Henderson v. Corelogic, Inc. et al

Filing 322

MEMORANDUM OPINION. See Opinion for details. Signed by District Judge Robert E. Payne on 09/01/2016. (ccol, )

IN THE UNITED

STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Richmond Division

TYRONE HENDERSON,

et al. ,

Plaintiffs,
Civil Action No.:

V.

3:12CV97

CORELOGIC NATIONAL

BACKGROUND DATA,

LLC,

Defendant.

MEMORANDUM OPINION

This

MOTION

matter

FOR CLASS

set forth herein,

is

before

the

CERTIFICATION

Court

on

(ECF No.

PLAINTIFFS'

281) .

For

RENEWED

the

reasons

the motion will be denied.
BACKGROUND

On July 16,
and

James

Hines

Second Amended
and

all

National
Credit

class,

Class

others

Count

No.
One

(collectively,

Action

similarly

Background

ECF

Plaintiffs Tyrone Henderson

("Hines")

Reporting

("SAC"),
FCRA.

2015,

Data,

Act
191).

Complaint

LLC

The

alleges,

on

SAC

behalf

alleging

("NBD")

("FCRA").

"Plaintiffs")

on

situated,

had

alleges
of

a

of

themselves

that

Defendant
the

Amended

two
a

filed

violated

(Second

behalf

("Henderson")

Complaint

Counts

putative

under

Fair

the

nationwide

that NBD violated the FCRA by failing to "maintain strict

procedures" to ensure that the public records i t provided to its

customers

failing

to

notify consumers when such records were provided about them,

in

violation

were

of

"complete

15

U.S.C

§

and

up

to

date"

1681k(a).

Count

claim on behalf of Henderson and Hines,
to

use

reports,

reasonable procedures

to

and

by

Two,

an

individual

alleges that NBD failed

assure maximum accuracy of its

in violation of U.S.C. § 1681e{b).

Plaintiffs now seek to certify the following class:
All natural persons residing in the United
States (a) who were the subject of a report
sold by NBD to Verifications,
ADP or HR
Plus,
(b)
where
NBD's
Results
Returned
database

an

indicates

employment

NBD's

Results

that

purpose
Returned

it

was

(Code

furnished

6),

database

(c)

for

where

showed

that

the report contained at least one adverse
criminal record "Hit," (d) within five years
next preceding the filing of this action and
during
its
pendency...[excluding]
any
employees, officers, directors of Defendant,
any attorney appearing in this case, and any

judge assigned to hear this action.
(ECF No.

282).

Plaintiffs

the

Civ.

foregoing

P. 23,

also

class

contend

does

that,

not meet

should

the

the

Court

requirements

find

of

that

Fed.

R.

the Court should certify one or more of Plaintiffs'

three proposed subclasses,
SUBCLASS
database

1:
shows

a

defined as follows:
(i)
NBD's
criminal

Results
Returned
hit from a

record

Virginia General District Court;
(ii)
NBD
did not return a SSN to its customers; and
(iii) the computer database of the Executive
Secretary of the Supreme Court of Virginia
contains

a

SSN

or

associated with that

Drivers

License

criminal

record.

number

SUBCLASS
database

2:

(i)

shows

[Pennsylvania]
NBD

did

not

NBD's

a

Results

criminal

General

return

a

record

District
SSN

to

Returned
hit

from

Court;

its

(ii)

customers;

and
(iii)
the
computer
database
of
Pennsylvania
Administrative
Office
Pennsylvania Courts
(AOPC)
contains a
associated with that

criminal

a

the
of
SSN

record.

SUBCLASS
3:
(i)
NEC's
Results
Returned
database show [sic] a criminal record hit
from a state Sex Offender Registry;
(ii)
where the age and/or date of birth provided
for that consumer by Verifications, AD? or
HR Plus did not match the age and/or date of
birth contained in that State's publically
accessible Sex Offender Registry.
Id.

Because
some

Plaintiffs

important

failed

evidence

opportunity to

brief that

issue.

conduct

Therefore,

prejudice

as

to

provide

underlying

denied the

without

to

the

notice

subclasses,

the

NBD with

NBD

discovery necessary to

Plaintiffs'

three

of
was

fully

motion will be denied

subclasses,

and

the

parties

will be given an opportunity to conduct expedited discovery as
to
set

the

viability of

forth

below.

the

subclasses.

Plaintiffs'

However,

motion

will

for
be

the

reasons

denied

with

access

to

prejudice as to the putative nationwide class.
FACTUAL BACKGROUND

NBD is
database

a

("The

company

that

Multistate

criminal record information.

provides
Database"

its
or

customers
"the

Database")

a
of

(Defendant's Memorandum in Support

of its Renewed Motion for Partial Summary Judgment on Count I of
the

Second

Amended

Undisputed Facts

Complaint

("SOF")

(EOF

5 18).

No.

the Multistate Database by way of the

responsive

returns

to

the

results

search

Statement

NBD's customers,

instance are consumer reporting agencies

Database then

195),

criteria

which in this

("CRAs"),

pay to search

Internet.

(such as

arrest

entered

of

The Multistate

records)

by

NBD's

that

are

customer.

Id.

The

Multistate

SafeRent,

LLC

Database

is

("SafeRent") ,

SafeRent

obtains

most

of

Database

electronically

owned

a

sister

the

from

and managed by CoreLogic

company

criminal

to

record

governmental

NBD.

data

sources,

Id.
in

the

although

approximately ten percent of the data is purchased from a third
party

vendor.

bulk,

Id. f

formats

the

19.

SafeRent

records

it

buys

purchases

criminal
so

that

records
they

properly incorporated into the Multistate Database,
the

records

SafeRent
records

in

bulk

the

the

response
records

intervals.

criminal

Multistate

information.

rarely,

("SSNs") .

in

varying

purchases

identifying

in

at

Id.

to

if

data
often

For example,

SI5 16-17.

sometimes

Database

ever,

queries

record

Id.

contain

bulk,

contain

public

Social

be

and updates

20-24.
in

can

in

Because
the

only

public
limited

records purchased

Security

Numbers

Based on the reports generated by NBD

regarding

also

Plaintiffs,

lack other

it

is

clear

identifying data

that

such

as

middle

names

or

addresses.

Therefore,

the portions

Multistate

Database

the

(ECF

No.

Exs.

of the public records

often

supplied

with

pertain.

are

ECF No. 195, SOF

not

particular

consumer

to

13,

that

sufficient

to

are

link

whom

14).

in

the

the

the
data

records

5-6.

SafeRent oversees all formatting,
of the Multistate

196

Database;

updating,

NBD merely acts

between SafeRent and the customer CRAs,

to its customers without change.

as

and maintenance
an

intermediary

and transmits

this data

The contracts between NBD and

its customers obligate the customers independently to verify the
records

returned

in

response

to

their

search

providing consumer reports to their clients.
Henderson

Specifically,

on

and

Mines

present

inaccurate

and

information supplied by NBD.
Brands

September of

before

Id. IS 8-15.

factually

similar

cases.

Henderson and Hines were denied employment based

allegedly

Interstate

queries

offer

background

(SAC f

of

check

("Interstate")

19) .

employment,

on

in

and

Henderson

subsequently

from

a third party CRA.

background

process.

Id.

