Thomas v. FTS USA, LLC et al

Filing 104

MEMORANDUM OPINION. Read for complete details. Signed by District Judge Robert E. Payne on 01/07/2016. (ccol, )

IN TBE UNITED STATES DISTRICT COURT
FOR TBE EASTERN DISTRICT OF VIRGINIA
Richmond Division

KELVIN M. THOMAS, et al.,
Plaintiffs,

v.

Civil Case No. 3:13-cv-825

FTS USA, LLC, et al.,
Defendants.
MEMORANDUM OPINION

This matter is before the Court on Plaintiffs'
CLASS

CERTIFICATION

below,

(ECF No.

91) .

For

the

reasons

MOTION FOR
set

forth

the motions to certify both classes will be granted in

part and denied in part.

BACKGROUND
A. Procedural Background

On December 11, 2013, Plaintiff Kelvin Thomas ("Thomas") filed
a

class

similarly
("FTS"),

action

complaint

situated,
a

( ("Unitek");

1)).

alleging

subsidiary
collectively,

Credit Reporting Act

on behalf

of

of himself

that

defendant

Unitek

Global

"Defendants")

( "FCRA") .

and all
FTS

USA,

Services,

("Compl. ")

respectively.

1681b(b) (2) (A) (i)

Section 1681b(b) (2) (A) provides that:
1

Fair

(ECF No.

The Complaint alleges four Counts under the FCRA.
§

LLC
Inc.

had violated the

(Complaint

One and Two allege violations of

others

and

Counts
(ii),

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

document

referred

may

to

be

in

made

clause

on

the

(i))

the

procurement of the report by that person.

Counts Three and Four allege violations of §§ 1681b (b) (3) (A) (i)
and (ii), respectively.
In using
purposes,

Those sections require that:

a consumer report for employment
before taking any adverse action

based in whole or in part on the report,

the

person intending to take such adverse action
shall provide to the consumer to whom the
report relates: (i) a copy of the report;
and

(ii)

a

description

in

writing

of

the

rights
of
the
consumer
under
this
subchapter, as presented by the Bureau under
Section 1681g(c)(3) of this title.
The Court denied Defendants'

February 24, 2015.
Class

Certification

Motion for Summary Judgment on

(ECF No. 59).
on

October

Thomas filed this Motion for
16,

Defendants have opposed the motion.

replied.

(ECF No. 100) .

2015.

(ECF

(ECF No.

99).

No.

91) .

Thomas has

The matter is therefore now ripe for

decision.

B. Factual Background

In September 2009,

Thomas

obtained a

job with Cableview

Communications, which was purchased by FTS in the fall of 2011.

(Compl.
FTS.

'.lI'.lI 27-30).

Defendant Uni tek is the parent company of

In order to continue his employment with FTS,

on January

17, 2012, Thomas signed an "Employment Release Statement," which
provides, in pertinent part:
Prior
to
and
for
the
duration
of my
employment
with
FTS
USA,
LLC
(the
"Company"), I understand that investigative
background inquiries are going to be made on
myself [sic].
I understand that the Company
will be requesting information from various
Federal, State, Local and other agencies
which maintain records concerning my past
activities relating to my driving history,
credit,
criminal,
civil,
and
other
experiences.
These reports may also include
inquiries regarding my educational history
and past work experience and performance
including
reasons
for
termination
of
employment.
I authorize, without reservation, any party
or agency contacted by the Company or its
agents to furnish any of the above mentioned
information
or
any
other
information
requested.
(Plaintiffs'

Memorandum

Certification
Unitek' s

("Pl.

in

Mem.")

(ECF

standard disclosure

employees

during

the

Support
No.

form,

relevant

of
92)

Motion
Ex.

1).

for

Class

This

was

provided to all prospective

class

period.

(Deposition

of

Steven Conlin ("Conlin Dep." at 58).
After

its

acquisition

of

Cableview,

FTS

required

every

Cableview employee who wished to continue employment with FTS to
undergo a background check.
of Surmnary Judgment

("Def.

(Defendant's Memorandum in Support
SJ Mem.
3

11

)

(

ECF No.

3 8) , Statement of

Undisputed Facts 11 7-10).
provided that " [a]

Unitek's internal hiring policies

pending employee may not be eligible for

hire" if the employee has been charged with or convicted of
certain

felonies,

misdemeanors,

"unacceptable" crimes.

driving

offenses,

or

other

Id. at SlSl 11-12.

On or about January 20, 2012, Unitek, which performed "all

consumer

report-related

and...FTS,"

Memorandum

of

Law

on

itself

(PI.

Defendants'

check

of

Backgroundchecks.com ("BGC"), a consumer reporting agency.
3;

background

behalf

from

at

a

on

Thomas

Mem.

ordered

functions

in

Opposition

to

Plaintiff's Motion for Class Certification ("Def. Mem. in 0pp.")

(ECF No. 99),

Ex.

convictions,

including

marijuana,

money

D) .

of

a

attributed

to

Thomas.

well

convictions

laundering,

knowledge

Thomas'

The report contained numerous felony

juvenile,
Id.

for

statutory

all

of

The

which

report

distribution

rape,

and

were
also

carnal

incorrectly

revealed

as

a

report

Id.

of a

2011

accident

Shortly thereafter,

BGC

in which Thomas was

informed

FTS

that

criminal violations were erroneously included in Thomas'

that

the

Ex.

E).

as
at

the

report,

entries pertaining to the car accident and the

moving violations did,
Mem.,

that

driving record contained several moving violations,

fault.

but

of

in fact,

belong to Thomas.

(Def.

SJ

On March 12, 2012, Thomas' supervisor informed Thomas that,
as

a

result

of his driving record,

position for which he had applied.
Conlin Dep.

at 136).

he was
(Def.

On that same date,

ineligible for the
SJ Mem.

Exs.

E,

F;

an FTS representative

provided Thomas with a copy of the updated BGC background check.
(Def.

SJ Mem.,

never

received

date,

and at no time did FTS provide Thomas with a

his

rights

Statement
a

copy

under

the

of

of

FCRA.

Undisputed

the

Facts

'![

29).

background check prior

In

fact,

Uni tek' s

Thomas
to

this

summary of

representative

testified that neither FTS nor Unitek ever provided either of
these documents
was Unitek' s
notices.

to

current or potential

employees,

because

it

understanding that BGC would provide the required

(Conlin Dep. at 105, 119, 123).

C. The Proposed Classes

Thomas
first

seeks

class,

to

certify

one

class

and one

sub-class.

The

which Thomas calls the "Impermissible Use Class",

is defined as follows:
All natural persons residing in the United
States (including all territories and other
political
subdivisions
of
the
United
States),
who
applied
for
an
employment
position with Defendants or any of their
subsidiaries,
and
as
part
of
this
application process were the subject of a
consumer report obtained by Defendants, (a)
where the defendants failed to provide a
written disclosure as stated at 15 U.S. C. §
1681b{b) (2) (A) (i) to the applicant that they
intended to obtain a consumer report for
employment purposes,
(b) and where as a
5

result the Defendants failed to obtain a
proper written authorization as stated at 15
U.S.C. § 1681b(b) (2) (A) (ii) signed by the
applicant prior to obtaining the consumer
report.
(Pl. Mem. at 8).

