Lengel v. HomeAdvisor, Inc.

Filing 20

MEMORANDUM AND ORDER denying 11 Defendant's Motion to Dismiss. Signed by District Judge Richard D. Rogers on 5/5/15. (meh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
EMERALD LENGEL, individually
and on behalf of all others
similarly situated.
Plaintiff,
v.

Case No. 15-2198-RDR

HOMEADVISOR, INC.,
Defendant.

MEMORANDUM AND ORDER
Plaintiff made application for employment with defendant.
During this process, plaintiff signed a form which permitted
defendant to procure a consumer report as a kind of background
check.

Plaintiff now brings this action alleging that defendant

violated a provision of the Fair Credit Reporting Act (FCRA)
which governs disclosures that are required prior to procuring
such a consumer report.

The FCRA provision at issue states in

part that it is illegal to “procure, or cause a consumer report
to be procured, for employment purposes with respect to any
consumer, unless . . . a clear and conspicuous disclosure has
been made in writing to the consumer at any time before the
report is procured or caused to be procured, in a document that
consists solely of the disclosure, that a consumer report may be
obtained for employment purposes.” 15 U.S.C. § 1681b(b)(2)(A)(i)
(emphasis

added).

Plaintiff

alleges

that

the

disclosure

defendant made to her was not in a document consisting solely of
the disclosure, contrary to FCRA requirements.

This case is now

before the court upon defendant’s motion to dismiss for failure
to state a claim pursuant to FED.R.CIV.P. 12(b)(6).
Plaintiff

does

not

allege

actual

damages.

Defendant’s

motion to dismiss argues, and it is undisputed by plaintiff,
that in order to obtain statutory damages for a violation of the
FCRA, plaintiff must allege a knowing or reckless violation of
the

statute.

noncompliance

The
to

statute

obtain

requires

statutory

damages.

proof
§

of

willful

1681n(a).

A

willful violation requires proof of knowing or reckless conduct.
Safeco Ins. Co. of America v. Burr, 551 U.S. 47, 57 (2007).
Defendant asserts that plaintiff has failed to plausibly allege
a willful violation of the FCRA.

The court disagrees.

For the

reasons which follow, the court finds that plaintiff has alleged
a

plausible

claim

that

defendant

recklessly

violated

the

provisions of § 1681b(b)(2)(A)(i).
I.

MOTION TO DISMISS STANDARDS
In Khalik v. United Air Lines, 671 F.3d 1188, 1190-92 (10th

Cir.

2012),

the

Tenth

Circuit

reviewed

the

standards

determining whether a complaint fails to state a claim:
Under Federal Rule of Civil Procedure 8(a)(2), a
pleading must contain “a short and plain statement of
the claim showing that the pleader is entitled to
relief.”
Recently the Supreme Court clarified this
pleading standard in Bell Atlantic Corp. v. Twombly,
2

for

550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007),
and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937,
173 L.Ed.2d 868 (2009): to withstand a Rule 12(b)(6)
motion to dismiss, a complaint must contain enough
allegations of fact, taken as true, “to state a claim
to relief that is plausible on its face.”
Twombly,
550 U.S. at 570, 127 S.Ct. 1955.
A plaintiff must
“nudge [his] claims across the line from conceivable
to plausible” in order to survive a motion to dismiss.
Id.
The Court explained two principles underlying the
new standard: (1) when legal conclusions are involved
in the complaint “the tenet that a court must accept
as true all of the allegations contained in a
complaint is inapplicable to [those] conclusions,”
Iqbal, 129 S.Ct. at 1949, and (2) “only a complaint
that states a plausible claim for relief survives a
motion to dismiss,” id. at 1950.
Thus, mere “labels
and conclusions” and “a formulaic recitation of the
elements of a cause of action” will not suffice.
Twombly,
550
U.S.
at
555,
127
S.Ct.
1955.
Accordingly, in examining a complaint under Rule
12(b)(6), we will disregard conclusory statements and
look
only
to
whether
the
remaining,
factual
allegations plausibly suggest the defendant is liable.
II.

THE COMPLAINT’S FACTUAL ALLEGATIONS
Plaintiff

alleges

that

she

submitted

an

employment

application to defendant on November 25, 2013; that she was
hired the same day contingent upon a satisfactory background
check; and that she began working for defendant on December 2,
2013.
Plaintiff’s

employment

application

with

defendant

is

an

exhibit to the complaint (Doc. No. 1-2) and, therefore, may be
considered

as

an

allegation

in

the

complaint.

