Dyson v. Sky Chef Inc et al

Filing 60

Memorandum Opinion and Order: The Court GRANTS Defendants' 49 Motion to Dismiss Due to Lack of Article III Standing. And so, the Court DISMISSES without prejudice Plaintiff's claims against all Defendants. (Ordered by Judge Jane J. Boyle on 6/16/2017) (ykp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
MARSHALL DYSON, individually and
as a representative of the class,
Plaintiff,
v.
SKY CHEFS, INC., d/b/a LSG SKY
CHEFS and LSG SKY CHEFS NORTH
AMERICA SOLUTIONS, INC., d/b/a
LSG SKY CHEFS,
Defendants.

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CIVIL ACTION NO. 3:16-CV-3155-B

MEMORANDUM OPINION AND ORDER
Before the Court is Defendants’ Motion to Dismiss Due to Lack of Article III Standing, or
in the alternative, Motion for Judgment on the Pleadings. Doc. 49. For the reasons that follow, the
Court GRANTS Defendants’ Motion.
I.
BACKGROUND
This is a Fair Credit Reporting Act (FCRA) case. In December 2015, Plaintiff applied to work
for Defendants as a cook. Doc. 1, Pl.’s Compl. ¶ 20. As part of the employment application process,
Defendants provided applicants with the following Disclosure and Authorization Form:

