Manuel et al v. Wells Fargo Bank, National Association
Filing
95
MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 8/19/2015. (jsmi, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
TERRELL MANUEL,
Plaintiff,
v.
Civil Action No.: 3:14CV238
WELLS FARGO BANK,
NATIONAL ASSOCIATION,
Defendant.
MEMORANDUM OPINION
This matter is before the Court on PLAINTIFFS' MOTION FOR CLASS
CERTIFICATION (Docket No. 59).
For the reasons set forth below,
the motion will be granted in part and denied in part.
BACKGROUND
A. PLAINTIFFS' CLAIMS
On April 1,
2014 plaintiffs Terrell Manuel
("Manuel")
and
Charles White
("White")
filed a class action complaint on behalf
of
and all
others
themselves
defendant Wells
the
Fargo Bank,
similarly situated alleging that
N .A.
Fair Credit Reporting Act
("Wells
( "FCRA") .
complaint was amended three times,
Fargo")
had violated
Docket No.
1.
That
and the operative complaint
at
this
time
is
the
Third
Amended
Class
Complaint
("TAC") .
Docket No. 41.
The
TAC
alleges
two
counts
under
the
alleges a violation of §1681b (b) (2) (A),
person may not procure a
report to be procured,
any consumer, unless:
been made
Count
FCRA.
One
which requires that "a
consumer report,
or cause a
consumer
for employment purposes with respect to
(i)
in writing
a clear and conspicuous disclosure has
to
the
consumer
at
any
report is procured or caused to be procured,
time
before
the
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
in
referred
to
report by that person.
Count
Two
clause
the
procurement
Wells
Fargo
of
the
11
alleges
§1682b(b) (3) (A) (i)
(i))
of
the
that
violated
§168lb (b) (3) (A) (i)
FCRA.
requires
that "in using a consumer report for employment purposes, before
taking
report,
any
adverse
action
based
in
whole
or
in
part
of the report;
the
the
the person intending to take such adverse action shall
provide to the consumer to whom the report relates:
of
on
and
consumer
(ii)
under
( i)
a copy
a description in writing of the rights
this
subchapter,
as
presented
Bureau under section 168lg(c) (3) of this title."
2
by
the
Plaintiffs
April
30,
motion.
68.
filed
2015.
this
Docket
Docket No.
Motion
No.
65.
59.
for
Class
Defendants
Certification
have
Plaintiffs have replied.
opposed
on
the
Docket No.
On July 20, 2015, the parties agreed that a hearing was not
necessary on this motion.
It will be decided on the briefing
submitted.
B. Factual Background1
a. Facts Regarding Plaintiff Manuel 2
On January 30, 2012, Manuel completed an online application
for
a
position as
Fargo.
Docket No.
an
open
loan document
specialist
at Wells
On or about February 2 4,
60 at 11.
2012,
Manuel completed an interview with Wells Fargo personnel and was
offered the position conditioned upon the successful completion
of a background check.
he signed and returned.
Id.
Id.
He was given an offer letter that
On February 25, 2012, pursuant to
1
A large portion of what the parties label as "factual
background" is, in fact, legal argument about the validity of
Manuel's claims.
As class certification does not ask about the
merits of plaintiff's claims, but rather determines whether
class certification is appropriate,
these portions of the
parties' briefs are not addressed unless germane to the class
certification issue.
2
Plaitiffs have agreed that White is not a proper representative
for the class, nor is he a class member.
Docket No. 68.
Thus,
the individual facts of his case are not relevant to this
analysis.
White retains an individual claim and his case has
been severed.
3
Wells Fargo's instructions, Manuel accessed the First Advantage 3
website
and
filled
out
two
forms:
the
"Wells
Fargo
Application" and the "Wells Fargo Standard Consent".
initiated
a
criminal
background
completed on April 3, 2012.
On
April
3,
2012
screening
process
Standard
Id.
This
which
was
screening
was
Id.
{the
day
the
background
completed), Manuel received a telephone call from a Wells Fargo
representative who informed Manuel that he did not qualify for
the job because of the contents of his background report.
Id.
On April 11 or 12, 2012, Manuel received a letter that referred
to itself as a Pre-Adverse Action Notice and was dated April 3,
2012.
Id.
That letter included a copy of his background report
After Manuel received the
and an FCRA Summary of Rights.
Id.
Pre-Adverse
"undertook
process
Action
Notice,
he
contained therein and faced
dispute
to
the
of
contents
the
appeal/dispute
First Advantage
his
a
written
Pre-Employment/Security
Screening."
Docket No. 65 at 4 {citing Manuel Dep. at 82:13-20,
83:15-18).
First
which
contained the
still
Advantage
then
generated
convictions
at
a
revised
report,
Id.
Wells
issue.
Fargo contends that only then did it determine "on June 28, 2012
that
Manuel
was
ineligible
for
employment
with Wells
Fargo."
Id.
3
First Advantage conducts background checks for Wells Fargo.
4
b.Wells Fargo's Procurement and Use of Consumer Reports
The
parties
have
stipulated to
the
following
facts
Docket No . 4 3 ) :
1. Stipulation One: After March 1, 2010,
Wells Fargo' s standard policy and procedure
for using criminal background screenings in
regards to current and prospective employees
in its Home Mortgage Business Line was as
follows:
a. Wells Fargo refers indi victuals subject to
criminal
background
screenings
to
a
website
operated
by
First
Advantage
Background
Services
Corporation.
Such
individuals use this website to complete a
number of application forms,
including
disclosure and authorization forms related
to the
criminal background screening.
After all application forms are completed
First
Advantage
Background
Services
Corporation
generates
the
criminal
background screening report and provides
its
findings
to
Wells
Fargo.
