FCRA Cases and the Justice Antonin Scalia Void

FCRA Cases and the Justice Antonin Scalia Void

By Jessica Cohen Taubman

Justice ScaliaEmployers and their background screening partners were optimistic a Supreme Court ruling in Spokeo v. Robins would establish an actual injury requirement for FCRA-based class action cases to advance through the courts. The Spokeo ruling was expected to settle the controversy created by divided lower court decisions on whether “no-injury” cases have legal standing based upon statutory violation alone or if specific injury must occur.

The sudden passing of Justice Antonin Scalia on February 13, 2016 deprives the Court of a highly respected Justice and a prominent, frequently decisive vote.  It changes what has been generally viewed as a pro-business Court, albeit it narrowly so with frequent 5-4 decisions, to a potentially split Court with 4-4 “non-decisions.” Given the uncertainty as to whether a new justice will join the Court during the Obama administration, legal experts offer at least three possible scenarios regarding the pending Spokeo decision:

  • The current eight Justices could render a decisive decision. Although considered unlikely given the general 50/50 liberal and conservative divide of the Court, Justices have been known to change sides on specific questions.
  • A 4-4 split decision by the Justices would provide no value relative to precedent, maintaining status quo with lower court rulings and making it likely another Spokeo-type case would appear on the docket in 2017 or 2018.
  • The Justices could forgo issuing a decision and list the case for reargument in the next term when a full slate of justices is back on the Court.

While we await Supreme Court action on Spokeo, FCRA litigation marches on. Among recent happenings:

What’s an employer to do? The best course of action is to remain vigilant in complying with FCRA federal and state requirements, especially in the frequently litigated areas of disclosure, authorization, and adverse action. EBI offers a variety of resources to help employers stay informed and compliant. Download our newest whitepaper on adverse action below – “When the Background Check Is Not Good:  An Employer’s Guide to Adverse Action.”


About the Author

Jessica Cohen Taubman

Jessica Cohen Taubman

Jessica Cohen Taubman is the Compliance Manager at EBI. She holds a Juris Doctor from the Emory University School of Law and a Master of Science in Criminology from the University of Pennsylvania, and is an active member of the State Bar of Georgia. Her legal background and experience in various facets of the criminal justice system have helped shape her work in the background screening and drug testing industries.

More From Jessica Cohen Taubman

Featured Blogs

Happy Thursday from Maryland.