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Doc. 1-1, Pl.’s Ex. 1, Discl. & Auth. Form.
Plaintiff, as will soon become apparent, maintains that the Disclosure and Authorization
Form violates the FCRA. Defendants, by contrast, say that Plaintiff was provided with at least two
additional background check disclosures, all of which complied with the FCRA. Doc. 49, Defs.’ Mot.
for Dismiss. Due to Lack of Art. III Standing or, in the Alternative, Mot. for J. on Pl. [hereinafter
Defs.’ Mot. to Dismiss] 3; Doc. 50, Defs.’ App. Supp. Defs.’ Mot. to Dismiss 1–2 [hereinafter Defs.’
App.], Ex. A, Marshall Dyson Disclosure Forms. Nevertheless, Plaintiff signed the form when he
applied. See id.; Doc. 1-1, Pl.’s Ex. 1, Discl. & Auth. Form.
About a week later, Defendants offered Plaintiff a job as a cook. Doc. 1, Pl.’s Compl.
¶¶ 39–40. The offer letter’s last paragraph explained that the offer was “‘contingent upon the
successful completion of the pre-employment process including but not limited to background and
employment checks.’” Id. ¶ 40 (quoting Doc. 1-1, Pl.’s Ex. 3, Offer Letter). Plaintiff accepted the
position and signed the document. Id. ¶ 39. Defendants, in turn, procured a consumer report on
Plaintiff on January, 1, 2016, and hired him shortly thereafter. Id. ¶ 41.
Plaintiff claims that, due to the Disclosure and Authorization’s Form’s non-compliance with
the FCRA, Defendants obtained information about him that they had no legal right to obtain. Id.
¶ 42. Plaintiff further claims that Defendants did the same to thousands of their other employees.
Id. ¶ 54. On that basis, Plaintiff filed his Complaint on behalf of himself and a putative class, asserting
that Defendants violated the FCRA’s stand-alone disclosure requirement. Id. ¶¶ 54–64 (citing 15
U.S.C. § 1681b(b)(2)). Plaintiff does not claim that he or the putative class suffered any actual
damages, but seeks instead statutory damages, putative damages, costs, and attorneys’ fees. Id. ¶ 64.
Defendants then moved to dismiss Plaintiff’s Complaint under Federal Rule of Civil
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Procedure 12(c), arguing that Plaintiff lacked standing to sue, or alternatively, that he failed to state
a claim upon which relief could be granted. Doc. 49, Defs.’ Mot. to Dismiss. Plaintiff responded to
Defendants’ Motion. Doc. 53, Pl.’s Resp. Opp’n Defs.’ Mot. to Dismiss [hereinafter Pl.’s Resp.]. And
Defendants replied. Doc. 56, Defs.’ Reply in Further Supp. of Defs.’ Mot. to Dismiss [hereinafter
Defs.’ Reply]. The Motion is therefore ripe for the Court’s review.
II.
LEGAL STANDARD
Federal Rule of Civil Procedure 12(c) provides that “[a]fter the pleadings are closed—but
early enough not to delay trial—a party may move for judgment on the pleadings.” Fed. R. Civ. P.
12(c); see also Fed. R. Civ. P. 7(a); 5C Charles Alan Wright et al., Federal Practice & Procedure
§ 1367 (internal footnotes omitted) (“Rule 7(a) provides that the pleadings are closed upon the filing
of a complaint and an answer (absent a court-ordered reply), unless a counterclaim, cross-claim, or
third-party claim is interposed, in which event the filing of a reply to a counterclaim, cross-claim, or
third-party answer normally will mark the close of the pleadings.”). The pleadings in this case are
closed and Defendants timely filed their Motion. Thus, the Court may properly consider Defendants’
Rule 12(c) challenge.
A motion for judgment on the pleadings “is designed to dispose of cases where the material
facts are not in dispute and a judgment on the merits can be rendered by looking to the substance
of the pleadings and any judicially noticed facts.” Herbert Abstract Co. v. Touchstone Props., Ltd., 914
F.2d 74, 76 (5th Cir. 1990). The standard for evaluating a Rule 12(c) motion is the same as the
standard for evaluating a Rule 12(b)(6) motion to dismiss for failure to state a claim. Doe v. Myspace,
Inc., 528 F.3d 413, 418 (5th Cir. 2008). That holds true regardless of whether the Rule 12(c) motion
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raises Article III standing or other merits arguments. See Brown v. Livingston, 524 F. App’x 111, 114
(5th Cir. 2013); see also Hosein v. Gonzales, 452 F.3d 401, 403 (5th Cir. 2006) (“We may affirm a
district court’s Rule 12(b)(6) dismissal on any grounds supported by the record, including a party’s
lack of standing.”).
The Court may look to “allegations in the complaint and to those documents attached to a
defendant’s motion to dismiss to the extent that those documents are referred to in the complaint
and are central to the claims.” Cox v. Cent. Insurex Agency, Inc., No. 3:11-cv-2267-B, 2012 WL
253882, at *2 (N.D. Tex. Jan 26, 2012) (citing Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d
285, 288 (5th Cir. 2004)).
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a complaint must contain “a
short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2). Rule 12(b)(6) authorizes a court to dismiss a plaintiff’s complaint for “failure to state a claim
upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In considering a Rule 12(b)(6) motion
to dismiss, “[t]he court accepts all well-pleaded facts as true, viewing them in the light most favorable
to the plaintiff.” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (quoting
Martin K. Eby Constr. Co. v. Dall. Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)).
To survive a motion to dismiss, a plaintiff must plead “enough facts to state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “Threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “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.” Id. “The plausibility standard is not akin to a ‘probability
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requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.
When well-pleaded facts fail to achieve this plausibility standard, “the complaint has alleged—but
it has not shown—that the pleader is entitled to relief.” Id. at 679 (internal quotation marks and
alterations omitted).
III.
ANALYSIS1
A.

The FCRA’s Stand-Alone Disclosure Requirement
The FCRA provides that a person may not procure a consumer report, or cause a consumer

report to be procured, for employment purposes with respect to any consumer, unless:
(i)

a clear and conspicuous disclosure has been made in writing to the
consumer at any time before the report is procured or caused to be
procured, in a document that consists solely of the disclosure, that a
consumer report may be obtained for employment purposes; and

(ii)

the consumer has authorized in writing (which authorization may be
made on the document referred to in clause (i)) the procurement of
the report by that person.

