Larson v. Trans Union , LLC
Filing
86
ORDER DENYING DEFENDANT'S 66 MOTION FOR SUMMARY JUDGMENT; STAYING CASE; AND TENTATIVELY GRANTING PLAINTIFF'S 64 MOTION FOR CLASS CERTIFICATION - Proceedings in this case are STAYED pending resolution of the appeal in Spokeo. Larson 039;s motion for class certification is taken under submission. Parties' 62 , 70 , 72 , 79 Administrative Motions to File Under Seal are decided as detailed in the attached order. The stay of proceedings in this case does not apply to the sealing issues discussed in this Order. Signed by Judge William H. Orrick on 06/26/2015. (jmdS, COURT STAFF) (Filed on 6/26/2015)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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BRIAN DOUGLAS LARSON,
Case No. 12-cv-05726-WHO
Plaintiff,
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v.
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TRANS UNION, LLC,
Defendant.
United States District Court
Northern District of California
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Re: Dkt. Nos. 62, 63, 64, 66, 70, 72, 79
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INTRODUCTION
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Plaintiff Brian Larson brings this putative class action against defendant Trans Union, LLC
(“Trans Union”), alleging that Trans Union violated the Fair Credit Reporting Act (“FCRA”) by
providing him and approximately 18,000 putative class members with file disclosures that were
not “clear and accurate” within the meaning of 15 U.S.C. § 1681g. He now moves for class
certification. Trans Union opposes and moves for summary judgment on the ground that Larson
was not entitled to the free file disclosure on which his claims are based.
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Trans Union’s motion is based on a misreading of the interaction between section 1681g
and another FCRA provision, 15 U.S.C. § 1681j. Its motion is DENIED. I am tentatively
inclined, based on current law, to grant Larson’s motion for class certification. However, in light
of the Supreme Court’s recent grant of the petition for writ of certiorari in Robins v. Spokeo, Inc.,
742 F.3d 409 (9th Cir. 2014), I will STAY proceedings in this case pending resolution of that
appeal. I provide my tentative ruling on class certification under the law as it exists today in
section III-B of this Order.
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ORDER DENYING DEFENDANT’S
MOTION FOR SUMMARY
JUDGMENT; STAYING CASE; AND
TENTATIVELY GRANTING
PLAINTIFF’S MOTION FOR CLASS
CERTIFICATION
BACKGROUND
I.
FACTUAL BACKGROUND
Trans Union is one of the “big three” consumer credit reporting agencies in the United
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States. First Amended Complaint ¶ 6 (Dkt. No. 39) (“FAC”). Larson alleges that he obtained a
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copy of his “personal credit report” from Trans Union on October 26, 2011. FAC ¶ 22. After
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disclosing information under the headings, “Personal Information,” “Adverse Accounts,”
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“Satisfactory Accounts,” “Regular Inquiries,” and “Account Review Inquiries,” the report stated,
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“End of Credit Report.” FAC ¶ 24. Beneath the heading, “End of Credit Report,” the report
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stated the following:
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Begin Additional Information
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Additional Information
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The following disclosure of information is provided as a courtesy to
you. This information is not part of your TransUnion [sic] credit
report, but may be provided when TransUnion receives an inquiry
about you from an authorized party. This additional information can
include Special Messages, Possible OFAC1 Name Matches, Income
Verification and Inquiry Analysis Information.
Any of the
previously listed information that pertains to you will be listed
below.
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United States District Court
Northern District of California
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[...]
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Possible OFAC Match
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As a courtesy to you, we also want to make sure you are aware that
the name that appears on your TransUnion credit file is considered a
potential match to information listed on the United States
Department of Treasury’s Office of Foreign Asset Control
(“OFAC”) database.
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The OFAC record that is considered a potential match to the name
on your credit file is:
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For more details regarding the OFAC Database, please visit:
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“OFAC” refers to the United States Treasury Department’s Office of Foreign Assets Control.
FAC ¶ 1. “OFAC administers and enforces economic and trade sanctions based on . . . foreign
policy and national security goals against threats to the national security, foreign policy, or
economy of the United States.” Cortez v. Trans Union, LLC, 617 F.3d 688, 696 (3d Cir. 2010).
OFAC maintains a database of purported terrorists, narcotics traffickers, money launderers, and
other enemies of the state on its “Specially Designated National and Blocked Persons List” (the
“OFAC list”). Id. Certain financial institutions are required to consult the OFAC list before
transacting with individuals. See 31 U.S.C. § 5318(l)(2). In Cortez v. Trans Union, LLC, the
Third Circuit held that information regarding a consumer’s appearance on the OFAC list is part of
the consumer’s “file” for the purposes of the FCRA and is thus subject to the Act’s reporting
requirements under 15 U.S.C. § 1681g. See 617 F.3d at 712. This case is one of several that have
been filed against Trans Union since Cortez alleging claims based on Trans Union’s reporting of
OFAC information.
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http://www.ustreas.gov/offices/enforcement/ofac/faq/index.shtml
FAC ¶¶ 25-28.
Following the words, “the name on your credit file is,” the disclosure contained “no data at
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all, intentionally leaving the space blank, and leaving consumers such as [Larson] to wonder what
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information from the OFAC list [Trans Union] thinks is attributable to them.” FAC ¶ 29. The
parties do not dispute that Larson is not on the OFAC list, and that his name is not a “potential
match” to any OFAC record. See, e.g., FAC ¶ 34; Answer ¶ 34 (Dkt. No. 53).
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According to materials submitted by the parties in conjunction with these motions, Trans
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Union first enabled consumers with potentially matching OFAC data to obtain that information
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online on September 22, 2011. See, e.g., Trans Union’s Rog. Resp. Set 1 at 8-9 (Soumilas Decl.
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Ex. 2, Dkt. No. 62-9); Garst Depo. at 51 (Soumilas Decl. Ex. 3, Dkt. No. 62-11). Before
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United States District Court
Northern District of California
implementing the OFAC disclosure functionality, Trans Union provided sample files to its
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software vendor, Saksoft, for coding and testing. Class Cert. Opp. at 5; Garst Depo. at 58-60
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(Newman Decl. Ex. B, Dkt. No. 72-8); Thackrey Depo. at 63-64 (Newman Decl. Ex. C, Dkt. No.
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72-10). The OFAC software performed as intended during the testing process: sample files
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containing potentially matching OFAC data displayed the desired OFAC header and information,
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while sample files without potentially matching OFAC data displayed nothing at all regarding
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OFAC. Thackrey Depo. 64-65 (Newman Decl. Ex. C, Dkt. No. 72-10).
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Trans Union first learned about a potential problem with its OFAC software on October
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19, 2011, when its consumer relations operators reported “that they were getting phone calls from
consumers about seeing the ‘Possible OFAC Match’ section on their online [file disclosures] and
wanting to dispute it.” Garst Depo. at 62 (Newman Decl. Ex. B, Dkt. No. 72-8). On or around
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October 20, 2011, Trans Union realized that the OFAC header that consumers were concerned
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about was not visible on its own consumer relations database. Id. at 63-64 (“Q: So the operators
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who would be handling the consumer calls couldn’t even really see what the consumers were
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talking about? A: That’s correct.”). On Friday, October 21, 2011, Trans Union determined that the
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OFAC header was being misdisplayed as a result of a coding error in its software. Thackrey
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Depo. at 49 (Newman Decl. Ex. C, Dkt. No. 72-10). Trans Union immediately instructed Saksoft
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to develop a fix. Garst Depo. at 77 (Newman Decl. Ex. B, Dkt. No. 72-8). Trans Union and
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Saksoft attempted to implement the fix on Tuesday, October 25, 2011, but the attempt failed. Id.
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at 77-78. Finally, by Friday, October 28, 2011, Trans Union was able to confirm that the defect
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had been corrected. Id.
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II.
