HomeWebcastFCRA Class Actions: Minimizing Litigation Woes for Employers
FCRA Class Actions CLE/CPE CLE

FCRA Class Actions: Minimizing Litigation Woes for Employers

Live Webcast Date: Wednesday, April 27, 2016 from 12:00 pm to 2:00 pm (ET)
Legal (CLE)Recording

FCRA Class Actions CLE/CPE

Join us for this Knowledge Group FCRA Class Actions CLE/CPE Webinar. The recent uptick of Fair Credit Reporting Act (FCRA) class actions against employers are starting to faze the employment industry. As FCRA applies to businesses using consumer reports for employment purposes, employers are easy targets of lawsuits if they even arguably fail to comply with the statute’s disclosure and organization provisions. Thus, it is critical for employers to understand how courts and plaintiffs are interpreting the statute and review their policies to minimize potential litigation woes.

In this two-hour Webcast, a panel of distinguished professionals and thought leaders assembled by the Knowledge Group will help the audience understand the important aspects of this significant topic. They will provide an in-depth discussion of FCRA class actions and offer best practices for developing and implementing effective policies to mitigate risks and ensure compliance with applicable laws.

Key topics include:

  • Fair Credit Reporting Act (FCRA) – An Overview
  • FCRA Requirements
  • Hyper-technical Interpretations of the Statute
  • Rise of FCRA Class Action Litigation
  • Lessons from Recent FCRA Settlements and Cases
  • Class Action Prevention and Defense Schemes

Agenda

SEGMENT 1:
Jeffrey S. Ranen, Partner
Lewis Brisbois Bisgaard & Smith LLP
  • Overview of the FCRA:
    • What is the FCRA?
    • What does the FCRA cover?
  • Most common FCRA Claims Against Employers
  • Most Common Mistakes by Employers 

SEGMENT 2:
Michael P. Daly, Partner
Drinker Biddle & Reath LLP
  • The “consists solely of the disclosure” and “authorized in writing” requirements
  • “Willful” violations and the significance of statutory damages on class certification.
  • The Article III injury-in-fact requirement and  “no injury” class actions
  • The inferiority of class actions seeking disproportionate statutory damages
  • Deploying arbitration agreements and class action waivers in application documents
  • Differences between federal and state disclosure and authorization requirements

SEGMENT 3:
David N. Anthony, Partner
Troutman Sanders LLP

FCRA background & Overview

  • Not just about credit reporting
    • Overall Requirements:
      • Consumers’ Rights:
        • Access data
        • Dispute and correct inaccurate data
      • Duties of Users/Employers:
        • Provide notice to consumers before “adverse” decisions are made
      • Duties of CRAs:
        • Protect data and only provide for a permissible purpose
        • Maintain accuracy and investigate disputes
        • Report certain data and not other data
  • FCRA applies to:
    • Insurance (underwriting)
    • Financial Institutions
    • Debt Collections
    • Government Benefits
    • Employment Screening
    • Tenant Screening

Most common claims 

  • Claims against Credit Reporting Agencies
    • Reporting inaccurate information
    • Failing to conduct a reasonable investigation after receiving consumer dispute
    • Failing to conduct a timely re-investigation
    • Failing to have reasonable policies and procedures in place
    • Mixed files/identity theft
  • Claims against Furnishers of Information
    • Failing to conduct a reasonable investigation after receiving consumer dispute
    • Failing to conduct a timely re-investigation
    • Failing to correct and update
    • Mixed files/identity theft
    • Failing to have a permissible purpose
  • Claims against Employers – know whether you are responsible or the CRA is responsible for the required tasks
    • Disclosure forms
    • Summary of Rights
    • Adverse Action Notices
    • Permissible purpose certification
  • Claims against Background Screening Companies
    • Reporting obsolete information
    • Permissible purpose claims
  • Claims against Resellers of Information
    • Failing to pass a consumer dispute to a national credit reporting agency

