There is No Standing to Sue for Technical Violations of the Fair Credit Reporting Act

In Dreher v. Experian Information Solutions, Inc. , 856 F.3d 337 (4th Cir. 2017), the United States Court of Appeals for the Fourth Circuit was asked to decide whether the decision of Experian Information Solutions, Inc. (“Experian”), to list a defunct credit card company, instead of the name of its servicer, as a source of information on an individual’s credit report creates a sufficient injury under the Fair Credit Reporting Act (“FCRA”) to satisfy the standing requirements of Article III of the Constitution. The court concluded that the requirements of standing were not satisfied because the plaintiff failed to establish a particular and concrete harm .

Michael Dreher (“Dreher”) was undergoing a background check for a security clearance when the federal government informed him that he was associated with a delinquent credit card account. Dreher received a series of credit reports from different credit agencies, including Experian. The Experian reports listed a delinquent account under the names “Advanta Bank” or “Advanta Credit Cards” (collectively, “Adventa”). To resolve the matter, Dreher sent a letter to Advanta in early 2011and requested verification of the debt that appeared on his credit report. Having not received any response, Dreher sent another letter requesting the same on April 15, 2011, at which point “Dreher received a response on Advanta letterhead dated April 18, 2011, with a March statement showing an outstanding balance of $15,746.94, along with the online credit card application bearing Dreher’s name and social security number.” On May 23, 2011, Dreher sent a follow-up letter “‘instructing [Advanta] to delete the inaccurate information from [his] credit files.’” Having received no response, Dreher contacted Experian to resolve the matter, but his credit report continued to list the delinquent Advanta account. The Avenda account was not deleted from his credit file until June 6, 2012.

By way of background, the Utah Department of Financial Institutions had closed Advanta in 2010 because it failed to withstand the 2008 financial crisis. Thereafter, the Federal Deposit Insurance Corporation (“FDIC”) was named as receiver and Deutsche Bank Trust Company (“Deutsche Bank”) received a security interest in Advanta receivables, appointing CardWorks, Inc., and CardWorks Servicing LLC (collectively, “CardWorks”), as servicer of Advantas portfolio starting August 1, 2010. CardWorks, however, continued to do business using Advanta’s name, phone number, and website, with the goal of “mak[ing] the servicing transfer seem as innocuous as possible.”

Dreher filed a class action lawsuit against Experian and CardWorks in the United State District Court for the Eastern District of Virginia, claiming “Experian willfully violated the FCRA by failing to include the name ‘CardWorks’ in the Advanta tradelines in its credit reports.” The district court certified the class to include:

[a]ll natural persons who: (1) requested a copy of their consumer discourse from Experian on or after August 1, 2010; (2) received a document in response that identified “Advanta Bank” or “Advanta Credit Cards” as the only source of information for the tradelines; (3) and whose “date of status” or “last reported” field reflected a date of August 2010 or later.

The district court found that Experian willfully violated the FCRA as a matter of law because “no jury could find Experian’s intentional omission of CardWorks [from the credit report] was objectively reasonable.” The district court, however, did not analyze whether the injury at issue was specific and concrete. Instead, it determined that any violation of the FCRA would be enough to create an injury sufficient for standing under Article III of the Constitution. Experian appealed on the grounds that the Dreher had not satisfied the threshold requirements for standing.

The Fourth Circuit applied the three prong test enunciated in Lujan v. Defenders of Wildlife , 504 U.S. 555 (1992), to determine whether the requirements of standing were satisfied. The court explained that Dreher “must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Relying on Spokeo, Inc. v. Robins , 136 S. Ct. 1540 (2016), as revised (May 24, 2016), the Fourth Circuit stated “[t]o establish injury in fact ‘a plaintiff must show that [he/she] suffered an invasion of a legally protected interest’ that is [ both ] ‘ concrete and particularized [,]” noting that the two requirements are “quite different.” (emphasis added). A concrete injury is one that ‘“actually exist[s], and is ‘real, and not abstract[.]’” The court emphasized, however, that “[c]oncreteness” “is not . . . necessarily synonymous with ‘tangible.’”