Thomas also seeks to certify a sub-class pursuant to
Section 168lb(b) (3), defined as follows:
All natural persons residing in the United
States (including all territories and other
political
subdivisions
of
the
United
States) ,
who
applied
for
an
employment
position with Defendants or any of their
subsidiaries,
and
as
part
of
this
application process were the subject of a
consumer report obtained by Defendants, (a)
where the defendants failed to provide a
written disclosure as stated at 15 U.S.C. §
1681b(b) (2) (A) (i) to the applicant that they
intended to obtain a consumer report for
employment purposes,
(b) and where as a
result the Defendants failed to obtain a
proper written authorization as stated at 15
U.S.C. § 1681b(b) (2) (A) (ii) signed by the
applicant prior to obtaining the consumer
report, and {c) to whom Defendants did not
provide a copy of the consumer report as
stated at 15 U.S.C. § 1681b(b) (3) (A) (i) at
least five business days before the date the
employment
decision
is
first
noted
in
Defendants'
records,
(d)
and
to
whom
Defendants did not provide a written summary
of Fair Credit Reporting Act rights as
stated at 15 u.s.c. § 1681b(b) (3) {A) (ii) at
least five business days before the date the
employment
decision
is
first
noted
in
Defendant's records.
Thomas'

proposed

decisions," but does not

sub-class

refers

to

"employment

specify that the class includes

only

members for whom Defendants made "adverse" employment decisions.
6

This appears to be an oversight; elsewhere in his briefing,
Thomas states that "the FCRA § 1681b(b)(3) Subclass is comprised
of the individuals from the Section 1681b(b) (2)

Class for whom

Defendants took an adverse employment action without providing

the required notices before it did so."
{emphasis added) .

relevant
before

user

decision,

Mem.

at 11)

There is no basis in the FCRA or in the

jurisprudence to
a

(PI.

of

adverse

a

suggest

that notices are

consumer

otherwise;

or

report

nor

position in his briefs.

makes

does

any

Thomas

required
employment

take

that

The relevant section pertains only to

"adverse" employment actions.

Therefore, the class definition

will be amended to reflect this change.

More specifically,

it

appears that the adverse action contemplated by the parties is
that Defendants found an applicant ineligible for the position
for which he or she had applied based on the consumer report

provided.

Accordingly,

Section 1681b(b)(3)

including

only

hereafter

this

Opinion

treats

the

Subclass {"the Adverse Action Subclass") as

those

individuals

whom

Defendants

found

ineligible for employment based on their pre-employment (or preretention) background checks.

Also,

specifies

neither

a

class

of

Thomas'

period.

proposed

Defendants

class

point

out

definitions

that

class

counsel agreed to a two-year class period at a status hearing on
June 4,

2015.

(Def. Mem. in 0pp. at 10 n.7

(citing Transcript

of June 4,

2015 Status Hrg. at 25)).

the

at

point

definitions

all

will

in

both

his
be

Thomas does not address

briefs.

amended

Therefore,

to

reflect

that

the

class

the

class

contains only those individuals who applied for an employment

position

with

Defendants

within

the

two

years

immediately

preceding the filing of the Complaint in this matter on December
11, 2013.

Counts One and Two of the Complaint are asserted on behalf

of the Impermissible Use Class, and Counts Three and Four are
asserted on behalf of the Adverse Action Subclass.
CLASS CERTIFICATION DISCUSSION

To obtain class certification, a plaintiff must satisfy the

four requirements of Fed. R. Civ. P. 23(a).

Additionally, the

proposed class must be consistent with at least one of the types
of class actions delineated in Fed.

R.

Civ.

P.

23(b),

and must

meet the corresponding prerequisites for certification.

Because

Thomas proposes two different classes for certification,

each

requirement will be addressed in the context of each individual
class.

Defendants

Commonality,

do

not

contest

that

the

Numerosity,

or Superiority elements are satisfied for either

class.

A.

Rule 23(a)

Rule 23(a)

They are that:

has four requirements for class certification.

(1) the class is so numerous that joinder of all
8

members is impracticable;
common to the class;

(3)

(2)

there are questions of law or fact

the representative's claims or defenses

are typical of those of the class;

and

(4)

the representative

will fairly and adequately represent the interests of the class.
See

Broussard

331,

337

v.

Meineke

{4th Cir.

Disc.

1998) .

Muffler

255 F,3d 138,

As

the

146

Fourth

Inc.,

155

F.3d

The plaintiff bears the burden of

proving all requirements of Rule 23.
Inc.,

Shops,

(4th Cir.

Circuit

Lienhart v.

Dryvit Sys.,

2001).

has

explained,

courts

are

not

required "to accept plaintiffs' pleadings when assessing whether
a

class

should be

368 F.3d 356,
must

take

365

a

certified."

(4th Cir.

'close

Gariety

2004).

look'

at

v.

Grant Thornton,

Rather,
the

LLP,

"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).

319

Thorn v.
(4th

Cir.

Jefferson-Pilot
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

Supreme

relevant

to

the

issue

of

success on the

whether

certification

(internal citations omitted).

Court

recently

elaborated

further

upon

the

factual determinations at the class certification stage in Wal-

Mart Stores,

Inc. v.

Dukes,

131 S. Ct.

2541

In Dukes,

(2011).

the Supreme Court explained:
Rule 23 does not set forth a mere pleading
standard.
A
party
seeking
class
certification must affirmatively demonstrate
his compliance with the Rule - that is, he
must be prepared to prove that there are in
fact sufficiently numerous parties, common
questions
of
law
or
fact,
etc.
We
recognized in Falcon that 'sometimes it may
be necessary for the court to prove behind
the pleadings before coming to rest on the
certification
question,'
and
that
certification is proper only if 'the trial
court
is
satisfied,
after
a
rigorous
analysis, that the prerequisites of Rule
23(a) have been satisfied.'
131 S. Ct. at 2551
U.S.

147,

that

160-61

'rigorous

merits

of

helped.a

(quoting Gen. Tel. Co. of Sw. v. Falcon, 457

the

(1982)

analysis'

will

plaintiff's

"Frequently

in original)).

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

(emphasis

'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

address

opinions
merits

Timothy Coughlin
Tort

Class

Def.

Couns.

clarifying
issues
&

at

the

extent

to

the

class

certification

Barbara A.

Lum,

Certification After

J.

428,

432

(Oct.
10

which

a

Digging Deeper:

Dukes,
2013).

Comcast,
The

court

stage.a

Mass Toxic

and Amgen,
first

can

of

80

these

decisions
Trust

was

Funds,

Amqen
113

Inc.

S.

v.

Ct.

Connecticut

1184

Retirement

Plans

In

the

(2013).

Amqen,

and

Court

clarified that,

[a]lthough we have cautioned that a
class-certification

rigorous
the

and

merits

may
of

analysis

entail

the

court's

must

be

overlap

some

with

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

relevant

to

the
Rule
certification

whether
for class

23
are

satisfied.

Id.

at

Dukes

1194-95

(internal

demonstrate

that

a

citations
court's

omitted).

factual

Thus,

Amqen

determinations

at

and
the

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

farther.

That

is,

"Amqen 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.

second

V.

Supreme

class

Behrend,

Court

required for

133

further
class

certification

S.

Ct.

1426

clarified

case

of

2013

(2013).

"that

the

certification reaches

In

at

This

"reaffirms

11

the

analysis'

not only to issues of

but also to damages and causation."

position

Comcast

Comcast,

'rigorous

liability,

432.

was

Dukes'

Coughlin & Lum,

pronouncement

that

district

courts

considering

motions

for

class

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

noting

that

two of

although

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 -

are

relevant

for

class

but only to the extent -

to determining whether the Rule

certification are satisfied."

that they

23 prerequisites

William B.

Rubenstein,

Newberg on Class Actions § 7:23 {5th ed. 2013).

Keeping in mind the Supreme Court's views in Dukes,

Amgen,

and Comcast, we examine the definition of the proposed classes.
1. Ascertainability of the Proposed Class
Rule
action

must

defenses."

the

23

states
define

Fed.

R.

certification

definition

of

that
the

Civ.

"[a]n

class

P.

F.R.D.