Unique issues in class cases

  • Difference in nature of litigation – litigating the merits of an FCRA claim versus adding class action issues
  • Difference between individual and class settlements generally:
    • Individual
      • Individual settlements typically are subject to confidentiality provisions and require no court approval process
    • Class settlements
      • Class settlements require preliminary approval of the terms of the settlement and plan for notice, notice to class members, and final approval
      • Preliminary Approval
      • Final Approval
      • Administration
        • Notice
          • If case is subject to CAFA, must give notice to appropriate government officials and adhere to time period for final approval after notice is given.  See 28 U.S.C. § 1715
          • Final approval cannot occur earlier than 90 days after the last appropriate government official is notified
  • Statutory Damages vs. Actual Damages
    • Actual Damages
      • Meant to compensate class members
      • Difficult to obtain class certification when actual damages alleged – individualized inquires
      • Requires a uniform system of proof in the class context
    • Statutory Damages
      • Amorphous, not always clear guidance on how to calculate
      • Some statutes explicitly provide for them (see FCRA)
      • Other statutes do not have explicit provisions
      • Must prove willfulness
      • Open issue regarding statutory, no-harm damages and whether Article III jurisdiction is established (Spokeo)
    • Negligence vs. Willfulness under the FCRA
      • Willful violation means liability for: (1) either actual damages sustained by the consumer or statutory damages of not less than $100 and not more than $1,000; (2) punitive damages in an amount “as the court may allow;” and (3) reasonable attorneys’ fees and costs
        • Discussion of Safeco
        • No statutory cap
      • Negligent violation limits liability to: (1) any actual damages suffered by the plaintiff; and (2) reasonable attorneys’ fees and costs

 Disclosure forms

  • § 1681b(b)(2)(A)(i)
    • A vast majority of claims under § 1681b(b)(2)(A)(i) relate to whether the disclosure had been made in a document that consists solely of the disclosure.
    • Claims relating to violation of the “solely” requirement:
      • including a waiver of liability in the disclosure
      • including the disclosure in the company’s employment application and not as a “stand alone” document
      • including other extraneous information in the disclosure
    • Obtaining the consumer’s authorization in writing – what does this mean for electronic applications?

Adverse action notices

  • § 1681b(b)(3)(A)(i) and (ii)
    • Failure to send current version of summary of rights and current consumer report at least five business days prior to adverse action based on public record information
    • Making adverse decision before expiration of five-day period
    • Using outdated forms of notice in conjunction with pre-adverse action notice
    • Contending that background screening companies that make an employment decision on behalf of the employer themselves have a pre-adverse action obligation.

Settlements and how to defend them

  • Attacking class certification under Rule 23
    • Ascertainability
    • Numerosity
    • Commonality
    • Typicality
    • Superiority
    • Predominance
  • Recent Notable FCRA Employment-related settlements
    • Whole Foods
    • Food Lion
    • Publix

SEGMENT 4:
Scott M. Paler, Partner
DeWitt Ross & Stevens S.C.
  • With background screening litigation increasing, it is more important than ever for organizations to internally audit their screening procedures.
  • A written background screening policy can both lower the risk of background screening lawsuits and provide leverage if a suit arises.
  • Insurance policies can provide an additional source of protection from background screening claims, but such policies can vary in how much they help.

Who Should Attend

  • Employment Law Attorneys
  • Attorneys defending class actions
  • HR Personnel
  • In-house Counsel
  • Employers
  • Compliance and Risk Officers
  • Criminal and Civil Litigators
  • Litigation Officers
  • Litigation Support Specialists
  • Records & Information Directors/Managers
  • Top Level Management
  • Public and Private Companies
  • Other Interested Professionals and Organizations

FCRA Class Actions CLE/CPE

SEGMENT 1:
Jeffrey S. Ranen, Partner
Lewis Brisbois Bisgaard & Smith LLP
  • Overview of the FCRA:
    • What is the FCRA?
    • What does the FCRA cover?
  • Most common FCRA Claims Against Employers
  • Most Common Mistakes by Employers 

SEGMENT 2:
Michael P. Daly, Partner
Drinker Biddle & Reath LLP
  • The “consists solely of the disclosure” and “authorized in writing” requirements
  • “Willful” violations and the significance of statutory damages on class certification.
  • The Article III injury-in-fact requirement and  “no injury” class actions
  • The inferiority of class actions seeking disproportionate statutory damages
  • Deploying arbitration agreements and class action waivers in application documents
  • Differences between federal and state disclosure and authorization requirements