The Fourth Circuit reiterated the Supreme Court’s position in Spokeo that in determining whether an intangible harm constitutes an injury in fact ‘“history and the judgment of Congress play important roles.’” It explained that a claimant cannot automatically satisfy this requirement “just because ‘a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right.”’ The court further explained that “a bare procedural violation divorced from any concrete harm” does not satisfy the constitutional requirement of an injury in fact. One type of intangible injury that can constitute an injury in fact, however, is “informational injury.”

Dreher alleged he suffered a cognizable “informational injury” because he was denied information he was entitled to under the FCRA. He relied on a provision of FCRA that stated that a consumer reporting agency “shall, upon request . . . clearly and accurately disclose to the consumer . . . [t]he sources of the information [in the consumer’s file at the time of the request].” (emphasis added). The Fourth Circuit disagreed with Dreher. Relying on a recent decision of the United States Court of Appeals for the District of Columbia Circuit, the court determined that to satisfy Article III standing requirements, “a plaintiff [must] suffer[] a concrete informational injury where he is denied access to information required to be disclosed by statute and he ‘suffers, by being denied access to that information, the type of harm Congress sought to prevent by requiring disclosure.’” (emphasis in original). The court found that Dreher failed to show “how viewing the name ‘Advanta’ rather than ‘CardWorks’ adversely affected his conduct[.]” The court further found that Dreher was able to obtain a fair and accurate credit report, received the information he needed to cure his credit issues, and ultimately was able to resolve those issues. Moreover, Dreher’s background check process was not in any way undermined as a result. Because Dreher had failed to show a concrete injury sufficient to satisfy Article III standing, the Court vacated the district court’s judgment, and instructed that the class action be dismissed on jurisdictional grounds.

Dreher is an important decision because companies may violate the FCRA, and other statutes, potentially without facing liability for those violations if the claimant(s) cannot establish an injury in fact to satisfy Article III standing requirements.

If you have any questions regarding this post, please contact Stephen B. Stern at sstern@hwlaw.com or (410) 260-6585 or Amitis Darabnia at adarabnia@hwlaw.com or (410) 260-6592.

DISCLAIMER: This Blog/Website is for educational purposes and to provide readers with general information about developments in the law. This Blog/Website is not intended and should not be relied on for legal advice. This Blog/Website does not constitute an advertisement for legal services and it does not endorse, promote, or recommend the products, services, or websites of any third party. Reading, reviewing, or any other use of this Blog/Website does not create an attorney-client relationship between the reader and the firm or any attorney at the firm.

Nursing Home Negligence: A Case Study

A recent Hyatt & Weber client, a disabled woman in her 50s, was admitted to the hospital for increased weakness and decreased level of functioning. She was later transferred to a nursing home for rehabilitation. In her medical chart, it was clearly expressed that she needed to receive special care and attention due to her health condition.

Because of the state of her health, our client needed assistance moving, turning over, and other basic physical functions. The medical records also documented she was at high risk to develop pressure ulcers To avoid the ulcers, the care plan and physician orders stated that the nurses should have performed weekly skin assessments and document the changes. The plan also indicated that she needed to be repositioned regularly so that there would be no extensive pressure or blood loss to any part of her body.

Evidence

Sadly, the poor documentation and inability to follow the care plan led to the client developing an unstageable, odorous pressure ulcer on her sacrum, a triangular bone that sits between the two hipbones of the pelvis. An unstageable pressure ulcer is one that envelops the full thickness of the skin tissue and the wound is covered by a thick, yellow layer of slough making it hard to determine the true depth. The pressure ulcer was so severe, she developed sepsis and lost much of her ability to walk. Several surgeries were required—surgeries that could have easily been avoided with the proper care.

Upon investigation, the nursing home’s negligence was impossible to miss. Records showed that she spent significant time in a wheelchair around the nursing home, and there was no effort of thenursing home staff documented to reposition her or to reduce the pressure on the sacrum by offloadinbg through the use of cushions and a specialty mattress. Additionally, there was no account of any skin breakdown or symptoms of a potential pressure ulcer until it was too late. In fact, nursing assessments and notes stated that the skin was intact and there were no problems within hours of transfer for surgery.