15 U.S.C. § 1681b(b)(2)(A) (emphasis added); see also LaFollette v. RoBal, Inc., No. 1:16-cv-2592WSD, 2017 WL 1174020, at *2–3 (N.D. Ga. Mar. 30, 2017). Said more plainly, “[b]efore an
employer may obtain an employee’s consumer report to evaluate whether to retain that employee,
[the] FCRA requires (1) a ‘clear and conspicuous disclosure’ that a consumer report may be obtained
for employment purposes (2) that is provided ‘in a document that consists solely of the disclosure.’”
Woods v. Caremark, No. 4:15-cv-00535-SRB, 2016 WL 6908108, at *3 (W.D. Mo. July 28, 2016)

1

The Court dismisses Plaintiff’s suit based on Defendants’ first theory that Plaintiff lacks Article
III standing. Accordingly, the Court need not address Defendants’ second argument that Plaintiff failed
to state a claim under the FCRA.
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(citing 15 U.S.C. §§ 1681a(h), 1681b(b)(2)(A)(i)).
Plaintiff’s challenge here is not that Defendants failed to give him and other putative class
members the proper disclosure. See Doc. 1, Pl.’s Compl. ¶ 21. Nor is it that Plaintiff did not authorize
Defendants to procure a consumer report on him, or that he did not understand the nature of the
authorization that he granted. Id. ¶¶ 39–41. Rather, Plaintiff asserts that Defendants violated the
FCRA’s requirement that employers provide their disclosures “in a document that consists solely of
the disclosure” (i.e., the stand-alone disclosure requirement). Id. ¶ 13 (citing 15 U.S.C.
§ 1681b(b)(2)(A)(i)). Specifically, Plaintiff says that Defendants violated the FCRA’s stand-alone
disclosure requirement because their Disclosure and Authorization Form combines the required
disclosure and authorization with “extraneous information” such as an ongoing authorization clause,
notices pertaining to state and municipal law, a summary of rights, and a legal disclaimer. Id.
¶¶ 22–37. As a result, Plaintiff maintains that he was deprived of information to which he had a
statutory right. Id. ¶ 42. Put another way, Plaintiff maintains that receiving a non-stand-alone
disclosure is the same as receiving no disclosure at all.
In essence, then, Plaintiff challenges the form of Defendants’ disclosure, not its substance.
See id. ¶¶ 43–44. That distinction is not lost on Plaintiff, who contests that form amounts to
substance in this context. Id. ¶¶ 15–17.2 Defendants disagree and argue that Plaintiff’s claim should
be dismissed for lack of Article III standing because the acts Plaintiff complains of don’t amount to
a concrete injury. Doc. 49, Defs.’ Mot. to Dismiss 1.

2

As addressed below, the Court disagrees on this point, which is the central issue in this dispute.
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B.

Article III Standing: Concrete Injury Requirement
Article III of the Constitution limits federal-court jurisdiction to actual “Cases” and

“Controversies.” U.S. Const. art. III, § 2. Where a court lacks the constitutional power to adjudicate
a case, it must dismiss it for lack of subject matter jurisdiction. Home Builders Ass’n of Miss., Inc. v.
City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). The party invoking federal jurisdiction, not
the party moving for dismissal, bears the burden of establishing subject matter jurisdiction. Lujan v.
Defs. of Wildlife, 504 U.S. 555, 561 (1992); In re Eckstein Marine Serv., 672 F.3d 310, 314 (5th Cir.
2012).
“The justiciability doctrines of standing, mootness, political question, and ripeness all
originate in Article III’s case or controversy language.” Choice Inc. v. Greenstein, 691 F.3d 710, 715
(5th Cir. 2012) (internal quotation marks omitted). For standing, a plaintiff must “demonstrate a
‘personal stake’ in the suit.” Camreta v. Greene, 563 U.S. 692, 701 (2011) (quoting Summers v. Earth
Island Institute, 555 U.S. 488, 493 (2009)). To demonstrate such a personal stake a plaintiff must
show: (1) an injury in fact; (2) a causal connection between the injury and the conduct complained
of; and (3) a likelihood that a favorable decision would redress the injury. Lujan, 504 U.S. at 560–61.
“At the pleading stage, general factual allegations of injury resulting from the defendant’s conduct
may suffice.” Id. at 561.
That injury, however, “must be ‘concrete, particularized, and actual or imminent; fairly
traceable to the challenged action; and redressable by a favorable ruling.’” Clapper v. Amnesty Intern.
USA, 133 S. Ct. 1138, 1147 (2013) (quoting Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139,
149 (2010)). Defendants assert that Plaintiff has not a pled a concrete injury in this case. Thus,
Plaintiff’s standing turns on whether he has sufficiently alleged that he suffered a concrete injury.
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“A ‘concrete’ injury must be ‘de facto’; that is, it must actually exist.” Spokeo Inc. v. Robins,
136 S. Ct. 1540, 1548 (2016). “An injury need not be tangible, but it cannot be merely abstract or
hypothetical. ‘The violation of a procedural right granted by statute can be sufficient in some
circumstances to constitute an injury in fact.’” Landrum v. Blackbird Ent., LLC, 214 F. Supp. 3d 566,
570 (S.D. Tex. 2016) (quoting id. at 1549) (internal citations omitted). That said, a procedural
violation alone is insufficient—the violation must impact some concrete interest to confer standing.
Id.
C.