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PROCEDURAL BACKGROUND
Larson filed this action on September 12, 2012 in the Superior Court of California for the
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County of San Francisco, alleging claims against Trans Union under the California Consumer
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Credit Reporting Agencies Act (“CCRAA”). Dkt. No. 1 at 11. Trans Union removed the case to
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federal court on November 7, 2012. Id. at 1. On October 15, 2013, I granted Trans Union’s
motion to dismiss Larson’s original complaint. Dkt. No. 33. Larson’s first amended complaint
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United States District Court
Northern District of California
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alleges claims under the CCRAA and the FCRA. FAC ¶¶ 1, 49-59. On April 14, 2014, I issued
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an order dismissing the CCRAA claims but allowing the FCRA claims to proceed. Dkt. No. 52.
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Larson’s FCRA claims are based on alleged violations of the Act’s requirement that
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a credit reporting agency “clearly and accurately” disclose to a consumer “[a]ll information in the
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consumer’s file” upon request. 15 U.S.C. § 1681g(a). Larson asserts that Trans Union violated
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this requirement in two ways. His first claim “arises out of the juxtaposition of the statement,
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‘The OFAC record that is considered a potential match to the name on your credit file is,’ and the
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blank space that follows.” Class Cert. Mot. at 5; see also FAC ¶ 57. Larson contends that a
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person faced with this information cannot determine whether (a) he potentially matches a name on
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the OFAC list but Trans Union is not disclosing the identity of the potential OFAC match; or
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(b) he does not potentially match any name on the OFAC list. Class Cert. Mot. at 5.
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Larson also asserts that by describing the OFAC information as “additional information”
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that is “provided as a courtesy” and that is not part of the file disclosure, Trans Union “le[ft]
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[Larson] and the class confused as to whether they had the right to dispute such information.”
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FAC ¶ 50; see also Class Cert. Mot. at 6 (“Trans Union represented to consumers that the OFAC
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information is not part of their credit report and that Trans Union was providing it as a ‘courtesy’
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and not as required by law. Both statements are false.”).
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Larson claims that both violations were willful and seeks statutory damages under 15
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U.S.C. § 1681n(a). FAC ¶¶ 50, 57.
Trans Union filed its motion for summary judgment on March 13, 2015. Dkt. No. 66.
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Larson moved for class certification the same day. Dkt. Nos. 63, 64. Larson seeks to certify a
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Rule 23(b)(3) class defined as
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[a]ll persons residing at an address within the State of California to
whom Trans Union LLC provided a Personal Credit Report, from
September 22, 2011 until October 27, 2011, substantially similar in
form to the one Trans Union provided to [Larson] dated October 26,
2011.
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Class Cert. Mot. 7, 15. I heard argument from the parties on May 6, 2015. Dkt. No. 77.
LEGAL STANDARD
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United States District Court
Northern District of California
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I.
FEDERAL RULE OF CIVIL PROCEDURE RULE 23
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Federal Rule of Civil Procedure 23 governs class actions. “Before certifying a class, the
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trial court must conduct a rigorous analysis to determine whether the party seeking certification
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has met the prerequisites of Rule 23.” Mazza v. Am. Honda Motor Co., Inc., 666 F.3d 581, 588
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(9th Cir. 2012) (internal quotation marks omitted). The burden is on the party seeking
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certification to show, by a preponderance of the evidence, that the prerequisites have been met.
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See Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011).
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Certification under Rule 23 is a two-step process. The party seeking certification must first
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satisfy the four threshold requirements of Rule 23(a) – numerosity, commonality, typicality, and
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adequacy. Specifically, Rule 23(a) requires a showing that
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(1) the class is so numerous that joinder of all members is
impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of
the claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the
interests of the class.
Fed. R. Civ. P. 23(a).
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The party seeking certification must then establish that one of the three grounds for
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certification applies. See Fed. R. Civ. P. 23(b). Larson invokes Rule 23(b)(3), which provides
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that a class action may be maintained where
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United States District Court
Northern District of California
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the court finds that the questions of law or fact common to class
members predominate over any questions affecting only individual
members, and that a class action is superior to other available
methods for fairly and efficiently adjudicating the controversy. The
matters pertinent to these findings include:
(A) the class members’ interests in individually controlling the
prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the
controversy already begun by or against class members;
(C) the desirability or undesirability of concentrating the litigation of
the claims in the particular forum; and
(D) the likely difficulties in managing a class action.
Fed. R. Civ. P. 23(b)(3). Certification under Rule 23(b)(3) is appropriate “whenever the actual
interests of the parties can be served best by settling their differences in a single action.” Hanlon v.
Chrysler Corp., 150 F.3d 1011, 1022 (9th Cir. 1998) (internal quotation marks omitted). “When
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common questions present a significant aspect of the case and they can be resolved for all
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members of the class in a single adjudication, there is clear justification for handling the dispute on
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a representative rather than on an individual basis.” Id. (internal quotation marks omitted).
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In considering a motion for class certification, the substantive allegations of the complaint
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are accepted as true, but “the court need not accept conclusory or generic allegations regarding the
suitability of the litigation for resolution through a class action.” Hanni v. Am. Airlines, Inc., No.
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08-cv-00732-CW, 2010 WL 289297, at *8 (N.D. Cal. Jan. 15, 2010); see also Jordan v. Paul Fin.,
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LLC, 285 F.R.D. 435, 447 (N.D. Cal. 2012) (“[Courts] need not blindly rely on conclusory
allegations which parrot Rule 23 requirements.”). Accordingly, “the court may consider
supplemental evidentiary submissions of the parties.” Hanni, 2010 WL 289297, at *8; see also
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Blackie v. Barrack, 524 F.2d 891, 901 n.17 (9th Cir. 1975).
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“A court’s class-certification analysis . . . may entail some overlap with the merits of the
plaintiff’s underlying claim.” Amgen Inc. v. Connecticut Ret. Plans & Trust Funds, 133 S. Ct.
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1184, 1194 (2013) (internal quotation marks omitted). However, “Rule 23 grants courts no license
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to engage in free-ranging merits inquiries at the certification stage.” Id. at 1194-95. “Merits
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questions may be considered to the extent – but only to the extent – that they are relevant to
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determining whether the Rule 23 prerequisites for class certification are satisfied.” Id. at 1195.
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II.
THE FAIR CREDIT REPORTING ACT
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The FCRA “was crafted to protect consumers from the transmission of inaccurate
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information about them, and to establish credit reporting practices that utilize accurate, relevant,
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and current information in a confidential and responsible manner.” Guimond v. Trans Union
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Credit Info. Co., 45 F.3d 1329, 1333 (9th Cir. 1995) (internal citations omitted). “[T]hese
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consumer oriented objectives support a liberal construction of the FCRA.” Id.
15 U.S.C. § 1681g, the FCRA provision on which Larson’s claims are based, states in
United States District Court
Northern District of California
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relevant part that “[e]very consumer reporting agency shall, upon request, and subject to section
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1681h(a)(1) 2 of this title, clearly and accurately disclose to the consumer . . . [a]ll information in
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the consumer’s file at the time of the request.” 15 U.S.C. § 1681g(a). A file disclosure is
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inaccurate for the purposes of the FCRA if it is “materially misleading.” Carvalho v. Equifax Info.
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Servs., LLC, 629 F.3d 876, 890-91 (9th Cir. 2010). Information is “materially misleading” in this
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context if it is “misleading in such a way and to such an extent that it can be expected to adversely
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affect credit decisions.” Gorman v. Wolpoff & Abramson, LLP, 584 F.3d 1147, 1163 (9th Cir.
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2009) (internal quotation marks omitted).