Verifications

history
a

job at

August

or

Henderson

a

requested

a

Interstate made

("Verifications),

check

criminal

Henderson applied for

Corporation

2009.

conditional

incomplete

Verifications,

1 21.

Inc.

As part of the

conducted

a

search

the Multistate Database by inputting Henderson's last name,
first

three

letters

of

his

first

name,

and

his

date

of

of
the

birth.

(ECF No.

195,

included

Henderson's

also

SOF SI

contained

belonging

to

29) .

results

criminal

several

at

The

history,

records,

least

one

of this

but

the

including

other

search correctly

search

felony

individual

who

results

convictions,

had

the

same

first and last name and date of birth as Henderson.

(SAC

26) .

Interstate,

In the background check that

Verifications

included

multiple

it

provided to

criminal

records

incorrectly attributed to Henderson by NBD.
result

of

the

incorrect

information,

conditional offer of employment.

Id.

Interstate

24-

that

27.

S[

were

As

withdrew

a

its

Id.

Hines applied for a position as a physical therapist with
CareSouth Homecare Professionals

3 39.

in May 2011.

Id.

As part of its consideration of Hines for that position,

CareSouth

purchased a

Selection Services

41-42.
conducted
Hines'

195,

("CareSouth")

As
a

first

SOF 1 41).

correctly

("ADP"),

part

search
and

consumer

of
of

last

report

from ADP Screening and

a CRA similar to Verifications.

the
the

names

compilation
Multistate
and

his

of

this

Database

date

of

report,
by

birth.

Id.

ADP

inputting
(ECF

No.

These search results contained criminal records

attributed

to

Hines,

but

also

contained

records

belonging to at least one other individual with the same first
name,

last name,

indicating that
42-45).

and date of birth,

Hines

was

a

including an Indiana record

registered

sex offender.

(SAC ISI

ADP included this incorrect information in the consumer

report

that

incorrect

it

provided

information,

that time.

Id.

to

CareSouth.

Hines

was

not

As

hired

a

for

result
the

of

the

position at

SI 5.
CLASS CERTIFICATION DISCUSSION

To obtain class certification,

four requirements of Fed.

R.

a plaintiff must satisfy the

Civ.

P.

23(a).

Additionally,

the

proposed class must be consistent with at least one of the types
of

class

meet

actions

the

delineated

corresponding

in

Fed.

R.

Civ.

P.

prerequisites

23 (b),

for

and must

certification.

However, before the Court undertakes the Rule 23 analysis,

there

are three threshold disputes to be resolved.
A.

Standling

To begin,
Article

III

(Defendant's
Motion

NBD

for

standing

Class

at

19) .

must

"establish
him

sufficient
Spokeo V.
the

to

issues

any

return

establish

Article

of

relating

the

to

motion,

standing

1540
the

Mem.

says NBD,
of

^concrete'

Ct.

to

("Def.

her

136 S.

absent

Opposition

specifically,

that

Robins,

merits

in

"Plaintiffs

the

Certification

More

or

that

for

Memorandum

296)

caused

contends

establish

class

members."

Plaintiffs'
in

III

because

ECF

records

by

^particularized'

standing."

(2016)).
Court

0pp.,"

Renewed
No.

every class member

incomplete
and

Court's subject matter jurisdiction.

cannot

Id.

NBD
harm

(citing

Before proceeding to

must

first

resolve

any

that

issue

affects

the

The

Court

members'

need

standing

misapprehends

that is,
a

delve

here,

the

action context.

not

role

into

however,
of

the

issue

because

NBD's

constitutional

the Court.

Harris v.

argument
in

That

Evans,

and

is

Bush,

that

simply

the

controversy

all

between

that Article

70 F. App'x 84,

20 F.3d 1118,

therefore,

class

III

87

1121

the

parties

requires.

(4th Cir.

(11th Cir.

there is
before

See,

2003)

1994))

the

parties

before

the

court

have

e.g.,

(quoting
(observing

that the "'central purpose of the standing requirement
ensure

class

There is no dispute that the named plaintiffs—

case

ProEnqlish v.

absent

standing

Henderson and Hines—have standing;

justiciable

of

a

[is]

to

concrete

interest in the outcome of the proceedings such that they can be

expected to frame the issues properly.'")
Thus,
standing,
the

given

Henderson

and

Hines

NBD's argument concerning whether,

absent

class

characterized
named

that

(emphasis added).

as

in

presents

issues

predominance,

have

identifying

plaintiffs'

members:

members

claims

other

and

words,

that

are

typicality,

suffered

perceived
the

Civ.

P.

of

the

standing

to

and adequacy of

must be analyzed under Fed. R.

is

differences

pertinent

have

and to what extent,
harm

claims

NBD's

indisputably

more

between
absent

argument

the

aptly

class
really

questions

representation,

the

of

which

23.

The leading class action treatise has succinctly explained
this

distinction,

noting

that,
8

although

the

constitutional

requirement of standing and the statutory prerequisites of Rule
23(a)

"appear related as

property

party

litigation,"

is

they both aim to measure whether the

before

"whether

the

or

not

court

to

the

tender

named

the

issues

plaintiff

who

for

meets

individual standing requirements may assert the rights of absent
class

members

is

neither

a

standing

issue

nor

an Article

III

case or controversy but depends on meeting the prerequisites of
Rule 23 governing class actions."
Newberg

on

Class

"Newberg §
is

the

because,

") .

"while

requirements

are

relationship

§

2:6

{5th

ed.

2013)

(hereafter

Therefore, Rule 23, rather than Article III,

appropriate

ensuring that a

the

Actions

Alba Conte & Herbert Newberg,

rubric

standing
real

for

evaluating

doctrine

is

these

primarily

concerned

case or controversy exists,

designed

precisely

between

the

address

Id.

thereof)

to

analysis,

concerns

about

and

the

i t is addressed in more detail below.

class

members

of

Plaintiffs'

brief

to

relevant

(or lack
Rule

the

23

in

support

of

their motion

for

certification is premised on the position that they need

not show that class members'

to

is

injury

Incompleteness is a Required Element of Plaintiffs' Claim.
Much

class

absent

to the extent that

with

Rule 23(a)'s

representative[s]

class."

B.

Accordingly,

class

to

differences

successfully

notwithstanding

pursue

the

recent

reports were incomplete or outdated

their

claim

holding

to

under

the

§

contrary

1681k(a),

in

the

Memorandum Opinion
See

Henderson v.

1574048
the

(E.D.

analysis

denying

NBD's

motion

CoreLogic Nat^l

Va.
of

Apr.
all

of

18,

summary

Background Data,

2016).

the

for

Rule

Because
23

LLC,

2016 WL

issue

this

factors,

judgment.

affects

and

because

the

parties did not bring this issue to the fore when NBD's summary

judgment motion was briefed,

it is helpful here to explain the

reasoning behind that conclusion in more depth.
The

have

few courts

unanimously

information

also

concluded

obtained

incomplete...[a]
Haro v.

Farmer v.

by

that,

[a

plaintiff's

Shilo Inn,

2001)

issue in any detail

"absent

defendant
claim

a

CRA]

under

2009 WL 2252105

Phillips Agency,

2012); Obabueki v.
396 {S.D.N.Y.

to have addressed this

{D.

