Milbounre v. JRK Residential America, LLC

Filing 194

MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 3/15/2016. (jsmi, )

IN THE UNITED

STATES DISTRICT COXJRT

FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

DERRICK A.
on his

MILBOURNE,

own behalf

and on

behalf of those similarly
situated.
Plaintiff,
V.

Civil Action No.

JRK RESIDENTIAL AMERICA,

3:12cv861

LLC,

Defendant.

MEMORANDUM OPINION

This

STRIKE

matter

THE

is

before

DECLARATIONS

the

OF

Court

MIKE

For the reasons set forth herein,

on

PLAINTIFFS'

MOERSCHBACHER

(ECF

MOTION

No.

TO

166) .

the motion will be denied.

BACKGROUND

A.

Class Claims

On

October

{''Milbourne") ,

C'Churcher")

26,

(collectively,

others

Residential

Fair

Credit

Plaintiffs

Timothy Robins

Amended Complaint
and all

2015,

America,

LLC

Reporting Act

Plaintiffs allege

(^'Robins"),

''Named

C'FAC," ECF No.

similarly

Derrick

147)

violated

that the disclosure

filed

a

First

on behalf of themselves

alleging

C'FCRA") .

Milbourne

and Samantha Churcher

Plaintiffs")

situated,
("JRK")

A.

In

that

two

Count

Defendant

sections

One,

the

of

JRK
the

Named

form JRK provided to all

potential employees

{''the Standard Disclosure Form")

violated 15

U.S.C. § 1681b{b)(3)(A), which requires that:

In using a

consumer report^

for

employment

purposes, before taking any adverse action
based in whole or in part on the report, the
person intending to take such adverse action
shall provide to the consumer to whom the
report relates:
(i) a copy of the report;

and

(ii)

rights

a
of

description
the

in

consumer

writing

of

under

the
this

subchapter, as presented by the Bureau under
Section 1681g(c)(3) of this title.
In Count Two,
the

Standard

the Named Plaintiffs allege that JRK's use of

Disclosure

Form

also

violated

15

U.S.C.

§

1681b(b)(2)(A), which 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.

^ The FCRA defines a ''consumer report" as "any written, oral, or
other communication of any information by a consumer reporting
agency
bearing
on
a
consumer's
credit
worthiness,
credit
standing,
credit
capacity,
character,
general
reputation,
personal characteristics, or mode of living which is used or
expected to be used in whole or in part for the purposes of
serving as a factor in establishing the consumer's eligibility
for:...employment purposes[.]"

15 U.S.C. § 1681a(d).

Count Three, filed on behalf of a putative subclass of the

class represented in Count Two, alleges that a second disclosure
form

that

JRK

Standalone

provided

Disclosure

to

Form"

some
or

potential

''the

employees

contingency

form")

("the
also

violated § 1681b(b)(2)(A).
B.

Factual And Procedural History
1.

The Standard Disclosure Form

In November 2010,

Milbourne applied for and conditionally

received a job with JRK pending satisfactory completion of a
background check.

FAC

7-9.

Before JRK obtained a consumer

report on Milbourne, he signed two disclosure forms.
18.

FAC SIS[ 15-

The first, the Standard Disclosure Form, was also signed by

Robins

and Churcher,

who applied

for

employment with JRK in

April 2011 and September 2013, respectively.

FAC fSI 27-31.

On October 31, 2014, the Court certified two classes based

on the alleged deficiencies of the Standard Disclosure form.

First, the Court certified an ''Impermissible Use Class," defined
as

follows:

All natural persons residing in the United
States (including all territories and other

political

subdivisions

States),

(a)

position

with

subsidiaries,

who

of

the

applied

for

Defendant

or

(b)

part

as

an

United

employment

any

of
of

its
this

application process were the subject of a
consumer report obtained by Defendant during
the two years proceeding [sic] the filing of
the Complaint, (c) where Defendant used a
form to make its disclosures pursuant to 15

U.S.C.

§

1681b{b)(2)

that

contained

a

release
and/or
waiver
of
the
consumer's claims and/or rights.
(ECF

No.

subclass,

signing

56) .

