TONGE v. FUNDAMENTAL LABOR STRATEGIES, INC.
MEMORANDUM AND OPINION. SIGNED BY HONORABLE GERALD A. MCHUGH ON 9/29/17. 9/29/17 ENTERED & E-MAILED.(fdc)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CHRISTINE TONGE, on behalf of herself and :
all others similarly situated
FUNDAMENTAL LABOR STRATEGIES, INC. :
September 29, 2017
This is a putative class action on behalf of job applicants who claim that Defendant
Fundamental Labor Strategies (“FLS”) violated their rights under the Fair Credit Reporting Act
(“FCRA”) when they applied for trucking jobs. The sole named Plaintiff is Christine Tonge.
She alleges that FLS violated the FCRA first when it requested her consumer report after
obtaining her consent on an inadequate disclosure form, and then a second time when it denied
her job application based on the report’s contents without first giving her a copy of the report, a
summary of her FCRA rights, and a chance to discuss and dispute the report’s contents, which
she believes to be inaccurate. Defendant now moves to dismiss Tonge’s Amended Complaint
for lack of subject matter jurisdiction based on Article III standing, relying on Spokeo, Inc. v.
Robins. 136 S. Ct. 1546 (2016), as revised (May 24, 2016). I reject FLS’s reading of Spokeo,
because the Third Circuit has made clear that Spokeo reaffirmed traditional notions of standing
and neither established a new standard nor erected new barriers for standing. Accordingly, and
for reasons set forth below, Defendant’s Motion is denied.
The parties agree on most of the facts in this case. Plaintiff Tonge is a truck driver with
more than a decade of experience. She applied for a position through Defendant FLS, a
placement company that hires commercial truckers and outsources them to companies in need of
drivers. She began by completing FLS’s online application, including agreeing to allow FLS to
run her driving record. It is FLS’s policy not to hire drivers with more than two “chargeable”
(i.e., preventable) accidents in the last three years.
Tonge then took a road test and attended an in-person interview. 1 At the interview, she
completed FLS’s version of a FCRA Disclosure and Release (the “Consent Form”), purportedly
agreeing to allow FLS to obtain a consumer background check that would include her consumer
credit history, criminal history, and driving history. ECF No. 21-2, Ex. 3 (“Background Inquiry
Release”). In addition to disclosing the kind of background check FLS planned to conduct, the
Consent Form included a description of Tonge’s rights under the FCRA—but both parties agree
that it did not accurately describe her FCRA rights:
If FLS plans to use any information from a credit report in connection with a
decision not to hire me or to make any other adverse employment decision
regarding me, it will provide me with a copy of the credit report upon which its
decision was based and a written summary of my rights under the [FCRA]. 2
A mailing address for FLS appeared at the bottom of the form.
Some time later, Tonge called FLS to check on the status of her application. An FLS
These face-to-face interactions with FLS before it requested a background report are significant because
they removed Tonge’s application from a FCRA exception that limits the disclosure rules for certain
trucking applications completed entirely by phone, mail, or online. See § 1681b(b)(2)(B)–(C). FLS
agrees that the exception did not apply to Tonge’s application. Def.’s Mot. Dismiss 19, ECF No. 21-1.
It is undisputed that this sentence contained at least two inaccuracies: it referenced a “credit report”
instead of a “consumer report,” and, more importantly, stated that Tonge would have a right to a copy of
the report only after FLS had taken an adverse action (i.e., denied her application), when in fact the
FCRA guaranteed Tonge the right to see and dispute the report before FLS denied her application.
representative told her that the application had been denied based on the contents of her
background report—specifically, the presence of three accidents within the last three years,
which made her ineligible under FLS’s rules. In the following days, Tonge obtained a copy of
the consumer report on which FLS had based its decision. The report came from a consumer
background check company called HireRight, Inc. and contained several pieces of negative
information about Tonge’s former employment at Kreilkamp Trucking (“Kreilkamp”). 3
HireRight reported that Tonge had been in three accidents while at Kreilkamp and was
“discharged.” Tonge believed (and continues to allege) that this information was inaccurate, and
she contacted HireRight to dispute it. HireRight notified FLS that Tonge was disputing her
employment history, and provided FLS with a corrected report, changing Tonge’s reason for
leaving Kreilkamp from “Discharged” to “Resigned/Quit.” According to FLS, HireRight did not
amend the accident history or make any other changes to the report.
Apart from these facts, on which there is agreement, there are two main points on which
the parties disagree. Although I find neither material to the standing question before me, I
highlight them because the parties—especially FLS—place great weight in them. First, Tonge
insists that the accidents listed in the HireRight report did not occur. Pl.’s Resp. Def.’s Mot.