Settlement

Armed with the clear evidence of neglect, the medical malpractice team at Hyatt & Weber was able to successfully advocate for our client’s right to quality nursing home care. The case was settled out of court in the amount of $535,000.

Do not let nursing homes mistreat your love ones. In their final years of life, they deserve the best care that can be offered. If your loved one is being neglected in a nursing home and you’re ready to take legal action, call Hyatt & Weber at (410) 384-4316.

Can Rescinded Notice of Termination Constitute Adverse Employment Action Giving Rise to an Employment Discrimination Claim?

In Shultz v. Congregation Shearith Israel of the City of New York , — F.3d –, No. 16-3140-cv, 2017 WL 3427130 (2d Cir. Aug. 10, 2017), the United States Court of Appeals for the Second Circuit held that a cause of action may be based on a notice of termination effective in three weeks even though the termination was revoked prior to its effective date.

In Shultz , Alana Shultz worked as a Program Director for a synagogue in New York City. Shultz got married on June 28, 2015 and, prior to leaving for her honeymoon, she advised the synagogue’s Executive Director that she was pregnant. When Shultz returned from her honeymoon on July 20, 2015, she was visibly pregnant and had a meeting with the Executive Director about the pregnancy. Later that day, Shultz met with the Executive Director, one of the congregation’s rabbis, and a member of the Board of Trustees, where she was informed that her employment was being terminated effective August 14, 2015 because one of the rabbis was leaving the congregation and her position was being eliminated as part of a restructuring. On July 30, Shultz’s lawyer had advised the congregation that Shultz had retained counsel to pursue claims arising out of her termination from employment. On August 5, 2015, the congregation presented Shultz with a letter advising her that she had been “reinstated” as the Program Director and, thus, her employment would not terminate effective August 14, 2015. Shultz alleges, however, that after receiving this letter, she was subjected to a pattern and practice of repeat discrimination, leading Shultz not to return to work after August 14, 2015.

Shultz filed suit in federal district court, alleging sex discrimination and retaliation under Title VII of the Civil Rights Act of 1964, as amended (“Title VII”), violations of similar provisions under New York City and New York State law, interference with exercising her rights under the Family and Medical Leave Act (“FMLA”), and defamation. The synagogue filed a motion to dismiss for failure to state a claim upon which relief could be granted, which the court granted. Shultz then appealed to the Second Circuit.

The Second Circuit focused on the issue of whether the synagogue’s rescission of Shultz’s termination of employment meant that there was no adverse employment action and, thus, no basis upon which Shultz could state a claim. The court noted that it was an issue of first impression for it to determine whether a notice of termination that is rescinded before the termination becomes effective constitutes an adverse employment action. Second Circuit precedent had defined adverse employment action to require a “materially adverse change in working conditions” that is “more disruptive than a mere inconvenience or an alteration of job responsibilities.” Examples of adverse employment actions provided by the court included termination of employment, demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished job responsibilities, or other indices that are unique to the particular situation.

The court acknowledged that both Shulz and the congregation had appealing arguments as to why Shultz did or did not suffer an adverse employment action, but it deferred to guidance from the United States Supreme Court in notice cases involving issues that concerned the applicable statute of limitations. In those cases, the Supreme Court determined that a claim is actionable “when the employer notifies the employee [s]he is fired, not on the last day of h[er] employment.” Although the Second Circuit noted that the Supreme Court has not addressed whether a rescinded notice of termination constitutes an adverse employment action, the Second Circuit concluded that the notice cases regarding statute of limitations issues provided the necessary guidance because those cases held that a claim accrues “when the plaintiff has a complete and present cause of action.” The Second Circuit continued by explaining, “rescission of the notice at a point after the cause of action has accrued cannot eliminate the adverse employment action that has already occurred, and negate an accrued claim for relief.”

