Demmings v. KKW Trucking, Inc.
Opinion and Order - Defendant KKW Trucking, Inc.'s Renewed Motion to Dismiss (ECF #51 ) is DENIED. Signed on 3/29/2017 by Judge Michael H. Simon. (mja) (Main Document 62 replaced on 3/30/2017) (eo).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
RODERICK DEMMINGS, on behalf of
himself and all others similarly situated,
Case No. 3:14-cv-494-SI
OPINION AND ORDER
KKW TRUCKING, INC.,
Justin M. Baxter, BAXTER & BAXTER, LLP, 8835 S.W. Canyon Lane, Suite 130, Portland, OR
97225; Matthew A. Dooley and Anthony R. Pecora, O’TOOLE, MCLAUGHLIN, DOOLEY &
PECORA, LPA, 5455 Detroit Road, Sheffield Village, OH 44054. Of Attorneys for Plaintiff.
Dennis G. Woods and Andrew T. Gust, SCHEER LAW GROUP, 101 S.W. Main Street, Suite 1600,
Portland, OR 97204. Of Attorneys for Defendant.
Michael H. Simon, District Judge.
Plaintiff Roderick Demmings filed a putative class action lawsuit against Defendant
KKW Trucking, Inc. (“KKW”). Plaintiff alleges that KKW violated the Fair Credit Reporting
Act (“FCRA”)1 when KKW procured Plaintiff’s consumer information from two consumer
reporting agencies without providing Plaintiff proper notice and, for one report, without his
consent. Plaintiff also alleges that KKW ultimately used one of Plaintiff’s consumer reports as a
15 U.S.C. §§ 1681 et seq.
PAGE 1 – OPINION AND ORDER
basis for taking an adverse employment action against him, again without providing the
statutorily mandated notifications.
Plaintiff filed a First Amended Complaint on June 12, 2015. ECF 25. The Court granted
the parties’ joint motion to stay the case until the Supreme Court decided the case of Spokeo, Inc.
v. Robins, 136 S. Ct. 1540 (2016), which potentially implicated Plaintiff’s standing in this case.
ECF 33. After Spokeo was decided, KKW filed a motion to dismiss Plaintiff’s First Amended
Complaint. ECF 35. At oral argument, it became apparent that the First Amended Complaint did
not clearly delineate which facts were applicable to Plaintiff and which were applicable to Mr.
Neil C. Scott, a former plaintiff who was voluntarily dismissed from the case. Accordingly, the
Court ordered Plaintiff to file a Second Amended Complaint and denied KKW’s motion to
dismiss without prejudice and with leave to renew. ECF 49.
Plaintiff then filed his Second Amended Complaint. ECF 50. KKW filed a renewed
motion to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), asserting that
the Court lacks subject matter jurisdiction because Plaintiff does not allege a concrete and
particularized injury, and thus does not have Article III standing. For the reasons discussed
below, KKW’s motion to dismiss is denied.
A. Article III Standing
The U.S. Constitution confers limited authority on the federal courts to hear only active
cases or controversies brought by persons who demonstrate standing. See Spokeo, 136 S. Ct. at
1546-47; Already, LLC v. Nike, Inc., 133 S. Ct. 721, 726 (2013). Standing “limits the category of
litigants empowered to maintain a lawsuit in federal court to seek redress for a legal wrong.”
Spokeo, 136 S. Ct. at 1547.
PAGE 2 – OPINION AND ORDER
To have standing, a plaintiff must have “personal interest . . . at the commencement of the
litigation.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189
(2000). The required personal interest must satisfy three elements throughout the litigation:
(1) an injury in fact, i.e., an invasion of a legally protected interest that is concrete and
particularized, as well as actual or imminent; (2) a causal connection between the injury-in-fact
and the defendant’s challenged behavior; and (3) likelihood that the injury-in-fact will be
redressed by a favorable ruling. Id. at 180-81, 189; see also Spokeo, 136 S. Ct. at 1547
(reiterating that the “irreducible constitutional minimum” of standing consists of “an injury in
fact . . . fairly traceable to the challenged conduct of the defendant, and . . . likely to be redressed
by a favorable judicial decision”).
An injury is “particularized” if it “affect[s] the plaintiff in a personal and individual
way.” Spokeo, 136 S. Ct. at 1548 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 n.1
(1992)). An injury is “concrete” if it is “‘de facto’; that is it must actually exist,” meaning that it
is “‘real’ and not ‘abstract.’” Id. “‘Concrete’ is not, however, necessarily synonymous with
‘tangible.’ Although tangible injuries are perhaps easier to recognize, [the Supreme Court has]
confirmed in many . . . previous cases that intangible injuries can nevertheless be concrete.” Id.
1. Standing Conferred by Statute
Although Article III’s injury requirement cannot be displaced by statute, when a statute
creates a legal right, the invasion of that legal right may create standing. See Spokeo, 136 S. Ct.
at 1549 (noting that Congress “is well positioned to identify intangible harms that meet minimum
Article III requirements” and “has the power to define injuries and articulate chains of causation
that will give rise to a case or controversy where none existed before,” but emphasizing that
“Article III standing requires a concrete injury even in the context of a statutory violation”);
PAGE 3 – OPINION AND ORDER
Edwards v. First Am. Corp., 610 F.3d 514, 517 (9th Cir. 2010) (noting that standing can exist by
virtue of “statutes creating legal rights, the invasion of which creates standing”). This is
sometimes referred to as “statutory standing.”
The relevant question for statutory standing is “whether the constitutional or statutory
provision on which the claim rests properly can be understood as granting persons in the
plaintiff’s position a right to judicial relief.” Edwards, 610 F.3d at 517. This can be established
by pleading a violation of a right conferred by statute so long as the plaintiff alleges “a distinct
and palpable injury to himself, even if it is an injury shared by a large class of other possible
litigants.” Warth v. Seldin, 422 U.S. 490, 501 (1975). A “violation of a procedural right granted
by statute can be sufficient in some circumstances to constitute injury in fact. In other words, a
plaintiff in such a case need not allege any additional harm beyond the one Congress has
identified.” Spokeo, 136 S. Ct. at 1549 (emphasis in original). A plaintiff cannot, however,
“allege a bare procedural violation [of a statute], divorced from any concrete harm, and satisfy
the injury-in-fact requirement of Article III.” Spokeo, 136 S. Ct. at 1549 (providing, by way of
example of a procedural violation that would not likely present any material risk of harm, an
allegation that a credit reporting agency disseminated a report containing an incorrect zip code).