Dismiss 7 [hereinafter “Pl.’s Resp.”], ECF No. 24. FLS, relying on the modified HireRight
report, asserts that they did. Def.’s Mot. Dismiss 5–6; HireRight Email to FLS (June 21, 2016),
ECF No. 21-2. Second, the parties dispute whether FLS gave Tonge a verbal summary of her
FCRA rights. Tonge contends that she was never given any verbal summary of her rights and
that she only learned she could dispute the report through a conversation with a colleague. Pl.’s
Resp. 7; Tonge Decl. ¶¶ 5–9, ECF No. 24-1. FLS, on the other hand, asserts that its
Plaintiff has initiated a separate lawsuit in New Jersey against HireRight and Kreilkamp, alleging FCRA
and defamation claims. See Tonge v. Kreilkamp Trucking, No. 2:16-CV-09267 (D.N.J. Dec. 15, 2016).
representative gave Tonge a verbal “summary of her rights” before requesting the report. Def.’s
Mot. Dismiss 4–5 (citing Brangan Decl. ¶ 4, ECF No. 21-3). But assuming that any oral
summary matched the language of FLS’s written Consent Form, it would necessarily include a
statement of Tonge’s rights that the parties agree was incorrect. FLS also avers that the same
representative, after telling Tonge by phone that her application had been denied, gave her “oral
notification” of HireRight’s contact information, further advising that HireRight had not taken
adverse action against her, and that she could get a free copy of the report and dispute its
contents. But, as explained below, no summary of rights (verbal or written) provided by FLS
after it denied Tonge’s application could fulfill its obligations under FCRA. FLS does not argue
otherwise. I recognize that these are disputed facts but reiterate that they do not affect my
II. The Fair Credit Reporting Act
In 1970, as the emergence of computer technology created the possibility of “a
nationwide data bank covering every citizen,” Congress enacted the FCRA to ensure that the
growing credit reporting industry would be “fair and accurate.” See Fair Credit Reporting Act §
1681, 15 U.S.C. §§ 1681–1681x (1970); S. Rep. No. 91-517, at 2 (1969) [hereinafter “Senate
Report”]; Spokeo, 136 S. Ct. at 1545. To achieve this goal, Congress created protections for
consumers and imposed obligations on credit reporting agencies and employers (among others)
to ensure that they “me[t] the needs of commerce” in a way that was “fair and equitable to the
consumer with regard to the confidentiality, accuracy, relevancy, and proper utilization of
[consumer credit] information.” § 1681(b); S. Rep. No. 103-209, at 2 (1993). In the FCRA,
Congress intended to create a law that “acknowledge[d] both the utility and dangers of the credit
reporting industry.” Id. at 3. In light of the law’s “consumer oriented objectives,” the Third
Circuit has held that the FCRA is “undeniably a remedial statute that must be read in a liberal
manner in order to effectuate the congressional intent underlying it.” Cortez v. Trans Union,
LLC, 617 F.3d 688, 722 (3d Cir. 2010).
Two separate FCRA protections are at issue in this case. Section 1681b(b)(2)(A),
establishes that a person or entity may not procure a consumer report 4 for employment purposes
(i) a clear and conspicuous disclosure has been made in writing to the consumer
at any time before the report is 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 . . . the procurement of the report
by that person.
§ 1681b(b)(2)(A) [hereinafter, the “disclosure requirement”] (emphasis added to highlight the
deficiencies alleged here). The second, Section 1681b(b)(3)(A), provides that:
[I]n using a consumer report for employment purposes, before taking any adverse
action based in whole or in part on the report, the person intending to take such
adverse action shall provide to the consumer to whom the report relates (i) a copy
of the report; and (ii) a description in writing of the rights of the consumer [to
obtain and dispute information in the report].
§ 1681b(b)(3)(A) [hereinafter, the “pre-adverse action requirement”] (same emphasis added)
(referencing § 1681g(c)’s summary of rights requirements). The “clear purpose” of this section
is to ensure that applicants and employees have the opportunity to “discuss reports with
employers or otherwise respond before adverse action is taken” against them. Goode v.
LexisNexis Risk & Info. Analytics Grp., 848 F. Supp. 2d 532, 537 (E.D. Pa. 2012). An “adverse
action” includes denying an employment application. § 1681a(k)(1)(B)(ii). The Consumer
Financial Protection Bureau (CFPB) published a model summary of consumers’ rights under the
As it relates to this case, the FCRA defines a consumer report as “any written, oral, or other
communication of any information by a consumer reporting agency bearing on a consumer’s credit
worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or
mode of living which is used or expected to be used…in whole or in part for the purpose of serving as a
factor in establishing the consumer’s eligibility for…employment purposes.” § 1681a(d)(1)(B).