Plaintiff Did Not Suffer A Concrete Injury as the Result of Defendants’ Disclosure and
Authorization Form
To recap,3 the Complaint and the Authorization and Disclosure Form demonstrate that:

(1) Defendants provided a disclosure to Plaintiff that a consumer report may be obtained for
employment purposes before Defendants procured a report; and (2) Plaintiff authorized in writing
the procurement of that report. Doc. 1, Pl.’s Compl. ¶¶ 20–21, 39–42; Doc. 1-1, Pl.’s Ex. 1, Discl.
& Auth. Form; Doc. 1-1, Pl.’s Ex. 3, Offer Letter. Plaintiff does not contest that the Disclosure and
Authorization Form was misleading or confusing, that he was unaware that a consumer report was
being requested, or that Defendants used the consumer report inappropriately.4 Doc. 1, Pl.’s Compl.
¶¶ 21, 39–41. Instead, Plaintiff asserts that Defendants’ inclusion of “extraneous information”
violated the FCRA’s stand-alone disclosure requirement. Id. ¶¶ 13, 22–37.
3

The structure of this recap is borrowed from LaFollette, 2017 WL 1174020, at *3. The
underlying facts, however, are gathered from the pleadings.
4

To the extent that Plaintiff argues that Defendants’ inclusion of an “ongoing authorization” clause
is inappropriate, the Court is unpersuaded. See Doc. 1, Pl.’s Compl. ¶¶ 24, 30–31. The presence of an ongoing
authorization clause does not change the Court’s approach here. See Woods, 2016 WL 6908108, at *1–5
(concluding plaintiff lacked standing when he alleged that employer’s disclosure form violated FCRA’s standalone disclosure requirement for, among other reasons, including an ongoing authorization clause).
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So “[t]he question here is whether Plaintiff has Article III standing to pursue [his] claim that
Defendant[s] violated the FCRA’s stand-alone disclosure requirement. LaFollette, 2017 WL
1174020, at *3. Plaintiff alleges that he has standing for two reasons: (1) Defendants deprived him
of information to which he had a statutory right, thereby inflicting upon him an informational injury;
and (2) Defendants obtained information about Plaintiff to which they had no legal right, thereby
invading Plaintiff’s privacy. See Doc. 1, Pl.’s Compl. ¶ 42; Doc. 53, Pl.’s Resp. 12–22. The Court
addresses each point in turn.
1.