Specifically, First Advantage enters the
criminal background screening report into
a database to which both First Advantage
and Wells Fargo have access.
b. Members
of
Wells
Fargo's
Background
Screening Compliance Team then review the
results to make a determination as to
whether
the
current
or
prospective
employee was ineligible for the relevant
employment position in whole or in part
because of the content of the criminal
background check. If the reviewing members
of the Background Screening Compliance
Team believe
that
the
individual
in
question
would
not
meet
employment
eligibility requirements for the position
to which he or she applied based in whole
5
(see
or in part on the contents of his or her
criminal background screening report, the
reviewing members would then access the
database to which both First Advantage and
Wells Fargo have access and enter a code
or other notation that the applicant would
not
be
eligible
for
the
employment
position based in whole or in part on the
contents of his or her criminal background
screening report. Upon the entry of this
coding,
First Advantage generates and
sends a notice, with the title "PreAdverse
Action
Notice",
which
was
substantially similar at
all
relevant
times to the ones sent to Plaintiffs
Manuel and White, and mails it, along with
an FCRA Summary of Rights Notice and a
copy
of
the
current
or
prospective
employee's criminal background screening
results, to the current or prospective
employee. If the current or prospective
employee does not appeal or dispute the
results of his or her criminal background
screening during the next five business
days after the first notice is mailed,
First Advantage generates and sends the
applicant or employee an Adverse Action
Notice, which was substantially similar at
all relevant times to the ones sent to
Plaintiffs Manuel and White.
2.
Stipulation Two:
During the putative
class period,
at least 1000 current or
prospective employees associated with Wells
Fargo's Home Mortgage Business Line were
subjected
to
the
process
described
in
Stipulation One.
3. Stipulation Three: During the putative
class period,
at least 1000 current or
prospective employees associated with Wells
Fargo's Home Mortgage Business Line were
notified by Wells Fargo, either in person or
via
telephone,
communicating
that
the
current or prospective applicant's criminal
background screening report contains records
6
that may preclude employment with Wells
Fargo before Wells Fargo or First Advantage
generated and mailed a Pre-Adverse Action
Notice along with an FCRA Summa.ry of Rights
Notice
and
a
copy
of
the
applicant's
criminal background screening results.
4. Stipulation Four: Wells Fargo retains
detailed employment and application records
related to all individuals who were rejected
for employment based in whole or in part on
the
contents
of
a
criminal
background
screening
obtained
from
First Advantage
Background
Services
Corporation.
In
the
event that any class is certified in this
case, Wells Fargo can identify these current
or
prospective
employees
described
in
Stipulations One, Two, and Three for the
relevant time period.
According
to
Manuel,
Wells
Fargo
has
admitted
that
all
putative class members signed a standard FCRA authorization and
disclosure
hereby
form
which
release
the
included
Company,
waiver
First
language
Advantage
Parties to the full extent permitted by law,
stating:
and
all
"You
Third
from any liability
or claims arising from retrieving and/or reporting information
concerning
purposes."
you
and/or
from
Docket No.
using
for
employment
Docket No.
60-1;
Docket No.
Stipulations
filed
with
60 at 3-5;
the
Report
60-2, Int. 10-11.
In
Court,
addition
to
the
Joint
this
Wells Fargo also provided a detailed description of its
background
check
process
deposition of Timothy Brain.
in
a
Fed.
R.
Civ.
P.
30(b) (6)
Docket No. 60 at 9; Docket No. 607
6.
The same process was used in Wells Fargo's Mortgage Business
Line and in other business lines.
at
39:16
40:17.
In
that
Brain Dep., Docket No. 60-6,
deposition,
Brain,
designee,
explained the process as follows:
requests
a
background
check
background
check
run,
is
from
First
First
as
corporate
First, Wells Fargo
After
Advantage.
Advantage's
computer
a
will
automatically notify Wells Fargo "if there are findings that are
available on the report that could potentially disqualify" the
subject of the report.
If a report has been
Id. at 69:16-25.
flagged in this way, it is reviewed by a Wells Fargo employee to
determine
Fargo.
if
Id.
the
at
applicant
73:5-14,
qualifies
82:2-12.
for
This
employment
process
at
is
Wells
called an
"adjudication".
After
the
"adjudication"
has
been
completed,
and
if
the
employee is rendered ineligible, the Wells Fargo employee access
the
First Advantage
website and enters
a
code
that
indicates
that the applicant has been adjudicated to be ineligible.
at
82:13-17.
determination,
Wells
this
a
"preliminary"
but Manuel argues that it is the only decision
"made and taken by Wells
the
calls
Fargo
Id.
determination
and
thus
preliminary determination.
Once Wells
Fargo
Fargo" unless the applicant disputes
that
it
is
unfair
to
call
it
a
Id.; Docket No. 60 at 9-10.
enters
the
8
ineligibility
code
into
the
First Advantage computer system,
sends
a
letter
applicant.
is
taken
labeled
Brain Dep.
in
the
a
First Advantage generates and
"Pre-Adverse
at 82:18-83:6;
next
five
Action"
notice
days,
the
If no action
85:5-86:1.
business
to
First
Advantage's
system automatically prints and mails a second letter labeling
the "Final Adverse Action Notice."
Id.
This automatic mailing
can be stopped if the applicant disputes the first letter within
five
days
after the mailing of the first
Id.
letter.
process is standard for all Wells Fargo employees.
This
Id. at 40:4-
21.
C.
The Proposed Class and Class Claims
Manuel
seeks
to
certify
two
classes.
The
which Manuel calls the "Impermissible Use Class",
first
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 Defendant or any of its
subsidiaries
within
the
two
years
immediately preceding the filing of the
Complaint in this matter on April 1, 2014,
and as part of this application process were
the subject of a consumer report obtained by
Defendant, and to whom Defendant attempted
the
disclosures
required
at
15
U.S.C.
§1681b(b) {2) {A) through the First Advantage
forms and/or portal.
Plaintiff's
Memorandum
in
Support
Certification, at 12.