FCRA which employers must use to satisfy this requirement. 5
To enforce these substantive protections, Congress imposed civil liability on employers
and any other person who violates the FCRA. Any person who willfully or recklessly fails to
comply with the FCRA is liable to the consumer for the greater of any actual damages or
statutory damages of $100 to $1,000. § 1681n(a)(1)(A); Safeco Ins. Co. of America v. Burr, 551
U.S. 47, 57–58 (2007) (holding that the civil liability imposed by the FCRA for willful
noncompliance also extends to reckless violations of the law).
III. Tonge’s Claims and the Putative Classes
Plaintiff Tonge brings claims on behalf of herself and two putative classes. She alleges
that FLS violated both of the FCRA protections set out above: Section 1681b(b)(2)(A)(i)’s
disclosure requirement (Count One), and Section 1681b(b)(3)(A)’s pre-adverse action
requirements (Count Two). Am. Compl. ¶¶ 3–6, 43–44, ECF No. 18. These protections, Tonge
alleges, are intended to protect consumers’ private, sensitive information and ensure that they are
informed of their rights to control the dissemination and dispute the contents of their consumer
reports. 6 Id. ¶¶ 3–6, 9.
Congress required the administrative agency in charge of implementing the FCRA to create a model
summary of rights, and the FCRA requires employers to provide that document to applicants. See §§
1681b(b)(3)(A)(ii); 1681g(c)(1)(A). Currently, the Fair Trade Commission and the CFPB share
enforcement duties for the FCRA, and interpretation and regulatory duties—including the creation of the
rights summary at issue here—are assigned to the CFPB. See § 1681s(a)(1); Fair Trade Commission, 40
Years of Experience with the Fair Credit Reporting Act (2011), available at
https://www.ftc.gov/reports/40-years-experience-fair-credit-reporting-act-ftc-staff-report-summaryinterpretations. The CFPB’s “A Summary of Your Rights Under the Fair Credit Reporting Act” is readily
available online in multiple languages. See
FLS takes issue with the fact that Tonge’s Amended Complaint did not explicitly allege violations of her
right to privacy and right to certain information, and insists that I must therefore disregard Tonge’s
subsequent arguments about privacy and informational harms as a basis for standing. See Def.’s Reply
Supp. Mot. Dismiss 2–3 (hereinafter “Def.’s Reply”), ECF No. 25 (referring to argument in Pl.’s Resp. at
10, 12–13). However, Tonge specifically alleged that FLS violated her rights under two FCRA
provisions, and that the purpose behind those provisions was to protect consumers’ “right to privacy,”
Specifically, Count One alleges that FLS’s disclosure did not comply with the FCRA
because it was not contained within a single, standalone document. Tonge argues that the
request for permission to pull her driving record on the initial application effectively spread
FLS’s disclosure and release across two documents. Id. ¶¶ 23–25. In addition, she alleges that
FLS’s Consent Form was not “clear and conspicuous” because it contained an extraneous
sentence falsely stating Tonge’s rights under the FCRA (i.e., that she could obtain a copy of the
“credit” report and a summary of her FCRA rights after FLS took any adverse action based on it,
when in fact the parties agree that the FCRA guaranteed Tonge those rights before any adverse
action). 7 Id. ¶¶ 26–27. Finally, Tonge alleges that the inclusion of the “Bill and Mail to:”
language, accompanied by a mailing address, further muddied the form. Id. ¶¶ 28–29. Tonge
asserts Count One on behalf of herself and the putative “Improper Disclosure Class,” which she
defines as “All prospective employees of FLS in the United States who were the subject of a
consumer report that was procured (or caused to be procured) by FLS . . . from five (5) years
prior to the filing of this until the date of final judgment in this action.” Id. ¶ 57.
Count Two alleges that FLS violated the FCRA by denying her employment application
(an “adverse action” under the FCRA) without following the law’s pre-adverse action
make them “aware of their ability to control and correct the information” in their consumer reports, and to
“ensure that consumers are informed of their rights to dispute.” Am. Compl. ¶¶ 5–6, 9–10, 43–44. I find
that these allegations satisfy Federal Rule of Civil Procedure 8(a)(2) as applied in Bell Atlantic Corp. v.
Twombly because they give FLS “fair notice” of the nature and basis of Tonge’s claims, which include
violations of her rights to privacy and to certain information. See 550 U.S. 544, 554–55 (2007) (quoting
Conley v. Gibson, 355 U.S. 41, 47 (1957)). FLS’s focus on Tonge’s allegation that she suffered damages
in the form of lost employment opportunity and financial and mental anguish is misplaced. See Def.’s
Reply 2. I construe these damages allegations as just that—alleged damages—and not as the entirety of
Tonge’s alleged legal harms. So while FLS is correct that a “complaint may not be amended by the briefs
in opposition to a motion to dismiss,” Tonge’s Amended Complaint adequately alleges privacy and
informational harms without further amendment. See id.