(4th

the

49,

Cir.
53

(M.

and

class

1976);
D.N.C.

see

the

that

is

listed
an

2004).

claims,

a

class

issues,

or

This is in addition to

in

Rule

essential

Roman v. ESB,
also

certifies

class

23(c)(1)(B).

requirements

maintaining a class action."
1348

order

Kirkman

prerequisite

Inc.,
v.

23(a).

N.C.

"The
to

550 F.2d 1343,
R.

Co.,

220

"The court should not certify a
12

class unless the class description is ^sufficiently definite so
that it is administratively feasible for the court to determine

whether a particular individual is a member.'"

Solo v. Bausch &

Lomb Inc.,

Sept.

2009 WL 4287706,

at

*4

(D.S.C.

25,

2009)

(quoting 7A Charles Alan Wright, Arthur R. Miller & Mary Kay
Kane, Federal Practice & Proc. § 1760 {3d ed. 2005)).
In a recent decision,

"[a]

class

the

Fourth Circuit explained that

cannot be certified unless

a court

can

readily

identify the class members in reference to objective criteria.
EQT Production Co v. Adair, 2014 WL 4070457, *7 (4th Cir. 2014);
see also Wm. Moore et al., 5 Moore's Federal Practice § 23.21[1]

(3d ed.)

definition

("A class action is possible only when the class

provides

a

court

with

tangible

and

practicable

standards for determining who is and who is not a member of the

class.").

Although ''plaintiffs need not be able to identify

every class member at the time of certification," if "class
members

are

individualized

impossible

to

fact-finding

action is inappropriate."

identify

or

without

'mini-trials',

then

extensive
a

class

EQT, 764 F.3d at 358.

a. The Impermissible Use Class

Thomas argues that the Impermissible Use class satisfies
the

ascertainability

requirement

because

Defendants

"have

confirmed that they maintain files and records on applicants and
that, should the Court grant this Motion, they will be able to
13

identify

individual

Class

Members."

(Pi.

Mem.

at

11).

Defendants do not argue that the Impermissible Use class is not
ascertainable.

Defendants

checks

on

provides

all

admitted

prospective

each prospective

Statement.
16) .

have

(Def SJ Mem.,

that

FTS

employees,
employee

conducts

and

with

prior

an

background

to

doing

Employment

so

Release

Statement of Undisputed Facts

SIS

8-

Unitek has also admitted that it used the same Employment

Release

Form for

all

subsidiaries throughout the class period,

and that it maintains electronic copies of all signed Employment

Release Statements.

(Conlin Dep. at 58,

68-69,

140).

Thus, the

Impermissible Use class is readily ascertainable.
a. The Adverse Action Subclass

Thomas

argues

ascertainable

for

is ascertainable:
decisions,

that

the

same

the

Adverse

reasons

Defendants

and therefore will

be

not

judgment

contest

otherwise.

evidence

and

Subclass

Impermissible

keep records
able to

class members without difficulty.
do

the

Action

identify the

Moreover,

testimony

Class

of their employment

(PI. Mem. at 11).

deposition

Use

is

relevant

Defendants

Defendants'

reveal

that

summary

Unitek

keeps records of whether and why employees were found ineligible
for the positions for which they applied.
Conlin Dep.

at 140).

Thus,

(Def.

SJ Mem. Ex.

E;

the Adverse Action Subclass is also

readily ascertainable.
14

2.

Rule 23(a)(1) Numerosity

Rule 23(a)(1)
for

a

class

joinder

of

23(a)(1).

action

all

is

members

Fed.

to

Nonsectarian

R.

be

circumstances

(finding

is

that

is

the

class

be

"so

impracticable."

numerous

Fed.

R.

that

Civ,

P.

"No specified number is needed to maintain a class

action under

rule

provides that the second of the requirements

of

a

P.

23;

considered
the

Hosp.

that

Civ.

in

case[.]"

Ass^n,

class

numerosity requirement).

light

Cypress

375

of

[rather],

18

F.2d

was

application of

of

v.

648,

the

Newport

653

sufficient

(4th

to

the

particular
News

Gen.

Cir.

&

1967)

fulfill

the

"Courts consider a number of factors

in considering whether joinder is practicable including the size
of the class,

ease of

their addresses,

and

their

F.R.D. 162, 170 (D. Md.

is

satisfied

numbers

facility of making service

geographic

Defendants

identifying its

do not
for

dispersion."
2000)

on them if

v.

joined

Henderson,

197

(internal quotation omitted).

dispute

either

Adams

and determining

that

class.

the

numerosity

Unitek's

requirement

representative

testified that

Defendants procured approximately 10,000 reports

per

employment

year

period,

for

purposes

during

relevant

time

and they refused to hire about 3,000 applicants per year

based on the contents of the applicants'
at

the

76-78,

127-28).

Thus,

both

numerosity requirement.
15

reports.

classes

easily

(Conlin Dep.
satisfy

the

3.

Rule 23(a)(2)

Rule 23(a)(2)

Commonality

requires that there be questions of law or

fact common to the class.

255

F.3d at 14 6.

The

Fed.

R.

Civ.

P.

23(a) (2); Lienhart,

commonality requirement focuses on the

claims of the class as a whole, and it "turn[s] on questions of

law [or fact] applicable in the same manner to each member of
the class."

Califano v. Yamasaki, 442 U.S. 682, 701 (1979).

satisfy this requirement,
common to the class.

To

there need be only a single issue

See Cent.

Wesleyan Coll.

v.

W.R.

Grace &

Co., 143 F.R.D. 628, 636 (D.S.C. 1992), aff^d, 6 F.3d 177 (4th
Cir. 1993).

The Dukes decision, which focuses primarily on the

issue of commonality, states in part:

Commonality

requires

the

plaintiff

to

demonstrate that the class members "have
suffered the same injury." This does not

mean merely that they have all suffered a
violation of the same provision of law.

[The proposed class members'] claims must
depend upon a common contention - for
example, the assertion of discriminatory
bias on the part of the same supervisor.
That common contention, moreover, must be of
such
a
nature
that
it
is
capable
of
classwide
resolution
which
means
that
determination of its truth or falsity will
resolve an issue that is central to the

validity of each one of the claims in one
stroke.

Dukes,

131 S.

Ct.

at 2551.

16

a.

The Impermissible Use Class

Thomas alleges that the Impermissible Use class satisfies
the

commonality

requirement

because

it

presents

two

common

issues of law or fact, namely: "(1) whether Defendants' Employee

Release Statement violated Section 1681b(b)(2)

because

(a)

it

failed to disclose that a consumer report would be obtained from

a consumer reporting agency and (b) thus it failed to obtain a
valid authorization to obtain such a report for an employment

purpose," and (2) "whether these violations are willful."
Mem.

at 13-14).

(PI.

Defendants do not assert that Thomas cannot

satisfy commonality as to his Impermissible Use Class claims.
This Court has held previously that the question of whether
a

standard

waiver

form

violated

§

1681b(b) (2)

was

a

common

question satisfying Rule 23's "commonality" requirement.

^

Manuel v. Wells Farqo, 2015 WL 4994549, at *9-10 (E.D. Va. Aug.

19,

2015);

Milbourne

v.

JRK Residential

Am.,

LLC,

2014 WL

5529731, at *5 (E.D. Va. Oct. 31, 2014) ("JRK has admitted that
it has used a standardized waiver and disclosure form for all

class members, including Milbourne.

Thus, if Milbourne is able

to establish that JRK's waiver did not satisfy § 1681b (b) (2)'s

requirements this issue will be resolved not only in Milbourne's
favor,

but

in

the

favor

of

all

class

members.

Thus,

the

legality of the forms is of 'such a nature that it is capable of
class wide resolution'

and satisfied the commonality requirement
17

for the Impermissible Use Class."