FED.R.CIV.P.

10(c); Gorsuch, Ltd., B.C. v. Wells Fargo Nat. Bank Ass’n, 771
F.3d 1230, 1238 n. 9 (10th Cir. 2014).
3

The exhibit has five

pages

and

contains

two

disclosures

FCRA.

One

of

violate

the

section

labeled

alleged

disclosure

Authorization:

the

“Acknowledgment
is

on

Applicant

a

which

alleged
and

page

plaintiff

disclosures

Signature”
labeled

Information

and

alleges
is

in

a

the

other

“Background

Check

Release

Form.”

The

complaint alleges that the employment application included the
background check and release form.
The

first

information”

three

such

as

pages

of

name,

Doc. No. 1-2 at ¶ 18.
the

exhibit

address,

ask

position

for

“basic

applied

for,

education, prior work history, references and prior convictions
(if any).

The fourth page contains the “Acknowledgment and

Signature” provision.

On this page, plaintiff represented with

her signature that she had no agreement with a prior employer
which would restrict or impair her employment with defendant;
that

she

understood

that

her

employment

relationship

with

defendant would be as an at-will employee; that she understood
that policy statements or handbooks or other materials did not
constitute a guarantee of employment; that defendant had the
right to modify, amend or terminate its policies, practices,
programs

and

benefit

plans;

and

that

she

understood

that

defendant would rely upon the accuracy and completeness of her
statements.

Finally, the acknowledgement section reads:

I authorize investigation of all statements contained
in this application and permit HomeAdvisor to obtain
any transcripts, records or documents pertaining to my
4

background and business experience.
I also agree to
release HomeAdvisor from any liability arising there
from and understand that any misstatements, omissions
or false statements made by me may be cause for
dismissal.
Plaintiff signed and dated this page.
The
border.

first
The

four
fifth

pages
page

of

the

does

not,

exhibit

have

different document than the first four pages.
clear

to

the

court

whether

the

fifth

page

bold

that

suggesting

a

it

line
is

a

But, it is not
was

presented

to

plaintiff as part of the other pages of the exhibit or whether
it was presented separately.
The fifth and last page of the exhibit is the “Background
Check Authorization:

Applicant Information Release Form.”

page states as follows:
I hereby authorize HomeAdvisor and/or their authorized
agents to gather information regarding the following:
All records including criminal, credit, driving, drug,
and/or education; written or verbal from previous
employers;
and
any
other
pertinent
information
relating to the function of my job.
I understand that all inquiries on this form are used
for identification purposes only in order to conduct a
background check, and are asked for legitimate
nondiscriminatory reasons.
Responses to sex, age and
race inquir[i]es are voluntary, and choosing not to
respond will not preclude hire.
I hereby release
HomeAdvisor and any of its authorized agents from
liability, and understand there is no invasion of
privacy.
I understand that submission of false information on
this or any employment forms m[a]y result in nonselection or termination if hired.
The following is
my complete legal name, and all information is true
5

This

and correct to the best of my knowledge.
This
information is used for verification purposes ONLY:
Below these paragraphs are blank fields where plaintiff filled
in her name, the position she applied for, her race, her sex,
and the cities where she currently and previously lived.

This

information duplicated to some extent the information on the
first three pages of the exhibit.
the

fifth

pages.

page

was

a

separate

Again, this indicates that

document

from

the

first

four

There was also a blank field for plaintiff’s signature

on the fifth page, which she completed.
III.

PLAINTIFF’S LEGAL CLAIMS
Plaintiff

requirement

contends

that

the

that

defendant

disclosure

of

violated

defendant’s

the

FCRA’s

request

to

procure a consumer report be made “in a document that consists
solely of the disclosure.”
refers

to

both

the

In making this claim, plaintiff

“Acknowledgment

&

Signature”

page

(“Acknowledgment page”) and the “Background Check Authorization:
Applicant Information Release Form” (“Release form”).
Defendant’s arguments focus upon the Release form.
IV.