Tonge does not assert that FLS had a duty to address in the initial disclosure her right to see and dispute
the report (her pre-adverse action rights). Rather, she asserts that FLS’s inclusion of a false statement of
her pre-adverse action rights in the initial disclosure rendered the disclosure unclear. See Pl.’s Resp. 1–2.
requirements. Tonge alleges (and FLS does not dispute) that FLS denied Tonge’s application
without giving her a copy of the consumer report on which they had relied, or providing a written
summary of her FCRA rights and the opportunity to dispute the report’s contents. Id. ¶ 81–82.
Tonge asserts this count on behalf of herself and the putative “Adverse Action Class,” defined
as: “All prospective employees whom FLS took adverse action against by denying them
employment with FLS, based in whole or in part, on information contained in a consumer report
. . . from five years prior to the filing of this [sic] until the date of final judgment in this action.”
Id. ¶ 57.
IV. FLS’s Standing Challenge
Defendant FLS moves under Rule 12(b)(1) to dismiss Tonge’s claims for lack of subject
matter jurisdiction, arguing that she has no Article III standing. FLS asserts that Tonge has
failed to prove each of the three elements of standing: injury in fact, causation, and
redressability. Def.’s Mot. Dismiss 9, 21, 23. Injury in fact is the core of FLS’s challenge, and
will likewise be the primary focus of my discussion. Id. at 2.
FLS insists that any FCRA violations it committed were “mere technical” or “bare
procedural” violations of the law and that those violations caused Tonge no concrete harm. Id. at
15–19. Invoking cases from Texas and New Jersey, FLS asserts that “a statutory right to
information is substantive” whereas “[a] statutory right to receive that information in a particular
format is procedural” and suggests that Tonge suffered no concrete harm because she received
all the information she was entitled to, even if by means not sanctioned by the FCRA. Id. at 15.
Finally, in both its injury in fact and causation arguments, FLS insists that its alleged FCRA
violations did not alter the ultimate outcome of Tonge’s applications; FLS’s compliance with the
law, FLS asserts, would not have changed Tonge’s decision to go forward with the application
and “would have had no bearing on whether FLS decided to hire [her].” Id. at 16, 19, 22.
As a backstop, FLS also recites a brief argument focusing on redressability. FLS
suggests that, if Tonge were to be awarded statutorily damages (in the amount of $100 to $1,000
per violation), “[s]uch relief surely would not satisfy the injuries described in her Amended
Complaint.” FLS devotes less than a page to this argument and I will invest a similar level of
effort in rejecting it. In essence, FLS argues that the FCRA’s statutory damages are too low to
adequately compensate prospective employees for FCRA violations, with the result that Tonge
lacks an essential element of standing to bring a FCRA claim. Without presuming to critique the
adequacy of the statutory damage amounts Congress set in the FCRA, I reject FLS’s reasoning,
as it would undermine huge swaths of legislation and jurisprudence that establish, endorse, or
rely on statutory damages—consumer protection, constitutional law, copyright law, traffic
regulation, and contract law, to name a few. 8
FLS describes its standing challenge under Rule 12(b)(1) as a factual, rather than facial,
attack. See id. at 8. The nature of a jurisdictional challenge determines the relevant standard of
review. Whereas a court reviewing a facial attack must consider the complaint’s allegations as
true and “in the light most favorable to the plaintiff,” a factual attack enables the court to
“consider evidence outside the pleadings” and resolve any “disputed material facts” in order to
evaluate the jurisdictional claim. Constitution Party of Pa. v. Aichele, 757 F.3d 347, 358–59 (3d
As explained above, FLS has not provided evidence outside of the pleadings to dispute
any fact material to the question of whether Tonge has standing. The evidence FLS presented—
including its application documents, two affidavits, the HireRight consumer report on Tonge,
Not only are statutory damages entrenched in our current legal system, but there are substantive societal
benefits—including fairness, predictability, deterrence, and systemic cost savings—to their use. See
Samuel L. Bray, Announcing Remedies, 97 CORNELL L. REV. 753, 755–56 (2012).
and an email from HireRight documenting her dispute—largely admit the allegations of Tonge’s
complaint. See ECF Nos. 21-2, 21-3. FLS agrees that it uses the Consent Form Tonge identified,
that its application process is generally as Tonge described, and that Tonge did not receive a
copy of the report or a summary of her rights under FCRA before her application was denied.
FLS does dispute the contents of its post-adverse action phone conversations with Tonge and the
accuracy of the contents of her consumer report. But here, where Tonge has alleged violations of
two FCRA sections intended to ensure consumers’ access to certain information and to protect
their privacy, these facts are not material to whether Tonge and the putative classes have
adequately alleged an injury in fact.