SEGMENT 3:
David N. Anthony, Partner
Troutman Sanders LLP

FCRA background & Overview

  • Not just about credit reporting
    • Overall Requirements:
      • Consumers’ Rights:
        • Access data
        • Dispute and correct inaccurate data
      • Duties of Users/Employers:
        • Provide notice to consumers before “adverse” decisions are made
      • Duties of CRAs:
        • Protect data and only provide for a permissible purpose
        • Maintain accuracy and investigate disputes
        • Report certain data and not other data
  • FCRA applies to:
    • Insurance (underwriting)
    • Financial Institutions
    • Debt Collections
    • Government Benefits
    • Employment Screening
    • Tenant Screening

Most common claims 

  • Claims against Credit Reporting Agencies
    • Reporting inaccurate information
    • Failing to conduct a reasonable investigation after receiving consumer dispute
    • Failing to conduct a timely re-investigation
    • Failing to have reasonable policies and procedures in place
    • Mixed files/identity theft
  • Claims against Furnishers of Information
    • Failing to conduct a reasonable investigation after receiving consumer dispute
    • Failing to conduct a timely re-investigation
    • Failing to correct and update
    • Mixed files/identity theft
    • Failing to have a permissible purpose
  • Claims against Employers – know whether you are responsible or the CRA is responsible for the required tasks
    • Disclosure forms
    • Summary of Rights
    • Adverse Action Notices
    • Permissible purpose certification
  • Claims against Background Screening Companies
    • Reporting obsolete information
    • Permissible purpose claims
  • Claims against Resellers of Information
    • Failing to pass a consumer dispute to a national credit reporting agency

Unique issues in class cases

  • Difference in nature of litigation – litigating the merits of an FCRA claim versus adding class action issues
  • Difference between individual and class settlements generally:
    • Individual
      • Individual settlements typically are subject to confidentiality provisions and require no court approval process
    • Class settlements
      • Class settlements require preliminary approval of the terms of the settlement and plan for notice, notice to class members, and final approval
      • Preliminary Approval
      • Final Approval
      • Administration
        • Notice
          • If case is subject to CAFA, must give notice to appropriate government officials and adhere to time period for final approval after notice is given.  See 28 U.S.C. § 1715
          • Final approval cannot occur earlier than 90 days after the last appropriate government official is notified
  • Statutory Damages vs. Actual Damages
    • Actual Damages
      • Meant to compensate class members
      • Difficult to obtain class certification when actual damages alleged – individualized inquires
      • Requires a uniform system of proof in the class context
    • Statutory Damages
      • Amorphous, not always clear guidance on how to calculate
      • Some statutes explicitly provide for them (see FCRA)
      • Other statutes do not have explicit provisions
      • Must prove willfulness
      • Open issue regarding statutory, no-harm damages and whether Article III jurisdiction is established (Spokeo)
    • Negligence vs. Willfulness under the FCRA
      • Willful violation means liability for: (1) either actual damages sustained by the consumer or statutory damages of not less than $100 and not more than $1,000; (2) punitive damages in an amount “as the court may allow;” and (3) reasonable attorneys’ fees and costs
        • Discussion of Safeco
        • No statutory cap
      • Negligent violation limits liability to: (1) any actual damages suffered by the plaintiff; and (2) reasonable attorneys’ fees and costs

 Disclosure forms

  • § 1681b(b)(2)(A)(i)
    • A vast majority of claims under § 1681b(b)(2)(A)(i) relate to whether the disclosure had been made in a document that consists solely of the disclosure.
    • Claims relating to violation of the “solely” requirement:
      • including a waiver of liability in the disclosure
      • including the disclosure in the company’s employment application and not as a “stand alone” document
      • including other extraneous information in the disclosure
    • Obtaining the consumer’s authorization in writing – what does this mean for electronic applications?