Additionally, in statutorily created causes of action, the plaintiff must demonstrate that he or she
is within the “zone of interests” protected by the law invoked in order to have standing to sue for
a violation of the statute. See Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct.
1377, 1388-89 (2014). Whether a plaintiff has stated a basis for statutory standing is generally
tested under Rule 12(b)(6) rather than Rule 12(b)(1). See Maya v. Centex Corp., 658 F.3d 1060,
1067 (9th Cir. 2011).
PAGE 4 – OPINION AND ORDER
2. Standing in Class Action Context
In the class action context, “standing is satisfied if at least one named plaintiff meets
the[se] [three] requirements.” Bates v. United Parcel Serv., Inc., 511 F.3d 974, 985 (9th
Cir. 2007). A plaintiff carries that burden by putting forth “the manner and degree of evidence
required” by whatever stage of litigation the case has reached. Lujan, 504 U.S. at 561.2 “At the
pleading stage, general factual allegations of injury resulting from the defendant’s conduct may
suffice, for on a motion to dismiss we ‘presum[e] that general allegations embrace those specific
facts that are necessary to support the claim.’” Id. at 561 (alteration in original) (quoting Lujan v.
Nat’l Wildlife Fed’n, 497 U.S. 871, 889 (1990)); see also Barnum Timber Co., 633 F.3d at 899
(noting that at the motion to dismiss stage, Article III standing is adequately demonstrated
through allegations of “specific facts plausibly explaining” why the standing requirements are
B. Motion to Dismiss Under Rule 12(b)(1)
Federal courts are courts of limited jurisdiction. Gunn v. Minton, 133 S. Ct. 1059, 1064
(2013) (quotation marks omitted). As such, a court is to presume “that a cause lies outside this
limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting
jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations
omitted); see also Robinson v. United States, 586 F.3d 683, 685 (9th Cir. 2009); Safe Air for
Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). A motion to dismiss under Federal
“[T]he evidence necessary to support standing may increase as the litigation
progresses . . . .” Barnum Timber Co. v. EPA, 633 F.3d 894, 899 (9th Cir. 2011) (citing Lujan,
504 U.S. at 561); see also Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1012 n.3
(1992) (“Lujan, since it involved the establishment of injury in fact at the summary judgment
stage, required specific facts to be adduced by sworn testimony; had the same challenge to a
generalized allegation of injury in fact been made at the pleading stage, it would have been
unsuccessful.” (emphasis in original)).
PAGE 5 – OPINION AND ORDER
Rule of Civil Procedure 12(b)(1) for lack of “subject-matter jurisdiction, because it involves a
court’s power to hear a case, can never be forfeited or waived.” United States v. Cotton, 535
U.S. 625, 630 (2002). An objection that a particular court lacks subject matter jurisdiction may
be raised by any party, or by the court on its own initiative, at any time. Arbaugh v. Y&H
Corp., 546 U.S. 500, 506 (2006); Fed. R. Civ. P. 12(b)(1). The Court must dismiss any case over
which it lacks subject matter jurisdiction. Fed. R. Civ. P. 12(h)(3).
A Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction may be either
“facial” or “factual.” See Safe Air for Everyone, 373 F.3d at 1039. A facial attack on subject
matter jurisdiction is based on the assertion that the allegations contained in the complaint are
insufficient to invoke federal jurisdiction. Id. “A jurisdictional challenge is factual where ‘the
challenger disputes the truth of the allegations that, by themselves, would otherwise invoke
federal jurisdiction.’” Pride v. Correa, 719 F.3d 1130, 1133 n.6 (9th 2013) (quoting Safe Air for
Everyone, 373 F.3d at 1039)). When a defendant factually challenges the plaintiff’s assertion of
jurisdiction, a court does not presume the truthfulness of the plaintiff’s allegations and may
consider evidence extrinsic to the complaint. See Terenkian v. Republic of Iraq, 694 F.3d 1122,
1131 (9th Cir. 2012); Robinson, 586 F.3d at 685; Safe Air for Everyone, 373 F.3d at 1039. A
factual challenge “can attack the substance of a complaint’s jurisdictional allegations despite
their formal sufficiency.” Dreier v. United States, 106 F.3d 844, 847 (9th Cir. 1996) (citation and
quotation marks omitted).
C. Motion to Dismiss Under Rule 12(b)(6)
Lack of statutory standing requires dismissal for failure to state a claim. See Maya, 658
F.3d at 1067. A motion to dismiss for failure to state a claim may be granted only when there is
no cognizable legal theory to support the claim or when the complaint lacks sufficient factual
allegations to state a facially plausible claim for relief. Shroyer v. New Cingular Wireless Servs.,
PAGE 6 – OPINION AND ORDER
Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). In evaluating the sufficiency of a complaint’s factual
allegations, the court must accept as true all well-pleaded material facts alleged in the complaint
and construe them in the light most favorable to the non-moving party. Wilson v. HewlettPackard Co., 668 F.3d 1136, 1140 (9th Cir. 2012); Daniels-Hall v. Nat’l Educ. Ass’n, 629
F.3d 992, 998 (9th Cir. 2010). To be entitled to a presumption of truth, allegations in a complaint
“may not simply recite the elements of a cause of action, but must contain sufficient allegations
of underlying facts to give fair notice and to enable the opposing party to defend itself
effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). All reasonable inferences from
the factual allegations must be drawn in favor of the plaintiff. Newcal Indus., Inc. v. Ikon Office
Solution, 513 F.3d 1038, 1043 n.2 (9th Cir. 2008). The court need not, however, credit the
plaintiff’s legal conclusions that are couched as factual allegations. Ashcroft v. Iqbal, 556
U.S. 662, 678-79 (2009).
A complaint must contain sufficient factual allegations to “plausibly suggest an
entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the
expense of discovery and continued litigation.” Starr, 652 F.3d at 1216. “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)).