I acknowledge that whether FLS’s challenge is facial or factual depends on which view
of the law I adopt. If I were to adopt the Defendant’s view of standing for FCRA claims, facts
relevant to the question of concrete harm could include the accuracy of the underlying accidents
and whether an opportunity for Tonge to view and dispute her report pre-adverse action would
have altered FLS’s decision not to hire her. But, as explained below, I do not believe that
standing law in the Third Circuit supports FLS’s view, which hinges on economic harm and
whether the FCRA violation would have unquestionably altered the ultimate outcome of the
plaintiff’s employment application. As I see the law, it makes no difference which standard
applies because the parties agree on all relevant facts. See Stokes v. Realpage, Inc., No. CV 151520, 2016 WL 6095810, at *4 (E.D. Pa. Oct. 19, 2016) (Padova, J.) (“Since, in the materials
outside of the pleadings . . . Defendant’s factual material essentially admits certain of the
allegations of the Complaints relevant to the standing issue . . . there is no need to weigh these
facts . . . and we thus merge our discussion of the facial and factual attacks.”).
V. Standing and Spokeo
A plaintiff has standing to invoke the jurisdiction of a federal court when she has “(1)
suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant,
and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, 136 Sup. Ct. at
154. When, as here, a case is at the pleading stage, the plaintiff must “‘clearly allege facts
demonstrating’ each element.” Id. (citing Warth v. Seldin, 422 U.S. 490, 518 (1975)). The
standing requirements are the same for individual plaintiffs and those seeking to represent a
class. Id. at 1547 n.6. In addition to the redressability argument I dismissed above, FLS asserts
that Tonge suffered no injury in fact—the “first and foremost” element of standing. 9 Id. To
establish injury in fact, Tonge must show that she suffered “‘an invasion of a legally protected
interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or
hypothetical.’” Id. at 1548 (citing Lujan, 504 U.S. at 560). It is the concreteness of Tonge’s
injury that FLS disputes.
Specifically, FLS argues that under Spokeo, job applicants like Tonge, who have not
shown that an alleged FCRA violation definitively altered the outcome of their application, lack
standing to challenge that violation. I reject FLS’s argument because I am not persuaded that
Spokeo altered the constitutional standing requirement. See 136 S. Ct. at 1549.
In Spokeo, the Supreme Court addressed a standing challenge in the context of a claim
arising under a different part of the FCRA. Plaintiff there brought claims against an online
“people search engine” for publishing inaccurate—but not inherently negative—information
about him, including that he was employed, affluent, and married with children, when in fact, he
FLS also challenges causation—asserting that Tonge “cannot demonstrate a causal connection between
her alleged injury and FLS’s conduct”—but this argument is so closely tied to FLS’s injury in fact
argument that I address them together. See Def. Mot. Dismiss 21–22. Both arguments hinge on the nature
of Tonge’s alleged injury, which I define differently than FLS.
was unemployed, not wealthy, single, and had no children. Id. at 1546. He alleged that the
search engine had violated several sections of the FCRA, including a requirement that consumer
reporting agencies follow reasonable procedures to assure the accuracy of consumer reports, but
made no allegation that the false information had actually been used against him. Id. at 1545.
Finding that the lower court had failed to parse the particularity and concreteness requirements,
the Spokeo Court remanded to the Ninth Circuit for a decision on whether the plaintiff had
suffered a concrete injury, 10 id. at 1545, and in the process discussed important considerations
for standing in the context of statutory violations, id. at 1548–50.
The Court first explained that because standing is a constitutional requirement, “Congress
cannot erase Article III’s standing requirements by statutorily granting the right to sue to a
plaintiff who would not otherwise have standing.” Thus, standing “requires a concrete injury
even in the context of a statutory violation.” Id. at 1547–49. But a concrete harm, the Court
emphasized, need not be tangible. Id. at 1549 (“Although tangible injuries are perhaps easier to
recognize . . . intangible injuries can nevertheless be concrete.”). And while a “bare procedural
violation, divorced from any concrete harm” will not confer standing, “the violation of a
procedural right granted by statute can be sufficient” to show an injury in fact without the
plaintiff alleging “any additional harm beyond the one Congress identified.” Id. at 1549.