Inc.,

was

§

Or.

showing

that

inaccurate

1681k

must

July 27,

or

fail."

2009);

see

(N.D.

Ga.

285

F.R.D.

688

Corp.,

Int'l Bus. Mach.

the

145 F.

Supp.

2d 371,

(noting that "the logical starting point for

an analysis of Section 1681k is whether the information provided
was complete and up to date.

If this

is so,

then an inquiry

into the agency's procedures is unnecessary.").

Indeed,

several

courts have required a plaintiff claiming a § 1681k violation to
allege sufficient facts to support an inference that the subject

reports

were

incomplete

or

not

up

to

plausibility pleading requirements of Fed.
E.g.,

Or.

Speers v.

May

13,

Pre-Employ.com,

2014);

Haley

v.

Inc.,

R.

to

Civ.

satisfy

P.

2014 WL 2611259,

TalentWise,
10

date

Inc.,

9

F.

the

12(b)(6).
at *6

(D.

Supp.

3d

1188,

1194

dismiss

(W.D.

a

§

alleged that
plaintiff

course,

1681k

2014)

claim

she did not

alleged

opinions

authority;

Wash.

that

of

because
receive §

her

(1)

the

plaintiff

1681k(a) (1)

consumer

other

however,

persuasive,

(denying the defendant's motion to

report

district

reasoning

notice,

was

courts

of

sufficiently
and (2)

outdated).

are

not

those

Of

binding

opinions

is

for several reasons.

First,

the

demonstrates

second

sentence

that

whether

the

of

§

information

1681k(a)(2)
in

a

clearly

record

is

up to

date is crucial for proving a violation of that section.

That

sentence provides that:

[f]or purposes of this paragraph, items of
public
record
relating
to
arrests,
indictments, convictions, suits, tax liens,
and
outstanding
judgments
shall
be
considered up to date if the current public
record status

of the

item at

the

time

of

the

report is reported.

15

U.S.C.

for

§

showing

1681k(a)(2).

when

"This

information

purposes of this subsection.
a

standard would be

CRA

to

reading

furnish
advanced

Farmer,

Id.

of statutory construction that a
be

so

construed

that,

if

§

"would

And,

it
11

a

precise

up

285 F.R.D.

reports,"

Plaintiffs

1681k(a)(2) meaningless."

to

'considered

necessary only if

up-to-date
by

is

establishes

to

render

date'"

at 696.

1681k(a) (2)
because

standard

the
over

for

"Such

required a
alternate
50%

of

§

it is "a cardinal principal

statute ought,
can

be

upon the whole,

prevented,

no

clause,

sentence,
Alaska
n.l3

or word shall be superfluous,

Pep" t

of

Conservation v.

EPA,

or insignificant."
540

U.S.

461,

489

(2004).

Second,
the

Envtl.

void,

this interpretation is supported by commentary from

Federal Trade Commission

guidance to the Court.

Supp.

3d

letters

425,
are

binding).

431

("FTC"),

Milbourne v.

(E.D.

persuasive

Va.

which provides persuasive

JRK Residential Am.,

2015)

(noting

authority,

even

that

though

FTC

they

92

F.

opinion
are

not

The FTC has stated in a staff opinion letter that §

1681k(a) (2)

"require[s]... that

and up to date.

each

For example,

item

reported

be

complete

if the CRA reports an indictment,

it must also report any dismissal or acquittal available on the
public record as of the date of the report."
Staff Opinion Letter,

1999 WL 33932137,

(emphasis in original).
we

read

Section

at

Fed. Trade Comm'n
*1

(Dec.

The FTC went on to say that,

[1681k(a) (2)]

as

being

current

and

up

public

reported."

to

date'

record

in

the

status

sense

each

"[b]ecause

that

[sic]

it

report

includes

individual

is
the

item

Id.

Third,

the

language

and

the

alternative

structure

1681k make clear that the ultimate harm that Congress

prevent was damage to consumers'
reporting

1999)

item-specific... we

believe the CRA complies with that provision if its
'complete

16,

of

incomplete

or

§

sought to

employment prospects caused by

out-of-date
12

of

public

records.

To

further that objective.
could either:

(1)

reporting

of

alert

they

"maintain strict procedures" to minimize the

consumer

the

Congress offered CRAs two options;

incomplete
to

or

the

out-of-date
existence

of

public
the

records;

report

so

or

(2)

that

the

consumer himself could remedy any mistakes in the report before

adverse employment action occurred.

Thus,

the CRA is required

to provide notice to the consumer only if it does not take its
own steps to ensure the completeness and currency of the public
records

it

furnishes.

The

fact

that

this

CRA to choose whether i t will review the

subsection

records

allows

the

i t s e l f or alert

the consumer to the existence of the report to allow him or her

the

opportunity

to

review

it

reveals

that

transmission

of

complete and up-to-date public records is the ultimate goal of
this subsection.^

This
history

reading

of

§

is

further

1681k(a).

That

underscored
section

by

arose

the
out

legislative
of

Congress'

concern that:

Most credit bureaus systematically compile
public record information such as records of
suits,
tax
liens,
arrests,
indictments,
convictions, bankruptcies, judgments and the
like.

a

This

person's

information

report

is

when

then

he

included

applies

on

for

credit, or in some cases when he applies for
employment.
Unfortunately, the information

^ That self-regulatory structure is, as Plaintiffs point out, an
impediment to the effectuation of the Congressional goal.
But
that is a matter for Congress to address, and is not redressable
by judicial decision.
13

cannot always be kept up to date because i t
is costly or because the correct information
is
simply
not
available...Because
public
record information is reported to employers
as

well

as

creditors,

a

consumer's

future

employment
career
could
be
jeopardized
because of an incomplete credit report.
S.

Rep. No.

91-517 at 4.

Therefore,

contemplated
strict

where

by

§

procedures

consumer's

report

a

consumer

1681k(a)(l),
as

does

and

a

by

not

receive

CRA

does

§

required

notice

not

as

maintain

1681k{a)(2),

but

the

contains only complete and up-to-date public

records, the injury that this section is designed to prevent has
not occurred.

In other words, the purpose of § 1681k(a) "is not

furthered unless a plaintiff suffers the harm the procedures are
meant to prevent."
F.3d 263,

plead,

267

and

Washington v.

(5th Cir.

to

prove,

2000).

that

outdated to prevail on a
the intent of Congress,

their

CSC Credit Servs.,
Thus,

Inc.,

199

requiring plaintiffs

reports

claim under this

were

incomplete

to

or

section best serves

as evidenced by the structure and text

of the statute itself as well as its legislative history.

Fourth,

§

and relatedly,

1681k(a)(2)

"[wjhenever

report

it

possible

closely parallels §

a

consumer

shall

follow

accuracy of

about whom the

as numerous courts have recognized,

report

reporting

1681e{b)
agency

which requires
prepares

reasonable procedures

the

to

14

See,

e.g.,

consumer

assure maximum

information concerning the

relates."

a

that

individual

Dalton v.

Capital

Assoc.

Indus.,

Inc.,

257

F.3d

Obabueki,

145

F.

Supp.

at

396.

1681e(b),

it

is

well-settled

that

element

of

the

claim

2d

409,

because

the

417

And,

in

V.