Despite this holding, the court recognized there might be limitations to its reach. For example, the court noted that it was not deciding “whether in some instances the period of time between the notice of firing and its rescission may be so short as to render the termination de minimis .” The court explained that this was not such a case, however, because the congregation did not attempt to rescind the termination for two weeks. The court further noted that its holding “does not apply to other types of potential adverse employment actions that an employer may seek to rescind at a later date[,]” explaining that termination of employment is a more anxiety provoking adverse action and “less significant employment actions taken by an employer, such as placing a counseling letter in an employee file, do not constitute adverse employment actions where they have been rescinded.”

Notably, the Second Circuit did not conclude that a subsequent rescission of an adverse employment action was without any legal significance whatsoever. In this regard, the court noted that the “consequences [for the subsequent rescission] come into play in connection with the calculation of damages.” The consequences or effect of the rescission could not be determined at the motion to dismiss stage, however, as those determinations are fact intensive and turn on the facts of each case.

For these reasons, the Second Circuit vacated and remanded the discrimination, retaliation, and interference claims, but affirmed the remaining decisions of the district court for reasons that are beyond the scope of this blog post.

The Second Circuit’s decision in Shultz is significant because it holds that employees have accrued a cause of action upon receiving notice of an adverse employment action, particularly termination of employment, even if that termination is subsequently rescinded before the termination takes effect. It will be interesting to see how the Second Circuit’s ruling is applied in other contexts, such as when the notice of termination is so short that it is “de minimis” or when other adverse employment actions are implemented and later rescinded. While it is encouraging for employers that they might have some wiggle room to avoid a claim if an adverse action is later rescinded, it is unclear how courts will reconcile that conclusion with the notion that a cause of action accrues the moment the employee is informed of the allegedly unlawful adverse employment action. On the other hand, these situations may not arise very often, as the potential to limit damages when an adverse employment action is rescinded may make a plaintiff’s damages claim so de minimis that those claims are not brought or are quickly resolved.

If you have any questions regarding this post, please contact Stephen B. Stern at sstern@hwlaw.com or (410) 260-6585.

DISCLAIMER: This Blog/Website is for educational purposes and to provide readers with general information about developments in the law. This Blog/Website is not intended and should not be relied on for legal advice. This Blog/Website does not constitute an advertisement for legal services and it does not endorse, promote, or recommend the products, services, or websites of any third party. Reading, reviewing, or any other use of this Blog/Website does not create an attorney-client relationship between the reader and the firm or any attorney at the firm.

Hyatt & Weber Attorneys Recognized as Best Lawyers and Super Lawyers

Hyatt & Weber, P.A. is proud to announce that Paul Weber has once again been recognized by his peers in Best Lawyers in America 2018 Edition , the oldest and most respected peer review publication in the legal profession. Paul has been recognized in Insurance Law, Personal Injury Litigation and Medical Malpractice Law every year since 2008.

In addition, Paul, Mark Rosasco and Chris Buck have all been selected to 2018 Maryland Super Lawyers, a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. They are recognized in the following practice areas:

Paul Weber : Top Rated Medical Malpractice Attorney

Mark Rosasco : Top Rated Personal Injury Attorney

Chris Buck : Top Rated Business Litigation Attorney

Website Inaccessible to Visually Impaired Violated the Americans with Disabilities Act

In Gil v. Winn-Dixie Stores, Inc. , Civil Action No. 16-23030-Civ-Scola, (S.D. Fla. June 13, 2017), the United States District Court for the Southern District of Florida ruled after a bench trial that Winn-Dixie Stores, Inc. (“Winn-Dixie”), violated Title III of the Americans with Disabilities Act (“ADA”) because its website was inaccessible to a visually impaired customer.

The facts in this case largely were not disputed. Juan Carlos Gil is legally blind and has cerebral palsy, but he wears glasses to help protect his eyes from foreign objects. Gil is able to use a computer, even though he cannot see the screen, by using technology, such as JAWS or occasionally other screen reader software. By using this software, every time he hits the tab key or shift tab, the program will instruct him on what he needs to type. Gil has been a customer of Winn-Dixie for a number of years, finding its prices are reasonable, which is particularly helpful considering his modest income. Among other things, Gil uses the Winn-Dixie to fill prescriptions, but the last time he used the Winn-Dixie pharmacy was about two and one-half to three years ago.