Informational Injury

“The Supreme Court has held that a ‘plaintiff suffers an “injury in fact” when the plaintiff fails
to obtain information which must be publicly disclosed pursuant to a statute.’” LaFollette, 2017 WL
1174020, at *4 (quoting Fed. Elec. Comm’n v. Akins, 524 U.S. 11, 21 (1998)). Plaintiff maintains that
the he suffered such an informational injury because Defendants’ failure to provide a stand-alone
disclosure (i.e., use of the Disclosure and Authorization Form) “deprived [him] of information in the
form and format to which [he] was entitled” under the FCRA. Doc. 53, Pl.’s Resp. 17 (emphasis
added). In other words, Plaintiff argues that failing to present information in the correct form is the
same as failing to present it altogether.
The Court disagrees, and in so doing embraces the Southern District of Texas’s recent
rationale rejecting a plaintiff’s argument that his employer’s failure to comply with the FCRA’s standalone disclosure requirement constituted an informational injury:
Whether a violation of a statutorily created right confers standing turns on whether
the right is substantive or merely procedural. Black's Law Dictionary defines a
“procedural right” as “[a] right that derives from legal or administrative procedure; a
right that helps in the protection or enforcement of a substantive right. Cf. substantive
right.” (10th ed. 2014) (emphasis added). A “substantive right,” on the other hand,
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is “[a] right that can be protected or enforced by law; a right of substance rather than
form.” Id. To the extent that a violation of the procedural right has no effect on the
substantive right, the bare procedural violation does not cause an injury of the sort
that, alone, would support standing. Confusion understandably arises when the
procedure is closely intertwined with the substantive right.
In this case the procedure, a specified manner for disseminating information, protects
the underlying right to receive that information. The distinction is a subtle one, and
an analogy may prove helpful. Consider a hypothetical statute requiring building
managers to notify occupants in the event of a fire in a timely manner via a
loudspeaker using specific language. Now imagine that, during a fire, a manager
effectively communicates a warning to an occupant in a timely manner but does so in
person, after which the occupant escapes unharmed. The occupant was subjected to
a bare, procedural violation. If, however, another occupant was never warned but
smelled smoke and safely exited the building, the latter occupant was subject to a
substantive violation of his right to be timely notified, albeit without independent,
“tangible” harm. In the latter case, a statutory remedy would be appropriate. In the
former case, only the manner in which the warning was to be delivered (i.e., the
procedure) failed to meet statutory guidelines. The underlying right, the right to be
timely notified in the event of a fire, was honored.
The FCRA protects a consumer's substantive right to be notified of the procurement
and use of a consumer report for employment purposes. However, the requirement
that the notice be in the form of a stand-alone disclosure is a procedural protection of
that substantive right. Put yet another way, a statutory right to information is
substantive. A statutory right to receive that information in a particular format is
procedural.
Landrum, 214 F. Supp. 3d at 571.
In sum, the Southern District concluded, “a statutory right to information is substantive. A
statutory right to receive that information in a particular format is procedural.” Id. at 572. The Court
agrees. Plaintiff nonetheless maintains that he suffered an informational injury, and argues that
Landrum is distinguishable. Doc. 53, Pl.’s Resp. 17–22. The Court rejects both points.
For starters, the Court finds Landrum’s analysis directly applicable to Plaintiff’s claim that he
suffered an informational injury. Plaintiff points to three reasons why Landrum ought not control on
this point; none are persuasive. First, Plaintiff says that he has properly alleged an informational
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injury, whereas the plaintiff in Landrum did not. Doc. 53, Pl.’s Resp. 21. But that position
misapprehends Landrum. There, the court acknowledged that informational injuries may be
substantive, but explained that the plaintiff failed to allege such an injury because he attacked the
form of the disclosure in question rather than its substantive adequacy to inform him that his
employer intended to perform a background check. Landrum, 214 F. Supp. 3d at 571–72. As
explained above, that’s exactly the case here: Plaintiff does not contest that Defendants failed to
provide him with a disclosure or that the disclosure was substantively inadequate; rather, he attacks
the disclosure’s format. So Landrum’s analysis is strikingly suitable.
Second, Plaintiff claims that the court in Landrum declined to consider the plaintiff’s invasion
of privacy argument. Doc. 53, Pl.’s Resp. 21. That’s inaccurate—the court in Landrum concluded
that it did not need to resolve “whether invasion of privacy following a procedural violation of the
FCRA is a sufficiently concrete injury” because the plaintiff didn’t adequately allege an invasion of
privacy claim to begin with.5 Landrum, 214 F. Supp. 3d at 572 (“This court does not need to decide
that issue because Landrum has not alleged facts that would support an invasion-of-privacy claim.”).
In any event, it has no bearing on whether the Court should consider Landrum’s logic as to Plaintiff’s
informational injury argument.
Third, Plaintiff says the Landrum court’s acknowledgment that the plaintiff had filed similar
suits before somehow distinguishes it from this case. Doc. 53, Pl.’s Resp. 22. The Court, relying on
language from Landrum itself, remains unmoved. See Landrum, 214 F. Supp. 2d at 572 (explaining