Adverse action notices

  • § 1681b(b)(3)(A)(i) and (ii)
    • Failure to send current version of summary of rights and current consumer report at least five business days prior to adverse action based on public record information
    • Making adverse decision before expiration of five-day period
    • Using outdated forms of notice in conjunction with pre-adverse action notice
    • Contending that background screening companies that make an employment decision on behalf of the employer themselves have a pre-adverse action obligation.

Settlements and how to defend them

  • Attacking class certification under Rule 23
    • Ascertainability
    • Numerosity
    • Commonality
    • Typicality
    • Superiority
    • Predominance
  • Recent Notable FCRA Employment-related settlements
    • Whole Foods
    • Food Lion
    • Publix

SEGMENT 4:
Scott M. Paler, Partner
DeWitt Ross & Stevens S.C.
  • With background screening litigation increasing, it is more important than ever for organizations to internally audit their screening procedures.
  • A written background screening policy can both lower the risk of background screening lawsuits and provide leverage if a suit arises.
  • Insurance policies can provide an additional source of protection from background screening claims, but such policies can vary in how much they help.

FCRA Class Actions CLE/CPE

FCRA Class Actions CLE/CPE

Jeffrey S. RanenPartnerLewis Brisbois Bisgaard & Smith LLP

Jeff Ranen is a Vice Chair of the firm’s Employment Law Department and Co-Chair of the firm’s national Wage and Hour Class Action Department. His practice is dedicated exclusively to defending employers in employment litigation and counseling. In 2007 Mr. Ranen became the youngest partner in the history of the law firm. He is known for his intellectual aggressiveness, accurate evaluation of cases, early case resolution strategies, and working with employers to make business-savvy decisions with respect to approaching litigation – whether that means taking the case to trial or settling early on. Mr. Ranen is involved in all aspects of employment-related litigation, including firstchairing trials before juries and arbitrators. His robust practice includes defending employers in wrongful termination, discrimination, harassment, retaliation, breach of contract, ADA access, trade secret litigation, and Fair Credit Reporting Act (FCRA) class actions. Mr. Ranen and his team also provide preventative counseling to employers regarding all employment practices, including drafting and auditing employee handbooks, preparing employment and severance agreements, drafting and reviewing employment applications for FCRA compliance, presenting sexual harassment prevention seminars, and evaluating termination decisions. There are very few attorneys in the State of California who have successfully defended more wage and hour and consumer class actions than Mr. Ranen. He has defended well over 175 such class lawsuits, including defeating class certification or getting the cases dismissed at the outset. Mr. Ranen is a prolific speaker on wage and hour topics, and presents numerous seminars each year on helping employers avoid the pitfalls of class action litigation.

FCRA Class Actions CLE/CPE

Michael P. DalyPartnerDrinker Biddle & Reath LLP

Michael P. Daly is a partner with Drinker Biddle & Reath LLP, a leader of its class action practice, and the senior editor of its TCPA Blog.  His practice focuses on class action litigation, appellate litigation, and customer-facing contracts and marketing.  He regularly defends consumer class actions involving issues such as advertising, labeling, billing, telemarketing, credit reporting and debt collecting. He counsels clients on all aspects of class actions, including removing actions, compelling arbitration, enforcing class action waivers, coordinating multidistrict litigation, enjoining parallel proceedings, striking class action allegations, opposing certification, negotiating settlements, designing notice and claims programs, and defending settlements from objections and attacks. 

FCRA Class Actions CLE/CPE

David N. AnthonyPartnerTroutman Sanders LLP

Mr. Anthony is the leader of the Financial Services Litigation Section at Troutman Sanders LLP.  He is an experienced trial attorney who concentrates on litigating financial services disputes and has extensive experience in defending class actions.  David regularly represents credit reporting agencies, furnishers, resellers and prospective employers against Fair Credit Reporting Act claims.  He is a frequent speaker and writer on the FCRA and serves as an Editor of Troutman Sanders’ consumer financial services blog (www.consumerfinancialserviceslawmonitor.com), including its FCRA and background screening sections.

FCRA Class Actions CLE/CPE

Scott M. PalerPartnerDeWitt Ross & Stevens S.C.