9
of
Motion
for
Class
The
second
proposed
"Adverse Action Class"
class,
which
Milbourne
calls
the
(and identifies as "really a subclass"),
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
Defendant or any of its
subsidiaries
within
the
two
years
immediately preceding the filing of the
Complaint in this matter on April 1, 2014,
and as part of this application process were
the subject of a consumer report obtained by
Defendant, (a) against whom Defendant took
an adverse employment action based in whole
or in part on the report; (b) and to whom
Defendant did not provide a copy of the
consumer report as stated at 15 U.S.C.
§1681b (b) (3) (A) at least five business days
before the date the consumer report at First
Advantage was first coded as ineligible for
hire.
Id.
at
13.
Count One of the Class Complaint
is
asserted on
behalf of the "Impermissible Use Class" and Count Two of the
Class
Complaint
Class".
is
asserted on behalf of the
"Adverse Action
Docket No. 41, 15-20.
CLASS CERTIFICATION DISCUSSION
To obtain class certification, a plaintiff must satisfy the
four requirements of Fed.
R.
Civ.
P.
23 (a).
Additionally,
the
case must be consistent with at least one of the types of class
actions defined in Fed. R. Civ. P. 23(b) and their requirements.
Because Manuel proposes two different classes for certification,
10
each
requirement
will
individual
class.
Numerosity
or
be
addressed
Wells
Fargo
Superiority
in
does
elements
the
not
are
context
of
that
contest
satisfied
each
the
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
members is impracticable;
common to the class;
{2) there are questions of law or fact
{3) 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
331,
Broussard v.
337
Meineke
{4th Cir.
Disc.
1998.)
Muffler Shops,
155
plaintiff bears
The
Inc.,
the
burden
proving all requirements of Rule 23.
F. 3d
of
Lienhart v. Dryvit Systs.,
Inc., 255 F.3d 138, 146 {4th Cir. 2001).
As the Fourth Circuit explained in 2004,
the Court is not
required "to accept plaintiffs' pleadings when assessing whether
a class should be certified."
Gariety v.
368 F.3d 356, 365 {4th Cir. 2004).
must
take
a
'close
look'
at
Grant Thornton,
LLP,
Rather, "the district court
the
facts
relevant
to
the
certification question and, if necessary, make specific findings
on the propriety of certification."
Life
Ins.
Co.,
445
F.3d
311,
11
319
Thorn v.
{4th
Cir.
Jefferson-Pilot
2006)
{quoting
Gariety, 368 F.3d at 365).
"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'
is
merits
not
certification is proper."
The
Supreme
Court
relevant
Id.
to
the
success on the
issue
of
whether
(internal citations omitted).
recently
elaborated
further
upon
the
factual determinations at the class certification stage in WalMart
Stores,
(2011).
Inc.
v.
Dukes,
564
131
U.S.
S.
Ct.
2541
In Dukes, 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 (quoting Falcon, 457 U.S. at 160-61 (emphasis
in original)).
some
overlap
claim.
"Frequently that 'rigorous analysis' will entail
with
the
merits
That cannot be helped."
of
the
plaintiff's
underlying
131 S. Ct. at 2551.
After Dukes, which "laid the groundwork for the heightened
'rigorous analysis'
required of a
12
class certification petition
that
'will
entail
some
overlap
with
the
merits
of
the
plaintiff's underlying claim,' ... the Supreme Court issued a pair
of
2013
opinions
address
clarifying
merits
issues
Timothy Coughlin
Tort
Class
Def.
Couns.
decisions
Trust
J.
was
428,
Amgen
113
that,
432
certification
Lum,
Inc.
S.
Ct.
v.
"[a] lthough
some
the
overlap
Rule
with
23
merits
grants
we
have
must
of
courts
at
2013).
The
no
the
questions may be considered to
a
court
be
In
and
the
of
the
that
and
a
license
to
engage
certification
and
Court
court's
may
plaintiff's
80
these
Plans
Amgen
rigorous
stage."
Amgen,
first
cautioned
can
Mass Toxic
Retirement
{2013).
merits
inquiries
Comcast,
Connecticut
1184
which
Digging Deeper:
Dukes,
(Oct.
analysis
ranging
class
Barbara A.
&
class-certification
claim,
to
Certification After
Funds,
clarified
extent
the
at
the
entail
underlying
in
stage.
freeMerits
the extent -- but only to the
extent -- that they are relevant to determining whether the Rule
23 prerequisites for class certification are satisfied." Id.
1194-95
{internal citations omitted}.
"Thus,
at
Amgen appears to
limit inquiry into a case's merits where the class certification
inquiry touches upon an indispensable element of the claim and
on which a
failure of proof would end the case." Coughlin and
Lum, at 432 (internal citations omitted).
13
The
Corp.
second
v.
Supreme
class
Behrend,
Court
certification
133
further
S.
Ct.
1426
clarified
case
of
2013
In
{2013).
"that
the
was
Comcast
Comcast,
'rigorous
the
analysis'
required for class certification reaches not only to issues of
liability,
at
432.
but also to damages and causation." Coughlin
When
considered
in
conjunction
with
Dukes,
"suggest[s] that courts are now obligated to conduct a
analysis'
expert's
data
certification
stage ... To
the
methodology is
'arbitrary'
the
of
expert's
position
an
opinion
"reaffirms
considering
or
and
for
methodology
extent
class
courts
that
certification
Lum,
Comcast
'rigorous
the
class
expert's
can reject
certification."
pronouncement
class
at
the
that
'speculative,'
deny
Dukes'
motions
and
&
Id.
district
often
This
courts
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." Id. at 433.
Newberg on Class Actions
also analyzed two of the latest
Supreme Court decisions, noting that Dukes "encourage[ed] merits
review
at
cautions
certification," while
against
"free-ranging
certification stage",
relevant
to
different majority
merits
inquiries
in Amgen
at
the
and stating that merits questions "may be
considered to the extent are
a
but only to the extent -
determining whether the
14
Rule
23
that they
prerequisites
for class certification are satisfied."