5

As addressed below, that’s a key distinction: the Court in Landrum held that the plaintiff did not
allege facts to support standing based on invasion of privacy because he did not contest the that he gave
such authorization or failed to understand the nature of the authorization he granted. See 214 F. Supp. 3d
at 571–72.
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that “Landrum’s motive for applying for employment with Defendants is not relevant to the court’s
jurisdictional analysis”) (emphasis added). For those reasons, the Court disregards Plaintiff’s challenge
to its reliance on Landrum.
Turning to the substance of Plaintiff’s argument, the Court finds that much of the authority
upon which Plaintiff relies to demonstrate that he has suffered an informational injury is inapposite.
See Doc. 53, Pl.’s Resp. 18–19. In the cases cited to by Plaintiff, the plaintiffs alleged they did not
receive the substantive information to which they were entitled.6 See also LaFollette, 2017 WL
1174020, at *4 (distinguishing cases cited by Plaintiff on similar basis); In re Michaels Stores, 2017
WL 354023 at *6 (same). Again, Plaintiff makes no such allegation, and instead challenges only the
form in which the information was presented. Doc. 53, Pl.’s Resp. 17 (“Defendants have deprived
Plaintiff of information in the form and format to which Plaintiff was entitled.”).
That said, Plaintiff does cite to a number of pertinent cases, relying primarily on Thomas v.
FTS USA, LLC, 193 F. Supp. 3d 623 (E.D. Va. 2016). Id. at 18. In Thomas, the court wholly
embraced Plaintiff’s theory and held that a consumer’s receipt of a disclosure that did not comply
with the FCRA’s stand-alone requirement constituted a concrete informational injury. 193 F. Supp.
3d at 635. Thus, embracing Thomas means construing the FCRA’s stand-alone disclosure
requirement as substantive, rather than procedural.
The Court respectfully declines to do so and joins a number of courts disagreeing with

6

In Federal Election Commission v. Akins, a group of voters alleged they had the right to information
mandated by the Federal Election Campaign Act of 1971. 524 U.S. at 16. In Public Citizen v. U.S. Department
of Justice, public interest groups alleged they had the right to information subject to disclosure under the
Federal Advisory Committee Act. 491 U.S. 440, 449 (1989). In Havens Realty Corporation v. Coleman, testers
received false information in violation of the Fair Housing Act. 455 U.S. 363, 372(1982).
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Thomas. See, e.g., Hopkins v. Staffing Network Holdings, LLC, No. 16C7907, 2016 WL 6462095, at
*3 (N.D. Ill. Oct. 18, 2016) (“respectfully disagree[ing] with the conclusions in Thomas”); In re
Michaels Stores, 2017 WL 354023, at *7 (“I respectfully disagree with Thomas’s conclusion that the
disclosure requirements set forth in §1681b(b)(2)(A)(i) are substantive rather than procedural.”);
LaFollette, 2017 WL 1174020, at *4 (embracing In re Michael’s Stores); see also, Landrum, 214 F.
Supp. 572 (“Put yet another way, a statutory right to information is substantive. A statutory right
to receive that information in a particular format is procedural.”).
In sum, Plaintiff does not allege that he did not receive a disclosure or that he failed to
understand it, he just attacks the fact that it wasn’t on its own sheet of paper. “‘Where, as here,
plaintiffs do not allege that they did not see the disclosure, or were distracted from it, the allegations
amount to no more than a bare procedural violation of the stand-alone requirement.’” LaFollette,
2017 WL 1174020, at *4 (quoting In re Michaels Stores, 2017 WL 354023, at *9). Plaintiff’s
allegations therefore do not confer standing on an informational injury theory. Id.
2.

