Supreme Court Vacancy Leaves Spokeo Outcome Even More Uncertain

This article, written by Jay Varon and Jennifer Keas of Foley & Lardner, was originally published on February 18, 2016 in the Foley & Lardner LLP CFSL Bulletin. It is reprinted with the authors’ permission.

The consumer financial services industry is wondering how the sudden passing of United States Supreme Court Justice Antonin Scalia will affect the pending Spokeo, Inc. v. Thomas Robins case. Spokeo is a key case dealing with whether a class action lawsuit may be brought by a consumer who suffered no actual injury, based solely on a claimed technical statutory violation.

This issue affects providers operating under the Fair Credit Reporting Act (FCRA), the Real Estate Settlement Procedures Act (RESPA), the Telephone Consumer Protection Act (TCPA), and other similar statutes. Because many such laws provide for monetary penalties recoverable by affected consumers, the claims are often brought as class action lawsuits, exposing businesses to the threat of overwhelming liability—even if no one can point to any harm caused by the supposed violation.

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