Scott Paler is a Partner at one of the largest law firms in Wisconsin:  DeWitt Ross & Stevens S.C.  He currently serves as Chair of the Labor and Employment Practice Group.  In that role, he advises companies on a wide range of employment issues, including discrimination and harassment claims, wage and hour classifications, and termination decisions.  Mr. Paler maintains a unique expertise in background screening issues.  Over the last ten years, he has counseled employers across the country, ranging from Fortune 500 companies to small businesses, on developing and implementing sound background screening policies.  He has also helped defend employers’ background screening practices in lawsuits and administrative actions.  In addition to working with employers on background screening issues, Mr. Paler has served as outside counsel for numerous background screening providers.  He presently serves as Co-Chair of the Litigation Avoidance Sub-Committee for the National Association of Professional Background Screeners (NAPBS).


Click Here to Read Additional Material

FCRA Class Actions CLE/CPE

Course Level:
   Intermediate

Advance Preparation:
   Print and review course materials

Method Of Presentation:
   On-demand Webcast

Prerequisite:
   NONE

Course Code:
   145345

NASBA Field of Study:
   Business Law

NY Category of CLE Credit:
   Skills

Total Credits:
    2.0 CLE

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About the Knowledge Group

The Knowledge Group

The Knowledge Group has been a leading global provider of Continuing Education (CLE, CPE) for over 13 Years. We produce over 450 LIVE webcasts annually and have a catalog of over 4,000 on-demand courses.

About the Knowledge Group

The Knowledge Group

The Knowledge Group has been a leading global provider of Continuing Education (CLE, CPE) for over 13 Years. We produce over 450 LIVE webcasts annually and have a catalog of over 4,000 on-demand courses.

Established in 1979, Lewis Brisbois Bisgaard & Smith LLP is a national, full-service law firm with nearly 1,000 attorneys and 34 offices in 22 states. Our national practice is sophisticated, multi-faceted and well-versed in current legal trends, while our individual state practices provide vast resources and knowledge of procedural and legal nuances. Lewis Brisbois offers legal practice in more than 30 specialties, and a multitude of subspecialties associated with each practice area. Our attorneys have broad knowledge, expertise, and sensitivity to their clients’ unique needs. Through interaction among its practice groups, Lewis Brisbois provides a wide range of legal services to each client with a continuity of representation over multiple disciplines. We have built longstanding relationships with corporate and institutional clients based on our ability to provide comprehensive service on a national scale. At Lewis Brisbois, diversity is an integral part of our firm culture and our daily life. We have a Diversity & Inclusion Committee whose mission is to promote and advance diversity and inclusion within the firm. The success of the firm’s diversity initiatives is reflected in the fact that Lewis Brisbois has repeatedly received national recognition for its commitment to embracing diversity. Lewis Brisbois is committed to hiring and retaining a diverse group of talented lawyers and staff, and demonstrates that commitment through non-discriminatory hiring, retention and promotion policies. The diversity of the firm’s client base is matched by the diversity of our attorneys. With offices from Los Angeles to New York, our attorneys reflect the communities in which they live. The firm’s culture has fostered a diverse group of professionals committed to promoting the best interests of our clients, our communities and the legal profession. We are committed to supporting diversity through new and ongoing relationships with minority and women-owned businesses.

Website: http://lewisbrisbois.com/

Drinker Biddle & Reath LLP is a national law firm with more than 600 lawyers in 12 offices that represent clients in a broad spectrum of industries.  The firms offer a comprehensive range of traditional practices and significant national practices in class actions, products liability and mass torts, corporate and securities, government relations, healthcare, intellectual property, insurance, investment management, private equity, bankruptcy, real estate, energy, environmental, education and communications.

Website: http://www.drinkerbiddle.com/

Founded in 1897, Troutman Sanders LLP is an international law firm with more than 600 lawyers practicing in offices located throughout the United States and Asia. The firm’s clients range from large multinational corporations to individual entrepreneurs and reflect virtually every sector and industry. The firm’s heritage of extensive experience, exceptional responsiveness and an unwavering commitment to service has resulted in strong, long-standing relationships with clients across the globe. In recognition of the firm’s strong service culture, Troutman Sanders has been on the BTI Client Service A-Team for 11 consecutive years.