Trans

See,

e.g.,

Union Credit

1995)); Washington,
Corp.,

Dalton,
Info.

harm

the

Co.,

45

964

(3d Cir.

1996);

Henson v.

F.3d 280,

284

(7th Cir.

1994);

Cahlin v.

1151,

Coast Credit Servs.,
2002).
of

§

basis

Inc.,

(11th

214 F.

Cir.
Supp.

§

necessary

envisions

is

not the mere risk of

(citing Guimond
1333

(9th Cir.

Trans Union

CSC Credit Servs.,
Gen.

92

29

Motors Acceptance

1991);

Thomas

2d 1228, 1233

v.

Gulf

(M.D. Ala.

These cases read the "reasonable procedures" requirement
1681e(b)

attach

1156

of

1996); Spence v. TRW, Inc.,

(6th Cir.

F.2d

a

Philbin v.

382

936

2001);

context

FCRA

F.Sd 1329,

F.3d 380,

Corp.,

Cir.

is

257 F.Sd at 415

199 F.3d at 267 n.3;

101 F.3d 957,

the

inaccuracy

actual inaccurate or improper disclosures,

inaccuracy.

(4th

for
for

as

a

limit

inaccurate
a

claim.

on

liability

reports,

See,

that

rather
Henson,

e.g.,

than
29

as

might

an

F.3d at

otherwise

affirmative
284

("[T]he

credit reporting agency is not automatically liable even if the
consumer
the

proves

FCRA does

that
not

all inaccuracies.

it

make

information

accuracy,'
in

the

reporting

an

inaccurate

agencies

report

strictly

because

liable

for

A credit reporting agency is not liable under

the FCRA if it followed

possible

prepared

''reasonable procedures to assure maximum

but

nonetheless

consumer's

credit
15

reported

report.")

inaccurate

(quotations

and

citation omitted);
context

of

harm

the

risk

of

related

FCRA

§

are

not

199 F.3d at

subsection

envisions

improper

procedures'
sum,

Washington,

is

§

1681e(a)

improper

disclosure
followed

(holding

that

"the

disclosure,

that
and

267

arises

not

reasons

is

set

intended
forth

to

prevent

above,

the

without some showing that a

out-of-date public record,

has

same

CRA has

not

is

the

mere

^reasonable

are made.").

in the absence of some showing of inaccuracy,

1681e(b)

actionable

when

disclosures

in the

the harm that

occurred.

true

In

of

§

For

the

1681k(a):

furnished an incomplete or

the harm that § 1681k(a)

is intended

to prevent has not occurred.

Plaintiffs argue that the Court should reject the reasoning
of every other court to have decided this issue and forge its
own

path.

In

the

absence

of

any

judicial

or

authority to lend support to their position.

administrative

Plaintiffs simply

state that it "makes no sense" to "impose an implied requirement

that

a

challenged

because

the

section

report

must

shares

provision that also uses

a

itself

be

comparable

the word

incomplete... merely

objective

'procedures.'"

with another

(Plaintiffs'

Memorandum in Support of Renewed Motion for Class Certification
("PI.

Mem.,"

ECF

No.

282)

unpersuasive.

Moreover,

several

have

correctly

far

deeper

1681k (a)

courts

runs

as

at
set

3).
forth

drawn

than
16

That
above,

between

the

ipse
the
§

presence

dixit

analogy

1681e{b)

of

the

is
that

and

§

word

''procedures;" as set forth above,
the

linkage

between

a

valid

the basis for that analogy is

claim

and

the

harm

that

those

the

words

respective sections were intended to prevent.

Plaintiffs

also

argue

that

Congress'

use

of

"maintain" and "ensure" implies that § 1681k(a) (2)

is primarily

concerned

it

provides

with

a

CRA's

complete

procedures,

or up-to-date

not

whether

reports.

(PI.

Mem.

actually

at

2-3).

And, relatedly, Plaintiffs contend that "§ 1681k(a){2) cannot be
read as ends-determined because it imposes a CRA [sic]

before

issuing

1681k(a) (1)

the

report

notice."

whether

(Pi.

Mem.

at

it

needs

5).

As

to

an

to decide

send

the

§

initial matter,

the latter premise is simply not true; the § 1681k(a) (1} notice
must be provided "at the time" that the adverse public record
information

arguments
report

is

reported,

miss

has

the

not

before.

point:
issued,

been

if

no

even

More

importantly,

incomplete

if

the

or

CRA

both

out-of-date

lacks

"strict

procedures" designed to ensure completeness, there is no harm to
the consumer.

standing

In that scenario,

to

bring

2016 WL 4424955,

suit.

the consumer does not even have

See Witt

at *8-*10

(E.D.

v.

Va.

CoreLogic SafeRent

Aug.

18,

2016).

LLC,

The Court

agrees with Plaintiffs that "strict procedures" are an "ex ante"

requirement
place

at

advantage

insofar

the
of

time
§

as
that

a

CRA

it

1681k(a)(2);

must

sends

have

an

however,
17

strict

erroneous
it

does

procedures
report

not

to

in

take

necessarily

follow,

as

Plaintiffs

required to

would

have

it,

show that the report was

that

a

plaintiff

is

not

incomplete or out-of-date

to pursue a claim under this subsection.
Thus,

previous

for the reasons above and as set forth in the Court's

Memorandum

Opinion,

Plaintiffs

are

required

to

show

that NBD's reports are incomplete or not up to date in order to
prove liability under § 1681k(a)(2).

C.

1681k(a)

applies

to reports furnished for all

"employment

purposes."
Much

of

NBD's

brief

also

suffers

from

a

structural

misconception concerning the elements that the statute requires.
NBD

takes

the

employment

are

view

that

screenings"

triggered

because

only with

process

of

initial

employment,"

must

limited

be

'obtaining

were

initial

employment.
is

that

those

in

termination.

any

other

class

members
with

an

initial

employment

Id.

18

26).

furnished

application

purpose,

1681k(a)

in

class

background

because

for

such

The

for

as

the

seeking

proposed

impossible

it

at

pre-

application

is

that

§

are

whose

narrowing

an

to

who

Plaintiffs'

0pp.

purposes"

opposed

of

to

consumers

in

reports

to

i.e.,

Mem.

unaware which of the
related

limited

consumers

connection

(Def.

such

to

therefore

is

requirements

employment,'

to

procured

1681k(a)

"the

respect

and

only

reports

however,

^'Section

for

catch,
NBD is

"employment

employment

as

promotion

or

The analysis begins with the text of the statute.
true

that,

as
a

references

NBD

consumer's

However,

NBD's

Section

1681k (a)

furnishes
for

a

points

argument

out,

preamble

"ability
takes

begins:

consumer

the

to

that

report

for

consumers..."

15 U.S.C.

§ 1681k(a)

1681k(a)

employment."

out

reporting

employment

that purpose compiles and reports

§

obtain

phrase

"A consumer

to

It is

of

context.

agency which

purposes and which

items of information on

(emphasis added).

The FCRA

defines the term "employment purposes" when used in connection
with a

consumer report

as

"a report

used

for

the

purpose of

evaluating a consumer for employment, promotion, reassignment or
retention
course,

as

an

"[w]hen

employee."

15

statute

includes

a

must follow that definition,

ordinary
(2000)

meaning."

U.S.C.
an

§

1681a{h).

explicit

And,

of

definition,

we

even if it varies from that term's

Stenberg

v.