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 class.
1. Violation of Agreement Between the Parties
As a preliminary matter, Wells Fargo argues that both class
definitions "are fatally flawed from the outset because they run
headlong
into
class
counsel's
representations
to
Defendant
well as enforceable agreements between the parties."
65 at 10-11.
fact
According to Wells Fargo,
discovery ... and
Mortgage
Business
agreement to the
No.
4 3.
Id.
issue on July 20,
Docket No.
Manuel agreed to "end
[limit] ... this case to Wells Fargo's Home
Line
only"
in
exchange
for
joint stipulation of facts
at 10.
as
Wells
Fargo's
entered as Docket
An evidentiary hearing was held on this
2015.
Docket No.
Therein,
85.
the Court
determined that the parties had not come to any such agreement
and that the class definition was not so restricted.
Id.
Thus,
that argument is moot.
2. Ascertainability of the Proposed Class
Rule
23
states
that
"[a]n
order
that
certifies
action must define the class and the class claims,
defenses."
the
Fed. R. Civ. P. 23(c) (1) (B).
certification
requirements
15
listed
a
class
issues,
or
This is in addition to
in
Rule
23(a).
"The
definition
of
the
class
is
maintaining a class action."
1348
(4th
Cir.
1976);
see
an
essential
prerequisite
to
Roman v. ESB, Inc., 550 F.2d 1343,
also
F.R.D. 49, 53 (M. D.N.C. 2004).
Kirkman
v.
N.C.
R.
Co.,
220
"The court should not certify a
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
Sept.
Inc.,
2009
WL
4287706,
at
(quoting 7A Charles Alan Wright,
*4
(D.S.C.
Arthur R.
25,
Miller
2009)
Mary Kay
&
Kane, Federal Practice & Procedure§ 1760 (3d ed. 2005)).
In
"[a]
a
recent
class
decision,
cannot
be
the
Fourth Circuit
certified
unless
a
explained that
court
can
readily
identify the class members in reference to objective criteria.
/1
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.)
("A
definition
class
action
provides
a
is
court
possible
with
only
when
tangible
and
the
class
practicable
standards for determining who is and who is not a member of the
class. 11 ) .
"The plaintiffs need not be able to identify every
class member at the time of certification.
are
impossible
fact-finding
inappropriate.
or
/1
to
identify
without
'mini-trials',
EQT,
But if class members
extensive
then
a
2014 WL 4070457 at *7.
16
individualized
class
action
Rather,
is
"[f]or a
class
to
be
sufficiently
resolve the
excluded
Moore,
defined,
the
court
must
question of whether class members
from
the
supra,
identifying
class
by
reference
to
are
"Where
the
members
overly
is
to
criteria."
problematic,
class
able
included or
objective
23. 21 [3] [a].
§
be
practical
issue
the
of
court
should consider that the administrative burdens of certification
may
outweigh
the
efficiencies
expected
in
a
class
action."
Cuming v. S.C. Lottery Comm'n, 2008 WL 906705, *1 (D.S.C. 2008).
a. The Impermissible Use Class
Manuel
the
argues
that
ascertainability
confirmed ... that
it
the
Impermissible
Use
requirement
because
and
Advantage
First
employment and application records and that,
any
class
certified,
Docket No.
members."
it
will
be
able
60 at 16-17.
to
Class
Wells
satisfies
Fargo
retain
"has
detailed
in the event that
identify
the
class
Wells Fargo does not argue
that the Impermissible Use Class is not ascertainable.
Docket
No. 65 at 10.
Wells
employment
Fargo
and
has
stipulated
application
that
records
it
related
"retains
to
all
detailed
indi victuals
who were rejected for employment based in whole or in part on
the
contends
of a
criminal
background screening obtained from
First Advantage Background Services Corporation."
at
Sf 4.
It
has
also admitted that,
17
"[i] n
the
Docket No. 43
event
that
any
class is certified in this case, Wells Fargo can identify these
current or prospective employees described in Stipulations One,
Two, and Three for the relevant time period."
One,
Two
and
Three
describe
the
process
Id.
Stipulations
by which
a
criminal
Id. at ~~ 1-3.
background check is conducted and adjudicated. 4
Thus, the Impermissible Use class is readily ascertainable.
b. The Adverse Action Class
Manuel
initially argued that the Adverse Action Class
is
ascertainable for the same reasons the Impermissible Use Class
is ascertainable.
Docket No. 60 at 16-17.
Wells Fargo contests
ascertainability as to the Adverse Action Class.
Docket No.
65
at 10.
Wells Fargo thates the view that "a necessary predicate to
membership
in
unspecified
consumer
[this]
'adverse
report.
subclass
action'
is
that
Wells
based in whole
Ascertaining
membership
Fargo
or
in
took
in part
this
on
an
a
class
therefore requires this Court to undertake tens of thousands of
mini-trials to determine what employment actions fit within the
definition of 'adverse action'
Wells Fargo took them."
4
Id.
and,
for those that qualify, why
The FCRA defines an adverse action
As stated above, Mr. Brian's Rule 30(b) (6) deposition confirmed
that the process reflected in the Joint Stipulations - limited
to the Home Mortgage Line
is identical to the process
undertaken for all potential employees.
Thus, the factual
statements made in the Joint Stipulations hold true for class
members that fall outside of its explicit parameters.
18
as "a denial of employment or any other decision for employment
purposes
that
employee."
adversely
affects
15 U.S.C. §1681a(k).
is simple to determine,
Wells
any
current
or
prospective
While ''a denial of employment"
Fargo argues that the grey area
introduced by "any other decision for employment purposes that
adversely affect" the employee would require min-trials in each
case.
Id.
Manuel opposes Wells Fargo's argument for several reasons.
Docket No.
68 at 5.