''Adverse

The

Court

also

certified

an

Action"

defined as follows:

All natural persons residing in the United
States (including all territories and other
political
subdivisions
of
the
United
States) ,
(a) who applied for an employment
position
with
Defendant
or
any
of
its
subsidiaries,
(b)
as
part
of
this
application process were the subject of a
consumer report background check obtained by
Defendant

on

or

after

the

date

two

years

proceeding
[sic]
the
filing
of
the
Complaint,
(c)
where
Defendant's
records
show
that
the
applicant
was
denied
employment because of the background check,
(d) and to whom Defendant did not provide a
copy
of
the
consumer
report
and
other
disclosures

stated

1681b(b)(3)(A)(ii)

at

at

15

least

U.S.C.

five

§

business

days before the date the employment decision
is

first

noted in

Defendant's

records.

Id.

2.

After

The Standalone Disclosure Form

extensive

been decided,

Milbourne,

discovery,

after

and on the eve of trial,

class

certification

had

it became apparent that

along with 558 other class members^

(not including

^ A total of 650 class members signed the Standalone Disclosure
Form.
However, JRK revealed at oral argument that 91 class
members actually signed the Standalone Disclosure Form after JRK
had already procured their background reports.
(Transcript of
February 26, 2016 Hearing ("Hrg. Tr.") at 21-22).
Therefore,
the Standalone Disclosure Form has no legal effect on those 91
c l a s s members.

Robins
form

or

Churcher),

before

contingency

JRK

may

have

obtained

form"

or

''the

also

signed

their

a

second

background

Standalone

disclosure

checks

Disclosure

("the

form") .

That

form provides:

I understand that my employment with JRK is
subject to the successful clearance of my
background
report
to
acceptable
company
standards.
The results of my background
report will be reviewed and evaluated by JRK
and
JRK,
in
its
sole
discretion,
will
determine whether i t is approved.
ECF No.

150,

3.

1-650.

The Moerschbacher Declarations

On

Count

Exs.

November

Three,

10,

2015,

asserting

JRK

that

complied with the FCRA.

moved

the

{ECF No.

also moved to compel arbitration,
members
153) .

had

signed

binding

Moerschbacher

Resources.

(ECF Nos.

The front
position
access

as

to

documents

ha[s]

that

[t]herein."

Moerschbacher

judgment

Disclosure

Form

On that same date,

on the ground that
agreements.

on

JRK

510 class
{ECF

No.

JRK attached a declaration of
JRK's

head

of

Human

155).

page of both declarations states Moerschbacher's

head of

and

148) .

{'"Moerschbacher"),
150,

summary

Standalone

arbitration

In support of each motion,

Michael

for

Human

reviewed

provide
Id.

"ha[s]

Resources

the

Finally,

personal

JRK's

and

business

basis
then

states

for
is

knowledge

that

records

[his]

the

of the

he
and

other

statements

statement

facts

"ha[s]

that

stated in

th[ese] declaration [s]

SISI 2-3.

The remainder of each

declaration simply states that true and correct copies of the
signed Standalone Disclosure Forms and Arbitration Agreements,

respectively, are attached as numbered exhibits.
4-653;

ECF

No.

155

4-513.

That

is,

ECF No. 150 If
Moerschbacher's

declarations are offered to authenticate the attached documents

and to support the motion for summary judgment and the motion to

compel arbitration, based on the content of the authenticated
documents.

DISCUSSION

A. Authentication

Milbourne's primary argument is that the documents appended
to Moerschbacher' s declarations are insufficiently authenticated
because ^^there is no indicia [sic] that Mike Moerschbacher has

personal knowledge regarding any of the documents attached to
either of his declarations."

{Plaintiff's Memorandum in Support

of His Motion to Strike the Declarations of Mike Moerschbacher

{''PI. Mem.," ECF No. 167) at 15).