Website: http://www.troutmansanders.com/

DeWitt Ross & Stevens S.C., including its affiliate DeWitt Mackall Crounse & Moore S.C., is one of the ten largest law firms based in Wisconsin, with an additional presence in Minnesota.  It has more than 100 attorneys practicing in Madison and Metropolitan Milwaukee, Wisconsin, and Minneapolis, Minnesota, in a variety of legal areas and has the experience to service clients of all scopes and sizes.  The firm is known for its work in several areas, including corporate law, construction, employment, environmental, employee benefits, government relations, health care, litigation, real estate, tax, estate planning, family law, immigration, international, intellectual property, personal injury, patents, trademarks, and copyright law.

More information is available at

Website: http://www.dewittross.com/

Jeff Ranen is a Vice Chair of the firm’s Employment Law Department and Co-Chair of the firm’s national Wage and Hour Class Action Department. His practice is dedicated exclusively to defending employers in employment litigation and counseling. In 2007 Mr. Ranen became the youngest partner in the history of the law firm. He is known for his intellectual aggressiveness, accurate evaluation of cases, early case resolution strategies, and working with employers to make business-savvy decisions with respect to approaching litigation – whether that means taking the case to trial or settling early on. Mr. Ranen is involved in all aspects of employment-related litigation, including firstchairing trials before juries and arbitrators. His robust practice includes defending employers in wrongful termination, discrimination, harassment, retaliation, breach of contract, ADA access, trade secret litigation, and Fair Credit Reporting Act (FCRA) class actions. Mr. Ranen and his team also provide preventative counseling to employers regarding all employment practices, including drafting and auditing employee handbooks, preparing employment and severance agreements, drafting and reviewing employment applications for FCRA compliance, presenting sexual harassment prevention seminars, and evaluating termination decisions. There are very few attorneys in the State of California who have successfully defended more wage and hour and consumer class actions than Mr. Ranen. He has defended well over 175 such class lawsuits, including defeating class certification or getting the cases dismissed at the outset. Mr. Ranen is a prolific speaker on wage and hour topics, and presents numerous seminars each year on helping employers avoid the pitfalls of class action litigation.

Michael P. Daly is a partner with Drinker Biddle & Reath LLP, a leader of its class action practice, and the senior editor of its TCPA Blog.  His practice focuses on class action litigation, appellate litigation, and customer-facing contracts and marketing.  He regularly defends consumer class actions involving issues such as advertising, labeling, billing, telemarketing, credit reporting and debt collecting. He counsels clients on all aspects of class actions, including removing actions, compelling arbitration, enforcing class action waivers, coordinating multidistrict litigation, enjoining parallel proceedings, striking class action allegations, opposing certification, negotiating settlements, designing notice and claims programs, and defending settlements from objections and attacks. 

Mr. Anthony is the leader of the Financial Services Litigation Section at Troutman Sanders LLP.  He is an experienced trial attorney who concentrates on litigating financial services disputes and has extensive experience in defending class actions.  David regularly represents credit reporting agencies, furnishers, resellers and prospective employers against Fair Credit Reporting Act claims.  He is a frequent speaker and writer on the FCRA and serves as an Editor of Troutman Sanders’ consumer financial services blog (www.consumerfinancialserviceslawmonitor.com), including its FCRA and background screening sections.

Scott Paler is a Partner at one of the largest law firms in Wisconsin:  DeWitt Ross & Stevens S.C.  He currently serves as Chair of the Labor and Employment Practice Group.  In that role, he advises companies on a wide range of employment issues, including discrimination and harassment claims, wage and hour classifications, and termination decisions.  Mr. Paler maintains a unique expertise in background screening issues.  Over the last ten years, he has counseled employers across the country, ranging from Fortune 500 companies to small businesses, on developing and implementing sound background screening policies.  He has also helped defend employers’ background screening practices in lawsuits and administrative actions.  In addition to working with employers on background screening issues, Mr. Paler has served as outside counsel for numerous background screening providers.  He presently serves as Co-Chair of the Litigation Avoidance Sub-Committee for the National Association of Professional Background Screeners (NAPBS).

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