Carhart,

(internal citations omitted).

530

U.S.

914,

942

The use of the statutorily

defined term "employment purposes" in the opening sentence of §
1681k makes clear that Congress intended § 1681k to apply to any

consumer reporting agency which furnishes consumer reports "for

the purpose of evaluating a consumer for employment,
reassignment

or

retention

as

an

employee."

promotion,

Conversely,

had

Congress meant to limit the application of § 1681k(a) to initial
applications

for

employment,

it

would

not

statutorily defined term "employment purposes."
19

have

used

the

The

reference

to

the

consumer's

"ability

to

obtain

employment" later in the preamble of § 1681k does not alter this
result.

The

adverse

effect

merely

restrictive
on

describes

consumers"

reported

with

for

a

clause

the

nature

which

§

are

likely

to

ability

consumer's

"which

to

obtain

employment"

of

the

1681k(a)

"employment

is

purposes."

"items

of

information

concerned

15

U.S.C.

have

when

§

they

1681k(a).

an

on
are

A

consumer reporting agency may sell an item of information that
is

of the

consumer's

sort

that

ability

is

to

"likely to have an adverse effect on a

obtain

employment"

for

any

employment

purpose, and § 1681k(a) would still apply.^
That reading is confirmed by administrative guidance.
FTC's
"[a]

informal

commentary

on

the

FCRA explicitly

states

The
that

CRA that furnishes public record information for employment

purposes must comply with either subsection
§ 1681k(a) .

Federal Trade Comm'n,

(a)(1)

or

(a)(2)" of

40 Years of Experience with the Fair

^ NBD claims that this result is "incongruous" because under this
reading, the statute would apply "to pre and post-employment
screenings, but only for the types of information that would be
^likely adverse' in a pre-employment context."
(Def. Mem. in
0pp. at 27) .
NBD does not specify why or how it believes that
information
that
is
"'^likely adverse'
in
a
pre-employment
context" would not also qualify as "likely adverse" in any other
employment context, nor does it cite any authority to support
its argument that this distinction actually carries with i t any
meaningful difference.
That is unsurprising, because no court
has recognized this distinction and, in fact, this Court has
already applied §
1681k in the context of post-employment
background screenings.
See Williams v. LexisNexis Risk Mgmt.,
Inc., 2007 WL 2439463 (E.D. Va. Aug. 23, 2007).
20

Credit Reporting Act:

(2011)

An FTC Staff Report with Summary of Interpretations 81

(hereafter "40 Years Staff Report

")

(emphasis added).

Similarly, the FTC has repeatedly advised inquiring parties that

§

1681k{a)

"imposes

agencies...that

obligations

include

public

on

consumer

record

reporting

information

in

the

consumer reports they make to clients for employment purposes."
Fed.

12,

Trade Comm'n Staff Opinion Letter,

1998)

(emphasis

added);

see also

Opinion Letter, 1999 WL 33932137

1998 WL 34323738

Fed.

Trade Comm'n

(Dec. 16, 1999)

the FTC's commentary underscores that § 1681k(a)
employment

purposes,

not

only

the

initial

(same).

(June

Staff
Thus,

applies to all
application

for

employment.

For

consumer

the

foregoing

reporting

reasons,

agency

§

furnishes

1681k

a

applies

consumer

whenever

report

for

a

any

employment purpose that contains adverse public records, and it
is not limited only to consumers seeking to "obtain employment."
Therefore,

the fact that "NBD is not made aware of the specific

employment purpose for which a report is sought," Def.

Mem. in

0pp. at 27, does not affect the analysis herein.

Having resolved those threshold issues,
the

question

conditions
D.

whether

Plaintiffs'

set forth in

Fed.

R.

proposed

Civ.

Rule 23

21

P.

23.

the Court turns to
class

satisfies

the

A proposed class must satisfy the four requirements of Fed.
R.

Civ.

P.

23(a).

Those requirements are that:

(1)

the class

is so numerous that joinder of all members is impracticable;

(2)

there are questions of law or fact common to the class;

the

(3)

representative's claims or defenses are typical of those of the
class;

and

(4)

the

representative

will

represent the interests of the class.
Disc.

Muffler Shops,

Inc.,

155

To secure class certification,

255 F.3d 138,

146

and

adequately

See Broussard v.

F.3d 331,

337

Meineke

(4th Cir.

1998).

the plaintiff bears the burden of

proving all requirements of Rule 23.
Inc.,

fairly

(4th Cir.

Lienhart v.

Dryvit Sys.,

2001).

Additionally, the proposed class must be consistent with at
least one of the types of class actions
Civ.

P.

23(b),

Here,

Rule 23(b)(3).

members

finds

of

only

superior to

Plaintiffs

move

for

certification

Certification under Rule 23(b)(3)

where the Court

affecting

R.

and must meet the corresponding prerequisites for

certification.

the

delineated in Fed.

the

that questions of
class

individual

other

members,

available methods

and
for

is appropriate

law or fact

predominate

over

that
the

a

any
class

fair

under

common to
questions
action

is

and efficient

adjudication of the controversy.

As

the

Fourth

Circuit

has

explained,

courts

are

not

required "to accept plaintiffs'

pleadings when assessing whether

a

Gariety

class

should

be

certified."

22

v.

Grant

Thornton,

LLP,

368 F.3d 356,
must

take

365

a

(4th Cir.

^close

2004).

look'

at

Rather,
the

"the district court

facts

relevant

to

the

certification question and, if necessary, make specific findings
on the propriety of certification."
Life

Ins.

Gariety,

Co.,

445

F.3d

311,

368 F.3d at 365).

Thorn v.

319

{4th

Jefferson-Pilot

Cir.

2006)

(quoting

"Such findings can be necessary even

if the issues tend to overlap into the merits of the underlying
case," but "[t]he likelihood of the plaintiffs'
merits...is

not

is proper."

Id.

The

relevant

to

the

issue

of

success on the

whether

certification

(internal citations omitted).

Supreme

Court

recently

elaborated

further

upon

the

factual determinations at the class certification stage in Wal-

Mart Stores,

Inc.

v.

Dukes,

131 S. Ct.

2541

(2011).

In Dukes,

the Supreme Court explained:
Rule

23

does

not

standard.

set

A

forth

mere

pleading

seeking

party

certification must

a

class

affirmatively demonstrate

his compliance with the Rule - that
must be prepared to prove that there
fact sufficiently numerous parties,
questions
of
law
or
fact,
etc.
recognized in Falcon that 'sometimes
be necessary for the court to prove
the pleadings before coming to rest
certification
certification
court

is

analysis,
23(a)

147,

is
satisfied,

that

the

and
if 'the

after

a

prerequisites

that
trial

rigorous

of

Rule

have been satisfied.'

131 S. Ct. at 2551
U.S.

question,'
proper only

is, he
are ^
common
We
it may
behind
on the

160-61

(quoting Gen.
(1982)

Tel. Co. of Sw.

(emphasis
23

in

original)).

v.