In 2015 or 2016, Gil learned that Winn-Dixie had a website and he was informed that it was accessible to the visually impaired. Gil wanted to refill his prescriptions online so he did not have to orally announce at the store what mediations he was filling. When he accessed the website, however, approximately 90% of the tabs did not work and he was unable to access sub-categories of material on the website, including the store locator. While Gil has experienced some companies putting an accessibility notice on their website to advise individuals that they are working on improving the website for the visually impaired, he found no such notice on the Winn-Dixie website. In contrast, Gil has found Publix and Walgreens had accessible websites with his screen reader software. During the trial, a representative of Winn-Dixie testified that Winn-Dixie was presently building an ADA policy for its website, but it was not effective yet. To this end, Winn-Dixie had set aside $250,000 for the project to make its website accessible.

If a webpage is using the industry standard (Web Content Accessibility Guidelines (“WCAG”) or following the World Wide Web Consortium accessibility guidelines, then the screen reader software should work on the website. Chris Keroack works at Equal Entry, a company that tests mobile and web software for accessibility issues. Keroack conducted an analysis of the Winn-Dixie website (including the sections of the site designed for digital coupons, store locator, and pharmacy). He concluded that most of the accessibility problems could be remedied with simple modifications of one or two source codes, which he estimated his company could fix for a cost of approximately $37,000 (which would include a full audit of the website), and it is generally not difficult to coordinate with third parties, such as Google Maps for store locator purposes.

Title III of the ADA (the public accommodation provision, as opposed to the employment provision) prohibits the owner of a place of public accommodation from discriminating “on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, adventures, or accommodations of any place of public accommodation.” The ADA defines “public accommodation” as a private entity whose operations affect commerce within one of twelve enumerated categories. The court noted that courts are split as to whether the ADA limits places of public accommodation to physical spaces. The court further noted that courts that have held the ADA applies only to physical spaces also have held that the goods and services provided by the place of public accommodation must have a sufficient nexus to a physical space in order for the ADA to apply. Although the United States Court of Appeals for the Eleventh Circuit (the appellate court governing the Southern District of Florida) had not ruled on whether websites constitute places of public accommodation under the ADA, the court noted that the Eleventh Circuit had stated that Title III of the ADA covers both tangible, physical barriers and “intangible barriers, such as eligibility requirements and screening rules or discriminatory policies and procedures that restrict a disabled person’s ability to enjoy the defendant entity’s goods, services and privileges.” The court also noted that other courts have held “[w]here a website is heavily integrated with physical store locations and operates as a gateway to the physical store locations . . . the website is a services of a public accommodation and is covered by the ADA.”

The court concluded that Winn-Dixie’s website is a place of public accommodation because “the website is heavily integrated with Winn-Dixie’s physical store locations and operates as a gateway to the physical store locations.” The court rejected Winn-Dixie’s argument that Gil had not suffered any harm because he was not denied access to the physical store locations as a result of the inaccessible website. To this end, the court explained that the ADA does not limit its requirements to physical access, but to the “full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.” The court specifically noted that Winn-Dixie’s website offered an “online pharmacy management system, the ability to access digital coupons that link automatically to a customer’s rewards card, and the ability to find store locations,” which were “undoubtedly services, privileges, advantages, and accommodations offered by Winn-Dixie’s physical store locations” and which were “especially important for visually impaired individuals since it is difficult, if not impossible, for such individuals to use paper coupons found in newspapers or in the grocery stores, to locate the physical stores by other means, and to physically go to a pharmacy location in order to fill prescriptions.” As a result of these findings, the court issued an injunction, requiring Winn-Dixie to make its website accessible to visually impaired individuals, the details of which are beyond the scope of this blog post, and the court awarded Gil the attorneys’ fees and costs he incurred in this case.

The court’s decision in Gil is significant because it joined the courts that have found websites can be places of public accommodation that require accessibility for individuals with disabilities, including individuals who are visually impaired. As companies continue to integrate their websites into their overall business plan and customer experience, it appears likely that more courts will come to similar outcomes. Thus, companies should be mindful of potential ADA ramifications when constructing their websites, including how courts in the jurisdictions where they operate have ruled on these issues.