2251.)).
§

This

1681b(b)(2).

case

standard

presents

Therefore,

Manuel and Milbourne,

(quoting Dukes,

for

an

the

131 S.

identical

same

Ct.

claim

reasons

set

at

under

forth

in

the common question of whether Defendants'

Employment

Release

Statement

violated

the

FCRA

satisfies the commonality requirement.
In

addition,

question

question...[when]

common

"[t]he

[t]here

[Defendant's]
any way."
5529731,
this

state

at *6.

of

willfulness

is

no

is

also

contention

a

that

state of mind as to individual consumers varied in

Manuel,

case,

of

2015

WL

4994549,

at

*9;

Milbourne,

2014

WL

Thomas also presents a willfulness question in

and Defendants have presented no evidence that their

mind

question.

varied

Thus,

in

any

way

during

the

the question of willfulness

class

period

is also a

in

common

question in this case.
b.

The Adverse Action Subclass

Thomas
the

Adverse

consumers

rights

14) .

the

copy of

Therefore,

the

Defendants'

subclass

class

employment

provide

that

Action

in

or a

adverse

to

alleges

were

definition

the

Thomas

consumer

report

report

on

concludes,

the

a

and

notice

report."

"whether

summary

respect

"none

prior to

taking adverse action violated § 1681b (b)(3)
18

with

uniform:

received

consumer

action based

practices

of

of

the

his

FCRA

suffering an
(PI.

Defendants'

of

to

rights"

Mem.

at

failure

before

presents a question

common

to

all

subclass

Defendants do not

contest

As noted above,

the

Court

members

classwide

truth

or

the

this

(PI.

Mem.

at

that

class

resolution

assertion.

there

such
-

is

that

which

falsity will

the

means

resolve

one

an

question

question
that

issue

common to

"is

of

whether

In Milbourne,

a

satisfied

Rule

defendant

had

defendant's

23(a)'s

that

is

central

actions

that

during the class period...if

§ 1681b(b)(3)(A)
rights as well."

More

rights,

indistinguishable

that case,

same

of
its

to the

Dukes,

131

its

violated

§

requirement.
practices

[its]

1681b(b)(3)(A)

Because

were

the

standardized

actions violated Milbourne's

they also violated other class members'

Id. at *6.

recently,

reached the

of

all

the Court found that the question

commonality

"indicated

capable

determination

validity of each one of the claims in one stroke."
S. Ct. at 2551.

13-14).

the commonality requirement is satisfied if

determines

of

members.

in Manuel,
from

the

faced with claims

claims

conclusion.

in

2015 WL

substantively

this

case,

4994549,

at

the

Court

*10-*11.

In

the Court found that the commonality requirement was

satisfied for an Adverse Action Subclass essentially identical
to

the

one

proposed

by

Thomas

because

a

pre-adverse

action

notice was automatically sent by Wells Fargo after a Wells Fargo
employee

marked

employment,

and

a

putative
because

class

these
19

member
procedures

as

ineligible
were

for

"standard"

throughout the class period.
that

they

never

potential

sent

employees

Therefore,

any

Here,

Id.

pre-adverse
the

during

actions

violated

§

action

relevant

as in Manuel and Milbourne,

Defendants'

Defendants acknowledge
notices
class

to

any

period.

the question of whether

168lb(b) (3) (a)

satisfies

the

commonality requirement.
4.

Rule 23(a) (3) Typicality

The Fourth Circuit has described the typicality requirement
as follows:
The typicality requirement goes to the heart
of a representative [party's] ability to
represent a class, particularly as it tends
to merge with the commonality and adequacyof-representation
requirements.
The
representative
party's
interest
in
prosecuting
[her]
own
case
must
simultaneously tend to advance the interests
of the absent class members.
For that
essential reason, plaintiff's claim cannot
be so different from the claims of absent
class members that their claims will not be
advanced by plaintiff's proof of (her] own
individual claim.
That is not to say that
typicality requires that the plaintiff's
claim and the claims of class members be
perfectly identical or perfectly aligned.
But when the variation in claims strikes at
the heart of the
respective causes of
actions,
we
have
readily
denied
class
certification.
In the language of the Rule,
therefore,
the
representative
party may
proceed to represent the class only if the
plaintiff establishes that (her] claims or
defenses are typical of the
claims or
defenses of the class.

20

Deiter v. Microsoft Corp.,

(emphasis in original)
omitted).

436 F.3d 461,

466-67

{4th Cir. 2006)

{internal citations and quotation marks

The class representative "must be part of the class

and suffer the same injury as the class members."
U.S.

at

156

(internal

quotation

marks

Falcon, 457

omitted).

Thus,

the

appropriate analysis of typicality "involves[s] a comparison of
the plaintiffs'

claims

or defenses

class members."

Dieter,

436 F.3d at 467.

"To

conduct

that

analysis,

with those of the absent

[the

with a review of the elements of

district

court]

[the plaintiff's]

begin[s]

prima facie

case and the facts on which the plaintiff would necessarily rely

to prove it."

Id.

Then, the district court must determine "the

extent to which those facts would also prove the claims of the
absent

class

members."

In

short,

"[t]he

essence of

typicality requirement is captured by the notion that
the

claim

class.'"

of

the

named

plaintiff,

so

go

the

the

*as goes

claims

of

the

Id. at 466 (internal citation omitted).

Thomas

argues

that,

because

Defendants

used

the

same

Employment Release Form throughout the class period, and because
neither

Defendants

nor

BGC

ever

sent

any

FCRA-mandated

pre-

adverse action information to any job applicants, Thomas' claims

are clearly typical of the class.
Thomas

alleges

that his

claims

21

are

(PI. Mem. at 17) .
identical

to

those

In fact,
of the

remainder of the class,

even though this degree of unanimity is

not required by the Rule.
Defendants

argue

that

defense

not

Thomas'

that

report,

do

the

contest these

claims

report

because

Id.

the

are

report

exemption

therefore

claims

Mem.

in 0pp.

"singularly"

are

at 13-14).

was

"arguably"

of

15

not

not

falls

U.S.C.

typical

Instead,

susceptible

procured on Thomas

"investigations"
Thomas'

assertions.

59)

in

11)

and

their

reasons

response

more

to

Motion
fully

consumer

the

the
and

class.

(Def.

Defendants are remarkably undeterred by

Defendants'

for

Summary

explained

in

Motion

Otherwise,

to

Judgment
Part

reports are clearly consumer reports

within that exemption.

the

within

the Court's previous rejections of this same argument
22,

to

1681a(y),

§

of

a

they

Dismiss

(ECF No.

B.l

(ECF Nos.

below.

(ECF No.
38) .

For

Defendants'

and uniformly fail

to fall

Defendants do not argue that

Thomas' claims are atypical.
a. The Impermissible Use Class

Thomas'

claims are clearly typical of the Impermissible Use

Class because Defendants have admitted that:

a

background

Thomas;

and

Employment

(2)

check

on

every

prospective

(1)

Unitek obtained

employee,

including

Unitek provided every employee with an identical

Release

Statement.

(Def.

SJ

Undisputed Facts If 8-16; Conlin Dep. at 58).
in Manuel,

22

Mem.

Statement

of

As was made clear

To

establish

a

violation

of

§

1681b(b){2),

[the plaintiff] must prove that [Defendants]
did
not
make
an
appropriate
"clear and
conspicuous disclosure" as mandated by the
FCRA prior to conducting its background
check.

As

there

are

no

controverted

facts

at issue, the resolution of this question
will turn on whether the waiver language on
the disclosure

form violated §

requirements.
the

In

order

disclosure

§ 1681b(b)(2),
establish that
the

to

1681b(b)(2)'s

establish

form

did

that

violate

[the plaintiff] will have to
legal precedent is such that

form violates

All
members
of
identical claims

the

FCRA.

the
proposed
class
under § 1681b(b)(2).

make
They

all signed identical forms containing the
same language that would be at issue in the
case.