D. Fair Credit Reporting Act
The FCRA seeks to ensure “fair and accurate credit reporting.” 15 U.S.C. § 1681(a)(1).
“To achieve this end, [the FCRA] regulates the creation and use of consumer report[s].” Spokeo,
Inc., 136 S. Ct. at 1545 (quotation marks omitted). The FCRA permits consumer reporting
agencies to furnish consumer reports, as relevant here, to employers “to use the information for
PAGE 7 – OPINION AND ORDER
employment purposes.” § 1681b(a)(3)(B). The FCRA also imposes certain restrictions on
employers’ use of consumer reports for employment purposes. See § 1681b(b).
The restrictions at issue in this case are set forth in §§ 1681b(b)(2)(B) and
1681b(b)(3)(B). Specifically, § 1681b(b)(2)(B) requires notice to, and consent from, certain job
applicants before an employer’s procurement of the applicant’s consumer report, and
§ 1681b(b)(3)(B) requires an employer to provide certain notifications to the applicant after the
employer has obtained the applicant’s consumer information and taken adverse action against the
applicant on the basis, at least in part, of that information.
In relevant part, § 1681b(b)(2)(B) provides:
If a consumer described in subparagraph (C) applies for
employment by mail, telephone, computer, or other similar means,
at any time before a consumer report is procured or caused to be
procured in connection with that application—
(i) the person who procures the consumer report on the consumer
for employment purposes shall provide to the consumer, by oral,
written, or electronic means, notice that a consumer report may be
obtained for employment purposes, and a summary of the
consumer’s rights under section 1681m(a)(3) of this title; and
Section 1681m(a) lists duties of users taking adverse actions on basis of information
contained in consumer reports:
If any person takes any adverse action with respect to any consumer that is
based in whole or in part on any information contained in a consumer report, the
(1) provide oral, written, or electronic notice of the adverse action to the consumer;
(2) provide to the consumer written or electronic disclosure—
(A) of a numerical credit score as defined in section 1681g(f)(2)(A) of this title
used by such person in taking any adverse action based in whole or in part on any
information in a consumer report; and
(B) of the information set forth in subparagraphs (B) through (E) of section
1681g(f)(1) of this title;
PAGE 8 – OPINION AND ORDER
(ii) the consumer shall have consented, orally, in writing, or
electronically to the procurement of the report by that person.
The notice and consent requirements of § 1681b(b)(2)(B) only apply if, as relevant here, “the
consumer is applying for a position over which the Secretary of Transportation has the power to
establish qualifications and maximum hours of service”4 and “as of the time at which the person
procures the report or causes the report to be procured the only interaction between the consumer
and the [employer] has been by mail, telephone, computer, or other similar means.”
Under § 1681b(b)(3)(B):
(i) If a consumer described in subparagraph (C) applies for
employment by mail, telephone, computer, or other similar means,
and if a person who has procured a consumer report on the
(3) provide to the consumer orally, in writing, or electronically—
(A) the name, address, and telephone number of the consumer reporting agency
(including a toll-free telephone number established by the agency if the agency compiles
and maintains files on consumers on a nationwide basis) that furnished the report to the
(B) a statement that the consumer reporting agency did not make
the decision to take the adverse action and is unable to provide the
consumer the specific reasons why the adverse action was taken; and
(4) provide to the consumer an oral, written, or electronic notice of the
(A) to obtain, under section 1681j of this title, a free copy of a
consumer report on the consumer from the consumer reporting agency
referred to in paragraph (3), which notice shall include an indication of the
60-day period under that section for obtaining such a copy; and
(B) to dispute, under section 1681i of this title, with a consumer
reporting agency the accuracy or completeness of any information in a
consumer report furnished by the agency.
The Secretary is authorized to promulgate requirements for qualifications, hours of
service, safety, and equipment standards for commercial motor vehicle operators such as truck
drivers in 49 U.S.C. § 31502.
PAGE 9 – OPINION AND ORDER
consumer for employment purposes takes adverse action on the
employment application based in whole or in part on the report,
then the person must provide to the consumer to whom the report
relates, in lieu of the notices required under subparagraph (A) of
this section and under section 1681m(a) of this title, within 3
business days of taking such action, an oral, written or electronic
(I) that adverse action has been taken based in whole or in part on
a consumer report received from a consumer reporting agency;
(II) of the name, address and telephone number of the consumer
reporting agency that furnished the consumer report (including a
toll-free telephone number established by the agency if the agency
compiles and maintains files on consumers on a nationwide basis);
(III) that the consumer reporting agency did not make the decision
to take the adverse action and is unable to provide to the consumer
the specific reasons why the adverse action was taken; and
(IV) that the consumer may, upon providing proper identification,
request a free copy of a report and may dispute with the consumer
reporting agency the accuracy or completeness of any information
in a report.
The notice requirements of § 1681b(b)(3)(B) only apply to the same category of applicants as
§ 1681b(b)(2)(B), namely, those applying for positions over which the Secretary of
Transportation has power and who have not had any in-person contact with the person in
connection with the employment application. § 1681b(b)(3)(C).
The FCRA also provides that “[a]ny person who willfully fails to comply with any
requirement [of the FCRA] with respect to any consumer is liable to that consumer” for actual
damages or statutory damages of $100 to $1,000 per violation, costs of the action and attorney’s
fees, and possibly punitive damages. § 1681n(a). For a merely negligent violation, however, the
defendant is only liable for actual damages and not statutory damages, plus costs and fees.
PAGE 10 – OPINION AND ORDER
Plaintiff alleges that he is a “consumer” and that KKW is a person using “consumer
reports” for “employment purposes” and to take “adverse action” against consumers, as those
terms are defined by and used within the FCRA. Second Amended Class Action Complaint
(“Second Am. Compl.”) (ECF 50) ¶¶ 4-6.
On or around March 8, 2012, Plaintiff applied online with KKW for a position as a truck
driver. Id. ¶ 7. KKW’s application form did not contain any notice advising Plaintiff that KKW
would obtain a consumer report to determine Plaintiff’s eligibility for employment, that Plaintiff
has the right to obtain a free copy of any consumer report obtained by KKW, or that Plaintiff
could dispute information contained in any consumer report obtained by KKW directly with the
credit reporting agency. Id. ¶ 25. KKW did, however, provide Plaintiff with a release form to
obtain his State of Washington driving record, also known as a “motor vehicle report” (“MVR”),
which Plaintiff signed and returned on or about March 8, 2012. Id. ¶ 11 and Ex. A (ECF 50-1).