Falcon,

457

"Frequently

that

'rigorous

merits

of

helped."

analysis'

the

plaintiff's

entail

underlying

some

overlap

claim.

with
cannot

That

the
be

131 S. Ct. at 2551.

After Dukes,

which "laid the groundwork for the heightened

'rigorous analysis'
that

will

'will

required of a class certification petition

entail

some

overlap

with

the

merits

of

the

plaintiff's underlying claim,'...the Supreme Court issued a pair
of

2013

opinions

address

merits

clarifying
issues

extent

the

at

the

class

Timothy Coughlin & Barbara A.
Tort

Class

Def.

Couns.

decisions
Trust

Certification

J.

was

Funds,

428,

Amgen
113

After

432

v.

Ct.

a

court

certification

Comcast,

2013).

Connecticut

1184

which

Digging Deeper:

Dukes,

(Oct.

Inc.

S.

Lum,

to

(2013).

The

can

stage."

Mass Toxic

and

first

Amgen,

of

these

Retirement

Plans

In

the

Amgen,

80

and

Court

clarified that,

ta]lthough we have cautioned that a court's
class-certification
analysis
must
be
rigorous and may entail some overlap with
the merits of the plaintiff's underlying
claim. Rule 23 grants courts no license to
engage in free-ranging merits inquiries at
the certification stage.
Merits questions
may be considered to the extent—but only to
the

extent—that

determining
prerequisites

they

are

to

the
Rule
certification

whether
for class

relevant

23
are

satisfied.

Id.

at

Dukes

1194-95

(internal

demonstrate

that

a

citations
court's

24

omitted).

factual

Thus,

Amgen

determinations

at

and
the

class certification stage should go only as far as necessary and
no

farther.

That

is,

"Amgen appears

to

limit

inquiry into a

case's merits where the class certification inquiry touches upon

an indispensable element of the claim and on which a failure of

proof

would

end

the

case."

Coughlin

& Lum,

at

432

(internal

citations omitted).
The

Corp.

V.

second

class

Behrend,

Supreme Court

certification

133

further

S.

Ct.

case

1426

of

2013

(2013) .

clarified "that

the

In

was

Comcast

Comcast,

'rigorous

the

analysis'

required for class certification reaches not only to issues of
liability, but also to damages and causation."
at

432.

district

This

position

courts

"reaffirms

considering

Dukes'

motions

for

Coughlin & Lum,

pronouncement
class

that

certification

often must look beyond the pleadings to issues that overlap with
the merits.

But again,

the extent to which a court must delve

into the merits remains undefined."

Newberg
Supreme

on Class Actions

Court

decisions,

Id.

at 433.

also analyzed two

noting

that

although

of the
Dukes

latest

seems

to

"encourage merits review at certification," a different majority
in Amgen cautions against "free-ranging merits inquiries at the
certification stage",

and stating that merits questions "may be

considered to the extent—but only to the extent—that they are

relevant

to

determining

whether

the

class certification are satisfied."
25

Rule

23

prerequisites

Newberg § 7:23.

for

Keeping in mind the Supreme Court's views in Dukes, Amgen,
and Comcast,

we examine the definition of the proposed classes.

Based

on

the

current

about

whether

the

record,

proposed

the

class

Court

has

serious

satisfies

Rule

concerns

23(a),

and

particularly the requirement of typicality, because although it
appears that Henderson and Hines were the subjects of incomplete
reports,

Plaintiffs have yet to persuade the Court that that is

typical of other members of the proposed class.

for

purposes of this motion only,

Rule 23(a)

Nevertheless,

the Court assumes

that all

prerequisites are satisfied and addresses only Rule

23(b)
1.

Predominance

Under Rule

predominate
members."

23(b)(3),

over
Amchem

any

questions

questions

Prods.,

Inc.

v.

common

to

affecting
Windsor,

the

class

only
521

"must

individual

U.S.

591,

615

^ It is unclear as to some of NBD's arguments whether they are
addressed
to
the
requirements
of
predominance
or
ascertainability;
NBD's brief frequently intermingles those
analyses.
However, the crux of most of NBD's ascertainability
arguments is that Plaintiffs' proposed class is not viable
because

the

class

definition

does

not

sufficiently

tether

the

criteria for class membership to the elements that Plaintiffs
must prove in order to prevail on their claim under § 1681k(a).
Put slightly differently, NBD seems to argue that, if the Court
were to certify the class as proposed by Plaintiffs (according
to NBD), individualized inquiries would predominate because the
proposed definition does not lend itself to a class-wide
determination of liability.
Therefore, the Court addresses
NBD's arguments, to the extent appropriate, in the context of
the predominance analysis.
See part D.l infra.
26

(1997).

Whether

common

questions

predominate

over

individual

questions "is a separate inquiry, distinct from the requirements
found

in Rule

App'x

299,

2556) .

23(a)."

305

This

{4th

Ealy v.

Cir.

Pinkerton Gov't

2013)

requirement

is

(citing

"even

Servs.,

more

F.

131

Dukes,

514

Ct.

at

demanding

S.

than

Rule

23(a)," Comcast, 133 S. Ct. at 1432, and "tests whether proposed

classes

are

sufficiently

cohesive

to

warrant

representation," Amchem, 521 U.S. at 623.
matter

of

checking

counting

the

predominance

final

test

common

versus

tally.

is

than

Stillmock V. Weis Markets,

Inc.,

2010)

Healthplan Servs.,

(citing Gunnells v.

(4th Cir.

quality

2003)).

of

questions."

the

questions

quantitative."
(4th Cir.

348 F.3d 417,

Rule 23(b)(3)

to

those

and

commonality-

385 F. App'x 267, 272

In other words.

common

questions

23(b)(3)'s

rather

by

This is not simply a

noncommon

"Rule

qualitative

adjudication

of

429

"compares the

the

noncommon

Newberg § 3:27.

If the "qualitatively overarching issue" in the litigation
is common,
resolve

a class may be certified notwithstanding the need to

individualized

("Indeed,

issues.

See

Ealy,

514

F.

App'x

305

common issues of liability may still predominate even

when some individualized inquiry is

required.").

if

regarding

"common

courts

at

questions

generally

find

predominate

the

predominance

liability,

requirement

satisfied even if individual damages issues remain."
27

For example,

then

to

be

Stillmock,

385

F.

Inc.,

App'x
323

at

273

F.3d 32,

(citing

40

(1st Cir.

certification

in

time,

and expense,

effort,

Smilow

such

cases

v.

Sw.

2003)).

will

Bell

This

still

Mobile

Sys.,

is because

class

"achieve

economies

of

and promote... uniformity of decision

as to persons similarly situated, without sacrificing procedural

fairness

or

bringing

about

Gunnells,

348 F.3d at 424

also

at

id.

would

426

require

enormous

discovery,

potentially

hundreds

similar,
these

and

even

recurring

these

redundancy

of

actions,

identical,

in

of

by

the

and

legal

issues

521 U.S.

issues

testimony

common

undesirable

(citing Amchem,

("Proving

duplicative

other

at 615);

individual

effort,
same

also

see

trials

including

witnesses

relitigation

issues.

will

results."

of

in
many

Consolidation
conserve

of

important

judicial resources.").

Plaintiffs contend that questions of law or fact common to

the

members

of

the

class

predominate

over

individual

issues

primarily because "the question of whether a CRA follows § 1681k
^strict

procedures'

inquiry."

is

not

an

(PI. Mem. at 29-30).