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A defendant who “willfully fails to comply with any requirement imposed under [the
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FCRA] with respect to any consumer is liable to that consumer” for “any actual damages sustained
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by the consumer as a result of the failure,” or for statutory damages “of not less than $100 and not
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more than $1,000.” 15 U.S.C. § 1681n(a)(1)(A). Willful violations of the FCRA also trigger
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liability for “such amount of punitive damages as the court may allow,” and for “reasonable
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attorney’s fees as determined by the court.” 15 U.S.C. § 1681n(a)(1)(B)-(C).
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Under section 1681h(a)(1), a credit reporting agency must require a consumer to “furnish proper
identification” before issuing a file disclosure under section 1681g. 15 U.S.C. § 1681h(a)(1).
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An FCRA violation is willful where it is made either knowingly or with reckless disregard
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for the requirements imposed under the Act. Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 56-60
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(2007); Robins, 742 F.3d at 411 n.1 (“Willful violations within the meaning of 15 U.S.C. § 1681n
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include violations in reckless disregard of statutory duty.”) (internal quotation marks and
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alterations omitted). A defendant acts with reckless disregard for the purposes of the FCRA where
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its actions involve “an unjustifiably high risk of harm that is either known or so obvious that it
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should be known.” Safeco, 551 U.S. at 68 (internal quotation marks omitted).3
DISCUSSION
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I.
TRANS UNION’S MOTION FOR SUMMARY JUDGMENT
Trans Union moves for summary judgment on the basis of its third affirmative defense,
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United States District Court
Northern District of California
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which states that Larson’s FCRA claims are barred because he was not entitled under 15 U.S.C. §
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1681j to the free file disclosure he received on October 26, 2011. S.J. Mot. at 7; Answer ¶ 62.
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Trans Union contends that because Larson was not entitled to the free disclosure, he cannot
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establish that Trans Union was “required” to disclose it to him and thus cannot establish that Trans
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Union “willfully fail[ed] to comply with any requirement” of the FCRA, as required to impose
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statutory damages under 15 U.S.C. § 1681n(a). S.J. Mot. at 8. Trans Union states: “Because
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[Larson] had no right to receive the [free disclosure], Trans Union was not subject to any legal
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requirement to provide it. In the absence of any legal requirement, plaintiff is not entitled to any
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statutory damages under 15 U.S.C. § 1681n(a).” S.J. Reply at 1 (emphasis omitted).
Trans Union’s argument turns largely on the interaction between 15 U.S.C. § 1681g and 15
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U.S.C. § 1681j. Section 1681j authorizes credit reporting agencies to charge a reasonable fee, not
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to exceed $8.00, for file disclosures under section 1681g. 15 U.S.C. § 1681j(f)(1)(A). The statute
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enumerates several exceptions to this general rule, including that consumers are entitled to one
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free file disclosure per twelve-month period. 15 U.S.C. § 1681j(a)(1)(A). In addition, under 15
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U.S.C. § 1681j(b),
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In contrast with willful violations, mere negligent violations do not provide a basis for statutory
damages under the FCRA. Recovery for negligent violations is limited to actual damages under
15 U.S.C. § 1681o. Larson does not seek actual damages. See FAC ¶¶ 50, 57.
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[e]ach consumer reporting agency that maintains a file on a
consumer shall make all disclosures pursuant to section 1681g of
this title without charge to the consumer if, not later than 60 days
after receipt by such consumer of a notification pursuant to section
1681m of this title, . . . the consumer makes a request under section
1681g of this title.
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15 U.S.C. § 1681j(b). Section 1681m requires “users of consumer reports” to notify the consumer
if they take “any adverse action with respect to [the] consumer that is based in whole or in part on
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any information contained in a consumer report.” 15 U.S.C. § 1681m(a).
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The parties do not dispute the basic facts regarding Larson’s receipt of the October 26,
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2011 file disclosure. As mandated by section 1681j(a)(1)(A), Trans Union provides consumers
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with one free disclosure per twelve-month period upon request. Briddell Decl. ¶ 4 (Dkt. No. 66-1).
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Larson requested a free disclosure from Trans Union on July 15, 2010. Id. ¶ 5. Because Larson
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United States District Court
Northern District of California
had already obtained a free disclosure from Trans Union within the preceding twelve months,
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Trans Union sent him a letter explaining that he was not entitled to a free disclosure but that he
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could purchase one for $8.00. Id.
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On August 11, 2011, Larson again requested a free disclosure from Trans Union. Id. ¶ 6.
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This time, Trans Union provided it to Larson without charge, as more than twelve months had
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passed since his last free disclosure.4 Id. On or around October 26, 2011, Larson submitted an
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online request for another free disclosure from Trans Union. Id. ¶ 7. Although less than three
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months had passed since his last free disclosure, Larson indicated that he was entitled to another by
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checking the box stating, “Within the last 60 days, you have received an adverse action notice
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based on information from your Trans Union credit report.” Id. at Ex. B at 7; see also Soumilas
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Decl. Ex. 4 at 885 (Dkt. No. 70-13).
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Trans Union subsequently provided Larson with the disclosure that is the subject of this
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litigation. Briddell Decl. ¶ 9. Larson states that he requested the disclosure on October 26, 2011
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“in part because he was concerned about the circumstances surrounding the closure of a Wells
Fargo line of credit” in the summer of 2011. S.J. Opp. at 2; see also Larson Depo. at 35-36
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(Soumilas Decl. Ex. 3, Dkt. No. 70-12). He states that when he made the request, he believed in
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Larson does not bring any claims based on this August 11, 2011 disclosure.
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good faith that he was excepted from Trans Union’s $8.00 fee because of an adverse action taken
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by Wells Fargo. S.J. Opp. at 8. However, he does not dispute that the closure of his Wells Fargo
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credit line occurred more than sixty days before October 26, 2011, that the closure does not
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actually qualify as an “adverse action” within the meaning of section 1681m, or that under section
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1681j, he was not actually entitled to a free disclosure.
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Trans Union contends that these undisputed facts entitle it to summary judgment. Trans
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Union’s argument is simple: because Larson’s claims are based on section 1681n(a), the FCRA’s
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statutory damages provision, Larson must show that Trans Union “willfully fail[ed] to comply with
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any requirement imposed under [the FCRA]” to prevail; Larson does not dispute that he was not
entitled to receive the October 26, 2011 disclosure free of charge; thus, Trans Union was not
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United States District Court
Northern District of California
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required to provide it, and could not have “fail[ed] to comply with any requirement imposed under
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[the FCRA]” in doing so. See S.J. Mot. at 8; S.J. Reply at 1.
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I am not convinced. Larson does not accuse Trans Union of willfully violating section
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1681j – e.g., by charging him an $8.00 fee when he was entitled to a free disclosure. If that were
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the case, evidence that he was not actually entitled to a free disclosure, and that Trans Union was
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in fact authorized under section 1681j to charge him a reasonable fee for one, would likely be of
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great significance. Cf. Edeh v. Equifax Info. Servs., LLC, 919 F. Supp. 2d 1006, 1015 (D. Minn.
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2013) (granting summary judgment for Equifax on plaintiff’s section 1681j claim where “[t]here is
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no evidence currently before the Court that [plaintiff] was entitled to a free . . . disclosure from
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Equifax at the time of his requests”).
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Instead, Larson accuses Trans Union of willfully violating section 1681g. As stated above,
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section 1681g requires credit reporting agencies to “clearly and accurately” disclose to a consumer
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“[a]ll information in the consumer’s file” upon request. 15 U.S.C. § 1681g(a). Trans Union
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assumes that this requirement applies only when the consumer has either paid a fee to the credit
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reporting agency, as authorized by section 1681j, or is entitled to a free disclosure under one of
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section 1681j’s exceptions. But that is not what section 1681g says. Section 1681g’s plain
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language provides that the statute’s clear and accurate disclosure requirement is “subject to section
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1681h(a)(1),” not section 1681j. Section 1681h(a)(1) mandates only that the credit reporting
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agency require proper identification as a condition of disclosing a consumer’s file pursuant to
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section 1681g; it does not mandate that the consumer pay a fee or qualify for a free disclosure
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under section 1681j. See 15 U.S.C. § 1681h(a)(1) (“A consumer reporting agency shall require, as
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a condition of making the disclosures required under section 1681g of this title, that the consumer
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furnish proper identification.”). There is no dispute here that Trans Union complied with section
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1681h(a)(1) by requiring Larson to furnish proper identification, and that Larson furnished it.