"that the
subject criminal background checks are used for
First, he argues that there is no evidence
any
purpose other than to determine whether or not an applicant or
employee will be
'rejected for employment'" as provided in the
joint stipulations.
Id. at 6.
Thus, the only type of "adverse
Second, Manuel
action" at issue is a rejection from employment.
argues
that,
if
there
were
other
"adverse
actions",
they
are
"made immaterial by other conditions within the putative class
definition."
Id.
The
requirement of the class -
"adverse
rather,
action"
no
separate
group
[of
not
the
only
the applicant must also have
been "coded as ineligible for hire."
be
is
Id.
plaintiffs]
"Thus ... [t]here would
that
was ... employed
and
then later subjected to a lesser adverse action because of the
First Advantage consumer report. "
that
the
Court
can
amend
Id.
or modify
19
the
Finally,
class
Manuel notes
definition
and
argues
class
that
that
"[a] t
the
very worst,
substituted
'adverse action'
'rejected
the
for
Court
could certify a
employment'
in place
of
in the Adverse Action claim class definition."
Id.
Wells Fargo has admitted that it keeps "detailed employment
and
application
rejected
for
records
employment
related
based
to
in
all
individuals
whole
or
in
who
part
were
on
the
contents of a criminal background screening obtained from First
Advantage Background Services Corporation."
~4.
Docket No.
43 at
Manuel has represented to Court in his Reply that that the
only type of adverse action that is possible within this class
definition is a rejection from employment because of the "coded
as
ineligible
definition.
for
hire"
Docket No.
assertions and that,
equivalent
of
language
contained
for
hire"
the
class
Manuel is correct in his
68 at 5-6.
in this context,
"rejected
within
"adverse action" is the
and
nothing
else.
Thus,
ascertainability is satisfied by the class definition as provide
by Manuel, but to be certain, the class definition will use the
term "rejected for employment."
2.
Rule 23(a) (1) Numerosity
Rule 23(a) (1)
for
a
j cinder
class
of
provides that the second of the requirements
action
all
is
members
that
is
the
class
be
impracticable."
20
"so
numerous
Fed.
R.
Civ.
that
P.
23 (a) (1).
"No specified number is needed to maintain a
action under Fed.
rule
is
to
R.
Civ.
23;
P.
considered
be
in
circumstances of the case .
& Nonsectarian
Hosp.
(finding
a
that
18
application of the
of
the
particular
Cypress v. Newport News Gen.
375 F.2d 648,
of
numerosity requirement).
light
II
Ass'n,
class
[rather],
class
was
653
sufficient
"Courts consider a
(4th Cir.
to
1967)
fulfill
the
number of factors
in considering whether joinder is practicable including the size
of the class,
ease
their addresses,
and
their
of identifying its
and determining
facility of making service on them if
geographic
Fargo
Adams
dispersion."
F.R.D. 162, 170 (D. Md. 2000)
Wells
numbers
does
not
v.
joined
Henderson,
197
(internal quotation omitted).
dispute
that
the
numerosity
requirement is satisfied for either class.
a. The Impermissible Use Class
Wells Fargo has stipulated that "at least 1000 current or
prospective
employees
associated
with
Wells
Fargo's
Home
Mortgage Business Line" were subjected to the background check
process described above.
(And the number is even greater for
all potential employees in Wells Fargo's other business lines as
to whom the process was used.)
the
waiver
that
is
at
issue
This includes the act of signing
in
21
the
Impermissible
Use
Class.
Docket No. 43 at
~2.
Thus, the numerosity requirement is easily
satisfied.
b. The Adverse Action Class
Wells Fargo has stipulated that "at least 1000 current or
prospective
employees
associated
with
Fargo' s
Wells
Mortgage Business Line were notified by Wells
Home
Fargo ... that the
current or prospective applicant's criminal background screening
reports contains records that may preclude employment with Wells
Fargo before Wells Fargo or First Advantage generated and mailed
a Pre-Adverse Action Notice along with an FCRA Summary of Rights
Notice
and
a
copy
screening results.
of
the
applicant's
Docket No.
11
4 3 at
criminal
(And,
~3.
background
the number is
even greater for all potential employees in Wells Fargo's other
business
lines
as
to
whom the
process
was
Thus,
used.)
the
numerosity requirement is easily satisfied.
3.
Rule 23(a) (2) Commonality
Rule
23 (a) (2)
requires
fact common to the class.
Dryv it
Sys . ,
Inc . ,
2 55
that
there be questions
of law or
Fed. R. Civ. P. 23(a) (2); Lienhart v.
F . 3d
13 8 ,
14 6
( 4th
Cir .
2001 ) .
The
commonality requirement focuses on the claims of the class as a
whole,
and it "turn[s]
on questions of law [or fact]
in the same manner to each member of the class.
Yamasaki,
442
U.S.
682,
701
22
(1979).
To
11
applicable
Califano v.
satisfy
this
requirement,
636
noted
single issue common to the
See Cent. Wesleyan Coll. v. W.R. Grace & Co., 143 F.R.D.
class.
628,
there need be only a
(D.S.C.
previously
focuses
1992),
aff'd 6 F.3d 177
21-22,
(4th Cir.
herein,
supra
at
the
primarily on the
issue
of commonality.
1993).
Dukes
As
decision
The decision
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.
a.
The Impermissible Use Class
Manuel alleges that his impermissible use claim satisfies
the
commonality
requirement
issues of law or fact,
and
procedure
violated
because
it
presents
two
common
namely,: "(a) whether Wells Fargo's form
§1681b(b) (2)
because
it
included
the
illegal waiver ... ;and (b) whether these violations are willful."
Docket No.
60 at 18.
Wells Fargo does not assert that Manuel
23
cannot
satisfy commonality
as
to
his
Impermissible
Use
Class
claim.