Specifically, Milbourne takes

issue with the fact that Moerschbacher ''had no knowledge that

any documents were signed by the employees on the dates on the
forms, but assumed or presumed that they were."

hired

temporary

help

California counsel,

therefrom copies

of

that,

under

the

Id. at 16.

supervision

of

JRK

JRK's

reviewed the employment files and extracted

the

Standalone

Disclosure

Forms

and the

Arbitration Agreements that had been signed by class members.
JRK's counsel then put those documents into portable document

formats

('\pdfs")

Milbourne

contends

and

sent

the

.pdfs

that Moerschbacher's

to

Moerschbacher.

personal

knowledge

is

insufficient because he physically examined only ^^50 randomly
selected files" to confirm the veracity of the .pdfs that were
supplied to him by his counsel.

In

response,

JRK contends that Moerschbacher's personal

knowledge is sufficient to authenticate the documents because,
in order to satisfy Fed. R. Evid. 901, Moerschbacher need only
be familiar with JRK's policies and practices for maintaining

personnel

files.

(Defendant

JRK Residential America,

LLC s

Opposition to Plaintiff's Motion to Strike the Declarations of
Mike Moerschbacher

{"Def. Mem.

Specifically,

JRK

states

Moerschbacher

(1)

is

that

^Mtjhere

is

familiar

with

JRK's

maintaining personnel files,

of these files,

in 0pp.," ECF No.

174)

at 5) .

no dispute

Mr.

policies

for

(2) is familiar with JRK's storage

(3) oversaw the transfer of these files to his

attornyes, and (4) reviewed the documents from these files in
the format transferred to him by his attorneys."

Court

agrees

authenticated.

that

the

documents

have

Id. at 1.

been

The

properly

1. Applicable Legal Framework

Federal

Rule

of

Evidence

901

requires

document can be admitted into evidence,

sufficient

evidence

to

support

a

(b)

of

Rule

901

provides

that

Fed.

numerous

authenticity may be established,

before

a

its proponent must offer

finding

what its proponent claims i t to be.

that

R.

the

Evid.

document
901.

Section

illustrations

including:

(1)

is

of

how

testimony of a

witness with knowledge that the matter is what it is claimed to
be;

and

or

other

other

(2)

appearance,

distinctive

contents,

substance,

characteristics

circumstances.

In

other

taken

words,

internal

in

pattern,

conjunction with

authentication

may

be

accomplished entirely through circumstantial evidence,

and ''any

and

used

all

manner

of

circumstantial

evidence

establish that the document is genuine."

Inc.

V.

Sept.

Maximum Mortq.,

8,

2006);

Inc.,

see

2006 WL 2598034,

also Stewart

authentication

conditional relevancy,'
the

evidence

v.

2011

WL

5169384,

United States v.

Therefore,

Warden

Grp.,

(N.D.

of

Ind.

Lieber

(D.S.C. 2010).

essentially

for

its

a

consideration

Foreword Magazine,
at

at *5

to

question

of

the jury will ultimately resolve whether

admitted

proponent claims."

''^is

be

ABN Amro Mortq.

Correctional Inst., 701 F. Supp. 2d 785, 794
Because

may

*2

Branch,

(W.D.
970

Mich.

Inc.
Oct.

F.2d 1368,

v.

what

Overdrive,

31,

1370

is

2011)

(4th Cir.

the

Inc.,

(quoting
1992)).

a "party seeking to admit an exhibit need only make a
8

prima facie showing that it is what he or she claims it to be.
This is not a particularly high barrier to overcome."
V.

Markel Am.

Ins.

Co.,

241 F.R.D.

(internal citation omitted).

534,

542

Lorraine

(D.

Md.

2007)

'MT]he question for the court

under Rule 901 is whether the proponent of the evidence has

offered a foundation from which the jury could reasonably find
that the evidence is what the proponent says it is...the Court

need

not

find

that

the

evidence

is

necessarily

what

the

proponent claims, but only that there is sufficient evidence
that the
States

jury ultimately might do so."

V.

Safavian,

435

F.

Supp.

2d

(internal quotation marks omitted)).
^^broad discretion"

to

properly authenticated.
F.3d 43, 40

determine

Id.
36,

38

(citing United
(D.D.C.