Because

differences

there

between

are

claims

no

and

factual

the

members

all raise the same legal issue as [the named
plaintiff], there are no factual or legal
differences

between

the

class

members'

claims and [the named plaintiff's]
claim.
This indicates that [the named plaintiff's]
"interest
in
prosecuting
his
own
case
[would] simultaneously tend to advance the
interests

Deiter,
is

2015 WL
the

same

of

436

the

F.3d

absent

at

466.

The

same

class

Thus,

members."

typicality

satisfied.

4994549,
reasons

at

*13.

stated

in Manuel,

is

true

in this

Thomas'

case.

For

claim satisfies

the

typicality requirement for the Impermissible Use Class.
b. Adverse Action Subclass

Moreover,

receive

any

Defendants.

like

every

pre-adverse

Defendants

materials prior to

other

action

class

materials

uniformly

taking adverse
23

member,

from

declined
employment

to

Thomas

did

either

provide

action

BGC

not

or

these

throughout

the

class

period.

Apparently,

Defendants

were

under the

impression that BGC had agreed to assume this responsibility.
{Conlin Dep. at 104-105; 119).

However, BGCs contract with FTS

clearly contradicts this statement,

and BGC's president has

testified that "BGC does not and has never provided that service
to its clients."

(Pi. Mem. Ex 5 1 3.2; Ex. 6 f 7).

Thus, no individualized inquiry is necessary.

Thomas was

subjected to the same procedures as all putative class members
and it is those procedures that are challenged.

Again,

the

facts and issues presented in this case parallel almost exactly
the circumstances found to satisfy typicality in Manuel:

order to prevail,

in

[Thomas] must establish that this procedure

violates § 1681b(b) (3) (A) of the FCRA."

Because Unitek's

procedures were uniform throughout the class period, the merits
of Thomas'

claim under § 1681b(b) (3) (A)

of

class

other

employment

members

action.

against

Hence,

the

whom

are identical to those
Unitek

typicality

took

adverse

requirement

is

satisfied for the Adverse Action Class.

5. Rule 23(a)(4) Adequacy of Representation

The adequacy of representation prerequisite requires the
Court

parties

will

fairly and adequately protect the interests of the class."

Fed.

R.

to

Civ.

be

P.

satisfied

23(a)(4).

that

This

"the

representative

standard

plaintiff has interests common with,
24

is

met

if

"the

named

and not antagonistic to,

the

[c]lass'

qualified,

interests;

experienced

litigation."

Litiq.,

and...the

151

In

re

F.R.D.

and
Se.

597,

plaintiff's

generally

Hotel

606-07

able

Props.

to

Ltd.

(W.D.N.C.

attorney
conduct

P'ship

1993).

is
the

Investor

Because

the

same counsel and named plaintiff seek to represent both classes,

the

following

analysis

applies

to both

the Adverse Action

and

Impermissible Use Classes.

Taking
finds
to

the

second

that Thomas'

conduct

this

part

counsel

as

well

approved by

as

this

consumer

Court

argues

the

standard

qualified,
so

as

to

first,

the

experienced,
fully

and

Court

and able
adequately

Counsel is experienced in class action

protection

and others

cases around the country.

Thomas

is

litigation

represent both classes.

work,

of

that

as

issues,

class

and

counsel

has

been

in numerous

Defendants do not argue otherwise.

he

adequately

represents

the

proposed

classes because he "does not have any interests antagonistic to
those of the proposed class and has cooperated with his counsel

and

pursued

alleged."

this
{PI.

litigation

Mem.

vigorously

at 20).

Moreover,

to

redress

the

wrongs

Thomas seeks ^'the same

findings on the common questions of law and fact" as the absent
members of the class.

Defendants

Id.

argue

that

Thomas

is

an

inadequate

representative for both classes because he has chosen to forego
actual damages,

and instead seeks only statutory and punitive
25

damages.

(Def,

Mem.

"open and notorious

at

15).

use

of

Defendants

[this]

claim

end-around"

that

is

Thomas'

particularly

unpalatable in light of his individual claims for actual damages
in

a

related

that,

lawsuit

because

improperly
class

Thomas

imposed

members

a

cap

on

the

exceed

Id.

Defendants

statutory

damages

because

"the

punitive
actual

the

damage

size

of

add

he

has

that

has

a

absent

size

award

damages

also

damages,

punitive

receive,

members'

to

BGC.

seeks

permissible

individual

significantly

only

can

constitutionally
against

against

of

a

calculation

the

potential

constitutionally

permissible punitive damage award calculated against statutory
damages

alone."

Id.

(citing Williams v.

Telespectrum,

Inc.,

2007 WL 6787411, at *6 (E.D. Va. June 1, 2007)).

Defendants'

argument has been repeatedly rejected by this

and other Courts.

As pointed out by Chief Judge Easterbrook of

the

Court

United

requiring
than

States

FCRA plaintiffs

relying

consumer

of Appeals

on

class

Corp., 434 F.3d 948,

and

punitive

impossible."

to

Seventh

certify

a

damages

Murray

953 (7th Cir. 2006).

[r]efusing

the

class

v.

"would
GMAC

Moreover,
because

the

plaintiff decides not to make the sort of
person-specific arguments that render class

treatment
benefits

a

infeasible
of

district

Circuit,

to seek compensatory damages rather

statutory
actions

for

would

consolidated

court

throw

treatment.

finds

that

away

the

Unless

personal

injuries are large in relation to statutory
26

make

Mortq.

damages, a representative plaintiff must be
allowed

to

damages

forego

in

claims

order

certification.

for

to

When a

compensatory

achieve

few

class

injuries prove to be substantial,
opt out and litigate independently.
Id. at 952-53.

class
members'

they may

The fact that a plaintiff chooses to seek actual

damages on his own behalf, in another count or another lawsuit,
does not create a conflict of interest, and therefore does not

defeat class certification.

See, e.g., id.; Osada v. Experian

Info. Sol., Inc., 2012 WL 1050067, at *7 (N.D. 111. Mar. 28,
2012); Chakejian v. Equifax Info. Servs., LLC, 256 F.R.D. 492,
499-500

(E.D.

Pa.

2009)(finding

that

"[t]he

fact

that

some

members of the putative class might have actual damages is not a
true conflict of interest between the representative and other

class members in this case, where class members with significant

actual damages may opt-out of the class litigation.");

In—^

Farmers Ins. Co., Inc., FCRA Litigation, 2006 WL 1042450, at *7

(W.D.

Okla.

Apr.

13,

2006)

(same).

Moreover,

there

is

no

showing in the record that the election of statutory damages as

a remedy by Thomas would not benefit the majority, if not all,
of the members of the class.

Defendants'

repeated citations to Williams v. Telespectrum

are entirely unavailing.

In that

case,

the plaintiffs had

proposed to try statutory and punitive damages as class claims,
and to try actual damages as individual claims.

27

As this Court

noted in a later case brought by plaintiff Williams,

rejecting

an argument essentially identical to Defendants' in this case,
individual
punitive
damage
issues
predominated [in Telespectrum] because the
plaintiffs' alleged actual damages, which
had to be tried individually, were much
larger than statutory damages, and thus
would permit for larger punitive damage
awards if each class member tried their
claims individually than if the claims were
tried on a class-wide basis, where they
would be measured for due process concerns
against statutory damages only.
Williams v. LexisNexis Risk Mgmt., Inc., 2007 WL 2439463, at *5
(E.D.

Va.

Aug. 23,

2007).

Here, as in Williams v. LexisNexis,

Thomas does not seek actual damages at all, and the Telespectrum
decision is inapplicable to this case.
For the foregoing reasons, the Court finds that Thomas has
no conflict of interest with absent class members and that he is
an adequate representative for both classes.
B.