DEFENDANT’S ARGUMENTS
Defendant contends that plaintiff has not plausibly alleged

a willful violation of § 1681b(b)(2)(A) of the FCRA as required
if plaintiff is to be entitled to statutory damages or punitive
damages.

Defendant argues that its analysis comports with the

6

Supreme

Court’s

decision

in

Safeco.

In

Safeco,

the

Court

examined whether a violation of the FCRA constituted a willful
violation.

The

Court

determined

that

“willful”

violations

include both knowing violations and “reckless” violations of the
law.

The court held that “reckless” violations are those acts

which rely upon an objectively unreasonable reading of the FCRA
and which lead to a substantially higher risk of violating the
law than the risk associated with a merely careless reading of
the statute.
statutory

551 U.S. at 69.

text,

considered

In Safeco, the Court examined the

the

district

court’s

ruling,

took

into account the presence or absence of guidance from the courts
of appeals, and also reviewed whether there was guidance from
the

FTC,

reckless.

in

deciding

whether

a

violation

of

the

FCRA

was

Id. at 69-70.

Defendant argues that its interpretation of the FCRA is not
objectively unreasonable, first, because the statutory text is
unclear.

The text in question, § 1681b(b)(2)(A), reads:

[A] person may not procure a consumer report, or cause
a consumer report to be procured, for employment
purposes with respect to any consumer, unless - (i) a clear and conspicuous disclosure has been
made in writing to the consumer at any time before the
report is procured or caused to be procured, in a
document that consists solely of the disclosure, that
a consumer report may be obtained for employment
purposes; and
(ii) the consumer has authorized in writing (which
authorization may be made on the document referred to
7

in clause (i)) the procurement of the report by that
person.
Defendant contends this statutory language is unclear because
the

statute

does

not

define

“disclosure”

and

because

the

provisions are internally inconsistent since they allow for a
“disclosure” and an “authorization” to be made on a document
which is supposed to consist “solely of the disclosure.”
Defendant asserts that “the statute can be reasonably read
to permit a company to include relevant additional information
alongside the disclosure as [defendant] did here.”
at

p.

10.

“disclosure”
consequences

According
and
of

to

defendant,

“authorization”
such

an

logically,

form

authorization

Doc. No. 12

should
which,

a

proper

explain
in

the

defendant’s

release form, included a release from liability.
Defendant further notes that there are no appellate court
decisions
language

which
at

issue

have

conclusively

here,

and,

of

construed

course,

there

the
were

statutory
no

such

decisions at the time of the actions alleged in the complaint.
Defendant adds that district court decisions are in conflict.
As for FTC guidance, the parties have made reference to the
“Advisory Opinion to Hauxwell,” dated June 12, 1998, which was
drafted by the FTC staff.

The Hauxwell opinion states in part:

[I]t is our position that the disclosure notice and
the authorization may be combined.
If they are
combined, identifying information (such as date of
birth,
Social
Security
number,
driver’s
license
8

number, and current and former addresses) may be
included in the form.
However, the form should not
contain any extraneous information.
Doc.

No.

1-5.

The

opinion

further

states

that

a

waiver

provision “in a disclosure form will violate” the FCRA, “which
requires that a disclosure consist ‘solely’ of the disclosure
that a consumer report may be obtained for employment purposes.”
Id.

Part of the reasoning offered for this conclusion is that

benefits provided to citizens by federal statutes may not be
waived by private agreement.

Id., citing Brooklyn Savings Bank

v. O’Neil, 324 U.S. 697 (1945).
The parties have also made reference to three other FTC
Advisory Opinions.

In the “Advisory Opinion to Steer,” dated

October 21, 1997, it is written:
[W]e believe that it was the intent of the drafters to
assure
that
the
required
disclosure
appear
conspicuously in a document unencumbered by any other
information.
The reason for specifying a stand-alone
disclosure
was
so
that
consumers
will
not
be
distracted by additional information at the time the
disclosure is given.
We believe that including an
authorization in the same document with the disclosure
. . . will not distract from the disclosure itself; to
the contrary, a consumer who is required to authorize
procurement of the report on the same document will be
more likely to focus on the disclosure. However, such
a document should include nothing more than the
disclosure and the authorization for obtaining a
consumer report.
Doc. No. 12-2.