§ 1681k(a) (2)

idiosyncratic

case-by-case

Second, Plaintiffs contend that

does not require any individualized proof because

"class

members

actual

damages

would

not

be

required

in order to obtain

30.

28

to

prove

causation

statutory damages."

or

Id. at

NBD proffers
argues

that

numerous

arguments

determining whether

a

in

response.

First,

particular public

NBD

record

is

"complete and up to date" creates insurmountable individualized
issues.

(Def.

analysis

of

Mem.

the

at

strictness

individualized based

the

data

million

returned

9-13).

in

queries."^

on

its

Second,

of

NBD's

business

response

Id. at

to

that

procedures

practices,

each

22.

NBD contends

of

as

the

Third,

will

be

applied

more

NBD

"the

than

argues

to

1.7

that

This argument can be quickly disposed of, because NBD is not
entitled to
rely on procedures maintained exclusively by
SafeRent,
a
legally
independent
entity,
to
satisfy
its

obligations under § 1681k(a)(2),
the statute,

on its face,

for

several

reasons.

First,

applies to any CRA "which furnishes a

consumer report for employment purposes and which for that
purpose compiles and reports items of information on consumers
which are matters

of public record and are

likely to have an

adverse
effect
upon
a
consumer's
employment [.]"
15 U.S.C. § 1681k (a).

ability
to
obtain
That is, ^
CRA that

meets

either

this

threshold

definition

must

comply

with

§

1681k(a) (1) or § 1681k(a)(2).
Second, the FTC has explicitly
stated that "CRAs that provide reports for employment purposes
must comply with this section, even if they are merely resellers

of consumer reports obtained from other CRAs."
40 Years Staff
Report 81; see also id. (noting that a "CRA that furnishes
consumer reports for employment purposes based on previously
acquired public record information (purchased periodically from
a third party) must verify that any such information is complete
and up to date, in order to comply with subsection (a)(2).").
Finally, the Fourth Circuit has made clear that a CRA may not
satisfy the "reasonable procedures" requirement of § 1681e(b)
or,
by extension,
the "strict procedures" component of §
1681k (a) as a matter of law by relying entirely on its vendors
to provide complete,
up-to-date,
and reliable information.
Dalton,

257

F.3d

at

417-418.

Therefore,

NBD

itself

has

a

responsibility to comply with § 1681k (a), and may not avoid
liability by relying on procedures of another entity elsewhere
in

the

chain of

transmission.

29

Plaintiffs'

the

proffered

potential

Fourth,

for

five-year

insurmountable

to

members'

customers'

employment

queries

limitations

individualized

Court

would

of

have

the

was

prospects

individualized inquiry.®

"users"

of

NBD contends that whether the data that

response

the

statute

to

reports

"likely

cannot

Id. at 28.
determine

sold

by

be

it

creates

inquiries.^
returned in

adverse"

to

determined

class

without

Finally, NBD asserts that

whether

NBD,

NBD's

and

customers

that

also

were

would

necessitate individualized factual inquiries.

^ Plaintiffs respond that a five-year statute of limitations is
uniquely appropriate in this case because the subjects of
reports sold by NBD are never made aware of NBD's role in the
preparation
of
their
employment-purposed
consumer
reports.
{Reply in Support of Plaintiffs' Motion for Class Certification
("PI. Reply," ECF No. 305) at 23-24).
The record is undeveloped
on that point, so the Court need not resolve that issue here;
however, even assuming that NBD is correct that the proposed
five-year limitations period creates individualized issues, the
problem could be remedied by limiting the class period to the
two years preceding the filing of this action.
Therefore, the
statute

of

limitations

issue

does

not,

alone,

defeat

certification.

® The

Court

has

arguments in its
summary judgment.

already

explicitly

rejected NBD's

two

final

Memorandum Opinion denying NBD's motion for
(ECF No. 277).
However, NBD, undeterred,

contends
that
class
certification
is
improper
because
the
Court's interpretation of the law as expressed in its previous
opinion was incorrect.
(Def. Mem, at 28-29).
The Court has
already thoroughly analyzed those arguments in deciding both
NBD's
motion
for
summary
judgment
and
its
motion
for
reconsideration of the Court's decision on summary judgment,

has declined to adopt NBD's view on those matters.
those arguments are not addressed further herein.
30

and

Therefore,

Certainly,

Plaintiffs

issues are common.
non-compliance

are

correct

For example,

with

§

that

some

important

NBD does not dispute that its

1681k(a){l)

is

subject

proof, because it "has acknowledged that,

to

generalized

as a matter of policy,

it never provides notice to the subjects of the consumer reports

it prepares."

Farmer,

1681k(a)(2), however,
First,

as

Plaintiffs'

set

position,

285 F.R.D. at 688.

Non-compliance with §

is much more complicated.
forth

in

part

B

above

and

contrary

to

the Court does not reach the question of

"strict procedures" unless and until Plaintiffs have shown that
NBD reported incomplete or out-of-date records.

Plaintiffs have

not specified how the records provided by NBD were not complete,

not up-to-date, or both, except to assert that the vast majority
of

those

However,
failure

records

lacked

Social

Security

the Court has concluded that,
to

include SSN's does not,

have

extent

to

that

Plaintiffs

be

resolved

NBD's

as

records

acknowledge,

is

a

as a

not

matter of law,

Therefore,

factual

do

not

("SSN").

for several reasons,

record incomplete or not up-to-date.
v/ould

numbers

universally

Thus,

to

the

(which,

SSNs

true),

render a

that question

matter.

include

the

as

it

is

still

necessary to determine whether an SSN was actually available for
that

record

despite

the

the

and

whether

absence

Plaintiffs'

key

of

the

the

record

SSN.

theory

of
31

was

This,

nonetheless

in

liability,

turn,

for

"complete"

means

the

that

on

proposed

nationwide

class,

the

individual

issues

central

to

liability

will predominate.

Furthermore,

Plaintiffs

have

as

to

the

provided

putative

nationwide

no

meaningful

class,

alternative

the

theory

of

liability respecting how the records provided by NBD are neither
complete

nor

systemically

up-to-date.
incomplete,

To

show

that

Plaintiffs

NBD's

primarily

reports

rely

on

are
NBD's

arguments that NBD does not know the identity of the consumer at
issue when it furnishes a report.

completeness

of

the

public

(PI. Mem. at 9-11) .

records

independent of whether NBD knows

that

NBD

furnishes

(or should know)

of the consumer to whom the report is addressed.

event,

NBD's

Plaintiffs

arguments

have

are

generally

not

evidence.

alleged

that

is

the identity
And,

Moreover,

NBD

However,

in any

although

provides

only

"partial record[s]," they have not demonstrated or even argued

with any specificity (other than the absence of SSNs) any way in
which those records are uniformly incomplete or out-of-date such
that completeness would be amenable to class-wide proof.

Thus,

under

would

Plaintiffs'

theory,

determining

NBD's

liability

require predominantly individualized inquiries.