If you have any questions regarding this post, please contact Stephen B. Stern at sstern@hwlaw.com or (410) 260-6585.

DISCLAIMER: This Blog/Website is for educational purposes and to provide readers with general information about developments in the law. This Blog/Website is not intended and should not be relied on for legal advice. This Blog/Website does not constitute an advertisement for legal services and it does not endorse, promote, or recommend the products, services, or websites of any third party. Reading, reviewing, or any other use of this Blog/Website does not create an attorney-client relationship between the reader and the firm or any attorney at the firm.

How to Spot Nursing Home Negligence

In a perfect world, a person’s age would not determine the quality of care they receive. Unfortunately, a fast-growing number of legal cases have shown that, too often, seniors in nursing homes can easily fall into neglectful care situations.

While it may not be malicious, quality of care can decline for elderly patients for many reasons. The facility may be understaffed. The caretakers may be underqualified to handle the complex needs of senior patients. In some instances, simple laziness and indifference for patients’ wellbeing may be to blame.

If you have a loved one in a nursing home, there are warning signs you can look for to determine if they are not receiving the level of care that they deserve.

A Lack of Communication

It is important to make sure you, the doctor, and your loved one (if it is within their physical and cognitive abilities) have an open flow of communication. Have the doctor explain to both you and the patient what the medical plan is, so everyone understands the type of care and treatment that should be expected.

If the staff of the facility seems unable or unwilling to discuss their treatment in detail, it may be because the treatment is not up to par. Regularly ask your loved one if they are being treated well by the doctor and the staff. If they don’t seem pleased, bring it to the staff’s attention right away.

Pressure Ulcers

While communication with the doctor is necessary, it may not always give you the full information you need to determine how your loved one is being cared for. You may need to examine the patient yourself for any physical signs of neglect or abuse. A very common warning sign is pressure ulcers.

Many nursing home residents are unable to walk or have difficulty walking, so they spend significant stretches of time in a wheel chair or in their bed. If they are not regularly adjusted, helped out of bed to bathe, or otherwise mobile, the pressure put on certain parts of their body can cause decreased blood flow, which leads to cell death and ulcers.

Other factors such as poor nutrition and dehydration can also increase the risk of developing pressure ulcers. Make sure you are regularly checking areas where they occur most commonly, such as the lower back, hips, and back of the head.

Bruising

Another sign you can look for is bruising on the skin. Because of their age, nursing home patients do tend to bruise more easily than others. However, large bruises can also be warning signs of abuse or neglect. If you see a bruise, be sure to ask a nurse about it and look on the patient’s medical chart for reports of any falls or injuries. If the patient had a major fall and you were not contacted, that could be a red flag. Also, pay close attention to the shape of the mark. If the bruise was caused by physical abuse, it would likely appear in the shape of a hand.

What To Do If You Suspect Nursing Home Negligence

If you have any reason to believe that your loved one is being neglected or abused at a nursing home and you aren’t getting the information or answers you need from the staff, it may be time to seek legal action.

We at Hyatt & Weber handle many cases of nursing home abuse , including mismanagement of care, failure to provide care, failing to have appropriate staff on site, underqualified individuals providing care, and care that’s rendered by people who shouldn’t be providing care, among others. Contact our office at (410) 384-4316 to learn more about how we can help.

Hyatt & Weber Sponsors XPX Summer Networking

Hyatt & Weber invites you to join us for hot summer networking with XPX Maryland!

Take advantage of longer days and warmer weather to join XPX Maryland at Vito’s Ristorante for an evening of summer fun networking. This event is a unique opportunity to connect with colleagues, create new relationships and celebrate summer.
Hyatt & Weber is proud to sponsor this event!
Heavy appetizers, wine and beer will be provided (cash bar for other beverages).

August 23, 2017
4:30 – 7:30 pm
Vito’s Ristorante
10249 York Road
Cockeysville, MD

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Non-member rate through 8/8: $65

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Learn more about XPX Maryland .