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Moreover, even if section 1681g’s clear and accurate disclosure requirement were subject
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to section 1681j, section 1681j does not require a consumer either to pay a fee or to qualify for an
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exception to obtain his file from a credit reporting agency. The statute merely provides that absent
qualification for an exception, a credit reporting agency “may impose a reasonable charge on a
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United States District Court
Northern District of California
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consumer” requesting a section 1681g disclosure. 15 U.S.C. § 1681j(f)(1)(A) (emphasis added).
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Trans Union fails to identify any language in section 1681j, or in any other part of the FCRA,
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indicating that section 1681g’s clear and accurate disclosure requirement activates only upon
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payment of a fee or qualification for an exception.
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Trans Union contends that this reading of the FCRA renders section 1681j “meaningless,”
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in that every time a consumer requests a file disclosure under section 1681g and produces adequate
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identifying information, the credit reporting agency will be required to disclose the file, regardless
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of whether the consumer pays a fee or qualifies for an exception. See S.J. Reply at 4. I disagree.
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If Trans Union wishes to impose a requirement that it be paid prior to disclosing a consumer’s file,
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section 1681j gives it the authority to do so under certain conditions. But if Trans Union discloses
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a consumer’s file, it must do so in accordance with section 1681g, providing the consumer with a
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clear and accurate disclosure. This reading neither renders section 1681j meaningless nor requires
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a credit reporting agency to provide a file disclosure even where no fee has been paid and no
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section 1681j exception applies. However, it does require that where, upon request, a credit
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reporting agency provides a section 1681g disclosure to a consumer, that disclosure must be clear
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and accurate.
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Trans Union’s motion for summary judgment on its third affirmative defense is DENIED.
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III.
LARSON’S MOTION FOR CLASS CERTIFICATION
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A.
Stay Pending Resolution of the Appeal in Spokeo, Inc. v. Robins
3
On April 27, 2015, after the motion for class certification was fully briefed but before oral
4
argument, the Supreme Court granted the petition for writ of certiorari in Robins v. Spokeo, Inc.,
5
742 F.3d 409 (9th Cir. 2014). See Spokeo, Inc. v. Robins, No. 13-1339, 2015 WL 1879778, at *1
6
(U.S. Apr. 27, 2015). In Robins, the Ninth Circuit held that the plaintiff had sufficiently alleged
7
Article III standing, regardless of whether he had sufficiently alleged actual harm, by merit of his
8
claims for willful violations of the FCRA under 15 U.S.C. § 1681n(a). See 742 F.3d at 412-13.
9
The court observed that a willful violation claim under section 1681n(a) does not require a
showing of actual harm, and where a “statutory cause of action does not require proof of actual
11
United States District Court
Northern District of California
10
damages, a plaintiff can suffer a violation of the statutory right without suffering actual damages.”
12
Id. at 413. The court concluded that in the case before it, the “alleged violations of [the plaintiff’s]
13
statutory rights are sufficient to satisfy the injury-in-fact requirement of Article III.” Id. at 413-14.
14
The question presented at the Supreme Court is “[w]hether Congress may confer Article III
15
standing upon a plaintiff who suffers no concrete harm, and who therefore could not otherwise
16
invoke the jurisdiction of a federal court, by authorizing a private right of action based on a bare
17
violation of a federal statute.” Spokeo, Inc. v. Robins, 13-1339, “Question Presented,” available at
18
http://www.supremecourt.gov/search.aspx?filename=/docketfiles/13-1339.htm (last visited June
19
25, 2015).
20
At oral argument, I informed the parties that I was tentatively inclined to stay proceedings
21
in this case pending resolution of the appeal in Spokeo. I granted leave to submit supplemental
22
briefing on the issue. Larson filed a memorandum opposing a stay on May 27, 2015. Dkt. No. 81.
23
Trans Union filed a memorandum in support of a stay on June 3, 2015. Dkt. No. 82. Trans Union
24
subsequently filed two notices of supplemental authority showing that Judge Corley had decided to
25
stay proceedings in Ramirez v. Trans Union, LLC, No. 12-cv-00632, another case pending in this
26
district arising from Trans Union’s reporting of OFAC information, pending resolution of the
27
Spokeo appeal. See Dkt. No. 84 (minute entry); Dkt. No. 85 (stay order).
28
“[T]he power to stay proceedings is incidental to the power inherent in every court to
12
1
control the disposition of the causes on its docket with economy of time and effort for itself, for
2
counsel, and for litigants.” Landis v. N. Am. Co., 299 U.S. 248, 254 (1936). In deciding whether
3
to stay proceedings pending resolution of an appeal in another action, a district court must weigh
4
various competing interests, including (1) the possible damage which may result from the granting
5
of a stay; (2) the hardship a party may suffer if the case is allowed to go forward; and (3) “the
6
orderly course of justice measured in terms of the simplifying or complicating of issues, proof, and
7
questions of law which could be expected to result from a stay.” Lockyer v. Mirant Corp., 398
8
F.3d 1098, 1110 (9th Cir. 2005); see also CMAX, Inc. v. Hall, 300 F.2d 265, 268 (9th Cir. 1962).
9
Whether to stay proceedings is entrusted to the discretion of the district court. See Landis, 299
U.S. at 254-55 (“How this can best be done calls for the exercise of judgment, which must weigh
11
United States District Court
Northern District of California
10
competing interests and maintain an even balance.”).
12
The competing interests in this case favor a stay. Larson and the class will not be
13
materially harmed by a stay pending resolution of the Spokeo appeal. The Supreme Court is likely
14
to issue a decision in the case within one year. Larson contends that he and the class will be
15
harmed by a stay for this period because witnesses will become difficult to locate, or will forget
16
their testimony as their “memories fade.” Dkt. No. 81 at 7-8. I agree with Trans Union that it is
17
implausible that a one-year delay will cause either of these things to occur, and Larson provides no
18
specific facts or reasoning that indicate otherwise. As Trans Union points out and Larson does not
19
dispute, many key witnesses have already been deposed; their memories can be refreshed at trial
20
by their deposition transcripts, or, if they are unavailable, their deposition testimony can be read
21
into the record. Larson identifies no other way in which he or the class will be prejudiced by a
22
stay. Meanwhile, if the case is not stayed, the Court, the parties, and the absent class members
23
(who would soon receive class notice if the case were to go forward) would all face the risk of
24
dedicating substantial resources to proceedings that may ultimately prove unnecessary.
25
The question presented in the Spokeo appeal is squarely implicated in this case. Larson’s
26
arguments to the contrary are not convincing. Larson’s ability to establish injury-in-fact without
27
reliance on the FCRA’s statutory damages provision has not been tested in this case and is far from
28
certain. Even if Larson himself could make a sufficient showing of actual harm to satisfy Article
13
1
III, the record indicates that a significant portion of the putative class would not be able to do the
2
same. A decision in Spokeo reversing the Ninth Circuit would thus raise serious questions
3
regarding Larson’s ability to establish his own individual standing, as well as the predominance
4
and superiority requirements necessary to certify and maintain a class action under Rule 23(b)(3).
5
Shortly after granting the petition for writ of certiorari in Spokeo, the Supreme Court
granted the petition for writ of certiorari in Bouaphakeo v. Tyson Foods, Inc., 765 F.3d 791 (8th
7
Cir. 2014). See Tyson Foods, Inc. v. Bouaphakeo, No. 14-1146, 2015 WL 1278593, at *1 (U.S.
