Court Holds FCRA Does Not Confer “Statutory Standing” by Benjamin Carnahan
The Tenth District Court of Appeals in Ohio affirmed a Court of Claims decision affirming dismissal of a putative class action against The Ohio State University (“OSU”) under the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. 1681, et seq. OSU moved to dismiss the complaint arguing that plaintiffs lacked standing because they alleged no injury-in-fact from the alleged FCRA violation. In response, Plaintiffs argued that Ohio law specifically recognizes standing even in the absence of an injury-in-fact when standing is conferred by statute, i.e. “statutory standing”. The Court of Claims agreed with OSU and dismissed the claims. Plaintiffs appealed.
In Smith, et al. v. The Ohio State University, 2017-Ohio-8836 (10th Dist.), the appellate court first analyzed common law standing and statutory standing under Ohio law, noting that “Ohio courts are not bound by federal standing principles derived from Article III of the United States Constitution…” Id., para. 10. The appellate court further acknowledged that Ohio has recognized causes of action created by statute so long as the statute “‘clearly expresses an intention to abrogate common-law requirements for standing.'” Id., para. 13, quoting ProgressOhio.org, Inc. v. JobsOhio, 139 Ohio. St.3d. 520. Ultimately, however, the appellate held that FCRA – a federal statute- does not evidence an intent to supplant common-law standing principles in Ohio and, even if it did, such an intent would be improper as an infraction on Ohio’s judicial authority and constitutional separation of powers. Thus, dismissal of the complaint for lack of standing was appropriate; Ohio’s statutory standing exception to common-law standing did not apply to plaintiffs’ FCRA claim.
Interestingly, despite acknowledging Ohio’s statutory standing exception to traditional standing principles, the appellate court nevertheless went on to analyze the United States Supreme Court’s decision in Spokeo, Inc. v. Robins, U.S. , 136 S.Ct. 1540 (2016), as “instructive”. Spokeo held that Congress cannot abrogate Article III standing under the U.S. Constitution through enactment of law. Through its analysis of Spokeo, the Ohio appellate court questioned “the continued validity in Ohio of ‘statutory standing'” which originated out of the Ohio Supreme Court’s interpretation of U.S. Supreme Court case law decided pre-Spokeo. Smith at p. 5, fn1. This comment suggests that the decision could be appealed further to the Ohio Supreme Court.
Any party faced with defending a FCRA claim should analyze whether the opposing party has standing. Through its financial services litigation practice group, the attorneys at Dinn Hochman & Potter, LLC are experienced in the defense of FCRA claims.