceable to CBC’s conduct |
Key Cases Cited
- ABF Freight Sys., Inc. v. Int’l Bhd. of Teamsters, 645 F.3d 954 (8th Cir.) (federal courts must assure Article III jurisdiction)
- Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) (statutory violations require a concrete injury to satisfy Article III)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (standing requires concrete, particularized, actual or imminent injury)
- Clapper v. Amnesty Int’l USA, 568 U.S. 398 (speculative future harms do not establish standing)
- Ashcroft v. Iqbal, 556 U.S. 662 (court need not accept conclusory allegations without factual support)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (pleading standards require factual enhancement beyond bare assertions)
- Braitberg v. Charter Commc’ns, Inc., 836 F.3d 925 (consent can defeat common-law privacy claims and speculative retention claims)
- In re SuperValu, Inc., 870 F.3d 763 (risk of future misuse of consumer data must be concrete and imminent to support standing)
- Heglund v. Aitkin County, 871 F.3d 572 (assessing intangible harms in light of historical analogues)
- Groshek v. Time Warner Cable, Inc., 865 F.3d 884 (procedural FCRA violations do not automatically establish concrete injury)