8
June 8, 2015). One of the questions presented in that appeal is “[w]hether a class action may be
9
certified or maintained under Rule 23(b)(3), or a collective action certified or maintained under the
10
Fair Labor Standards Act, when the class contains hundreds of members who were not injured and
11
United States District Court
Northern District of California
6
have no legal right to any damages.” Tyson Foods, Inc. v. Bouaphakeo, No. 14-1146, “Question
12
Presented,” available at http://www.supreme court.gov/search.aspx?filename=/docketfiles/14-
13
1146.htm (last visited June 25, 2015); see also Dkt. No. 83 (notice of supplemental authority). A
14
decision in Spokeo reversing the Ninth Circuit would bring this issue from the Tyson appeal to the
15
forefront of the class certification determination here, further counseling for issuance of a stay.
16
Accordingly, proceedings in this case are STAYED pending resolution of the appeal in
17
Spokeo.
18
B.
Tentative Ruling on Larson’s Motion for Class Certification
19
Because the motion for class certification was fully briefed and argued under existing law,
20
in this section of the Order I tentatively rule on class certification so that the case may proceed
21
expeditiously once the stay is lifted. Within fourteen days of the date the Supreme Court issues its
22
decision in Spokeo, the parties shall file a joint status report discussing (1) what impact, if any, the
23
decision has on the following tentative ruling; (2) whether proceedings in this case should remain
24
stayed pending resolution of the appeal in Tyson, if that appeal has not already been resolved; and
25
(3) any other relevant matter. I will issue a final order on the motion for class certification or other
26
appropriate order after the parties have filed the joint status report.
27
28
As stated earlier, Larson seeks to certify a Rule 23(b)(3) class defined as “[a]ll persons
residing at an address within the State of California to whom Trans Union LLC provided a
14
1
personal credit report, from September 22, 2011 until October 27, 2011, substantially similar in
2
form to the one Trans Union provided to [Larson] dated October 26, 2011.” Class Cert. Mot. at 7.
3
Trans Union raises four reasons this class should not be certified: (1) the question of
4
whether class members were actually confused by the OFAC header will require an individualized
5
inquiry into the particular circumstances of each class member; (2) the evidence regarding Trans
6
Union’s state of mind varies considerably over the course of the class period, meaning that another
7
individualized inquiry will be required to determine willfulness with respect to each allegedly
8
unclear and inaccurate disclosure to each class member; (3) actual harm will also need to be
9
proven on an individualized basis; and (4) because of the manner in which he obtained his October
26, 2011 file disclosure, his personal history, and his personal characteristics, Larson cannot
11
United States District Court
Northern District of California
10
establish either typicality or adequacy. See, e.g., Class Cert. Opp. at 2-3. I address each of the
12
requirements for class certification in turn, focusing on the issues raised by Trans Union.
13
14
15
1.
Rule 23(a)
a.
Numerosity
Rule 23(a)(1) requires that the “the class is so numerous that joinder of all members is
16
impracticable.” Fed. R. Civ. P. 23(a)(1). The party seeking certification “do[es] not need to state
17
the exact number of potential class members, nor is a specific number of class members required
18
for numerosity.” In re Rubber Chemicals Antitrust Litig., 232 F.R.D. 346, 350 (N.D. Cal. 2005).
19
However, courts generally find that numerosity is satisfied if the class includes forty or more
20
members. Villalpando v. Exel Direct Inc., 303 F.R.D. 588, 605-06 (N.D. Cal. 2014); In re
21
Facebook, Inc., PPC Adver. Litig., 282 F.R.D. 446, 452 (N.D. Cal. 2012).
22
Trans Union does not dispute that numerosity is satisfied here. It concedes that during the
23
class period approximately 18,000 consumers residing in California received file disclosures that
24
contained an OFAC header substantially similar to the one in Larson’s October 26, 2011
25
disclosure. See, e.g., Class Cert. Opp. at 3, 15-16, 21, 24; Trans Union’s Rog. Resp. Set 1 at 3.
26
Larson asserts, and Trans Union does not dispute, that none of these putative class members were
27
actually on the OFAC list, and that none should have received the OFAC notification. Class Cert.
28
Mot. at 6-7. Larson has established numerosity.
15
1
b.
Commonality
2
Class certification is appropriate only where “there are questions of law or fact common to
3
the class.” Fed. R. Civ. P. 23(a)(2). Even a single common question may be sufficient to establish
4
commonality under Rule 23(a)(2). Dukes, 131 S. Ct. at 2556; see also Mazza, 666 F.3d at 589
5
(“[C]ommonality only requires a single significant question of law or fact.”). However, that single
6
common question must be capable of a single common resolution for the class as a whole, meaning
7
that its resolution “will resolve an issue that is central to the validity of each one of the claims in
8
one stroke.” Dukes, 131 S. Ct. at 2551. In other words, common questions support a finding of
9
commonality only where they “will generate common answers apt to drive the resolution of the
10
United States District Court
Northern District of California
11
litigation.” Id. (emphasis omitted).
Larson identifies two common questions in this case: first, whether Trans Union violated
12
section 1681g’s clear and accurate disclosure requirement (either by the format and content of the
13
OFAC header, or by describing the header as “additional information” that was “provided as a
14
courtesy” and that was not part of the file disclosure); and second, whether Trans Union’s alleged
15
violations were willful. Class Cert. Mot. at 18. Larson contends that because each putative class
16
member “was victimized by the same or similar . . . conduct,” these questions will likely generate
17
common answers for the class as a whole. Id.
18
Trans Union responds that answering the first question will require individualized inquiries
19
into whether each class member actually read the relevant portion of his or her file disclosure, and
20
whether he or she was actually confused by it. Class Cert. Opp. at 15-16. Trans Union offers a
21
declaration by Professor Victor Stango, an expert on consumer behavior in financial service
22
markets. Stango Decl. ¶ 2 (Dkt. No. 72-15). Stango opines that putative class members “would
23
display diversity in whether they did or did not see and read the OFAC header,” and that
24
25
26
27
28
16
1
“interpretations of the header would have been diverse.” Id. ¶ 5.5
Trans Union argues that the willfulness issue is also incapable of class resolution because
2
3
the evidence regarding its state of mind varies considerably over the course of the class period.
4
Class Cert. Opp. at 17-18. It points out that from the start of the class period on September 22,
5
2011 through October 18, 2011, it had “no inkling” of any problem with its OFAC disclosure
6
software. Id. at 17. It only began to learn of a potential defect on October 19, 2011 and did not
7
isolate the defect as a coding error until October 21, 2011. Id. It then worked “urgently” to
8
address the error until finally confirming on October 28, 2011 that the error had been resolved. Id.
9
Trans Union contends that its “constantly evolving” state of mind during the class period, and its
“constant work to address the error after learning about it,” preclude Larson from establishing
11
United States District Court
Northern District of California
10
commonality on the basis of willfulness. Id.
The question of whether Trans Union violated section 1681g’s clear and accurate
12
13
disclosure requirement is sufficient to establish commonality. Trans Union’s argument that
14
answering this question will require individual inquiries into whether each class member was
15
actually confused by the OFAC header is unconvincing. The plain language of section 1681g does
16
not require, either explicitly or implicitly, a showing of actual confusion. See 15 U.S.C. §
17
1681g(a) (“Every consumer reporting agency shall, upon request, and subject to section
18
1681h(a)(1) of this title, clearly and accurately disclose to the consumer . . . [a]ll information in the
19
consumer’s file at the time of the request.”). Trans Union offers no explanation of how this
20
language could be reasonably construed to require proof in this case that each particular consumer
21
who received the allegedly unclear and inaccurate OFAC header was actually confused by it.
