February 22, 2017
from the United States District Court for the Eastern
District of Wisconsin. Nos. 2:15-cv-00157-pp,
3:15-cv-00143-jdp - Pamela Pepper, Judge., James D. Peterson,
Bauer and Williams, Circuit Judges, and DeGuilio, [*] District Judge.
the course of a year and a half, Appellant Cory Groshek
submitted 562 job applications to various employers,
including Appellees Time Warner Cable, Inc. and Great Lakes
Higher Education Corporation (collectively,
"Appellees"). The job application, which Appellees
provided to Groshek, included a disclosure and authorization
form informing him that a consumer report may be procured in
making the employment decision; the form also contained other
information, such as a liability release. After Groshek
submitted the job application, along with the signed
disclosure and authorization form, Appellees requested and
obtained a consumer report on him from a third party.
thereafter, Groshek filed a class-action suit against
Appellees under the Fair Credit Reporting Act, 15 U.S.C.
§ 1681 et seq., seeking statutory and punitive
damages for alleged violations of 15 U.S.C. §
1681b(b)(2)(A). This section prohibits a prospective
employer from procuring a consumer report for employment
purposes unless certain procedures are followed: (i) a clear
and conspicuous disclosure has been made in writing to the
job applicant at any time before the report is procured, in a
document that consists solely of the disclosure, that a
consumer report may be obtained for employment purposes
(commonly known as the "stand-alone disclosure
requirement"); and, (ii) the job applicant has
authorized in writing the procurement of the report. See
id. § 1681b(b)(2)(A)(i)-(ii).
complaint, Groshek alleged that Appellees violated §
1681b(b)(2)(A)(i). As the predicate for his claimed statutory
and punitive damages, he alleged that this violation was
willful. See id. § 1681n. Additionally, he
alleged that, as a result of the violation of §
1681b(b)(2)(A)(i), Appellees failed to obtain a valid
authorization from him before procuring a consumer report, in
violation of § 1681b(b)(2)(A)(ii).
moved to dismiss for lack of subject matter jurisdiction,
arguing that Groshek lacked Article III standing because he
did not suffer a concrete injury; Groshek responded that he
suffered concrete informational and privacy injuries. The
district court granted Appellees' motion. This appeal
III of the Constitution limits our review to actual
"Cases" and "Controversies" brought by
litigants who demonstrate standing. The "irreducible
constitutional minimum of standing" consists of three
elements: injury in fact, causation, and redressability
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61
(1992). The plaintiff bears the burden of establishing each
element. Id. at 561. In order to survive a challenge
to standing, a plaintiff must plead sufficient factual
allegations, that "plausibly suggest" each of these
elements. Silha v. ACT, Inc., 807 F.3d 169, 174 (7th
establish injury in fact, Groshek must show that he
"suffered 'an invasion of a legally protected
interest' that is 'concrete and particularized'
and 'actual or imminent, not conjectural or
hypothetical.'" Spokeo, Inc. v. Robins, 136
S.Ct. 1540, 1548 (2016) (quoting Lujan, 504 U.S. at
560). To be "concrete, " an injury "must
actually exist;" it must be "real, " not
"abstract, " but not necessarily tangible.
Id. at 1548-49. In determining whether an alleged
intangible harm constitutes a concrete injury in fact, both
history and Congress' judgment are important.
Id. at 1549.
we consider whether the common law permitted suit in
analogous circumstances. Id. We also recognize that
Congress is well positioned to identify intangible harms that
will give rise to concrete injuries, which were previously
inadequate in law. Id. Nevertheless,
"Congress' judgment that there should be a legal
remedy for the violation of a statute does not mean each
statutory violation creates an Article III injury."
Meyers v. Nicolet Rest. of De Pere, LLC, 843 F.3d
724, 727 (7th Cir. 2016). For instance, a plaintiff cannot
satisfy the injury-in-fact element by alleging a "bare
procedural violation" that is "divorced from any
concrete harm." Spokeo, 136 S.Ct. at 1549.
Instead, the plaintiff must show that the statutory violation
presented an "appreciable risk of harm" to the
underlying concrete interest that Congress sought to protect
by enacting the statute. Meyers, 843 F.3d at 727;
see also Spokeo, 136 S.Ct. at 1549-50.
enacting the FCRA, Congress identified the need to
"ensure fair and accurate credit reporting, " and
"protect consumer privacy." Safeco Ins. Co. v.
Burr, 551 U.S. 47, 52 (2007). "Congress plainly
sought to curb the dissemination of false information by
adopting procedures designed to decrease that risk."
Spokeo, 136 S.Ct. at 1550. The stand-alone
disclosure and authorization requirements are procedures
closely tied to FCRA's overarching goals. Congress was
concerned that employers' authority to obtain consumer
reports on job applicants "may create an improper
invasion of privacy." S. Rep. No. 104-185 at 35 (1995).
Section 1681b(b)(2)(A)(i), the stand-alone disclosure
requirement, is clearly designed to decrease the risk of a
job applicant unknowingly providing consent to the
dissemination of his or her private information. Section
1681b(b)(2)(A)(ii), the authorization requirement, further
protects consumer privacy by providing the job applicant the
ability to prevent a prospective employer from procuring a
consumer report, i.e., by withholding consent. S.
Rep. No. 104-185 at 35 (1995).
Groshek did not allege that Appellees failed to provide him
with a disclosure that informed him that a consumer report
may be obtained for employment purposes. His complaint
contained no allegation that any of the additional
information caused him to not understand the consent he was
giving; no allegation that he would not have provided consent
but for the extraneous information on the form; no allegation
that additional information caused him to be confused; and,
no allegation that he was unaware that a consumer report
would be procured. Instead, he simply alleged that
Appellees' disclosure form contained extraneous
information. We conclude that Groshek has alleged a statutory
violation completely removed from any concrete harm or
appreciable risk of harm.
Groshek argues that he suffered a concrete informational
injury as a result of Appellees' failure to provide a
disclosure compliant with § 1681b(b)(2)(A)(i). As
support, he relies on the general rule arising out of
Federal Election Commission v. Akins,524 U.S. 11 (1998)
and Public Citizen v. Department of Justice, 491
U.S. 440 (1989), two cases that Spokeo referenced as
instances where a ...