In Consumer Data Industry Association v. King (11-2085) the Tenth Circuit addressed a preemption challenge to a New Mexico law designed to make it easier for victims of identity theft to remove negative information from credit reports. The New Mexico law allows for suits against violators by both the New Mexico attorney general and members of the public. The New Mexico law appears to directly contradict elements of the Fair Credit Reporting Act (“FCRA”) and the court noted, almost in passing, that “[t]he FCRA leaves no room for overlapping state regulations.”
The bulk of the opinion addresses the issue of justicability. The case was dismissed by the district court, which concluded that the plaintiff (a trade organization) could not establish redressability and thus could not establish Article III standing. It based this conclusion on the fact that an injunction against the New Mexico attorney general would not preclude consumer suits and thus, under the standard the district court believed had been established by the Tenth Circuit in Nova Health Sys. v. Gandy, 416 F.3d 1149 (10th Cir. 2005), the relief sought would not “materially reduce the coercive effects” of the law.
The Tenth Circuit disagreed. It characterized Nova Health as “a fact-bound decision . . . . [that] sheds no light on the doctrine of redressability beyond its narrow holding—a party lacks standing to seek an injunction against a nominally public defendant who has not threatened suit and who cannot be distinguished from the countless private litigants with identical enforcement powers.” The Tenth Circuit held that all the law requires for redressability to be met is that “a favorable decision would relieve the[] problem ‘to some extent.’” Accordingly, the court reversed and remanded.