This Court has held previously that the question of whether
a
standard
question
waiver
form
satisfying Rule
Milbourne v.
violated
23' s
§168lb(b) (2)
"commonality"
JRK Residential America,
was
a
common
See
2014 WL 5529731,
LLC,
requirement.
at
*5 ("JRK has admitted that it has used a standardized waiver and
disclosure
Thus,
not
form
for
all
class
members,
including
Milbourne.
if Milbourne is able to establish that JRK' s waiver did
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.
nature
that
Thus,
it
is
the legality of the forms is of
capable
of
class
wide
'such a
resolution'
and
satisfied the commonality requirement for the Impermissible Use
Class.")
(quoting Dukes, 131 S.Ct. at 2251.)
an identical
claim under §168lb (b) (2).
This case presents
Thus,
the
commonality
requirement is satisfied.
In addition,
willfulness
is
contention
that
this Court has held that "[t] he question of
also
a
common
[Defendant's]
consumers varied in any way."
a
willfulness
question
in
question ... [when]
[t] here
state
to
of mind
Id. at *6.
this
case,
as
is
no
individual
Manuel also presents
and
Wells
Fargo
has
presented no evidence that its state of mind varied in any way
24
during
the
class
period
in
Thus,
question.
the
question
of
willfulness is also a common question in this case.
b. The Adverse Action Class
Manuel alleges that his adverse action claim satisfies the
commonality standard because it presents
law
or
fact,
procedure
namely,:
"(a)
whether
violated ... §168lb(b) (3)
two
common
issues
of
Fargo's
form
and
Defendant
does
not
Wells
because
send the required report and disclosures until after it has made
and
communicated
violations
argues
are
its
hiring
willful."
Fargo
a
that
common
individualized proof."
establish:
(b)
whether
(a)
Id.
Manuel's
first
common
violated §168lb (b) (3))
answer
because
it
question
"cannot
necessitates
Specifically, it states that, "[t]o
question,
this
Court
when and how Wells Fargo took
each putative
to
Docket No. 65 at 12.
by
above
Fargo
commonality as
be
the
Wells
23
Fargo's procedure
answer
these
18.
{whether Well
resolved
whether
at
argues
No.
(b)
60
the Adverse Action Class.
Docket
and
cannot establish Rule
that Manuel
Wells
decision;
plaintiff
criminal background screening and a
received
necessarily
must
'adverse action';
a
copy
of
their
pre-adverse action notice;
{c) if so, when each putative plaintiff received a copy of their
criminal background screening and a
25
pre-adverse action notice;
and
(d)
at
what
time
Wells
Fargo
'made
hiring decision' as to that applicant."
Wells
Fargo
willfulness
is
also
not
a
argues
common
and
communicated its
Id. at 13.
that
the
question
question
because
of
"the
its
truth
or
falsity of Plaintiffs' central questions cannot be resolved on a
class-wide
basis
[and
therefore],
Class cannot be certified."
The
commonality
Plaintiff's
Adverse
Action
Id. at 14. 5
requirement
is
satisfied
if
the
Court
determines that there is one question common to all members of
the
class
resolution
such
-
that
which
the
means
question
that
"is
capable
determination
of
its
of
classwide
truth
or
falsity will resolve an issue that is central to the validity of
each one of the claims in one stroke."
2551.
In
Milbourne,
this
Court
Dukes,
found
that
131 S.
the
Ct.
at
question
of
whether a Defendant's actions violated §1681b(b) (3) (A)
Rule 23 (a)' s
the
commonality requirement.
Defendant
had
"indicated
satisfied
It stated that,
that
its
because
practices
were
standardized during the class period ... if [its] actions violated
Milbourne's
§1681b(b) (3) (A)
rights,
class members' rights as well."
5
they
also
violated
other
Id. at *6.
Wells Fargo also makes an argument about statutory damages
within the context of commonality, citing Seutter for the
proposition that "statutory damages 'cannot constitute a point
of commonality under Rule 23(a)(2).'"
Docket No. 65 at 14.
However, as Wells Fargo admits, statutory damages were "not
raised by Plaintiffs as a common issue." Id.
26
As
actions
in
Milbourne,
violated
question
of
Fargo
has
whether
satisfies
§168lb{b) (3) {a)
Wells
requirement.
the
argued
Wells
the
that
comrnonali ty
four
fact
thus
issues
destroy
necessitate
an
commonality.
None of these questions need to be resolved by the
Court
individualized
and
Fargo's
inquiry
However,
in an individualized manner.
they are largely
resolved by the joint stipulations or by undisputed testimony.
First, pursuant to the Court-amended class definition,
all
class members will have been "rejected for employment" at Wells
Fargo based on their background check within the last two years.
Thus,
Wells Fargo's first
issue will be resolved the same way
for all members:
they will all have suffered an adverse action
between April 1,
2012 and April 1,
adverse action,
2014
and,
as part of that
the class member was rejected for employment at
Wells Fargo.
Second, Wells Fargo's contention that Manuel would have to
establish "whether each putative plaintiff received a
their
criminal
background
and
a
pre-adverse
notice ... [and]
if
copy of their
criminal background screening and a
action
notice"
stipulated.
so,
screening
ignores
Whether
copy of
action
when each putative plaintiff received a
the
and
facts
when
to
class
which
the
members
pre-adverse
parties
have
received
the
documents mandated by §168lb(b) (3) (A) would be an important fact
27
in determining FCRA liability.
However, Wells Fargo has already
stipulated to the fact that the initial notice (titled the "PreAdverse Action
Notice")
was
sent
automatically after
a
Wells
Fargo employee marked a putative class member as ineligible for
employment
Docket
No.
43
at
These
~lb.
procedures
"standard policy and procedure" for the class period.
The
record
shows
that
to
be
true
for
all
of
were
Id. at 1.
Wells
Fargo's
business lines.
By the terms of the class definition,
all putative class
members will have been marked as ineligible for employment by a
Wells Fargo employee in the First Advantage system.
will
have
received
a
§1681b(b) (3) (A)
procedure outlined above.