22
Nor does it identify a single case, from this circuit or any other, holding that section 1681g
23
includes an actual confusion element. It cites Mazza v. American Honda Motor Co. as an example
24
5
25
26
27
28
Larson objects to Stango’s declaration on two grounds: (1) Trans Union did not disclose
Stango’s identity before the close of class certification discovery; and (2) the declaration does not
contain any opinion based on scientific, technical, or other specialized knowledge, but “merely
states the obvious: that different individuals have different experiences that cause them to interpret
situations and language differently.” Class Cert. Reply at 4 n.1. Larson also argues that Stango’s
opinion is irrelevant given that actual consumer confusion is not an element of a section 1681g
claim. Id. I agree with Larson that Stango’s declaration is not relevant to the class certification
determination in this case and do not consider it here.
17
1
of a case in which a class was found uncertifiable in part because of the need to determine on an
2
individualized basis whether each class member reviewed and relied on the allegedly misleading
3
material. See Class Cert. Opp. at 18-19. The court in Mazza vacated the trial court’s class
4
certification order, partly on the ground that “common questions of fact do not predominate where
5
an individualized case must be made for each member showing reliance.” 666 F.3d at 596. Trans
6
Union contends that here also, “an individualized analysis would be required to determine whether
7
consumers saw or read the OFAC header, and interpreted it to mean that they were on the OFAC
8
list.” Id. But Mazza did not involve claims under the FCRA. It involved claims under
9
California’s Consumer Legal Remedies Act, False Advertising Law, and Unfair Competition Law,
each of which required the plaintiffs in that case to establish reliance to pursue their claims for
11
United States District Court
Northern District of California
10
damages. See Mazza, 666 F.3d at 591, 595-96. Trans Union cites no authority indicating that
12
Larson or absent class members will need to make a similar showing here.
13
Trans Union also relies on a passage from the August 14, 2013 report and recommendation
14
of Magistrate Judge Carlson in Miller v. Trans Union LLC, No. 12-cv-01715 (M.D. Pa. filed
15
August 28, 2012), an FCRA case based on the same allegedly unclear and inaccurate OFAC
16
header at issue here. In determining that Miller had stated a claim under section 1681g, Magistrate
17
Judge Carlson quoted the OFAC header and observed that its language
18
19
20
21
22
23
24
is ambiguous and is capable of being construed in at least two very
different fashions: first, as an assertion that no match exists or,
alternatively, as a representation that a potential match exists but
that Trans Union has elected to make an incomplete disclosure and
leave the potential match intentionally blank . . . The former
interpretation would not be actionable. In contrast, the latter
interpretation could give rise to liability under the FCRA. Since the
disclosure may be susceptible of these two meanings, the file
disclosure “may be deemed ‘inaccurate’ since the statement is
presented in such a way that it may create a misleading impression.”
Schweitzer v. Equifax Info. Solutions LLC, 441 F. Appx. 896, 902
(3d Cir. 2011).
Miller, No. 12-cv-01715, Dkt. No. 50 at 20 (alterations omitted). Trans Union argues that this
25
passage shows that “to the extent that a consumer actually interpreted the blank space [in the
26
OFAC header] to mean that there was no OFAC data associated with his file, the [section 1681g]
27
claim fails.” Class Cert. Opp. at 13-14. I do not read the passage in the same way. While it does
28
18
1
state that liability will turn on how the OFAC header is interpreted, it does not state that this
2
determination must be made on an individualized basis, according to the subjective interpretation
3
of each individual class member. Indeed, in Schweitzer v. Equifax Info. Solutions LLC, 441 F.
4
Appx. 896 (3d Cir. 2011), cited at the end of the passage, the Third Circuit assessed the accuracy
5
of the disclosures at issue by examining the disclosures themselves, not the plaintiff’s subjective
6
interpretation of them. See id. at 902-03.
7
The question whether Trans Union violated section 1681g willfully is also sufficient to
8
establish commonality. Trans Union’s contention that the willfulness determination will depend
9
on an examination of its “constantly evolving” state of mind during the class period is based on a
mischaracterization of Larson’s theory of willfulness. According to Larson, Trans Union willfully
11
United States District Court
Northern District of California
10
violated the FCRA when it implemented its OFAC disclosure software without sufficient testing,
12
before any disclosures containing the OFAC header had been provided to class members. Class
13
Cert. Reply at 1. Contrary to Trans Union’s assertions, see Class Cert. Opp. at 19, evaluating this
14
theory is not likely to require a series of distinct “day-by-day” or “minute-by-minute”
15
determinations. Rather, it is likely to require a single inquiry: whether Trans Union “willfully
16
violated the FCRA when it implemented its [OFAC disclosure] software without sufficient
17
testing.” Class Cert. Reply at 1. This inquiry is likely to focus on common evidence regarding
18
Trans Union’s conduct before implementing its OFAC disclosure software, and it is likely to
19
generate a single, common answer for each class member, irrespective of when he or she received
20
an allegedly defective file disclosure.
21
In sum, whether Trans Union failed to provide putative class members with clear and
22
accurate file disclosures, and whether it did so willfully, are common questions that are likely to
23
generate common answers for the class as a whole. Commonality is satisfied.
24
25
c.
Typicality and Adequacy
Typicality under Rule 23(a)(3) requires that “the claims or defenses of the representative
26
parties [be] typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). The purpose
27
of this requirement is to ensure that the interests of the named representatives align with those of
28
the rest of the class. Wolin v. Jaguar Land Rover N. Am., LLC, 617 F.3d 1168, 1174-75 (9th Cir.
19
1
2010). “Under the rule’s permissive standards, representative claims are ‘typical’ if they are
2
reasonably coextensive with those of absent class members; they need not be substantially
3
identical.” Hanlon, 150 F.3d at 1020. “The test of typicality is whether other members have the
4
same or similar injury, whether the action is based on conduct which is not unique to the named
5
plaintiffs, and whether other class members have been injured by the same course of conduct.”
6
Hanon, 976 F.2d at 508 (internal quotation marks omitted).
7
Similarly, to establish adequacy under Rule 23(a)(4), named plaintiffs must show that they
8
“will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). “To
9
determine whether named plaintiffs will adequately represent a class, courts must resolve two
questions: (1) do the named plaintiffs and their counsel have any conflicts of interest with other
11
United States District Court
Northern District of California
10
class members and (2) will the named plaintiffs and their counsel prosecute the action vigorously
12
on behalf of the class?” Ellis v. Costco Wholesale Corp., 657 F.3d 970, 985 (9th Cir. 2011).
13
Trans Union raises several arguments with respect to Larson’s ability to represent the
14
15
putative class. None have merit.
Trans Union first contends that Larson’s claims are atypical because he was not entitled,
16
under section 1681j, to the free file disclosure he received on October 26, 2011. Class Cert. Opp.
17
at 22. This argument overlaps completely with Trans Union’s motion for summary judgment on
18
its third affirmative defense and fails for the same reasons as the motion.
19
Trans Union next argues that Larson’s claims are atypical because Larson: (1) requested his
20
file disclosure as a result of an alleged adverse action; (2) has a “long history” of ordering credit
21
reports, carefully assessing them, and disputing their contents; and (3) has previously filed for
22
bankruptcy. Class Cert. Opp. at 23. It is not clear how these circumstances could possibly render
23
Larson unfit to represent the putative class. Trans Union appears to argue that they make Larson
24
unusually inclined to be confused or misled by the OFAC header. See id. (“Other factors that may
25
have led [Larson] to a more fraught reading of the blank space was his history of frequently
26
disputing credit items [and] his previous bankruptcy . . . Consumers who do not frequently dispute
27
items on their credit reports or who had not previously filed for bankruptcy would be less likely to
28
be concerned by the blank space.”). However, as discussed above, Trans Union has failed to
20
1
demonstrate that a plaintiff must show that he was actually confused or misled by the allegedly
2
defective file disclosure to prevail on a section 1681g claim.