2006)

The district court has

whether

a

document

has

been

See, e.g., United States v\—Pluta, 176

(2d Cir. 1999).

2. The Arbitration Agreements

The

content

of

Moerschbacher's

declaration

offered

in

support of JRK's motion to compel arbitration, coupled with his
deposition testimony, reveals that Moerschbacher is qualified to
authenticate the Arbitration Agreements.

The declaration itself

reveals that, by virtue of his position as JRK's head of Human

Resources, Moerschbacher is familiar with JRK's procedures for

hiring employees.

(ECF No.

155 at 1) .

Moerschbacher also

testified that he is familiar with JRK's system for maintaining

and storing employee
employment

are

{Moerschbacher

files,

kept

in

and that all documents
a

single

file

Deposition Transcript

for

("'Dep.

relating to

each

Tr.")

employee,

at

99,

101).

Moerschbacher further testified that he physically retrieves and

reviews employee files
week.

Id. at

personally

JRK's

96.

Furthermore,

participate

lawyers,

Moerschbacher

policy

frequently,

to

agreements

oversaw

employees

employee

that
he

to

and that he had

several times a

although Moerschbacher did not

pulling

testified that

ask

Agreements,

he

in

as often as

process.

knew

that

sign
known

files

Id.

i t was

Mediation
about

since the beginning of this

to

to

Finally,

JRK's

and

send

standard

Arbitration

the existence of the

litigation.

(Dep.

Tr.

117-118).

In sum, Moerschbacher stated under penalty of perjury that:

(1)

he is head of Human Resources at

JRK;

(2)

he is

familiar

with the processes and documents involved in the employee hiring
process;
that

(3)

the Arbitration Agreements were a regular part of

process;

maintaining

{4}

he

regularly; and (5)

familiar

with

files,

employee

is

and

accesses

sufficient to support a
what

JRK

claims.

2014 WL 3511016,

system

employee

for

files

the exhibits attached to his declaration are

true and correct copies of those documents.

are

JRK's

at

prima facie
See,

*5

(N.D.

e.g.,

showing that the exhibits

Byrne

v.

Ohio July 14,
10

This evidence is

CSX

Transp.,

2014)

Inc.,

(witness who

had

no

recollection

of

reviewing

certain

sufficiently authenticated them where
familiar documents,

she had

bills

she

nonetheless

identified them as

absolutely no reason to believe"

the bills were not authentic,

the bills "appeared to be" true

and

responsible

correct,

and

witness

which the bills were

Grp.,

Inc.,

2012

was

related);

WL

for

Becerra v.

310973

(N.D.

the

program to

Newpark Mall

Cal.

July

Dental

23,

2012)

(defendant's signed declaration that arbitration agreements are

provided to all new employees to sign in relation to their
employment, that the plaintiff did sign one such agreement, and
that the attached copy of the agreement was true and accurate,
was

sufficient

authentication);

Transcontinental Granite,

Aug. 11, 2009)

Inc.,

Bassi

Bellotti

S.p.A.

2009 WL 2477546, at *3

v.

{D. Md.

(affiant's statements that he was the president

of the plaintiff's company, that he had personal knowledge of
the

records

being

offered,

that

the

records

were

created

pursuant to business dealings between plaintiff and defendant,
and that the records were true and correct copies, constituted a

prima facie showing of authenticity under Fed. R. Evid.
The fact that the documents are signed,

JRK stationery further corroborates

dated,

901) .

and printed on

their authenticity.

See,

e.g., Byrne, 2014 WL 3511016, at *5.

Contrary to Milbourne's argument, the Rules of Evidence do

not require that Moerschbacher was present for the signing of
11

each Arbitration Agreement.
11 F.3d 97,

the

100

See, e.g., United States v. Coohey,

(8th Cir. 1993)

(observing that the fact that

[company employee] was not the keeper of the records and

did not prepare them, even if true, would not impede her ability
to

testify

that

the

records

were

authentic.").