Invasion of Privacy

Plaintiff next argues that Defendants invaded his privacy by obtaining a consumer report
when they had no legal right to do so. Doc. 53, Pl.’s Resp. 12; see also Doc. 1, Pl.’s Compl. ¶ 42. And
they had no legal right to do so because the Disclosure and Authorization form did not comply with
the FCRA’s stand-alone disclosure requirement. Doc. 53, Pl.’s Resp. 12
“Invasion of privacy is a widely recognized common law tort.” Perrill v. Equifax Info. Servs.,
LLC, 205 F. Supp. 3d 869, 873 (W.D. Tex. 2016). Given the FCRA’s history and purpose, “invasion
of privacy within the context of the FCRA constitutes a concrete harm that meets the injury-in-fact
requirements.” Id. The question, then, is what constitutes an invasion of privacy within the context
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of the FCRA.
The District of New Jersey recently answered that question with regard to bare violations of
the stand-alone disclosure requirement:
Everyone agrees that an applicant would have standing under the FCRA if the
employer simply obtained a credit report without telling the applicant, and without
the applicant's consent. On the other hand, the applicant's consent, after being
informed that the employer would be seeking such a report, vitiates any claim of a
privacy violation. Either way, the issue hinges on whether the applicant received
disclosure before consenting. The employer's procurement of a consumer report
would not be unauthorized (and thus an invasion of privacy) unless the applicant was
in fact denied disclosure. That Michaels did not comply with the stand-alone
requirement, unless it resulted in a deprivation of disclosure, adds nothing. Plaintiffs'
theory collapses on itself; without the addition of nondisclosure in fact, it is
indistinguishable from a bare procedural violation.
In re Michaels Stores, 2017 WL 354023, at *10.
As referenced, Plaintiff alleges no in-fact deprivation of disclosure. Nor does he allege actual
damages or injury as a result of Defendants having procured his credit report. See Doc. 1, Pl.’s Compl.
¶ 64. So his position boils down “to a contention that a violation of the stand-alone requirement
automatically implies that the credit report is unauthorized. That principle, if accepted, ‘would raise
every technical violation of the FCRA to the realm of a major substantive harm.’” In re Michaels
Stores, 2017 WL 354023, at *10 (quoting Shoots v. iQor Holdings US Inc., No. 15-cv-563 (SRN/SER),
2016 WL 6090723, at *4 (D. Minn. Oct. 18, 2016)).
The Court finds that result illogical—to embrace such a principle would negate the entire
procedural/substantive distinction. See id. As a result, the Court concludes that invasion of privacy
within the context of the FCRA requires some additional showing of a substantive violation, such
as a nin-fact deprivation of disclosure or provision of consumer reports to entities without reason to
believe they have a permissible purpose for such reports. See id. at *10, *10 n.18; Landrum, 214 F.
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Supp. at 572 (holding that plaintiff failed to allege facts sufficient to support standing based on
invasion of privacy where he did not allege an in-fact deprivation of disclosure or that he failed to
understand the nature of the disclosure that he was granting).
The Court notes that this conclusion is again at odds with Thomas, and again respectfully
disagrees with its reasoning. See Thomas, 193 F. Supp. 3d at 636 (“Furthermore, where a defendant
fails to comply with statutory prerequisites protecting the plaintiff’s privacy, the plaintiff’s privacy has
been unlawfully invaded and he has suffered concrete injury, regardless of damages.”); see also In re
Michaels Stores, 2017 WL 354023, at *10 n.18 (collecting cases in alignment with Thomas and
disagreeing with them). The Court further notes that this decision comports with Perrill. See 205 F.
Supp. 3d at 874–75. The court in Perrill held that an employer’s provision of consumer reports to a
state comptroller without reason to believe that the comptroller had a permissible purpose under the
FCRA constituted an invasion of privacy. Id. at 871–75.7
Were the Court faced with allegations of substantive violations of that nature today, it would
hold similarly. But it is not. Plaintiff complains only of Defendants’ failure to comply with the FCRA’s
stand-alone disclosure requirement. See Doc. 53, Pl.’s Resp. 12–16. Plaintiff does not allege that he
never signed the authorization, that he didn’t know what he was authorizing, or that he didn’t read
the authorization. See id.8 So there was no invasion of privacy when Defendants did just what he
7