The FTC staff wrote in “Advisory Opinion to

Coffey” in 1998:

9

You ask whether a party that has secured an employee’s
authorization
for
the
report
in
an
employment
application must also make the disclosure in a
separate document. The answer is yes, because Section
604(b)(2)(A) specifically states that the document
containing the required disclosure may not include
other items.
You ask what information may appear on the document
and if “the FTC is suggesting that the document be of
a certain size.”
It is our view that Congress
intended that the disclosure not be encumbered with
extraneous information.
However, some additional
information, such as a brief description of the nature
of the consumer reports covered by the disclosure, may
be included if the information does not confuse the
consumer or detract from the mandated disclosure.
Doc. No. 12-1.

Finally, in “Advisory Opinion to Leathers”1 in

1998, the FTC staff stated:
The disclosure may not be part of an employment
application because the language – [“in a document
that consists solely of the disclosure”] – is intended
to ensure that it appears conspicuously in a document
not encumbered by any other information.
The reason
for requiring that the disclosure be in a stand-alone
document is to prevent consumers from being distracted
by other information side-by-side with the disclosure.
A disclosure that is combined with many items in an
employment application – no matter how “prominently”
it appears – is not “in a document that consists
solely of the disclosure” as required by Section
604(b)(2)(A).
Defendant asserts that the FTC advisory opinions do not
constitute authoritative guidance because they do not represent
the

position

of

the

Commission

itself,

only

the

FTC

staff.

Defendant further argues that the advisory opinions’ reasoning
with

regard

to

the

authorization

1

This
document
may
be
viewed
at:
opinions/advisory-opinion-leathers-09-09-98.

10

being

placed

on

the

same

www.ftc.gov/policy/advisory-

document as the disclosure - - i.e., that it will not distract
from

the

disclosure

itself

defendant’s release form.

-

-

is

not

inconsistent

with

Defendant asserts that the alleged

extraneous language does not distract “the consumer’s attention
from the disclosure, but rather focuses the consumer on the
disclosure or sharpens her understanding of its implications.”
Doc. No. 12 at p. 14.
V.

PLAINTIFF’S RESPONSE TO DEFENDANT’S ARGUMENTS
Plaintiff

makes

the

following

defendant’s motion to dismiss.

arguments

in

response

to

First, plaintiff contends that

it is premature for the court to determine whether defendant’s
alleged noncompliance with the FCRA was knowing or reckless.
Plaintiff

asserts

that

it

is

improper

to

argue

lack

of

willfulness upon a motion to dismiss because it is inconsistent
with

general

pleading

standards

allegations in the complaint.

and

inconsistent

with

the

Plaintiff notes that she has

alleged that defendant violated the FCRA’s standalone disclosure
requirements despite being on notice of those requirements from
different sources, such as FTC advisory opinions, district court
opinions, and guidance from a background check agency used by
defendant.
unambiguous.

Plaintiff also claims that the statutory language is
She

contends

this

is

plausible knowing or reckless violation.

11

sufficient

to

allege

a

Next,

plaintiff

contends

that,

as

a

matter

of

law,

defendant violated the standalone disclosure provisions of the
FCRA in three ways.
prohibits

the

First, plaintiff asserts that the FCRA

disclosure

application.

from

being

part

of

the

employment

Plaintiff contends that defendant violated this

allegedly clear statutory prohibition with the Acknowledgement
page and the Release form.
and

the

FTC

advisory

Acknowledgement

page

Second, citing district court cases

opinions,
and

plaintiff

the

Release

contends

form

that

violated

the

FCRA’s

“standalone disclosure” provisions by including release language
on

the

same

plaintiff

document

contends

as

that

the
the

disclosure
FCRA’s

language.

“standalone

Third,

disclosure”

provisions were violated by the inclusion of other extraneous
information in the Acknowledgment page and the Release form.
VI.

THE SAFECO DECISION
In

Safeco,

the

plaintiffs

alleged

that

two

insurance

companies (Safeco and Geico) violated FCRA requirements in §
1681m(a) that notice be given to a consumer subjected to an
“adverse

action

.

.

.

based

in

whole

or

in

part

information contained in a consumer [credit] report.”
added).

on

any

(emphasis

An “adverse action” is defined in FCRA as “a denial or

cancellation of, an increase in any charge for, or a reduction
or other adverse or unfavorable change in the terms of coverage
or

amount

of,

any

insurance,

existing
12

or

applied

for.”