Such

a

requirement would essentially prevent corporate defendants from
introducing documents relating to a large number of identical
occurrences or transactions, a necessary reality in large class

actions

such as

these.

Nor

does a witness have to manually

match up each sentence of a declaration with the corresponding
exhibit and verify that every exhibit is properly numbered in
order to qualify as a ^^witness with knowledge."

Milbourne has

simply manufactured this requirement in his efforts to discount
Moerschbacher's qualifications.

Thus,

JRK has

shown that Moerschbacher

is

qualified to

testify as to the authenticity of JRK's documents, and JRK has
satisfied

its

low

burden

to

present

evidence

from

which

a

reasonable juror could find that the Arbitration Agreements are
authentic.

3. The Standalone Disclosure Forms

Milbourne's

authenticity

argument

also

fails

as

to

the

Standalone Disclosure Forms because Milbourne's own filings and
conduct are sufficient to support a finding that the Standalone
Disclosure Forms are authentic.

In other words,
12

^'^Plaintiff has

relied on these documents in making various accusations in this
case and cannot,
Kaur V.

therefore,

also challenge their authenticity."

New York City Health and Hosps.

317, 324

(S.D.N.Y. 2010}

Milbourne's

Corp.,

688 F.

2d

{internal citation omitted).

positions

that he has conceded and,

throughout
indeed,

this

litigation

First,

reveal

that his claims and arguments

depend upon the existence and authenticity of,
Disclosure Forms.

Supp.

the Standalone

the Standalone Disclosure Form is the

basis of Count Three of the FAC,

in which Milbourne alleges that

"JRK violated the FCRA by procuring consumer reports relating to
Plaintiff and other Contingency Form Impermissible Use Sub-Class

members

without

written

consent

1681b (b) (2) (A) ."

currently is

first
in

making proper
the

format

FAC SI 72.

seeking to

disclosures

required

Second,

certify a

judgment

memorandum

explicitly

in

support

of

under

the

avers,

15

U.S.C.

and relatedly,

sub-class

signed the Standalone Disclosure Form.
Milbourne's

by

and receiving

Milbourne

of consumers who

(ECF No. 171).
his

§

motion

heading

Third,

for

summary

^^Statements

of

Undisputed Material Fact," that "JRK also had some class members
sign

a

second

form,

'contingency form.'"

which

its

(ECF No.

employees

163 at 3).

referred

to

as

a

That is,

Milbourne

not only bases his motion for summary judgment in part on the
existence

of

the

Standalone

some class members signed it,

Disclosure

Form

and

the

fact

that

but refers to that reality as an
13

undisputed material
Counsel

fact.

acknowledged

Id.

at

the

at

3;

11-13.

hearing

on

Fourth,

this

motion

Class
that

Milbourne's pleadings relied on the Standalone Disclosure Forms
and that several hundred class members had received and signed
the

forms.

In

sum,

Milbourne's

necessarily depend on the

claims

fact

under

§

all members

1681b(b){2)(A)

of the putative

"'Impermissible Use Sub-Class" received and signed the Standalone
Disclosure Form.

'MT]he basis of these accusations, therefore,

is the existence of such [Standalone Disclosure Forms]."

688 F. Supp. 2d at 324.

Kaur,

And, it is well-settled that a party

''cannot contradict the allegations of her own complaint in order

to create a genuine issue of material fact and therefore avoid
summary
5075674,

judgment."
at

*3

Ramos

{W.D.N.C.

v.

Am.

Airlines,

Oct.

25,

2011)

(citing

Burnley, 879 F.2d 1240, 1242 (4th Cir. 1989)).

has gone even further:

Inc.,

2011 WL
Lucas

v^

Here, Milbourne

not only do the arguments advanced in

support of his motion to strike contradict the FAC, but they
also

fatally

undermine

Milbourne's

own

motion

for

summary

judgment as well as his motion to amend the class definition.
Milbourne cannot possibly claim a violation of the FCRA based on
the Standalone Disclosure Form, move for summary judgment on the

ground that that form does not comply with the FCRA, ask the
Court to certify a sub-class of consumers who signed that form,
14

and admit the existence and authenticity of the form at oral

argument, and in the same breath ask the Court to exclude the
form for lack of proper authentication.^
Therefore,

the

circumstantial
Disclosure

Court

evidence

finds
to

that

there

authenticate

is

sufficient

the

Standalone

Forms.