The court in Perrill cites favorably to Thomas. 205 F. Supp. at 874. The Court construes that as going
towards the ultimate legal conclusion that invasion of privacy in the context of the FCRA constitutes a
concrete harm. The Court agrees on that point, but applies it to different result here. The reason for why that
discrepancy does not put the Court’s analysis here at odds with that in Perrill is simple: The factual allegations
in Perrill amounted to an invasion of privacy because they involved a substantive violation, whereas the
factual allegations here do not because they involve only procedural violations.
8

Plaintiff does once again mention Defendants’ ongoing authorization clause, but as addressed
above, that does not change the Court’s approach or otherwise factor in as a substantive violation. See
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authorized them to do and procured his consumer report. See LaFollette, 2017 WL 1174020 at *5;
see also Landrum, 214 F. Supp. at 572.
The violation Plaintiff alleges is purely procedural. See LaFollette, 2017 WL 1174020, at *5;
see also In re Michaels Stores, 2017 WL 354023, at *11 (“Instead, [plaintiffs] argue only that
[defendant’s] acquisition of [p]laintiffs’ consumer reports was unlawful because [defendant]’s
disclosure did not comply with the FCRA, and was ipso facto an invasion of [p]laintiffs’ right to
privacy. This is precisely the type of bare procedural violation that is insufficient to confer standing.”)
(internal citations, alterations, and quotation marks omitted). For that reason, the Court concludes
that Plaintiff failed to allege that he suffered an invasion of privacy. See LaFollette, 2017 WL
1174020, at *5; see also Landrum, 214 F. Supp. at 572.
In sum, Plaintiff, as the party invoking federal jurisdiction, bore the burden of establishing
that the Court has subject matter jurisdiction over this case. Lujan, 504 U.S. at 561. Plaintiff has
failed to demonstrate that he suffered an informational injury or an invasion of privacy. For that
reason, he “has not met his burden of showing that he suffered an injury in fact.” Landrum, 214 F.
Supp. 3d at 572.
IV.
CONCLUSION
For the reasons discussed above, the Court concludes that Plaintiff suffered no concrete
injury and therefore lacks standing. Thus, the Court lacks subject matter jurisdiction over this case.
“Because the only named [p]laintiff lacks standing, the [C]ourt need not further address issues

supra note 4. Plaintiff read the authorization, understood it, then signed it. See Doc. 1, Compl. ¶¶ 20–21,
39–41; Doc. 1-1, Pl.’s Ex. 1, Discl. & Auth. Form; Doc. 1-1, Pl.’s Ex. 3, Offer Letter.
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related to the class nature of this action.” Landrum, 214 F. Supp. 3d at 573 (citing Dallas Gay
Alliance v. Dallas Cty. Hosp. Dist., 719 F. Supp. 1380, 1384–85 (N.D. Tex. 1989)). Accordingly, the
Court GRANTS Defendants’ Motion to Dismiss Due to Lack of Article III Standing. Doc. 49. And
so, the Court DISMISSES without prejudice9 Plaintiff’s claims against all Defendants.

SO ORDERED.
SIGNED: June 15, 2017.

_________________________________
JANE J. BOYLE
UNITED STATES DISTRICT JUDGE

9

The Court’s dismissal is “for lack of subject matter jurisdiction (standing); therefore, it is without
prejudice.” Sepulvado v. La. Bd. of Pardons & Parole, 114 F. App’x 620, 622 (5th Cir. 2004); see also Alviar
v. Lillard, 854 F.3d 286, 292 (5th Cir. 2017) (“Because the court lacks subject matter jurisdiction over
Lillard, the claims against Lillard must be dismissed without prejudice.”).
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