KKW did not obtain Plaintiff’s MVR (which Plaintiff alleges is a consumer report under the
FCRA5) until after Plaintiff returned his signed consent form. Id. ¶¶ 11-12. That consent form,
however, did not provide Plaintiff with the necessary notification required under the FCRA or
inform him of his numerous rights granted under the FCRA. Id. ¶ 23 and Ex. A. The form
identifies Total Information Services, Inc. d/b/a DAC Services as the entity from which KKW
would obtain Plaintiff’s MVR. Id. Ex. A. Plaintiff did not discover that KKW had obtained
In the Second Amended Complaint, Plaintiff references his MVR as a “consumer
report.” In Plaintiff’s memorandum in opposition to KKW’s motion to dismiss, Plaintiff argues
that under the FCRA an MVR constitutes a consumer report because it is a “written . . .
communication of . . . information by a consumer reporting agency that is used “for the purpose
of serving as a factor in establishing the consumer’s eligibility for” employment. 15 U.S.C.
PAGE 11 – OPINION AND ORDER
Plaintiff’s MVR from a different, possibly related, company, HireRight, Inc. (“HireRight”), as
part of the application screening process until on or about March 25, 2014. Id. ¶ 13.
In May 2015, Plaintiff learned for the first time that KKW had also obtained a consumer
report on Plaintiff from A-Check. Id. ¶ 28. Plaintiff further learned that KKW denied Plaintiff
employment because of information contained in his A-Check consumer report. Id. ¶ 31. Despite
KKW taking the adverse action of denying Plaintiff employment based on a consumer report,
Plaintiff alleges that KKW did not disclose to Plaintiff either verbally, electronically, or in
writing within three business days of taking the adverse action: (1) that the adverse action was
taken based in whole or part on the consumer report; (2) the name, address, and telephone
number of the consumer reporting agency (A-Check); (3) that A-Check did not make the
decision to take adverse action and is unable to provide Plaintiff with specific reasons why the
adverse action was taken; or (4) that Plaintiff could request a free copy of the report and may
dispute with A-check the accuracy or completeness of the report. Id. ¶ 29.
Plaintiff also alleges that KKW generally does not advise applicants orally, in writing, or
by electronic means, of an applicant’s rights under the FCRA, and that KKW does not obtain the
required consent before procuring consumer reports. Id. ¶¶ 36-38. Plaintiff further alleges that
KKW generally does not provide either in-person or remote applicants the required disclosures
that an adverse action was taken, at least in part, because of a consumer report. Id. at ¶ 39.
KKW argues that Plaintiff fails to allege a concrete or particularized injury and thus fails
to adequately plead Article III standing. KKW also argues that the factual predicate for
Plaintiff’s claims is incorrect. The Court addresses each argument in turn.
PAGE 12 – OPINION AND ORDER
A. Article III Standing
KKW primarily relies on Spokeo to argue that Plaintiff alleges no more than a “bare
procedural” violation of the FCRA. Plaintiff responds that the relevant provisions of the FCRA
provide substantive rights, including informational and privacy rights. Plaintiff also argues that
he has adequately alleged a concrete and particularized injury from KKW’s violations of two
provisions of the FCRA. First, Plaintiff alleges that KKW violated 15 U.S.C. § 1681b(b)(2)(B)
by procuring Plaintiff’s HireRight6 consumer report without providing the statutorily required
disclosures, including informing Plaintiff that he has the right to a free copy of his HireRight
report and the right to dispute with HireRight the accuracy of any report. See Second Am.
Compl. ¶¶ 61-63. Plaintiff alleges that KKW’s willful failure to provide § 1681b(b)(2)(B)
disclosures caused him an informational injury and violated his privacy rights. Id. ¶¶ 61, 64.
Second, Plaintiff alleges that KKW violated 15 U.S.C. § 1681b(b)(3)(B) by using Plaintiff’s ACheck consumer report to take an adverse employment action against him without providing
Plaintiff the statutorily required disclosures, causing him an additional concrete, informational
injury. See Second Am. Compl. ¶ 69-71.
1. Recent Circuit Decisions Regarding Concrete Harm from FCRA Violations
The Ninth Circuit recently found that allegations of a violation of the FCRA’s statutory
requirements can be a concrete and particularized injury for purposes of Article III standing.
Syed v. M-I, LLC, --- F.3d ---, 2017 WL 1050586, at *4-5 (9th Cir. Mar. 20, 2017). The Ninth
Circuit distinguished the “bare procedural violation” at issue in Spokeo, deciding that where the
Although Plaintiff’s factual allegations appear to demonstrate that Plaintiff did not
receive any disclosures or provide any authorization for KKW to procure his A-Check consumer
report, Plaintiff’s Count One under § 1681b(b)(2)(B) alleges injury only with respect to the
HireRight consumer report. Therefore, the Court does not address whether KKW violated
Plaintiff’s informational rights or privacy rights by obtaining his A-Check consumer report
without disclosure or authorization.
PAGE 13 – OPINION AND ORDER
FCRA creates a right to information or privacy, a violation of the FCRA will constitute concrete
injury.7 Id. at *4. As the Ninth Circuit explained, such rights are created by 15 U.S.C.
Syed alleges more than a “bare procedural violation.” The
disclosure requirement at issue, 15 U.S.C. § 1681b(b)(2)(A)(i),
creates a right to information by requiring prospective employers
to inform job applicants that they intend to procure their consumer
reports as part of the employment application process. The
authorization requirement, § 1681b(b)(2)(A)(ii), creates a right to
privacy by enabling applicants to withhold permission to obtain the
report from the prospective employer, and a concrete injury when
applicants are deprived of their ability to meaningfully authorize
the credit check. By providing a private cause of action for
violations of Section 1681b(b)(2)(A), Congress has recognized the
harm such violations cause, thereby articulating a “chain [ ] of
causation that will give rise to a case or controversy.” See
Spokeo, 136 S. Ct. at 1549 (quoting Lujan v. Defs. of Wildlife, 504
U.S. 555, 580 (1992) (Kennedy, J., concurring)).
