Last week, the decision in the Spokeo case influenced a California court’s decision to certify a class in a Fair Credit Reporting Act (FCRA) case. The class of applicants who claim that S2Verify, a background check company, unlawfully included criminal information in their reports, includes approximately 4,500 individuals who were subject to S2Verify reports from June 2013 to February 2014, and whose reports included criminal charges, arrests or indictments that did not result in a conviction that were over seven years old. Lead plaintiff, Regmon L. Hawkins, claims that his background check included past drug arrests that were older than seven years, which is prohibited by the FCRA.
California federal judge, William Alsup, said in this order that this FCRA class action met the numerosity, commonality, typicality and adequacy requirements for granting class certification. The order specifically said that this case should proceed based on the “concreteness” test that the Supreme Court set forth in Spokeo. Judge Alsup’s order read, “The [Spokeo] court acknowledged, however, that ‘intangible’ injuries can be concrete and that the ‘risk of harm’ can satisfy the requirement of concreteness in some cases.” S2Verify argued against certification, and questioned Hawkins’ ability to serve as a class representative since this is his third lawsuit against a consumer reporting agency with the same legal counsel representing him. However, despite S2Verify’s arguments, Judge Alsup said, “S2Verify [ ] sent restricted information about plaintiff into the world and as such caused injury to plaintiff’s privacy interest.”