“No Concrete Harm, No Standing” Is a No Go in Massachusetts State Court

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On January 8, 2023, the Appeals Court of Massachusetts held that a plaintiff who admitted a Fair Credit Reporting Act (FCRA) violation did not harm her nevertheless had standing to sue in Massachusetts state court.

Nicole Kenn applied to work for Eascare, LLC, an ambulance service. During the application process, she signed a disclosure form, allowing Eascare to run a background check on her. After the background check, she was hired.

A year later, Kenn quit and sued Eascare for wage and sex discrimination. In her complaint, she also claimed that Eascare willfully violated the FCRA because the disclosure forms she signed were technically deficient. She claimed Eascare violated her privacy rights and misinformed her about the background check process by using deficient forms.

Eascare removed the case to federal court and moved to dismiss for lack of standing. The federal court granted the motion and remanded the case to the Massachusetts state court. On remand, Eascare again moved to dismiss the complaint because Kenn lacked standing. The Massachusetts Superior Court granted the motion, and Kenn appealed. 

The three-judge panel in the Appeals Court reversed. It emphasized that state courts have greater leeway to hear cases than federal courts because they are not bound by the Article III “case or controversy” restriction applicable to federal courts. In Massachusetts, for example, a plaintiff suing for a statutory violation has standing if she shows: the statute allows an injured party to recover, the plaintiff suffered an injury, and the alleged injury is within the statute’s “area of concern.” 

Given these requirements, the panel extended Massachusetts standing to cover cases where plaintiffs allege technical violations of the FCRA but suffer no resulting harm. Specifically, the panel held that because Kenn alleged she did not receive FCRA-compliant disclosures from Eascare, and the FCRA provides a cause of action for statutory violations, Kenn alleged an injury sufficient to sue under Massachusetts law.

While Massachusetts has a statute defining an “injured” person, Mass. G. L. c. 93A, § 9, the panel held it did not apply to its standing analysis; the FCRA applied instead. And the FCRA, it reasoned, says that a person who fails to comply with its disclosure requirements “is liable to” a consumer and allows a plaintiff to recover between $100 and $1,000 for a willful statutory violation even if they cannot prove the technical violation caused them “actual damages.” Under the Massachusetts standing test, then, Kenn’s allegation that the FCRA was violated was enough. Her inability to “articulate concrete, actual damages” from the technically deficient disclosures was not a bar to standing in state court.

To reach its decision in Kenn, the panel had to reject the reasoning of at least two other Massachusetts decisions requiring plaintiffs to allege concrete injury to have standing. Indeed, Kenn stands in stark contrast to the U.S. Supreme Court’s FCRA decision in TransUnion LLC v. Ramirez, 594 U.S. 413 (2021), and a host of other cases in which both federal and state courts have entrenched the “no concrete harm, no standing” principle in FCRA jurisprudence. See, e.g., Gennock v. Kirkland’s Inc., No. 299 A.3d 900 (Pa. Super. Ct. May 16, 2023), appeal denied, No. 150 WAL 2023, 2023 WL 7545980 (Pa. Nov. 14, 2023).