To parse these subtle distinctions—a “bare procedural violation” compared with a “the
violation of a procedural right” and intangible injuries that can nonetheless be concrete—Spokeo
identified two important considerations: history and the judgment of Congress. To decide
whether an intangible injury arising from a statutory violation is sufficiently concrete, Spokeo
explained that it is “instructive to consider whether an alleged intangible harm has a close
On remand, the Ninth Circuit had “little difficulty concluding that these interests protected by FCRA’s
procedural requirements [were] ‘real,’ rather than purely legal creations” and found that the plaintiff’s
allegations thus gave rise to standing. Robins v. Spokeo, 867 F.3d 1108, 1114 (9th Cir. 2017).
relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in
English or American courts.” Id. And because Congress is “well positioned to identify intangible
harms that meet minimum Article III requirements, its judgment is also instructive and
important.” Id. (“Congress has the power to define injuries and articulate chains of causation that
will give rise to a case or controversy where none existed before” and thus “elevat[e] to the
status of legally cognizable injuries concrete, de facto injuries that were previously inadequate”).
Spokeo gave one example of a procedural violation that would not, in and of itself, amount to a
concrete harm: an inaccurate zip code with no other allegations of harm. But aside from that
illustration, the Court chose not to define the contours of a “bare procedural violation,” explicitly
expressing “no view” on whether any other kind of false information would, without more, be
actionable. Id. at 1550 n.8.
The Third Circuit has applied Spokeo on three occasions, holding each time that the
decision did not alter the standing analysis in this Circuit. See In re Nickelodeon Consumer
Privacy Litig., 827 F.3d 262, 273 (3d Cir. 2016); In re Horizon Healthcare Servs. Inc. Data
Breach Litig., 846 F.3d 625, 638–39 (3d Cir. 2017); Sussino v. Work out World, Inc., 862 F.3d
346, 352 (3d Cir. 2017).
In Nickelodeon, a putative class action on behalf of children whose online browsing
habits had been collected by defendants in violation of a federal privacy law, the Third Circuit
reaffirmed its pre-Spokeo holding that a plaintiff need not allege any economic harm to have
standing. See Nickelodeon, 827 F.3d at 273 (“[W]hen it comes to laws that protect privacy, a
focus on ‘economic loss is misplaced.’ Instead, in some cases an injury in fact ‘may exist solely
by virtue of statutes creating legal rights, the invasion of which creates standing.’ . . . [Spokeo]
does not alter [this] analysis.” (quoting In re Google Inc. Cookie Placement Consumer Privacy
Litig., 806 F.3d 125, 134 (3d Cir. 2015))). Nickelodeon also provided important clarity on which
intangible harms create standing. “Harms that ‘may be difficult to prove or measure,’ such as
unlawful denial of access to information subject to disclosure” can constitute concrete injury for
standing, the Court explained. Id. at 273–74 (citing Spokeo, 136 S.Ct. at 1549).
Just a few months later, the Third Circuit relied on Nickelodeon when it found standing in
a FCRA case, explaining that the decision had provided “welcome clarity” on a previously
murky issue. See Horizon, 846 F.3d at 636. Whereas previous Third Circuit law “had not been
entirely consistent” on whether “a breach of a statute [was] enough to cause a cognizable injury,”
Nickelodeon was “decidedly in favor of allowing individuals to sue to remedy violations of their
statutory rights, even without additional injury,” the Horizon Court announced. Id. at 635.
Horizon found that the plaintiffs had alleged a concrete injury where the defendant health
insurance company’s FCRA violations led to their personal information being stolen from its
laptops, even though there was no evidence that the thieves had used their information
improperly. Id. at 629. The Court emphasized that the “[i]njury-in-fact element is not Mount
Everest” and that, “while not precisely defined,” it is “very generous.” Id. at 633.
In reaching its conclusion, the Horizon Court explained that “the Supreme Court has
repeatedly affirmed the ability of Congress to ‘cast the standing net broadly’ and to grant
individuals the ability to sue to enforce their statutory rights” and that Spokeo did not change
that. Id. at 635 (citing Fed. Election Comm’n v. Akins, 524 U.S. 11, 19 (1998)). Spokeo did not
raise the bar to standing in the Third Circuit: “In the absence of any indication to the contrary,
we understand that the Spokeo Court meant to reiterate traditional notions of standing, rather
than erect any new barriers that might prevent Congress from identifying new causes of action
though they may be based on intangible harms.” 11 Id. at 638.
What Spokeo did do, Horizon explained, was create two benchmarks to consider in
determining when intangible injury can be “concrete” for standing purposes. The first—that of
history—asks whether the alleged intangible harm is “closely related” to a harm traditionally
recognized by the courts; however, the alleged injury need not actually give rise to a common
law cause of action. Id. at 637–39. (In Horizon, the Court found that the alleged violation related
to traditional invasion of privacy.) The other benchmark considers whether Congress has
“expressed an intent to make an injury redressable.” Id. at 637. FCRA violations meet this
second benchmark, the Court held, because Congress created a private right of action to enforce
the 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.” Id. at 639.