Rule 23(b) (3)

In order to be certified as a class action, the class must
satisfy at least one of the class categories defined in Rule
23(b).

Thomas here moves for certification under Rule 23(b) (3).

Certification under Rule 23(b) (3) is appropriate where the Court
finds that questions of law or fact common to the members of the
class predominate over any questions affecting only individual
members, and that a class action is superior to other available

28

methods

for

the

fair

and

efficient

adjudication

of

the

controversy.
1.

Predominance

Under Rule 23(b)(3),

23(a)(2)

"must predominate over any questions affecting only

individual members."
at

the common questions found under Rule

615.

Amchem Prods.,

Inc. v. Windsor,

521 U.S.

Whether common questions predominate over individual

questions "is a separate inquiry, distinct from the requirements
found in Rule 23(a)."
App'x

299,

2556) .

305

This

Ealy v.

(4th Cir.

requirement

Pinkerton Gov^t Servs.,

2013)

is

(citing Dukes,

"even more

131

S.

514 F.
Ct.

demanding than

at

Rule

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

classes are sufficiently cohesive to warrant adjudication by
representation," Amchem, 521 U.S. at 623.
matter

of

checking

counting

the

predominance

final
test

common

versus

tally.

is

noncommon

"Rule

qualitative

This is not simply a

23(b) (3)'s

rather

than

questions

and

commonalityquantitative."

Stillmock V. Weis Markets, Inc., 385 F. App'x 267, 272 {4th Cir.

2010)

(citing Gunnells v. Healthplan Servs., 348 F.3d 417,

(4th Cir. 2003)).
quality

of

questions."

the

429

In other words. Rule 23(b)(3) "compares the
common

questions

to

those

of

the

noncommon

Newberq § 3:27.

If the "qualitatively overarching issue" in the litigation
is common, a class may be certified notwithstanding the need to
29

resolve individualized issues.

See Ealy, 514 F. App'x at 305

Indeed, cornmon issues of liability may still predominate even
when some individualized inquiry is required.").

if

"common

courts

questions

generally

predominate

find

the

regarding

predominance

For example,

liability,

requirement

satisfied even if individual damages issues remain."

then
to

be

Stillmock,

385 F. App'x at 273 (citing Smilow v. Sw. Bell Mobile Sys.,
Inc., 323 F.3d 32, 40 (1st Cir. 2003)).

This is because class

certification in such cases will still "achieve economies of

time, effort, and expense, and promote... uniformity of decision

as to persons similarly situated, without sacrificing procedural
fairness

or

bringing

about

other

undesirable

results.

Gunnel Is, 348 F.3d at 424 (citing Amchem, 521 U.S. at 615); ^
also id.

would

at 426

require

("Proving these issues in individual trials

enormous

duplicative

discovery,

potentially

hundreds

similar,
these

redundancy

testimony
of

actions,

and even identical,

recurring

common

of

by the
and

will

same

also

including

witnesses

relitigation

legal issues.

issues

effort,

of

in
many

Consolidation of
conserve

important

judicial resources.").

Thomas argues that the dominant issues in this case are
whether Defendants are liable for:

"(1)

impermissibly obtaining

class members' consumer reports based on the failure to provide
a

lawful

disclosure

or

obtain
30

authorization,"

from

the

Impermissible Use Class, and (2) for the complete failure to

provide a copy of the consumer report and FCRA summary of rights
before taking adverse employment action against
Action Subclass.

(PI. Mem. at 22).

the Adverse

Moreover, all members of

the Impermissible Use Class and the Adverse Action Subclass
"share an identical set of relevant facts and legal theories for
the FCRA violations in the Complaint,

will have to obtain the

same evidence, prove the same elements, prove willfulness, and
rebuff the same defenses."

In response.

appear

to

be

Id. at 22-23.

Defendants make two arguments.

opposing

the

certification

(Defendants

of

both

the

Impermissible Use Class and the Adverse Action Subclass on the
same

two

grounds.)

First,

Defendants

argue

that

the

predominance requirement is not satisfied because the question
whether the background checks Defendants procured from BGC fall
within the § 1681a(y)

"investigation" exemption to the FCRA's

definition of "consumer reports"^ will require "individualized
mini-trials."

(Def.

Mem.

at

22-23).

Therefore,

although

Defendants do not dispute that the questions posed by Thomas are

^ A "consumer report" means any written, oral, or other
communication of any information by a consumer reporting agency

bearing on a consumer's credit worthiness, credit
credit
capacity,
character,
general
reputation,

standing,
personal

characteristics, or mode of living which is used or expected to
be used or collected in whole or in part

for the purpose of

serving as a factor in establishing the consumer's eligibility
for...employment purposes."

15 U.S.C. § 1681a(d).
31

common to the class, Defendants conclude that
by-member

inquiries

as

to

threshold Section 168la{y)

the

applicability

variance

Id. at
among

21.

individual

of

member-

Defendants'

defense nonetheless predominate over

any commonality as to Defendants'
members."

~necessary

liability to individual class

Second,
putative

Defendants
class

argue

members'

that

the

amounts

of

statutory damages also weighs against class certification.
Section

168la(y)

excludes

certain

reports

from

definition of a consumer report and reads as follows:
1)
Communications
described
in
this
subsection.- A communication is described in
this subsection if(A)
but for subsection (d) (2) {D) of this
section,
communication
would
be
a
the
consumer report;
(B) the communication is made to an employer
in connection with an investigation of-

(i)

suspected
misconduct
employment; or

{ii)

compliance with Federal, State, or
local laws and regulations, the rules
of a self-regulatory organization, or
any preexisting written policies of
the employer;

relating

to

(C) the communication is not made for the
purpose of investigating a consumer's credit
worthiness,
credit
standing,
or
credit
capacity; and
(D) the communication is not provided to any
person except-

32

the

FCRA

(i)

to

the

employer

or an

agent

of

the

employer;

(ii)

to any Federal or State officer,
agency,
or
department,
or
any
officer, agency, or department of a
unit of general local government;

(iii)

to any self-regulatory organization
with regulatory authority over the
activities
of
the
employer
or
employee;

(iv)

as otherwise required by law; or

(v)

pursuant

to

section

1681f

of

this

title.

The Court interpreted this subsection recently in Manuel,
and

rejected

Defendants'

California

an

argument

argument

district

provision in

here,

court

was

essentially

adopting

interpreting

the

identical

reasoning

the

same

of

to

a

statutory

Newton v. Bank of Am., N.A., 2015 U.S. Dist. LEXIS

62930 (C.D. Cal. 2015).
of § 1681a (y)

that

In Newton, the court analyzed the text

and concluded that the "text of the Exclusion is

limited by the

term

'investigation'...[which]

according to its ordinary meaning."

Id. at *12.

is

interpreted

The court then

held that the defendant's practice of requiring all applicants
to undergo a background check was "not an investigation' within

the plain language of the Exclusion" because said background

checks were conducted pursuant to a written policy establishing

33

a background check as
rather

than

an

a mandatory condition for employment,

"investigation,"

which

systematic or official inquiry into

it

[Defendant's]

with federal laws and written policies."
The

Fourth Circuit has

defined

as

''a

compliance

at *12-14.

also spoken on

the definition of

"investigation" in connection with a separate provision of the
FCRA.

In Johnson v. MBNA Am.

held that,

inquiry

or

Bank,

N.A.,

the Fourth Circuit

because "investigation... is defined as

systematic

examination'... the

plain

'a detailed

meaning

of

^investigation' clearly requires some degree of careful inquiry
by creditors."^
In Manuel,

357 F.3d 426, 430 (4th Cir. 2004) .
the Court began by noting that "ti]t is clear

from the plain language of § 1681a (y) that a background check
must be procured *in connection with an investigation' in order
to fall within the statute's exception.