Manuel
notice
Thus,
pursuant
to
all
the
is arguing that the adverse
action at issue for each class member is the action that Wells
Fargo
took
"ineligible
when
it
had
an
for
employment"
employee
the
First
each
applicant
as
Advantage
system.
Wells Fargo admits that it sent out all §168lb(b) (3) (A)
notices
after this event took place.
in
code
Thus, if the FCRA was violated at
all by this practice, it was violated when the code was entered
by a
Wells
Fargo employee,
received the FCRA letter.
and the
record otherwise
not when an applicant or employee
Because Wells Fargo has stipulated,
shows,
that
this
was
a
procedure, no individualized analysis is necessary.
28
standardized
Finally, Wells Fargo's contention that Manuel would have to
establish "at what time Wells Fargo
'made and communicated its
hiring decision' as to [the individual] applicant" is incorrect.
As Manuel notes,
of
circumstances
and makes
that language a new requirement for class membership.
There is
no
facts
Wells Fargo takes language from the recitation
surrounding
his
own
factual
reason that Manuel would have to prove,
or that the Court
would have to determine, when each class member learned of Wells
Fargo's decision not to hire him or her.
violation,
if any,
Further,
as the FCRA
occurred when the "ineligible for hire" code
was entered (as discussed above), the date on which an applicant
learned of a hiring decision is of no consequence to this case.
Wells
coded
an
Fargo engaged in a
employee
standardized practice whereby it
"ineligible
for
hire"
and
then
had
its
background check service issue a letter that was meant to comply
with
§1681b(b) (3) (A).
All
subjected to this practice.
class
Thus,
members
will
have
whether §168 lb (b) ( 3) (A)
been
was
violated as to each class member will be answered through one
analysis of the practice as issue.
capable
of
classwide
resolution"
Therefore,
and
the question "is
commonality
is
satisfied
for the Adverse Action class.
For the reasons discussed previously, the willfulness issue
also satisfies the commonality requirement for this class.
29
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.
Deiter v. Microsoft Corp., 436 F.3d 461,
{emphasis in original)
omitted).
Thus,
"involves[s]
with
those
conduct
466-67
(internal citations and quotation marks
the
appropriate
analysis
a comparison of the plaintiffs'
of
that
the
absent
analysis,
{4th Cir. 2006)
class members."
[the
district
court]
of
typicality
claims or defenses
Id.
at
467.
begin[s]
"To
with
a
review of the elements of [the plaintiff's] prima facie case and
30
the facts on which the plaintiff would necessarily rely to prove
it."
Then,
Id.
the district court must determine "the extent
to which those facts would also prove the claims of the absent
class members."
Id.
Wells Fargo first argues that White did not qualify as a
member of either class and thus that he could not satisfy the
typicality
standard
Plaintiffs
agreed
as
with
Docket
articulated.
this
statement,
and
No.
have
65
stated
White is no longer a named plaintiff or a class member.
No.
68 at
at
15.
that
Docket
His in di vi dual action has been severed from the
9.
class action.
a.
The Impermissible Use Class
Wells Fargo does not contend that Manuel is not typical of
the Impermissible Use Class.
typical of the
each
of
[the]
Manuel argues that his claim is
Impermissible Use
elements
Class
[necessary to
because
prove
his
his
advance the class claims in proportionate degree."
60
at
21.
Further,
his
"interests are
"proof of
claim] ... will
Docket No.
squarely aligned with
those of the putative class members", as there are no factual or
legal
differences
claims in general.
between
his
claim
and
the
class
members'
Id.
To establish a violation of §186lb(b) (2), Manuel must prove
that
Wells
Fargo
did
not
make
31
an
appropriate
"clear
and
conspicuous
disclosure"
as
mandated
at issue 6 ,
whether
the
disclosure
FCRA
prior
to
the resolution of this question will turn on
waiver
§1861b(b) (2)'s
the
As there are no controverted
conducting its background check.
facts
by
language
on
the
In
requirements.
disclosure
order
to
form did violate §1861b(b) (2),
form
establish
violated
that
the
Manuel will have to
establish that legal precedent is such that the form violates
the FCRA.
All members
of the proposed class make
under §1861b(b) (2).
identical claims
They all signed identical forms containing
the same language that would be at issue in the case.
Because
there are no factual differences between claims and the members
all raise the same legal issue as Manuel,
there are no factual
or
members'
legal
Manuel's
differences
claim.
between
This
the
indicates
prosecuting his own case
[would]
class
that
Manuel's
and
"interest
in
simultaneously tend to advance
the interests of the absent class members."
466.
claims
Deiter, 436 F.3d at
Thus, typicality is satisfied.
As
in
the
case
of
commonality,
the
issue of willfulness
would also likely satisfy the typicality requirement.
The facts
surrounding
identical
6
Wells
Fargo's
actions
or
inactions
are
Wells Fargo has stipulated that it used the same consent form
for all putative class members.
The record confirms that fact
as to all Wells Fargo business lines.
32
from class member to class member.
Any individualized actions
taken by class members are inconsequential to the analysis,
willfulness turns on Wells Fargo's actions alone.
the
facts
and
law
that
Manuel
would
be
as
Thus, because
presenting
would
be
identical to the facts and law that all class members would be
presenting,
the
question
of
willfulness
also
satisfies
the
typicality requirement.
b. The Adverse Action Class
Manuel argues that he satisfies the typicality requirement
for
the
Adverse
satisfies
the
Action
class
requirement
for
for
the
the
same
reasons
Impermissible
that
Use
he
Class.
Wells Fargo argues that Manuel's claims are not typical of the
class and thus that typicality is not satisfied.
Wells Fargo argues that,
a
theory
Fargo's
under
which
(preliminary)
adverse
hiring
individual in question Advantage",
Manuel's
because Manuel's "motion suggests
action
decision
takes
is
It again
Wells
to
the
not when it is communicated to First
claim
restates
when
communicated
is
necessarily
therefore not typical of the class members'.