Syed alleged in his complaint that he “discovered Defendant M-I’s
violation(s) within the last two years when he obtained and
reviewed his personnel file from Defendant M-I and discovered
that Defendant M-I had procured and/or caused to be procured a
‘consumer report’ regarding him for employment purposes based
on the illegal disclosure and authorization form.” This allegation is
sufficient to infer that Syed was deprived of the right to
information and the right to privacy guaranteed by
Section 1681b(b)(2)(A)(I)–(ii) because it indicates that Syed was
not aware that he was signing a waiver authorizing the credit check
when he signed it. Drawing all reasonable inferences in favor of
the nonmoving party, we can fairly infer that Syed was confused
by the inclusion of the liability waiver with the disclosure and
Numerous courts have come to the same conclusion regarding the FCRA and similar
statutes. See, e.g., In re Horizon Healthcare Servs. Inc. Data Breach Litig., 846 F.3d 625, 638-40
(3d Cir. 2017); Church v. Accretive Health, Inc., 654 F. App’x. 990, 994 (11th Cir. July 6, 2016);
Moody v. Ascenda USA Inc., 2016 WL 5900216, at *3-4 (S.D. Fla. Oct. 5, 2016); Firneno v.
Radner Law Group, PLLC, 2016 WL 5899762, at * 4 (E.D. Mich. Sept. 28, 2016); Meza v.
Verizon Commc’ns, Inc., 2016 WL 4721475, at *3 (E.D. Cal. Sept. 9, 2016); Perrill v. Equifax
Info. Svcs., --- F. Supp. 3d ---, 2016 WL 4572212, at *3-4 (W.D. Tex. Aug. 31, 2016); Witt v.
Corelogic Saferent, LLC, 2016 WL 4424955, at *12-14 (E.D. Va. Aug. 18, 2016); Burke v. Fed.
Nat’l Mortg. Ass’n, 2016 WL 4249496, at * 2-4 (E.D. Va. Aug. 9, 2016); Thomas v. FTS USA,
LLC, 193 F. Supp. 3d 623, 629-37 (E.D. Va. 2016).
PAGE 14 – OPINION AND ORDER
would not have signed it had it contained a sufficiently clear
disclosure, as required in the statute. Therefore, Syed did allege a
concrete injury and has Article III standing to bring this lawsuit.
See Thomas v. FTS USA, LLC, 193 F. Supp. 3d 623, 628–638
(E.D. Va. 2016) (holding that an improper disclosure under 15
U.S.C. § 1681b(b)(2)(A) causes “a concrete injury sufficient to
Id. Although Syed was specifically evaluating the disclosure required by § 1681b(b)(2)(A), the
same reasoning supports a finding that §§ 1681b(b)(2)(B) and 1681b(b)(3)(B) create similar
rights to information and privacy.8 Specifically, the provisions of the FCRA at issue here provide
persons with the informational right to certain disclosures before their important private
information contained in a consumer report is procured and after that information is used in an
adverse employment decision. 15 U.S.C. §§ 1681b(b)(2)(B), (b)(3)(B). Thus, failure to disclose
such information, resulting in inadequate consent, constitutes a violation of applicant’s right to
privacy. See 15 U.S.C. 1681b(b)(2)(B).
The Court also finds persuasive the recent opinion of the Third Circuit considering the
harm of a violation of the FCRA. In re Horizon Healthcare Servs. Inc. Data Breach Litig., 846
F.3d 625 (3d Cir. 2017). The Third Circuit discussed Spokeo and concluded that although “there
are some circumstances where the mere technical violation of a procedural requirement of a
statute cannot, in and of itself, constitute an injury in fact,” it need not “consider the full reach of
congressional power to elevate a procedural violation into an injury in fact” when considering
unauthorized disclosures of information under the FCRA. Id. at 638. The court concluded:
Because it finds Syed persuasive, the Court rejects Defendant’s argument that Spokeo
drastically changed the landscape of Article III standing. See also In re Horizon Healthcare, 846
F.3d at 637-38 (“Although it is possible to read the Supreme Court’s decision in Spokeo as
creating a requirement that a plaintiff show a statutory violation has caused a ‘material risk of
harm’ before he can bring suit, we do not believe that the Court so intended to change the
traditional standard for the establishment of standing. . . . Spokeo itself does not state that it is
redefining the injury-in-fact requirement. Instead, it reemphasizes that Congress ‘has the power
to define injuries’ ‘that were previously inadequate in law.’” (footnote and citations omitted)).
PAGE 15 – OPINION AND ORDER
We are not suggesting that Horizon’s actions would give rise to a
cause of action under common law. No common law tort
proscribes the release of truthful information that is not harmful to
one’s reputation or otherwise offensive. But with the passage of
FCRA, Congress established that the unauthorized dissemination
of personal information by a credit reporting agency causes an
injury in and of itself—whether or not the disclosure of that
information increased the risk of identity theft or some other future
harm. It created a private right of action to enforce the provisions
of FCRA, and even allowed for statutory damages for willful
violations—which clearly illustrates that Congress believed that
the violation of FCRA causes a concrete harm to consumers. And
since the “intangible harm” that FCRA seeks to remedy “has a
close relationship to a harm [i.e. invasion of privacy] that has
traditionally been regarded as providing a basis for a lawsuit in
English or American courts,” Spokeo, 136 S. Ct. at 1549, we have
no trouble concluding that Congress properly defined an injury that
“give[s] rise to a case or controversy where none existed before.”
Id. (citation and internal quotation marks omitted).
So the Plaintiffs here do not allege a mere technical or procedural
violation of FCRA. They allege instead the unauthorized
dissemination of their own private information—the very injury
that FCRA is intended to prevent. There is thus a de facto injury
that satisfies the concreteness requirement for Article III standing.
Id. at 639-40. The Court finds persuasive these, and other cases that similarly hold that the
Sections 1681b(b)(2)(B) and (b)(3)(B) and similar provisions of the FCRA establish substantive
informational and privacy rights held by the consumer.