More particularly, the

background check itself cannot be the investigation, but must
rather be part of a larger inquiry."

2015 WL 4994538, at *14.

The Court went on to hold that Wells

Fargo's background check

process did not fall within the definition of an "investigation"
as required by this subsection because

^ The statutory language at issue in Johnson stated that "[a]fter
receiving notice...of a dispute with regard to the completeness
or accuracy of any information provided
consumer reporting agency,
the person

by a person to a
shall... conduct an

investigation with respect to the disputed information."
U.S.C.

§

1681S-2(b)(1)(A).
34

15

the

only

engages

inquiry

in

respecting

which

whether

Wells
an

Fargo

individual

qualifies for employment under the banking
regulations involves requesting the actual
background check from First Advantage and
looking at that background check.
no

greater

'careful

There is

inquiry'

into

the

individual's criminal history that would
qualify the process as an 'investigation'
under § 1681a(y).

at

*15.

Furthermore,

the

Court

found

it

irrelevant that

Wells Fargo obtained background checks in order to ensure its

compliance with

federal

laws,

because

under

this

view,

"no

employer would have to comply with the FCRA as long as some part
of the background checking process helped them to comply with a
federal

law."

Id.

The two other district courts that have

recently addressed identical

conclusion:

arguments

have

reached this

a routine pre-employment background check is not an

"investigation" within the meaning of the FCRA,

background

same

check

helps

an

employer

ensure

even if the

compliance

with

federal law, state law, or written internal policies.

See Ramos

V. Genesis Healthcare,

(E.D.

LLC,

2015 WL 5822635,

at *4

Pa.

Oct. 1, 2015); Freckleton v. Target Corp., 81 F. Supp. 3d 473
(D. Md. 2015).

Defendants

attempt

to

distinguish

this

case

from

the

essentially identical facts in Manuel by pointing out that in
Manuel,

Wells

categorically,

Fargo
arguing

attempted
that

to

every report

35

apply

this

defense

it procured was an

"investigation," whereas here,
their

procurement

of

every

and

each

definitively amounts to an
Section 1681a (y),

Defendants "do not suggest that

'investigation'

within the scope of

they maintain only that such a determination
(Def. Mem.

would need to be made on a member-by-member basis."
in Opp. at 23).

Defendants are careful to mention that not only

did they "assess" Thomas'
that

the

initial

driving history,

report

received

"Defendants ordered a second,
a

closer,

more

check

background

involved

from

but after realizing
BGC

was

inaccurate,

enhanced report from BGC based on

analysis

of

Plaintiff's

background."

Id. at 24.

Therefore, Defendants conclude, their "investigation

encompassed

research,

background

information

synthesis,
a

and evaluation of
more

requesting his background check and,
at that background check."
However,

'careful
thereafter,

Plaintiff's

inquiry'

than

simply looking

Id. at 25.

Defendants' attempts to distinguish this case from

Manuel fall completely flat, despite the liberal use of the word
"investigation" throughout this section of their brief.
as

noted

twice

above,

during

Defendants

the

made

the

Court

course
efforts

of
to

has

already

this

rejected this

litigation.

ascertain

the

The

accuracy

Indeed,
argument

fact

that

of Thomas'

report, and then "analyzed" that report by comparing the entries
therein against the requirements of their internal policies,
entirely unremarkable.

is

These are routine and necessary steps in
36

any

background

screening

process.

Defendants'

argument

conveniently overlooks the Court's holding that "the background
check itself cannot be the investigation,

but must

rather be

part of a larger inquiry," and also flies directly in the face
of

the

unanimous

authority

cited

above,

Manuel,

2015

WL

4994538, at *14 (emphasis added),

Moreover,

as Plaintiffs point out,

the argument that such

steps would necessitate "individualized inquiry" is completely
contradicted by Defendants' own admissions that the process is
entirely uniform:

FTS requires a background check as to every
prospective employee whether or not

a

specific

or

particular

FTS

has

suspicion

of

misconduct by that person. Doc. No. 38 at 7,
5 8.
FTS requires that all prospective
employees meet the criteria set forth in its

Background & MVR Criteria for Employment to
be eligible for a position. Id. at 7, 5 9.
Generally
speaking,
"[a]11
potential

employees for UNITEK Global Services or any
of its operating companies must pass preemployment criminal background and drug
screens

as

allowed

by

state

and

federal

law..,

(Def.

Mem.

in 0pp.

at

3).

As noted

above,

the

fact

that

Defendants may in some cases order a follow-up report, confer
among each other concerning the report's contents,

or compare

the report against their company-wide hiring criteria by no
means transforms this entirely routine and unremarkable process

into a "larger inquiry."

To the contrary, the background checks

37

procured

by

Defendants

are

a

quintessential

example

"consumer report" procured for "employment purposes."

Defendants'

of

a

Indeed,

argument evinces a fundamental misunderstanding of

the Court's use of the phrase "larger inquiry" in Manuel:

by

definition, such a "larger inquiry" into company-wide compliance
is

not

"individualized"

in the

sense that

Defendants

attempt

to

apply that term.

Finally,

Defendants'

damages preclude a

argument that individualized statutory

finding of predominance ignores the rather

settled principle that "the question of statutory damages may be
individualized but is minimally influential in the predominance

analysis."
183,

*17.

216

Soutter v.
(E.D.

Va.

Equifax

2015);

Info.

Servs.,

see also Manuel,

LLC,

307

F.R.D.

2015 WL 4994549,

at

Indeed, Defendants seem to recognize the futility of this

argument,

acknowledging that this

issue "may not alone defeat

certification," but it "nonetheless further compounds" the other
issues raised in Defendants' briefs.

However,

none

obstacles

to Thomas'

and

thus,

Plaintiffs'

this

of

these

other

(Def. Mem.

issues

proposed classes,

half-hearted

effort

pose
for

in 0pp. at 27).

any

the

completely

significant

reasons
fails

to

above,
damage

case for certification.

a. The Impermissible Use Class
The

Fourth

Circuit

has

held

that,

"where...the

qualitatively overarching issue by far is the liability issue of
38

the defendant's willfulness,

and the purported class members

were exposed to the same risk of harm every time the defendant

violated the statute in the identical manner," predominance is
satisfied.

Stillmock,

Experian Info. Sol.,

(E.D.

Va.

liability
Court,

June

385 F. App'x at 273; see also Dreher v.

Inc., 2014 U.S. Dist. LEXIS 85951, at *6

19,

2014)

represents

the

and while some

{"The

question

central,

dominant

of

[Defendant's]

issue

before

the

questions may exist as to how to best

apportion statutory damages, those questions do not preclude the
common

issue

of

liability

from

predominating.").

Further,

"common issues of law and fact predominate if they have a direct

impact on every class member's effort to establish liability and
on every class member's entitlement to injunctive and monetary

relief."

Stillmock,

385 F. App'x at 273 (internal quotation

marks omitted).

As explained above,

each class member's case is based on

the same FCRA disclosure form.

Thus,

"the purported class

members were exposed to the same risk of harm every time the
defendant violated the statute in the identical manner."

Id.

Therefore, the resolution of whether the release form complied
with § 1681b(b) (2) will have "a direct impact on every class
member's effort
therefore

finds

to

establish

that

liability."

predominance

Impermissible Use Class.