§

1681a(k)(1)(B)(i)

(emphasis

added).

Safeco

argued

that

the

notice provisions did not apply because there was no “increase
in any charge.”

Safeco argued that the consumers in question

were first-time customers whose initial rates were based on a
credit report but not changed or increased by credit report
information.
Safeco’s

was

definition

Dictionary’s

position

of

in

accord

with

“increase”

as

a

the

Webster’s

change

or

an

“’[a]ddition or enlargement in size, extent, quantity, number,
intensity,

value,

multiplication.’”

substance,
551

U.S.

etc.;
at

61

augmentation,
(quoting

International Dictionary 1260 (2d ed. 1957)).

growth,

Webster’s

New

The Supreme Court

disagreed that this definition of the term “increase” was what
Congress had in mind in the FCRA.

Instead, the Court held that

an “increase” in price could include situations in which the
insurance company had a choice of what the initial premium rate
would be and chose a higher rate on the basis of information
from a credit report.
however,

that

Id. at 61-63.

Safeco’s

position,

The Court further held,

while

incorrect,

was

not

Court

found

Safeco’s

objectively unreasonable.
In

making

this

decision

that

that

position, while erroneous, “has a foundation in the statutory
text” and that Safeco had persuaded the district court to adopt
it and rule in Safeco’s favor.

Id. at 69-70.
13

The Court further

noted that Safeco did not have the benefit of guidance from the
courts of appeals or authoritative guidance from the FTC.

The

Court concluded that “[g]iven this dearth of guidance and the
less-than-pellucid

statutory

text,

Safeco’s

reading

was

not

objectively unreasonable, and so falls well short of raising the
‘unjustifiably high risk’ of violating the statute necessary for
reckless liability.”

Id. at 70.

VII. IT IS NOT PREMATURE FOR THE COURT TO DECIDE WHETHER
PLAINTIFF HAS PLAUSIBLY ALLEGED A WILLFUL VIOLATION OF THE FCRA.
In Safeco, the Court held that a defendant who followed an
objectively reasonable reading of the FCRA could not be found to
be a knowing or reckless violator of the law and, therefore, a
court need not consider evidence of subjective bad faith when an
objectively reasonable interpretation was employed.
n.20.

Id. at 70

Thus, we find that plaintiff may not avoid the issues

raised by defendant in its motion to dismiss merely by arguing
that

willfulness

questions

of

be

pleaded

generally

and

willfulness

proceed

at

to

judgment stage.
lead

to

a

plaintiff,

may

the

often
summary

Evidence or allegations which might plausibly

willfulness
if

least

that

a

finding

defendant’s

will

not

save

interpretation

the

of

day

the

for

FCRA

a
is

objectively reasonable.
Therefore,
interpretation

the
of

court

the

FCRA

shall
may

14

examine
be

whether

plausibly

defendant’s

alleged

to

be

objectively reasonable.

But, as discussed below, at least as to

one of plaintiff’s claims there appears to be a fact issue which
cuts short our analysis.
VIII.
PLAINTIFF HAS PLAUSIBLY ALLEGED THAT DEFENDANT DID NOT
FOLLOW AN OBJECTIVELY REASONABLE READING OF THE FCRA.
The court shall concentrate upon plaintiff’s claims that
the Release form violated the provisions of the FCRA.
does

not

reach

any

question

raised

in

the

The court

complaint

as

to

whether the Acknowledgment page complied with the FCRA because
defendant

does

not

depend

upon

that

page

to

argue

that

it

followed the FCRA’s disclosure provisions prior to procuring a
consumer report regarding plaintiff.
As to the Release form, the court finds that the complaint
plausibly

alleges

a

willful

violation

of

the

standalone

disclosure provisions of the FCRA in at least two ways:

1) the

complaint alleges in ¶ 18 that the Release form was included as
part

of

contained

the
in

employment
the

application

Release

form

was

and
not

thus
“in

the
a

disclosure

document

that

consists solely of the disclosure” as required by the FCRA; and
2)

the

complaint

alleges

that

the

Release

form

contained

extraneous information, not “a document that consists solely of
the

disclosure,”

even

standalone document.

if

the

Release

form

was

considered

a

In other words, plaintiff has stated a

claim that defendant violated the FCRA requirements for 1) a

15

standalone document; and 2) a standalone disclosure within the
standalone document.