2. Concrete Harm—Right to Information
Plaintiff alleges two informational injuries. First, Plaintiff alleges that KKW violated 15
U.S.C. § 1681b(b)(2)(B) by obtaining his HireRight consumer report without providing any of
the required disclosures. In contrast to the disclosure and authorization form at issue in Syed,
which contained too much information and was therefore confusing, Plaintiff alleges that he
received none of the required disclosures when he released his motor vehicle record to KKW. He
was thus denied any opportunity to keep his personal information private or to proactively
address anything that might appear in his consumer report. See In re Horizon Healthcare, 846
PAGE 16 – OPINION AND ORDER
F.3d at 639 (“But with the passage of FCRA, Congress established that the unauthorized
dissemination of personal information by a credit reporting agency causes an injury in and of
itself—whether or not the disclosure of that information increased the risk of identity theft or
some other future harm.”). That is a concrete injury.9 See Spokeo, 136 S. Ct. at 1553-54
(Thomas, J., concurring) (noting that if Congress created a private duty owed personally to the
consumer in certain provisions of the FCRA, then violations of those provisions would confer
standing because the provision would “establish a private cause of action to vindicate the
violation of a privately held right”).
KKW argues that Plaintiff alleges only that he received one FCRA-compliant form when
he was entitled to another form, and that Plaintiff has not suffered an injury as a result of this
“alternative disclosure.” ECF 61 at 7. But Plaintiff does not allege that he received a FCRAcompliant form. To the contrary, Plaintiff alleges that the form he received contained none of the
required FCRA disclosures. See Second Am. Compl. ¶¶ 61-63. Plaintiff thus alleges a concrete
Second, Plaintiff alleges that KKW failed to notify him under 15 U.S.C.
§ 1681b(b)(3)(B) when it took adverse employment action against him because of information
In its motion to dismiss, KKW relies on Nokchan v. Lyft, Inc., which held that after
Spokeo a “violation of a disclosure requirement under the FCRA, by itself, [cannot] confer
Article III standing on a plaintiff.” 2016 WL 5815287, at *9 (N.D. Cal. Oct. 5, 2016). Nokchan
involved a disclosure form that did not “stand-alone” as required under § 1681b(b)(2)(B)(i). Id.
at *4. Because the Ninth Circuit’s recent holding in Syed contradicts the holding in Nokchan,
Nokchan is unpersuasive. See Syed, 2017 WL 1050586, at *4-5. Moreover, Nokchan is factually
distinguishable. In its response to Plaintiff’s notice of supplemental authority (ECF 61), KKW
cites Mitchell v. WinCo Foods, LLC, 2017 WL 901093, at *2 (D. Idaho Mar. 7, 2017). Mitchell
is likewise unpersuasive because it does not address Syed, and because it is factually
distinguishable. See id. at *1 (explaining that the plaintiff alleged that although she had been
hired at WinCo, she did not receive a stand-alone disclosure form).
PAGE 17 – OPINION AND ORDER
contained in Plaintiff’s A-Check consumer report. Second Am. Compl. ¶¶ 69-71. KKW argues
Plaintiff’s allegations are insufficient to establish a concrete injury because Plaintiff does not
allege that the information contained in his A-Check report was inaccurate. KKW assumes that
§ 1681b(b)(3)(B) has only one purpose: to allow prospective employees to correct inaccurate
information in their consumer reports. This interpretation reads too much into Spokeo’s dicta,
and too little into the statutory text.
Under § 1681b(b)(3)(B)(I), an employer must give notice to an applicant “that adverse
action has been taken based in whole or in part on a consumer report received from a consumer
reporting agency” within three days of the adverse action. That this notice comes after the
adverse action is significant. Inaccurate information in a consumer report, Congress recognized,
could be a potential roadblock to future employment. See Spokeo, 136 S. Ct. at 1555 (“[T]he
right here at stake is closely tied to the FCRA’s goal of protecting consumers against
dissemination of inaccurate credit information about them.”); Syed, 846 F.3d at 1038 (explaining
that FCRA disclosures provide “applicants with an opportunity to warn a prospective employer
of errors in the report before the employer decides against hiring the applicant on the basis of
information contained in the report”). For this reason, the § 1681b(b)(3)(B) notice must inform
the unsuccessful applicant that he may “request a free copy of a report and may dispute with the
consumer reporting agency the accuracy or completeness of any information in a report.”
§ 1681b(b)(3)(B)(IV); see Spokeo, 136 S. Ct. at 1550 (“Congress plainly sought to curb the
dissemination of false information by adopting procedures designed to decrease that risk.”).
Congress did not, however, condition the protections in the FCRA on the accuracy or
inaccuracy of the information contained in the consumer report. See 15 U.S.C.
§§ 1681b(b)(2)(B) and 1681b(b)(3)(B). The Court can envision numerous reasons why such
PAGE 18 – OPINION AND ORDER
protections were put in place, regardless of accuracy. For example, if a potential employer
notifies a candidate that he or she was not hired because of information in a consumer report, that
person can then attempt to “clean up” his or her consumer report, even if the information is
accurate. There are many steps consumers can take to improve their consumer reports.
Consumers would also then be on notice that a consumer report has been considered negatively
by potential employers. Thus, when applying for another job, if consumers receive the required
notice that similar consumer reports will be used, they can make educated decisions whether to
continue in the hiring process and possibly avoid associated expenses such as traveling for
Congress also highlighted the need for “fairness of credit reporting” in part because
consumer reporting agencies “have assumed a vital role in assembling and evaluating consumer
credit and other information on consumers,” including information about consumer’s character
and general reputation. § 1681(a)(2)-(3). Thus, another benefit provided by the required
§ 1681b(b)(3)(B) notice is that an unsuccessful applicant is given a fair opportunity to
proactively address red flags in his consumer report on future applications. Thus, denying a
plaintiff § 1681b(b)(3)(B) notice causes, at minimum, a risk of concrete, informational harm,
even when all of the information in his or her consumer report is accurate. See Terrell v. Costco
Wholesale Corp., 2017 WL 951053, *3-5 (Mar. 10, 2017) (finding that Terrell’s allegation that
Costco’s disclosure and authorization form violated § 1681b(b)(2)(A) sufficient to confer
standing, although Terrell did not allege that the form was confusing or that the background
report was inaccurate or prevented him from gaining employment).