3
Third, Trans Union argues that Larson’s claims are atypical because he received his file
4
disclosure on October 26, 2011, by which point Trans Union had learned of the OFAC defect and
5
was actively attempting to fix it. Class Cert. Opp. at 23. Trans Union contends that this timing
6
makes Larson’s claims atypical because many putative class members received their file
7
disclosures before Trans Union had any knowledge of the defect. Id. This argument is another
8
iteration of Trans Union’s contention that the willfulness inquiry will require a series of distinct
9
“day-by-day” or “minute-by-minute” determinations, and it fails for the reasons discussed above
10
with respect to that contention.
United States District Court
Northern District of California
11
Finally, Trans Union contends that Larson is an inadequate class representative because in
12
1986 he sustained a misdemeanor conviction for filing a false police report. See Class Cert. Opp.
13
at 24; Larson Depo. at 14-15 (Newman Decl. Ex. D, Dkt. No. 72-11). Courts have held that
14
“[p]rior criminal convictions can show dishonesty and can be a basis to bar an individual from
15
acting as a class representative.” Marquita Sanders v. W & W Wholesale Inc., No. 11-cv-03557,
16
2012 WL 3987629, at *5 (N.D. Ill. Sept. 11, 2012) (in action asserting claims against department
17
store under the Fair and Accurate Credit Transaction Act, putative class representative was
18
inadequate where she had “multiple convictions for felony retail theft, and she stated at her
19
deposition that she had been arrested for retail theft ‘probably a million’ times”). However, a
20
single misdemeanor conviction occurring nearly thirty years before class certification is hardly a
21
per se bar to representing a class. See id. (in same action, rejecting argument that other putative
22
class representative’s misdemeanor conviction from approximately ten years previous rendered
23
her inadequate; stating, “[a] misdemeanor conviction that occurred approximately a decade ago is
24
not alone a sufficient basis to conclude that [she] should be barred from acting as a representative
25
of the class”); see also Meyer v. Portfolio Recovery Associates, LLC, 707 F.3d 1036, 1042 (9th
26
Cir. 2012) (affirming adequacy of class representative despite prior convictions for “offenses
27
involving dishonesty” where convictions were more than ten years old and class representative
28
“had since taken positive steps in his life, including [graduating] from the University of
21
1
2
California”).
“For an assault on the class representative’s credibility to succeed, the party mounting the
3
assault must demonstrate that there exists admissible evidence so severely undermining plaintiff’s
4
credibility that a fact finder might reasonably focus on plaintiff’s credibility,” thereby adversely
5
impacting the claims of absent class members. CE Design Ltd. v. King Architectural Metals, Inc.,
6
637 F.3d 721, 728 (7th Cir. 2011) (internal quotation marks omitted); accord Mendez v. R+L
7
Carriers, Inc., No. 11-cv-02478-CW, 2012 WL 5868973, at *14 (N.D. Cal. Nov. 19, 2012);
8
Tierno v. Rite Aid Corp., No. 05-cv-02520-TEH, 2006 WL 2535056, at *4 (N.D. Cal. Aug. 31,
9
2006). Neither Larson’s misdemeanor conviction, nor any other admissible evidence on record
10
United States District Court
Northern District of California
11
regarding his credibility, comes close to reaching that level.
I am satisfied that Larson’s claims are reasonably coextensive with those of absent class
12
members, and that he and his attorneys will fairly and adequately represent the interests of the
13
class. Typicality and adequacy are met.
14
15
16
2.
Rule 23(b)(3)
a.
Predominance
The test for predominance under Rule 23(b)(3) asks “whether proposed classes are
17
sufficiently cohesive to warrant adjudication by representation.” Amchem, 521 U.S. at 623. In
18
contrast with commonality under Rule 23(a)(2), predominance focuses on the relationship between
19
common and individual issues. Hanlon, 150 F.3d at 1022. The test for predominance is “far more
20
demanding” than the one for commonality. Amchem, 521 U.S. at 623-24.
21
Trans Union argues that predominance is lacking here because individualized inquiries will
22
be required with respect to three issues: actual confusion, willfulness, and actual harm. Class Cert.
23
Opp. at 18-20, 24-25. I am not persuaded. Section 1681g does not require a showing of actual
24
confusion. Variation among class members with respect to that issue is thus irrelevant to
25
predominance. The willfulness issue also fails to defeat predominance. Because the evidence
26
regarding willfulness will likely focus on Trans Union’s alleged failure to sufficiently test its
27
OFAC disclosure software before implementing it, the evidence regarding the issue will likely be
28
common to the class. Assessing willfulness is not likely to require individualized inquiries.
22
1
The issue of actual harm does not defeat predominance either, at least not under the law as
2
it exists today. Judge Corley addressed a nearly identical argument in Ramirez. She concluded
3
that the potential need to assess actual harm on an individualized basis is irrelevant to
4
predominance because actual harm is not an element of a claim for statutory damages under 15
5
U.S.C. § 1681n(a). See 301 F.R.D. at 42-22. She relied on Robins, in which the Ninth Circuit
6
held that the FCRA “does not require a showing of actual harm when a plaintiff sues for willful
7
violations.” 742 F.3d at 412. Several other circuit courts have reached the same conclusion. See
8
Hammer v. Sam’s E., Inc., 754 F.3d 492, 498-99 (8th Cir. 2014); Beaudry v. TeleCheck Servs.,
9
Inc., 579 F.3d 702, 705-07 (6th Cir. 2009); Murray v. GMAC Mortgage Corp., 434 F.3d 948, 95253 (7th Cir. 2006); see also Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 307 (2d Cir.
11
United States District Court
Northern District of California
10
2003) (“The [Fair Debt Collection Practices Act] permits the recovery of statutory damages up to
12
$1,000 in the absence of actual damages.”); Robey v. Shapiro, Marianos & Cejda, L.L.C., 434
13
F.3d 1208, 1212 (10th Cir. 2006) (quoting same). I agree with Judge Corley that, under Robins,
14
whether class members suffered actual harm is irrelevant to their claims for statutory damages
15
under section 1681n(a) – the only claims they bring – and is thus irrelevant to the predominance
16
analysis.
17
b.
Superiority
18
Certification under Rule 23(b)(3) requires a showing that class treatment is “superior to
19
other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P.
20
23(b)(3). Factors relevant to this determination include: “(A) the class members’ interests in
21
individually controlling the prosecution or defense of separate actions; (B) the extent and nature of
22
any litigation concerning the controversy already begun by or against class members; (C) the
23
desirability or undesirability of concentrating the litigation of the claims in the particular forum;
24
and (D) the likely difficulties in managing a class action.” Id. “A consideration of these factors
25
requires the court to focus on the efficiency and economy elements of the class action so that cases
26
allowed under [Rule 23(b)(3)] are those that can be adjudicated most profitably on a representative
27
basis.” Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1190 (9th Cir. 2001) (internal
28
quotation marks omitted).
23
1
Trans Union does not contest superiority, and I find that it is satisfied. There is no
2
indication that putative class members have any significant interest in individually prosecuting
3
their claims against Trans Union, there is no litigation underway elsewhere that weighs against
4
proceeding as a class here, it is desirable to concentrate the claims of this class of California
5
residents in a single California forum, and except for the arguments addressed elsewhere in this
6
Order, Trans Union has not identified any unusual difficulties that are likely to arise in managing
7
the case as a class action. Larson has established superiority.
8
9
10
3.
Ascertainability
Trans Union argues that the proposed class is not ascertainable. Class Cert. Opp. at 20-21.
Trans Union is wrong.
United States District Court
Northern District of California
11
“As a threshold matter, and apart from the explicit requirements of Rule 23(a), the party
12
seeking class certification must demonstrate that an identifiable and ascertainable class exists.”