B. Hearsay

Milbourne

also

contends

that

Moerschbacher's declarations are

the

documents

appended

inadmissible hearsay,

to

because

^^whether, when, how and by whom the purported [documents] were

obtained and signed, especially as to specific class members,
are all out of court statements being offered for the truth of
the matter asserted.

at 17.

Milbourne also adds that the

declarations cannot satisfy the business records exception to

^ At one point, it appeared that Milbourne wished
he signed the Standalone Disclosure Form.
(^^Milbourne does not recognize the signature or
the contingency form...").
However, it appears
has

since

abandoned this

argument.

to dispute that
See FAC 5 19
recall signing
that Milbourne

See ECF No.

169 at

16

(^'Plaintiff does not contest that JRK has a form that contains
his signature because the point supports his claim rather than
subverting it because he is not attempting to avoid anything
based on his inability to recall signing the form.")

^ Initially, Milbourne also contended that JRK never properly
disclosed its

intention to rely on the Arbitration Agreements

and Standalone Disclosure Forms as required by Fed. R. Civ. P.

26{a) (1).

(PI.

Mem.

receive the documents,

at 19).

Milbourne admits that he did

but takes

issue with JRK's

failure

to

specifically draw Milbourne's attention to them in its discovery
responses.
However, Class Counsel indicated at oral argument
that

Milbourne

no

longer

wished

to

pursue

Therefore, it is not addressed further herein.
15

this

argument.

the hearsay rule because the declarations were prepared by JRK's

lawyers, who are ^""outside participants."
JRK

both

the

Forms
are

responds

Mem.

Arbitration

''possess

not

that

the

Agreements

independent

offered "for the

in 0pp. at 9).

documents

truth

are

and

legal

Id. at 18-19.

the

not

hearsay

Standalone

significance,"

of

the matter

because

Disclosure

and

therefore

asserted,"

(Def.

That is clearly correct.

1. Legal Framework

The

hearsay

statements

However,

rule

offered

prohibits

for

truth

the

out

matter

asserted.

Lorraine,

not

for

the

significance

of

truth

an

that it was made."

In other words,
of-court

566.

Such

the

matter

of

offered
Fed.

R.

statement
Evid.

a

of

court

See

at

definition

of

communications that have ''independent legal significance."
F.R.D.

the

of

of

are

241

from

admission

hearsay

offered

excepted

the

the

communication

asserted;

lies

is

instead,

solely

in

"the

the

fact

801 Advisory Conimittee's Note.

the hearsay rule is inapplicable "where the out-

statement

actually

^affects

the

legal

rights

of

the

parties, or where legal consequences flow from the fact that the
words

were

Servs.,

said.'"

Inc.,

also Bauscher

(D.

Idaho

267
v.

July

Echo

Acceptance

F.3d

1068,

Corp.

1087

Brookstone

Sec.,

30,

(observing

2012)

Inc.,

v.

{10th
2012

that

Household
Cir.

2001);

WL 3100383,

"a

Retail

document

see
at

*3

which

itself affects the legal rights of the parties is not introduced
16

for the truth of the matter asserted because the significance of
the offered statement lies solely in the fact that it was made )

(internal

citations

and

alterations

omitted).

The

Seventh

Circuit has framed this distinction as one between "performative

and illocutionary utterances[:]

[t]he latter narrate, describe,

or otherwise convey information,
truth

value

(information

is

and so are

useful

information only if it is true);

promise,

offer,

action."

only

judged by their

if

true—indeed

is

the former-illustrated by a

or demand—commit the speaker to a course of

United States v. Montana, 199 F.3d 947, 950 (7th Cir.

1999).

"'In the most general terms, statements of independent legal

significance form ^a part of the details of the issue under the
substantive law and the pleadings.'...The most common examples
are

words

of

contract,

marriage

proofs and defamation."