Horizon acknowledged Spokeo’s observation that, under certain circumstances, “mere
technical violation of a procedural requirement” would not alone be an injury in fact. But just as
the Supreme Court chose not to define the contours of “those limiting circumstances,” the Third
Circuit likewise declined to consider them. Id. at 638.
Most recently, the Third Circuit reaffirmed its interpretation of Spokeo in Sussino, 862
F.3d 346. In Sussino, where the plaintiff alleged a violation of the Telephone Consumer
Protection Act after she received an unsolicited phone call with a one-minute voicemail, the
defendant company argued that she had suffered no concrete injury. To frame its analysis, the
Sussino Court summarized Horizon’s rule as follows: “When one sues under a statute alleging
‘the very injury [the statute] is intended to prevent,’ and the injury ‘has a close relationship to a
The Horizon Court explicitly rejected reading into Spokeo the requirement that a plaintiff show that the
alleged statutory violation caused a material risk of harm. Id. at 637–38.
harm . . . traditionally . . . providing a basis for a lawsuit in English or American courts,’ a
concrete injury has been pleaded.” Id. at 351 (quoting Horizon, 846 F.3d at 639–40). The Third
Circuit concluded that the Spokeo considerations are not exhaustive: “We do not, and need not,
conclude that intangible injuries falling short of this standard are never concrete…we simply
observe that all intangible injuries that meet this standard are concrete.” Id. at 351 (emphasis in
original) (citing Horizon, 846 F.3d at 638). Applying this rule, the Sussino Court found standing
because a single unwanted phone call was “the very harm that Congress sought to prevent” in
passing the law, and American courts have traditionally protected privacy interests. Id.
VI. Tonge’s Claims Satisfy Both of Spokeo’s Benchmarks
Guided by the Third Circuit’s interpretation of Spokeo in Nickelodeon, Horizon, and
Sussino, I find that Tonge’s claims easily meet both benchmarks—that of history and of
congressional intent. 12 First, Tonge’s allegations that FLS asked her to sign an inadequate form
(which, among other allegations, falsely stated her FCRA rights) and then failed to provide her
with any notice at all of her pre-adverse action rights are, in and of themselves, the “very injury
that FCRA is intended to prevent.” See Horizon, 846 F.3d at 640. Her allegations align not only
with Congress’s broad FCRA goal of ensuring fairness and accuracy in the credit reporting
industry, but also with the specific goals of the FCRA protections at issue, each carefully tailored
to curb documented risks and abuses in the credit reporting industry. See § 1681(b); Senate
Report at 3 (“One problem,”—the first of seven Congress identified—“is the inability at times of
the consumer to know he is being damaged by an adverse credit report . . . Unless a person
knows he is being rejected for . . . employment because of a credit report, he has no opportunity
I note that the parties’ otherwise thorough briefing of this Motion was done without the benefit of
Sussino, which was published in July 2017, and at least one relevant District Court case. See Daniels v.
Solomon, CV 17-0757, 2017 WL 3675400 (E.D. Pa. Aug. 25, 2017), appeal docketed, No. 17-3017 (3d
Cir. Sept. 18, 2017).
to be confronted with the charges against him and tell his side of the story.”). That Congress
created a private right of action, in addition to agency enforcement powers, is further evidence of
its belief that “the violation of FCRA causes concrete harm to consumers.” See § 1681n;
Horizon, 846 F.3d 625 at 639. As to the second benchmark, Tonge’s alleged violations of her
substantive rights to privacy and to statutorily-mandated information are closely related to longestablished causes of action.
A recent (post-Spokeo) opinion from the Eastern District of Virginia, Thomas v. FTS
USA, LLC, sets out a comprehensive statutory history of the FCRA and, specifically, the
congressional intent motivating the disclosure and pre-adverse action provisions at issue here.
See 193 F. Supp. 3d 623, 631–38 (E.D. Va. 2016). Thomas also provides a thorough overview of
how the informational and privacy harms alleged, although not independently actionable preFCRA, closely align with well-established causes of action in U.S. courts. See id. I adopt the
standing analysis from Thomas in its entirety. 13
In reaching my conclusion, I was not persuaded by FLS’s “all’s well that ends well”
philosophy. FLS asks me to find that Tonge has no standing if she cannot prove that the Consent
Form’s alleged inadequacies definitively altered her decision making—in other words, that she
would have refused a background check if the disclosure had been FCRA-compliant. FLS
likewise argues that Tonge has not alleged a concrete injury because she has not proven that, had
she been afforded her pre-adverse action rights, FLS would have decided to hire her instead.
Thomas has already been cited with approval three times by courts in this Circuit that found standing in
FCRA cases where plaintiffs alleged no harm beyond the statutory violation. See Wright v. Lincoln Prop.