The court believes that it is plausible

that plaintiff could prove that either of these violations was
willful.
A.

Standalone document provisions

Defendant makes no persuasive argument that the standalone
document provisions are unclear or that court decisions or other
authorities
asserts

have

that

found

or

created

“[t]here

is

no

an

ambiguity.

statutory

text

Defendant

precluding

an

employer from making its separate FCRA disclosure document a
part of its employment application.”
But, the court disagrees.

Doc. No. 19 at pp. 8-9.

The statute requires a disclosure “in

a document that consists solely of the disclosure.”

The court

finds that this statutory text requires that the disclosure be
in its own document, not part of an employment application.
Defendant

further

contends

that

the

Release

form

was

a

standalone document and that it was “logical and appropriate” to
present

the

application.

document

“contemporaneously”

Doc. No. 19 at p. 9.

with

the

employment

The circumstances of its

presentation, however, appear to be an issue of fact.

At this

stage of the proceedings, the court is bound by the allegation
in ¶ 18 of the Complaint that the Release form was included in
the employment application.

This allegation states a plausible

16

claim that defendant recklessly violated the standalone document
provisions of the FCRA.
B.

Standalone disclosure provisions

Plaintiff has stated a plausible claim that the standalone
disclosure

requirement

was

recklessly

violated

by

defendant.

Defendant asserts that the term “disclosure” is undefined and
unclear.

But, the statute requires “a clear and conspicuous

disclosure . . . to the consumer . . . that a consumer report
may be obtained for employment purposes.”

The statute defines

the disclosure as a statement that a consumer report may be
obtained for employment purposes.
The Release form contains language stating that:
release

[defendant]

and

any

of

its

authorized

“I hereby

agents

from

liability, and understand there is no invasion of privacy” and
“I understand that submission of false information on this or
any

employment

termination

if

forms
hired.”

m[a]y

result

These

in

statements

non-selection
are

arguably

or

quite

unrelated to a disclosure that a consumer report may be obtained
for employment purposes.

Thus, plaintiff has plausibly alleged

that the statements in the Release form recklessly violate the
standalone disclosure provisions of the FCRA.2

2

Defendant also argues that the term “authorization” is not clearly defined.
But, it does not appear and defendant does not argue that the alleged
extraneous information on the Release form could reasonably be considered
part of an authorization as contemplated in the FCRA.

17

Defendant

contends

that

its

position

is

objectively

reasonable.

But, the statutory language is relatively clear in

the

opinion.

court’s

possible aspect.
consumer

some

may

be

be

parameters

standalone fashion.
may

is

not

defined

in

every

But, the phrase “disclosure . . . that a

report

provides

“Disclosure”

plausibly

obtained
for

what

for

employment

should

be

purposes”

contained

in

a

While there may be some gray area there, it
argued

that

the

parameters

clearly

do

not

include a release of rights, a declaration that privacy rights
are not infringed, or a warning regarding the provision of false
information on the Release form and any other employment forms.
Thus,

it

may

be

plausibly

asserted

that

the

standalone

disclosure provision was recklessly violated by the use of the
Release form because it did not consist solely of the disclosure
that a consumer report may be obtained for employment purposes.
The Safeco case is distinguishable in our opinion because
this is not a situation where a defendant’s construction of a
statutory term has a foundation in the statutory text or is
supported by a common dictionary definition of a critical term.
Also, the court is not persuaded by defendant’s assertion that
the meaning of “solely” is put into question by the statutory
provision

permitting

disclosure document.

an

authorization

on

the

standalone

Congress is obviously entitled to make an

express exception within a statutory rule.
18

Moreover, the court

may construe from Congress’s failure to make other exceptions
that such other exceptions were not intended.

Singleton v.

Domino’s Pizza, LLC, 2012 WL 245965 *8 (D.Md. 1/25/2012); see
also, Milbourne v. JRK Residential America, LLC, 2015 WL 1120284
*7 (E.D.Va. 3/11/2015)(Congress did not alter plain meaning of
“solely” by allowing authorization to appear on the disclosure
document).
to

add

The exception is clearly limited and does not appear

ambiguity

authorization,

the

to

the

mandate

document

shall

that,
consist

other

than

the

of

the

“solely

disclosure.”3
The absence of appellate court authority on this question
does

not

persuade

the

objectively reasonable.
not a dispositive factor.
absence
issue

of

has

contrary
not

been

court

that

defendant’s

position

is

It is a factor for consideration, but
As other courts have recognized, the

authority

may

presented

to

merely
a

court

establish
of

that

appeals

the

before.