Jude v.

promise,

notice,

insurance

Health Mqmt. Assoc.—of—

Virginia, Inc., 187 F.3d 629, 1999 WL 595352, at *2 (4th Cir.
Aug. 9, 1999) (citing Wigmore on Evidence § 1770 (3d ed. 1940)).
Therefore,

''the rule against hearsay does not exclude relevant

evidence as to what the contracting parties said or wrote with

respect to the making of the terms of an agreement."

5 Jack B.

Weinstein & Margaret A. Berger, Weinstein's Federal Evidence, §
801.11 [13]
2015) .

(Joseph M.
Similarly,

Mclaughlin,

''the

fact

of
17

ed.,

Matthew Bender 2d ed.

sending

a

notice

is

often

essential as a part of the issue,
indorser,

a

defective

goods...in

receivable

notice

under

of

for example,

recission,

such

cases

the present

a

the

notice

terms

principle,

a notice to an
of

of

rejection

the

are

regard to

without

notice

the

truth of any assertion that may be contained in it [. ]"
on Evidence §

1770

{3d ed.

of

Wigmore

1940) .

2. Analysis

Here,

because

the

Arbitration

Agreements

and

Standalone

Disclosure Forms are offered only to show that the class members

who signed the documents entered the Arbitration Agreements and
received

the

Standalone

significance of

the

Disclosure

documents

Forms,

''"lies

respectively,

solely in the

fact

[they] were made," and the documents are not hearsay.
Evid.

801

Deutsche

Advisory

Bank

Committee's

Nat'l

Tenn. May 6, 2014}

Trust

Co.,

Note;
2014

WL

see

the

that

Fed. R.

also Berkley

1795828,

at

*8

v.

{W.D.

(holding that notice of default was a ''verbal

act" and not hearsay); Bauscher, 2012 WL 3100383, at *3 (finding
that

arbitration

significance
Lorraine,

agreement

''lies

241

solely

F.R.D.

at

in

566

was

not

hearsay

fact

that

the

(noting

that

because

it

was

evidence

its

made") ;

concerning

making of arbitration agreements is not hearsay when offered to
show that the agreement was made).

The
other,

Arbitration
to

which

Agreements

this

rule

are

contracts

clearly
18

applies.

just

like
The

any
only

significance of the Arbitration Agreements, and the sole purpose
for which they are offered, is to show that the class members

entered the agreements, which specify the forum and manner in
which they are permitted to bring claims against JRK,
above,

''signed

promissory

instruments

notes

are

and

are

significance

Leadership Software,
This

is

because

''a

such

writings
not
Inc.,

as

that

wills,

have

hearsay."

is

a

contracts,

independent

Kepner-Tregoe,

12 F. 3d 527,

contract

As noted

540

verbal

It

legal

Inc.

(5th Cir.

act.

and

v.

1994).

has

legal

reality independent of the truth of any statement contained in
it."

Id.

The

same

is

true

of

the

Standalone

Disclosure

Form.

As

noted above, the Standalone Disclosure Form is the foundation of
Milbourne's

claim

under

§

Three of the FAC—in fact,

1681b (b) (2)

parties in this case."

Moerschbacher's

forth

in

Count

Thus, the Standalone Disclosure

the rights and liabilities of the

Stuart v. UNUM Life Ins. Co. of Am., 217

F.3d 1145, 1154 {9th Cir. 2000).
much at oral argument.

set

the form's only significance in this

case is its legal significance.

Form by nature ''affect [s]

as

Indeed, Milbourne conceded as

Therefore,

declarations

are

not

substantive truth and are not hearsay.

19

the documents appended to
offered

to

prove

their

CONCLUSION

For

the

reasons

set

forth

above,

PLAINTIFFS'

STRIKE THE DECLARATIONS OF MIKE MOERSCHBAGHER (EOF No.

MOTION

166) will

be denied.

I t is so ORDERED.

/./
Robert E. Payne
Senior United States District Judge

Richmond, Virginia
Date:

March

2016

20

TO