The cases KKW cites to the contrary are unpersuasive. For example, in Boergert v. Kelly
Servs., Inc., 2017 WL 440272, at *3-4 (W.D. Mo. Feb. 1, 2017), the court rejected the Boergert’s
PAGE 19 – OPINION AND ORDER
argument that Kelly Services failed to give him notice under 15 U.S.C. § 1681b(b)(3)(A)(i). It
relied heavily on Spokeo. Id. at *4 (“The mere allegation of a [§ 1681b(b)(3)(B)] violation is not
sufficient here, especially in light of Spokeo’s specific reference to the issue of inaccurate
information.”). But in Spokeo, the Supreme Court did not conclude that alleging “inaccurate
information” is the exclusive means for pleading a concrete injury under § 1681b(b)(3)(B).
Spokeo, 136 S. Ct. at 1550 (“A violation of one of the FCRA’s procedural requirements may
result in no harm.” (emphasis added)); see also Syed, 846 F.3d at 1040 (quoting Spokeo, 136 S.
Ct. at 1549) (“The disclosure requirement at issue, 15 U.S.C. § 1681b(b)(2)(A)(i), creates a right
to information by requiring prospective employers to inform job applicants that they intend to
procure their consumer reports as part of the employment application process. . . . By providing a
private cause of action for violations of Section 1681b(b)(2)(A), Congress has recognized the
harm such violations cause, thereby articulating a ‘chain[ ] of causation that will give rise to a
case or controversy.’”).
Moreover, Spokeo’s cautionary example that a consumer’s information may be “entirely
accurate” was not referencing an employer’s duty to give § 1681b(b)(3)(B) notice to an
unsuccessful applicant. Spokeo, 136 S. Ct. at 1550. Rather, what Spokeo addressed was a
hypothetical consumer reporting agency’s failure “to provide the required notice to a user of the
agency’s consumer information.” Id. (emphasis added); see also id. at 1553-54 (Thomas, J.,
concurring) (distinguishing duties owed under the FCRA to the public collectively and duties
owed to a consumer privately). Under the FCRA, a “user” of a consumer reporting agency’s
information or a “person” who furnishes information to the reporting agency or requests a
consumer report from the agency is distinct from a “consumer.” Compare, e.g., 15 U.S.C.
§ 1681b(b)(1) (requiring “Certification from User”) and 15 U.S.C. § 1681b(b)(2) (requiring
PAGE 20 – OPINION AND ORDER
“Disclosure to Consumer”). With this understanding, the Spokeo majority’s hypothetical is not
instructive in this case because it does not address the consumer’s statutory rights at issue in this
Additionally, KKW’s reliance on Dutta v. State Farm Mut. Auto. Ins. Co., 2016
WL 6524390 (N.D. Cal. Nov. 3, 2016), is not persuasive because Dutta is factually
distinguishable and was issued before the Ninth Circuit’s opinion in Syed. In Dutta, the court
found that the plaintiff did not allege a concrete injury when he claimed only that the defendant
failed to send him his § 1681b(b)(3) notice within the statutorily required time period. Id. at *3
(citing Fed. Election Comm’n v. Akins, 524 U.S. 11, 21 (1998)) (explaining that to allege a
concrete injury a plaintiff must allege “an actual denial of information—not just a delay in
getting it”). By contrast, Plaintiff alleges that KKW did not provide him any disclosures under
By alleging that he suffered informational injury when KKW failed to provide him with
§ 1681b(b)(2)(B) and § 1681b(b)(3)(B) disclosures, Plaintiff has adequately alleged concrete
3. Concrete Harm—Right to Privacy
In considering whether the relevant provisions of the FCRA provide a right to privacy,
the violation of which gives rise to a concrete injury, the Ninth Circuit’s recent decision in Syed
is again instructive. In considering the sufficiency of allegations of an employer’s purported
violation of § 1681b(b)(2)(A)(ii), the Ninth Circuit in Syed found that a disclosure form that
contained FCRA disclosures and simultaneously served as a liability waiver was confusing,
“deprived [applicants] of their ability to meaningfully authorize the credit check,” and thus
violated the applicants’ right of privacy created under § 1681b(b)(2)(A)(ii). Syed, 2017
WL 1050586, at *3-4. Although Syed involved a different provision of the FCRA, the Court
PAGE 21 – OPINION AND ORDER
finds that § 1681b(b)(2)(B)(ii), which requires that employers obtain consent from applicants
before obtaining their credit reports, creates a similar “right to privacy by enabling applicants to
withhold permission to obtain the report from the prospective employer.” Id.
The Court notes that other courts similarly have found a right to privacy in the FCRA, the
violation of which confers a concrete injury. For instance, the Third Circuit recently explained
that plaintiffa allege more than “a mere technical or procedural violation of FCRA” when
alleging “the unauthorized dissemination of their own private information—the very injury that
FCRA is intended to prevent” because then there is “a de facto injury that satisfies the
concreteness requirement for Article III standing.” In re Horizon Healthcare, 846 F.3d at 640
(citations omitted) (plaintiff’s personal information stored on laptops was disseminated when the
laptops were stolen from defendant, although plaintiffs did not allege the information was used
to their detriment); see also Moody, 2016 WL 5900216, at *3, *6 (finding plaintiff’s allegation—
“Plaintiffs’ consumer report contained a wealth of private information which Defendant Ascenda
had no right to access absent specific Congressional license to do so. . . . By procuring reports
containing this private information without complying with the FCRA’s disclosure requirements,
Defendant Ascenda illegally invaded Plaintiff’s right to privacy.”—sufficient to allege a concrete
injury); Firneno, 2016 WL 5899762, at * 4 (finding in a case involving the FCRA that the
plaintiffs “persuasively argue that ‘the invasion of privacy caused by the unauthorized viewing
and retention of their personal credit and other information’—including the last four digits of
their social security number, their address, and the exact amount of debt owed to creditors—is a
de facto injury that satisfies the injury-in-fact requirement” and that the plaintiffs’ “right to
privacy is ‘more substantive than procedural’ such that the alleged violation is a concrete harm”);
Perrill, 2016 WL 4572212, at *3-4 (analyzing whether the alleged invasion of privacy under the
PAGE 22 – OPINION AND ORDER
FCRA “‘has a close relationship to a harm that has traditionally been regarded as providing a
basis for a lawsuit,’” concluding that it does, that “Congress’s judgment in enacting the FCRA
was to provide consumers a right to privacy,” and holding that “[c]onsidering this history and
Congress’s judgment, the Court finds an invasion of privacy within the context of the FCRA
constitutes a concrete harm that meets the injury-in-fact requirements” (quotation marks
In his concurrence in Spokeo, Justice Thomas held that where a statute involves
procedures to protect the accuracy of information “concerning the individual about whom the
report relates” and “Congress has created a private duty owed personally to [a plaintiff] to
protect his information, then the violation of the legal duty suffices for Article III injury in fact”
without requiring an allegation that the plaintiff has suffered individualized harm. Spokeo, 136 S.