Plaintiffs
member's
the

report

impossible

contend
was
task

that

requiring

incomplete
of

or

"'proving

out-of-date
a

complete reports were ever furnished.
32

proof

that

every

imposes

negative'—showing

on

class
them

that

no

But at this stage if not

far

earlier.

the

Defendant

contrary."

themselves

in

should

(PI.
this

Mem.

proposed

never

furnished

class
a

at

is

come

forward

22).

predicament

pursue class certification,

their

have

with

proof

Plaintiffs

because

they

have

have

put

chosen

to

rather than individual actions,

premised

complete

on

report,

the
yet

assumption
they

have

to

and

that

NBD

refused

to

limit the class to reports that were incomplete or outdated in a
specific,

objective,

Plaintiffs must

and verifiable way.

offer proof to

certification is warranted.
The

two

cases

proposition are
in

both

cases

that

They have not done so.
Plaintiffs

based

then.

support their contention before

distinguishable.
was

Unsurprisingly,

on

cite

The

the

in

support

of

certification of

plaintiffs'

proof

this

classes

that

Trans

Union had inaccurately labeled many thousands

of class members

as

name-only match.

"terrorists"

Patel

V.

Ramirez

Trans
v.

Under those

Trans

based on
Union,

LLC,

Union,

unusual

nothing more
308

LLC,

than

F.R.D.

301

F.R.D.

circumstances,

292

[that]

a

408

accurately

terrorists
308;

[of

that

the

destroys

accord Ramirez,

case,

as

Patel

where

class]

301

(N.D.

Cal.

2015);

(N.D.

Cal.

2014).

the district

it was "reasonable to infer at
fraction

a

court held that

stage that there

[was]

tagged

as

predominance."

Patel,

308

F.R.D.

By contrast,

at

422.

not

potential

F.R.D.
in

at
this

in numerous other cases distinguished by the court
certification

was

denied
33

on

a

similar

theory,

in
the

predominance

inquiry

necessarily

^'involve [s]

data that varies markedly by individual."
the decisions

For
burden

the

of

Id.

in Patel and Ramirez are not

foregoing

proving

reasons.

that

questions

individualized inquiries at trial.

reporting

at

309.

of

Thus,

instructive here.

Plaintiffs

common

the

have

will

not met

their

predominate

Therefore,

over

certification of

the proposed class is inappropriate.
2.

Superiority

Superiority

requires

that

use

of

a

class

action

be

"superior to other available methods for fairly and efficiently
adjudicating

the

Superiority

"Mepends

each case,'"

the

achieved.'"

of

the

Stillmock,

When

action

device

court

for

making

is
a

Fed.

greatly on

and "Mt]he

objectives

omitted).

controversy."

rule

385

a

F.

and

other

no

Brown

In

v.

at

all

Cameron-Brown

determining

superior,
in

action

whether

might
Co.,

274

the

23(b)(3).
surrounding
find

really

of

whether

controlling

will

the

available

be

class
to

adjudication

of

the
the

not contemplate the possibility

be

superior
F.R.D.

class

32,

action

to
49

a

class

(E.D.

the

mechanism

34

prosecution

or

action."

Va.

the court should consider "the class members'

individually

that

{internal citation

methods

efficient

92

P.

court to

procedure

"determination

controversy...[the court should]
that

the

App'x at

to

Civ.

circumstances

requires

class-action

superior
fair

the

R.

is

1981).

truly

interest

defense

of

separate

actions;

concerning

the

the

extent

controversy

and

nature

already

begun

of
by

any

or

litigation

against

class

members; the desirability or undesirability of concentrating the
litigation of the claims in the particular forum; and the likely
difficulties

in managing

the

class

that

action."

the

Fed.

R.

Civ.

P.

requirement

is

23(b) (e) (A)-(D) .

Plaintiffs

satisfied
slight

because

to

(citation

contend

"statutory damages

support

individual

omitted).

adjudication

is

superiority

the

FCRA

are

(PI.

Plaintiffs

assert

that

class

members

would

never

because

"class

Mem.

^too

suits.'"

Second,

superior

under

at

30)

think to bring individual claims because they are unaware even
of the existence of NBD or that their rights have been violated-

-having

little

protections."

NBD

lay

knowledge

of

the

complex

blanket

of

FCRA

Id.

responds

that

"[t]he

novelty

of

Plaintiffs'

claims,

particularly in combination with the enormous statutory damages
sought,

renders

adjudication."
Second,

class
(Def.

Mem. in 0pp.

NBD asserts that

practical

and

class action."

realistic
Id.

treatment

an

inferior

at 30)

Finally,

to

a

of

(citations omitted).

"individual suits under the

alternative

method

sprawling

FCRA are a

and

NBD points out that the

novel

judicial

economy contemplated by the class action device is not realized

35

here

because

of

the

daunting

nature

of

the

inquiries necessary to determine liability.
Neither

side

has

superior

given

individual

predominance.

In

the

But,

the

inquiries

Id. at 31.

hit

concerning superiority.

mark

individualized

a class action is nonetheless not

manageability
discussed

other

their

issues

in

words,

with

the

created

preceding

superiority

arguments

is

by

the

section

not

on

satisfied

because "[t]he potential efficiencies of a class action are not
realized where
member's

F.R.D.

an

claims

208,

individual

assessment

Moreover,

be made."

{E.D.

217

must

Pa.

1681k

SafeRent,

are

individual

quite

LLC,

--

F.

actions

Supp.

22,

2016); Lang v.

2016

WL

740288

Advantage

LNS

(N.D.

2015); Cox v.

Jan.

30,

2015);

(D.

Colo.

Jan.

81

F.

Supp.

See,

Feb.

Sol,

2015);

(N.D.

24,

Oses

WL

Inc.,

2016);

155

Inc.,

LLC,

24 6

under

v.

1106857

F.

Knight Trans.,

Smith v.

Ga.

Williams
Supp.

(N.D.

Inc.,

v.

111.

Corp.,

First
(N.D.

(N.D. Ohio

2015 WL 328250

E-Backgroundchecks.com,

2015).

Furthermore,

Inc.,

both named

for actual damages

case for alleged violations of § 1681e(b)
36

the

Corelogic

3d 1233

2015 WL 413812

Plaintiffs are currently pursuing claims
this

class

individual actions under

2016

ScreeningOne,

3d 1342

feasible

e.g.,

3d

Ohio

Maiteki v.
23,

Union,

First Advantage Background Servs.

Screening

Fla.

Trans

are

In fact,

common.

Mar.

v.

putative

2007).

circumstances presented here.
§

Klotz

of each

in

which arise out

of

the

could

same course of events as
easily

have

1681k as well.

brought

Finally,

their §

plausible

1681k (a)

individual

claim;

claims

they

under

§

the viability of individual actions is

aptly demonstrated by the litany of individual claims that these
Plaintiffs

and

their

counsel

have

brought

other actions before this Court alone.
3:12-CV-589;

3:12-cv-730.

this

individual

case,

Therefore,

actions

under

See,

the

e.g.,

FCRA in

3:ll-cv-514;

under the circumstances of

are

a

viable

and

preferable

alternative to a huge, unwieldy, and unmanageable class.
For all of the foregoing reasons.

demonstrate

that

a

class

action

Plaintiffs have failed to

is

a

superior

method

of

adjudication in this case.
CONCLUSION

For the reasons set forth above,
FOR CLASS CERTIFICATION
It is

(ECF No.

281)

PLAINTIFFS'

RENEWED MOTION

will be denied.

so ORDERED.

/s/

Robert E.

Payne

Senior United States District Judge

Richmond, Virginia

Date: September

/ , 2016

37