Fuges v. Southwest Financial Services, Ltd., 707 F.3d 241, 253
n.21 (3rd Cir. 2012); Cortez v. Trans Union, LLC, 617 F.3d 688,
722 (3rd Cir. 2010); Boyd v. CEVA Freight, LLC, 2013 WL 6207418
*7 (E.D.Va. 11/27/2013).

It is important to remember, despite

3

In other contexts, courts have construed the term “solely” to mean
“exclusively.” See Thomas v. Metropolitan Life Ins. Co., 631 F.3d 1153, 1162
(10th Cir. 2011). See also, F.C.C. v. NextWave Personal Communications Inc.,
537 U.S. 293, 301-02 (2003)(“solely because” means one cause “alone”
triggered a decision); Helvering v. Southwest Consolidated Corp., 315 U.S.
194, 198 (1942)(“’Solely’ leaves no leeway”).
As discussed in Singleton,
2012 WL 245965 at *8, this is consistent with dictionary definitions of the
term.

19

comparisons made to qualified immunity analysis, that this is
not

a

question

established

of

in

whether

a

legal

constitutional

principle

jurisprudence

is

clearly

where

existing

circuit court or Supreme Court precedent is usually required.
E.g., Tonkovich v. Kansas Board of Regents, 159 F.3d 504, 516
(10th

Cir.

1998).

interpretation

Instead,

where

there

it

is

a

is

an

issue

greater

of

statutory

potential

for

the

relevant text to provide clear guidance.

Here, the statutory

text

is

indicates

that

defendant’s

position

not

objectively

reasonable.
We

consider

the

split

among

district

courts

of

greater

significance since the Court in Safeco noted as part of its
analysis that the insurance company’s argument was sufficiently
convincing to have persuaded the district court to adopt it.
But, we firmly feel that the district court opinions supporting
plaintiff’s construction of the statute are substantially more
convincing and that the statutory text is relatively clear.

See

Milbourne, 2015 WL 1120284 at *6-7; Reardon, 2013 WL 6231606 at
*8-11; Singleton, 2012 WL 245965 at *10.

Moreover, the district

court cases defendant cites in its favor are distinguishable.
Two

of

the

cases

involve

forms

in

which

language was included in the disclosure.

waiver

or

release

See Syed v. M-I LLC,

2014 WL 4344746 (E.D.Cal. 8/28/2014); Smith v. Waverly Partners,
LLC, 2012 WL 3645324 (W.D.N.C. 8/23/2012).
20

The Release form in

this

case

includes

release

extraneous information.
find

that

the

language

plus

other

arguably

Thus, the Syed and Smith cases do not

disclosure

in

the

Release

form

follows

a

reasonable reading of the FCRA.4
Finally,

defendant

asserts

that

the

advisory

issued by the FTC staff are not authoritative.

opinions

We agree.

But,

they have some persuasive value in support of the plausibility
of plaintiff’s claims.

See Owner-Operator Independent Drivers

Ass’n, Inc. v. USIS Commercial Services, Inc., 537 F.3d 1184,
1192 (10th Cir. 2008)(FTC staff opinion letter may be considered
for persuasive value in a FCRA action).
IX.

CONCLUSION
For

the

above-stated

reasons,

the

court

finds

that

plaintiff has alleged plausible claims that defendant willfully
violated the FCRA.

Therefore, the court shall deny defendant’s

motion to dismiss.
IT IS SO ORDERED.
Dated this 5th day of May, 2015, at Topeka, Kansas.

s/ RICHARD D. ROGERS
Richard D. Rogers
United States District Judge

4

A third case cited by defendant, Burghy v. Dayton Racquet Club, Inc., 695
F.Supp.2d 689 (S.D.Ohio 2010), also does not appear to concern a disclosure
form which is comparable to the one plaintiff alleges in this case. The form
described in the recent case, Goldberg v. Uber Technologies, Inc., 2015 WL
1530875 (D.Mass. 4/6/2015), also appears to be substantially different.

21