Co., No. 15-CV-3483, 2017 WL 386602, at *4 n.3 (E.D. Pa. Jan. 27, 2017); Miller v. Trans Union, LLC,
No. 3:12-CV-1715, 2017 WL 412641, at *1 (M.D. Pa. Jan. 18, 2017) (relying heavily on Thomas’s
reasoning and analysis of the FCRA legislative history to find standing based on informational injury);
Stokes, 2016 WL 6095810 at *4 (citing with approval the legislative history of the FCRA as set out in
Thomas to show that Congress intended for the FCRA to establish new, legally cognizable rights to
Again, FLS insists that, whether or not Tonge was informed of and had a chance to exercise her
FCRA rights, she would have ended up without a job anyway. But this is a distortion of the
plaintiff’s burden that overlooks congressional intent and does not honor the standing doctrine.
As Spokeo explained, the standing doctrine developed to ensure that the judiciary does
not “usurp the powers of the political branches”—it is ironic then, when defendants seek to use
the doctrine to undermine the plain text of a statute by asking the court to refuse to recognize the
actionable harms Congress identified. See 136 S. Ct. at 1547. When Congress enacted the
FCRA, it identified harmful practices in the credit reporting industry and elevated those harms to
cognizable legal injuries that align with historical causes of action. See generally Senate Report
at 2–4 (explaining that the FCRA would establish safeguards against the problems posed by the
credit reporting industry, including that “highly sensitive and personal information” in credit
reports could “invade the individual’s right to privacy,” and that consumers had a “right to
know” when they were being denied employment because of information in their credit report).
Congress then empowered the private bar and individual consumers to enforce its mandate. Any
action by the judiciary that undermines the vitality of that critical enforcement mechanism would
also undermine the goals of the statute. This incursion into the legislative domain is precisely
the judicial intrusion the standing doctrine seeks to prevent.
Even if I had the ability to predict that FLS would ultimately be proven right about the
fate of Tonge’s application, she still would have been deprived of information to which she was
statutorily entitled, including an accurate description of her rights. See Havens Realty Corp. v.
Coleman, 455 U.S. 363, 373–74 (1982) (“testers” denied truthful housing information had
suffered an injury in fact, even though they had no intention of actually renting or buying a
home, because their statutory right to truthful information about available housing had been
violated, creating standing to bring a claim for violation of the Fair Housing Act). I do not
believe that Congress, in enacting the FCRA, intended to inform consumers of their rights only if
the information would unequivocally avoid financial harm to those consumers. In this view, I
join the Third Circuit and my Eastern District colleagues. See Nickelodeon, 827 F.3d at 273;
Horizon, 846 F.3d at 638–39; Sussino, 862 F.3d at 352; Wright, No. 2017 WL 386602, at *4 n.3
(Pratter, J.) (rejecting employer’s standing argument that plaintiff applicant could not recover
under the FCRA for the employer’s failure to give a pre-adverse action report and notice of
rights because the convictions that formed the basis for the adverse decision were accurate);
Daniels, 2017 WL 3675400, at *3 (holding that plaintiff had demonstrated a concrete injury in
the context of the Fair Debt Collection Practices Act, another remedial statute, where she alleged
a statutory violation without additional injury). 14
Accordingly, I find that when an applicant alleges that she consented to a background
check based on an unclear disclosure, and was denied employment without an opportunity to
learn her pre-adverse action rights, view the background check report, or dispute it, she alleges
exactly the kind of harms against which Congress sought to protect.
It is clear to me that Congress, in enacting the FCRA, intended to create substantive
rights to privacy and to certain statutorily-mandated information, regardless of whether a
consumer’s knowledge of that information would certainly alter the ultimate trajectory
I do not see my decision as inconsistent with Long v. SEPTA, which FLS cites at length. See Def.’s
Reply 1, 3, 5. See Long v. Se. Pa. Transp. Auth., No. 16-CV-1991, 2017 WL 1332716, at *4 (E.D. Pa.
Apr. 5, 2017). In Long, plaintiff job applicants did not receive adequate disclosures or pre-adverse action
notices, and SEPTA went on to deny their applications. Long acknowledged that “Spokeo did not change
the requirements to establish Article III standing,” but held that the allegations were examples of the
“bare procedural violations” referenced in Spokeo, and found no concrete injury. Id. at *4. There are two
significant distinctions between Long and the case before me: (1) the Long Court found that the plaintiffs
had not pled privacy or informational injuries; and (2) the Long plaintiffs had disclosed their criminal
convictions, the basis for SEPTA’s decision not to hire them, before SEPTA requested their background
reports—this second point was central to the Court’s holding. Id.
(economic or otherwise) of a given interaction between the consumer and an employer or credit
reporting agency. Accordingly, I find that Tonge has adequately alleged injuries in fact so as to
give rise to standing.
/s/ Gerald Austin McHugh
United States District Judge
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