13
Mazur v. eBay Inc., 257 F.R.D. 563, 567 (N.D. Cal. 2009). “A class is ascertainable if it identifies
14
a group of unnamed plaintiffs by describing a set of common characteristics sufficient to allow a
15
member of that group to identify himself or herself as having a right to recover based on the
16
description.” Hanni, 2010 WL 289297, at *9; see also Marsh v. First Bank of Delaware, No. 11-
17
cv-05226-WHO, 2014 WL 554553, at *5 (N.D. Cal. Feb. 7, 2014).
18
In addition, “[t]he class definition must be sufficiently definite so that it is administratively
19
feasible to determine whether a particular person is a class member.” Wolph v. Acer Am. Corp.,
20
272 F.R.D. 477, 482 (N.D. Cal. 2011). “Administrative feasibility means that identifying class
21
members is a manageable process that does not require much, if any, individual factual inquiry.”
22
Lilly v. Jamba Juice Co., No. 13-cv-02998-JST, 2014 WL 4652283, at *3 (N.D. Cal. Sept. 18,
23
2014) (internal quotation marks omitted). The determination of administrative feasibility presents
24
“a question of degree” as to whether the identification of class members is “sufficiently facile” to
25
allow the class to proceed, or “excessively complex” so that denial of the class is warranted. Joyce
26
v. City & County of San Francisco, No. 93-cv-04149, 1994 WL 443464, at *6 (N.D. Cal. Aug. 4,
27
1994). The burden is on the party seeking certification to demonstrate ascertainability by a
28
preponderance of the evidence. See Xavier v. Philip Morris USA Inc., 787 F. Supp. 2d 1075, 1089
24
1
(N.D. Cal. 2011).
Trans Union argues that Larson has failed to show the proposed class is ascertainable
2
3
because he has not offered any plan for determining which putative class members were confused
4
by the OFAC header. Class Cert. Opp. at 20. Trans Union states: “[I]t cannot be objectively
5
proven which specific consumers saw or read the OFAC header, and if so, whether they were
6
confused by it. As such, [Larson] has failed to meet his burden of proving by a preponderance of
7
the evidence . . . that the class is ascertainable by reference to objective criteria and without having
8
to answer numerous fact-intensive questions.” Id. at 21 (internal citations and quotation marks
9
omitted).
This argument fails. Trans Union appears to confuse Larson’s proposed class definition
10
United States District Court
Northern District of California
11
with one that requires evidence that the consumer saw, read, and was confused by the OFAC
12
header. That is not what Larson’s proposed class definition says. Rather, it limits the class to
13
persons (1) residing at a California address (2) to whom Trans Union provided a file disclosure
14
(3) from September 22, 2011 until October 27, 2011 (4) which was “substantially similar in form”
15
to the one received by Larson. Class Cert. Mot. at 7. These are objective criteria describing a
16
class of consumers who can likely be identified based exclusively on Trans Union’s own records,
17
without the need for any fact-intensive inquiries. Indeed, it appears that Trans Union has already
18
identified the putative class in the process of responding to Larson’s discovery requests. See Trans
19
Union’s Rog. Resp. Set 1 at 3 (Dkt. No. 62-9). The class is ascertainable.
For the reasons set forth above, I am tentatively inclined, based on current law, to grant
20
21
Larson’s motion for class certification.
22
IV.
The parties filed a number of administrative motions to file under seal in conjunction with
23
24
their motions for summary judgment and class certification.6
On March 13, 2015, in conjunction with his motion for class certification, Larson moved to
25
26
ADMINISTRATIVE MOTIONS TO FILE UNDER SEAL
file under seal (1) portions of the transcript of the deposition of James Garst; (2) portions of the
27
28
6
The stay of proceedings in this case does not apply to the sealing issues discussed in this Order.
25
transcript of the deposition of John Thackrey; (3) several emails produced by Trans Union,
2
submitted as Exhibits 5 to 7, 9 to 11, and 13 to the Soumilas Declaration; and (4) portions of the
3
motion. Dkt. No. 62. The only stated ground for sealing is that Trans Union designated the
4
documents as “confidential” or “highly confidential.” Trans Union submitted a declaration as
5
required under Civil Local Rule 79-5(e). Dkt. No. 67. The motion is GRANTED with respect to
6
the emails produced by Trans Union. The motion is DENIED WITHOUT PREJUDICE with
7
respect to the Garst and Thackrey deposition transcripts and the portions of the motion for class
8
certification.7 Trans Union seeks to redact significantly more of these documents than appears
9
necessary given its stated justifications for sealing. If Trans Union wants the redacted portions of
10
the deposition transcripts and the motion for class certification to remain under seal, it shall file an
11
United States District Court
Northern District of California
1
amended declaration within 7 days of the date of this Order narrowing its sealing requests and/or
12
articulating specific reasons justifying those requests.
13
On April 3, 2015, in conjunction with his opposition to Trans Union’s motion for summary
14
judgment, Larson moved to file under seal: (1) portions of the transcript of the deposition of Brian
15
Thackrey; (2) a number of documents produced by Trans Union; and (3) portions of the opposition
16
brief. Dkt. No. 70. The only stated ground for sealing is that Trans Union designated the
17
documents as “confidential” or “highly confidential.” Trans Union submitted a declaration as
18
required under Civil Local Rule 79-5(e). Dkt. No. 73. The motion is DENIED WITHOUT
19
PREJUDICE. Trans Union again seeks to redact significantly more of these documents than
20
appears necessary given its stated justifications for sealing. It may file an amended declaration
21
within 7 days from the date of this Order.
Also on April 3, 2015, in conjunction with its opposition to Larson’s motion for class
22
23
certification, Trans Union moved to file under seal: (1) portions of the deposition transcript of
24
James Garst; (2) portions of the deposition transcript of Brian Thackrey; (3) portions of the
25
declaration of Victor Stango; and (4) portions of the opposition brief. Dkt. No. 72. The motion is
26
7
27
28
To the extent that this administrative motion to file under seal or any of the parties’ other three
sealing motions seek to seal information that is quoted or specifically discussed in this Order, they
are DENIED WITH PREJUDICE. This information is plainly not sealable under either the good
cause standard or the compelling reasons standard.
26
1
GRANTED with respect to the Thackrey deposition transcript, the Stango declaration, and the
2
opposition brief. It is DENIED WITHOUT PREJUDICE with respect to the Garst deposition
3
transcript, again because the sealing request appears overbroad in light of the stated justifications
4
for sealing. Trans Union may file an amended declaration within 7 days from the date of this
5
Order.
6
Finally, on May 14, 2015, Trans Union moved to have sealed a portion of the oral
7
argument transcript. Dkt. No. 79. The motion is DENIED WITHOUT PREJUDICE for the
8
reasons stated above. Trans Union may file an amended declaration within 7 days from the date of
9
this Order.
CONCLUSION
10
United States District Court
Northern District of California
11
For the foregoing reasons:
12
(1) Trans Union’s motion for summary judgment, Dkt. No. 66, is DENIED.
13
(2) Proceedings in this case are STAYED pending resolution of the appeal in Spokeo.
14
Within fourteen days of the date the Supreme Court issues its decision in Spokeo, the parties shall
15
file a joint status report discussing (a) what impact, if any, the decision has on the tentative ruling
16
on Larson’s motion for class certification; (b) whether proceedings in this case should remain
17
stayed pending resolution of the appeal in Tyson, if that appeal has not already been resolved; and
18
(c) any other relevant matter. I will issue a final order on the motion for class certification or other
19
appropriate order after the parties file the joint status report.
20
21
22
(3) Larson’s motion for class certification, Dkt. Nos. 63, 64, is taken under submission
pending resolution of the matters described in paragraph (2) above.
(4) The parties’ administrative motions to file under seal, Dkt. Nos. 62, 70, 72, and 79, are
23
decided as stated above. The stay of proceedings in this case does not apply to the sealing issues
24
discussed in this Order.
25
26
27
28
IT IS SO ORDERED.
Dated: June 26, 2015
______________________________________
WILLIAM H. ORRICK
United States District Judge
27
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