Ct. at 1554 (Thomas, J, concurring) (emphasis in original) (quotation marks omitted). That is the
situation alleged in this case. The FCRA provides a private duty owed to Plaintiff to protect the
accuracy, procurement, and use of Plaintiff’s private information, and KKW is alleged to have
violated that duty both by procuring Plaintiff’s consumer report and using it against him without
following the mandated procedures. Plaintiff alleges more than a technical deficiency; he alleges
that he was not provided proper disclosures, did not therefore give knowing consent to KKW’s
procurement of his consumer report, and that KKW nonetheless procured Plaintiffs’ consumer
report, unlawfully violating Plaintiffs’ privacy.10 See In re Horizon Healthcare, 846 F.3d at 640.
The cases on which KKW relies do not persuade the Court otherwise. Smith and
Groshek heavily rely on the plaintiffs’ failure to allege actual damages, which is not required to
allege Article III standing under Supreme Court jurisprudence. See Groshek v. Time Warner
Cable, Inc., 2016 WL 4203506, at *3 (E.D. Wis. Aug. 9, 2016); Smith v. Ohio State Univ., 191
F. Supp. 3d 750, 757 (S.D. Oh. 2016); see also Perrill, 2016 WL 4572212, at *4 (distinguishing
Smith and Groshek on this ground, citing cases). Further, as KKW quotes in its reply brief, the
plaintiff in Groshek did not allege that the defendant used the consumer report in any way or that
PAGE 23 – OPINION AND ORDER
Thus, Plaintiff has sufficiently alleged a right to privacy created by § 1681b(b)(2)(B) of the
FCRA. Plaintiff has also sufficiently alleged a violation this right, which is a concrete injury
sufficient to confer Article III standing.
4. Particularized Injury
KKW also argues that Plaintiff’s allegations do not sufficiently plead a particularized
injury. The Court rejects this argument. Plaintiff alleges that his private and confidential
consumer reports were obtained without the required notice and consent, were used as a basis for
KKW’s refusal to hire Plaintiff, and that plaintiff was not properly notified of that basis after
KKW’s adverse decision. These are particularized injuries.
B. Factual Predicate for Plaintiff’s Allegations
KKW also argues that the “factual predicate” for Plaintiff’s allegation that KKW
requested his consumer report from HireRight is incorrect. KKW argues that, contrary to
Plaintiff’s allegations, it did not request Plaintiff’s consumer report from HireRight. Rather,
KKW asserts that it requested Plaintiff’s MVR from a company called USIS.11 KKW argues that
Plaintiff’s first claim for relief must be dismissed because Plaintiff does not allege that HireRight
and USIS are connected and fails to allege how the procurement of Plaintiff’s MVR is amenable
to the same determination on a class-wide basis as those purported class members whose
HireRight reports were requested.
he did not get the job he applied for. See ECF 58 at 8 (citing 2016 WL 4203506, at *3).
Similarly, the plaintiffs in Smith ultimately were hired by the defendants. Here, Plaintiff alleges
that KKW used Plaintiff’s consumer reports and did not hire Plaintiff because of the information
contained in his consumer reports. Thus, Groshek and Smith are distinguishable.
It is unclear whether KKW asserts that USIS is connected to Total Information
Services, Inc., d/b/a DAC Services, the company listed on the release form signed by Plaintiff.
PAGE 24 – OPINION AND ORDER
KKW’s argument is inappropriate at this stage of the litigation. In evaluating the
sufficiency of a complaint’s factual allegations, the court must accept as true all well-pleaded
material facts alleged in the complaint and construe them in the light most favorable to the nonmoving party. Wilson, 668 F.3d at 1140; Daniels-Hall, 629 F.3d at 998. KKW’s assertion that
the Court may look outside the pleadings is correct only in evaluating jurisdiction, not in
evaluating whether the “factual predicate” of a complaint is accurate.12
Plaintiff alleges that KKW obtained Plaintiff’s MVR from HireRight. Plaintiff further
alleges that he did not discover this fact until HireRight produced to Plaintiff the report it
provided to KKW. Plaintiff attaches to the Second Amended Complaint a copy of the report
produced to Plaintiff from HireRight and identified as being provided to KKW. These allegations
are sufficient to survive KKW’s motion.
Moreover, were the Court permitted to look at evidence beyond the factual allegations in
the complaint, the Court would find that KKW’s response to Plaintiff’s Interrogatory No. 19
calls into question any assertion that USIS and HireRight are not linked.13 See ECF 43,14 Ex. 1.
Regardless, Plaintiff’s factual allegations are well-pleaded, presumed true, and sufficient to
withstand KKW’s motion to dismiss.
Whether HireRight and USIS are connected does not affect this Court’s subject-matter
jurisdiction. Plaintiff has adequately alleged violations of the FCRA, a federal statute, and thus
the issue before the Court is a federal question. 28 U.S.C. § 1331.
KKW did not object to Plaintiff’s characterization of USIS as a subsidiary, associated
entity, or former entity of HireRight and does not assert that, in fact, USIS and HireRight are
ECF 43 was later withdrawn. See ECF 45.
PAGE 25 – OPINION AND ORDER
Defendant KKW Trucking, Inc.’s Renewed Motion to Dismiss (ECF 51) is DENIED.
IT IS SO ORDERED.
DATED this 29th day of March, 2017.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge
PAGE 26 – OPINION AND ORDER
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