39

is

I^
satisfied

The
for

Court
the

b. Adverse Action Subclass

Thomas
Action

argues

Subclass

provide

that
is

potential

the

dominant

whether

question

Defendants'

employees

with

for

the Adverse

uniform

copies

of

failure

their

to

background

checks or FCRA rights prior to taking adverse employment action
violated the FCRA.

predominance
Subclass,

Defendants'

also

fail

with

generalized arguments concerning

respect

to

whether

is

no

the

members

individualized

reports

of

the

inquiry

procured

by

Adverse

necessary

Defendants

Action

were

Defendants

clearly

notices

to

that

that

any

inquiry

received

admitted

consumer

acknowledge

individualized
member

FCRA

they

reports,

they

class

members

standardized
were

defendant

violated

Stillmock,

385

liability

F.

to

to
the

App'x

represents

the

the

so

the

because the

reasons

provided

above.

pre-adverse

there
whether

Moreover,

is
a

no

class

Defendants

hiring

Again,

same

273.
central,
40

ascertain

have

procedures

and

and Thomas is challenging only

statute

at

the

determine

standardized

procedures.

exposed

never

disclosures.

had

for

to

constituted

1681a(y),

members,

necessary

criteria during the class period,
those

Action

concerning

Subclass

"investigations" within the meaning of §

action

Adverse

for the reasons discussed above.

There

reports

the

risk
in

"The

"the
of

purported

harm

the

identical

question

dominant

every

of

issue

class

time

the

manner."

Defendant's
before

the

Court,

and

while

some

questions

may

exist

as

to

how

best

to

apportion statutory damages, those questions do not preclude the
common
U.S.

issue

Dist.

of

liability

LEXIS 85951,

from

predominating."

at *6.

Dreher,

2014

For the foregoing reasons,

the

Adverse Action Subclass satisfies the predominance requirement.
2. Superiority

Superiority requires that use of a
to

other

available

adjudicating
Superiority

achieved.'"

the

of

the

Stillmock,

Miller & Kane,
whether

greatly

and "'[t]he

objectives

for

controversy."

"Mepends

each case,'"
the

the

methods

supra,

class

class action be "superior

Fed.

on

rule

fairly

the

Civ.

the

action

P.

23(b)(3).
surrounding

court to

procedure

385 F. App'x at 274

§ 1779).

efficiently

circumstances

requires

class-action

R.

and

find that

really

will

be

(quoting 7A Wright,

When making a "determination of

device

is

superior

to

other methods

available to the court for a fair and efficient adjudication of
the

controversy...[the

court

should]

not

contemplate

the

possibility that no action at all might be superior to a class
action."
1981).
truly

Brown v. Cameron-Brown Co.,
In

determining

superior,

the

whether

court

the

should

92 F.R.D.
class

consider

32,

49

(E.D. Va.

action mechanism
"the

class

is

members'

interest in individually controlling the prosecution or defense

of

separate

concerning

actions;
the

the

controversy

extent

and nature

already
41

begun

by

of 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

action."

Fed.

R.

Civ.

P.

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

Thomas argues that a class action is superior in this case
to other methods available for adjudication.
He argues that i t would waste

to have hundreds of trials,
likely to understand the
under

it,

that

that

individual plaintiffs are not

plaintiffs

are

the

FCRA.

Id. at

the

to

private

25-28.

marginal

bring

a

and that litigation under the class action framework is

that

of

unlikely

case

damages,

only way

because

they might have a

under

the

FCRA

at 27).

lawsuit

effectively

the

Mem.

judicial and individual resources

FCRA and that

individual

(PI.

individuals

Defendants

do

statutory

can

not

enforce

argue

that

superiority is not satisfied.

The potential

class members'

claims

for

statutory damages

are small when considered in comparison to the effort it would

take to assert them in court.
up to $1,000 and,
damages

which

Constitution.
attorneys'
action
effort,

in
an

The FCRA allows statutory damages

in the case of a willful violation,

are

A

limited

by

the

successful

court

attorney's

requires

willingness
42

process

plaintiff

fees and court costs.
federal

due

can

In comparison,
the
to

clause

also

the

of

the

receive

initiating an

plaintiff's

take

punitive

case,

time

and

and

the

plaintiff's

acceptance

forced

pay

to

of

the

attorneys'

possibility

fees

if

he

that

he

does

not

could

be

prevail.

Additionally, as Thomas points out, many plaintiffs will not be
aware that their rights were violated because of the technical

nature of the FCRA and thus would not be able to bring a suit at
all.

In addition to ensuring a full and fair adjudication of all
members'
case

cases,

for

the class action is a

several

practical

superior method in this

reasons.

interest of

judicial economy.

resolve the

issues presented on a

First,

It saves

it

serves

the

time and resources to

class-wide basis

rather than

to conduct several hundred individual trials on the same issues.

Second, the factors listed in Rule 23 weigh in favor of a class

action's superiority.

First,

of

minimal

the

litigation

is

Soutter,

307 F.R.D. at 218.

wish to

retain control,

the interest in personal control
in

this

context.

or seek actual damages,
Second,

members

are

spread

the opt-out

there is no other related

litigation pending that bears on this analysis.
class

e.g.,

To the extent any individual does

mechanism will be available.

potential

See,

over

the

Third, because
entirety of

the

United States,

it would be very desirable to hear the case in

one

thus

forum

and

allow

for

a

resolution of the common issues.

more

efficient,

Finally,

consolidated

the similarity of

factual and legal issues indicates that a class action would be
43

manageable from the parties' and court's perspective.

Thus, the

class action appears to be the superior method of pursuing the
FCRA claims in this case.
CONCLUSION

For

the

reasons

CLASS CERTIFICATION
denied in part.

set

forth

(ECF No.

91)

above,

Plaintiff's

MOTION

FOR

will be granted in part and

The Impermissible Use Class will be defined as

follows:
All natural persons residing in the United
States (including all territories and other
political
subdivisions
of
the
United
States),
who applied
for
an employment
position with Defendants or any of their
subsidiaries
within
the
two
years
immediately preceding the filing of the
Complaint in this matter on December 11,
2013,
and as part
of this application
process were the subject of a consumer
report obtained by Defendants, (a) where the
defendants
failed
to provide a
written
disclosure
as
stated
at
15
U.S.C.
§
1681b(b) (2) (A) (i) to the applicant that they
intended to obtain a consumer report for
employment purposes,
(b) and where as a
result the Defendants failed to obtain a
proper written authorization as stated at 15
U.S.C. § 1681b(b) (2) (A) (ii) signed by the
applicant prior to obtaining the consumer
report.
The Adverse Action Subclass will be defined as follows:
All natural persons residing in the United
States (including all territories and other
political
subdivisions
of
the
United
States),
who applied
for
an employment
position with Defendants or any of their
subsidiaries
within
the
two
years
immediately preceding the filing of the
44

Complaint in this matter on December 11,
2013,
and as part of this application
process
were
the
subject
of
a
consumer
report obtained by Defendants, (a) where the

defendants
disclosure

failed
to
as
stated

provide
at
15

a

written
U.S.C.
§

1681b(b)(2)(A)(i) to the applicant that they
intended to obtain a consumer report for
employment purposes,
(b)
and where as a
result the Defendants failed to obtain a
proper written authorization as stated at 15

U.S.C.

§

1681b(b) (2) (A) (ii)

applicant
report,

prior
and

to

(c)

signed

obtaining
whom

by

the

the

consumer

Defendants

found

ineligible for the position for which the
applicant
had
applied
based
on
the
applicant's consumer report;
(d)
to whom

Defendants
consumer

did

not

report

provide

as

1681b (b) (3) (A) (i)

stated

at

a

copy

at

least

15

five

of

U.S.C.

the
§

business

days before the date the adverse employment
decision
records,

provide

is
first
noted
in
Defendants'
(d) and to whom Defendants did not

a

written

summary

of

Fair

Credit

Reporting Act rights as stated at 15 U.S.C.
§ 1681b (b) (3) (A) (ii) at least five business

days before the date the adverse employment
decision

is

first

noted

in

Defendant's

records.

It is so ORDERED.

/s/

Robert E. Payne

Senior United States District Judge
Richmond, Virginia
Date: January

,

2016

45