17.
place
that
"resolving the
individualized
Docket No.
claims
and
65 at
underlying
Plaintiffs' Adverse Action Class requires this Court to conduct
thousands of individualized inquired aimed at resolving whether
Wels
Fargo
took
an
'adverse
employment
33
action'
against
each
potential class member.
factual
claims
inquiries
would
necessary
not
Action Class'
Id.
resolve
"Put differently,
at 17-18.
to
the
resolve
claims
the
of
named
the
the
Plaintiffs'
proposed
Adverse
claims, as each require evidence of the moment at
which they were contacted by Wells Fargo with an adverse hiring
decision."
Id. at 18.
This
argument
argue
that
FCRA
letter,
"ineligible
has
§1681b (b) (3) (A)
but
for
when
hire"
letter was sent out.
applicants
inquiry
during
is
procedures
been analyzed
a
in
the
all
violated
Wells
the
Fargo
Manuel
when
employee
First Advantage
not
received
he
does
the
labeled
him
as
system before
a
This was the same procedure used for all
class
necessary.
as
was
above.
period.
Manuel
putative
Thus,
was
class
no
individualized
subjected
members
to
it
and
the
same
is
those
procedures that are challenged.
To
establish
a
violation of
§1861b (b) (3) (A),
Manuel must
prove that Wells Fargo did not provide him with a copy of his
consumer report and a description of his rights an adequate time
before
taking
adverse
action.
The
facts
necessary
to
prove
Manuel's claims can be gleaned from the files that Wells Fargo
kept
that
contain
rejected
for
contents
of a
the
employment
details
of
whether
based
in
whole
or
criminal background screening.
34
an
individual
in
part
Docket No.
on
was
the
43 at
~4.
Because we know that the procedures by which an individual
was rejected were standardized,
we
know that any employee who
was rejected for employment because he or she was ineligible was
These procedures
subjected to the same timeline of procedures.
establish that a §1681b(b) (3) (A)
alleged "adverse action"
letter was not sent before the
(the entering of the "ineligible" code
within First Advantage's system)
order
to
prevail,
Manuel
was completed.
must
establish
that
Therefore,
this
in
procedure
violates §1681b(b) (3) (A) of the FCRA.
All
members
of
the
under §186lb(b) (3) (A).
their
criminal
proposed
class
make
identical
claims
They all were denied employment because
background check
rendered them ineligible,
and
they were all subjected to a procedure which did not sent out
§1681b(b) (3) (A)
notices
indicated
they
system.
that
until
were
after
a
ineligible
Wells
in
the
Fargo
First
employee
Advantage
Because there are no factual differences between claims
and the members all raise the same legal issue as Manuel, there
are no factual or legal differences between the class members'
claims
and
"interest
tend
to
in
Manuel's
claim.
prosecuting
advance
the
his
This
own
interests
Deiter, 436 F.3d at 466.
of
indicates
case
the
[would]
absent
that
simultaneously
class
Thus, typicality is satisfied.
35
Manuel's
members."
For the reasons set forth previously,
Fargo's
typicality
the
satisfy
also
would
willfulness
the issue of Wells
requirement.
5.
Rule 23 (a) (4) Adequacy of Representation
The
adequacy
Court
be
representation
Fed.
23{a} {4).
plaintiff has
the
[c] lass'
qualified,
This
interests;
and
experienced
and
151
representative
standard
interests common with,
litigation."
Litig.,
"the
the
fairly and adequately protect the interests of the class."
P.
that
requires
will
Civ.
satisfied
prerequisite
parties
R.
to
of
In
re
F.R.D.
Se.
597,
is
met
if
"the
named
and not antagonistic to,
the plaintiff's attorney is
.
generally
Hotel
606-07
able
Props.
(W.D.N.C.
to
Ltd.
conduct
P'ship
1993).
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 the
second part of
the
standard first,
the Court
should find that Manuel's counsel is qualified, experienced, and
able
to
conduct
this
class action work,
litigation.
Counsel
is
experienced
as well as consumer protection issues,
in
and
has been approved by this Court and others as class counsel in
numerous cases.
not
adequate
Wells Fargo's passing argument that counsel is
because
they
failed
36
to
adhere
to
an
agreement
between
the
parties
has
been
addressed
above.
evidence in support of this argument and thus
There
is
no
it will not be
addressed further.
Manuel
argues
that
he
adequately
represents
the
class
because he "does not have any interests antagonistic to those of
the
proposed
pursued
class
this
alleged."
and
has
litigation
Docket No.
cooperated
vigorously
60 at 23.
with
to
his
redress
counsel
the
and
wrongs
Wells Fargo does not contest
Manuel's adequacy as a representative.
All evidence presented so far
in the case indicates that
Manuel is an adequate representative.
interests
members'
that
and
interests
Manuel
Thus,
case
has
Manuel
is
appear
to
be
and cases.
cooperated
an
in
As explained above,
identical
Further,
the
adequate
to
putative
counsel has
prosecution
representative
his
class
submitted
of
this
case.
for
the
class
members.
B.
Rule 23(b) (3)
In order to be certified as a class action,
satisfy at
23(b).
the class must
least one of the class categories defined in Rule
Manuel 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
37
members,
and that a class action is superior to other available
methods
for
the
fair
and
efficient
adjudication
of
the
controversy.
1.
Predominance
"Rule
23(b) (3)'s
demanding'
Gariety
2004)
than Rule 23 (a)' s
v.
Grant
Thornton,
requirement
is
'far
more
,,
commonality requirement
LLP,
368
F. 3d
356,
(quoting Arnchem 521 U.S. at 623-24).
requires
362
(4th
Cir.
"Whereas cormnonality
little more than the presence of common questions
law and fact,
fact
predominance
Rule 23 (b) (3)
common to
questions
requires that
only
'questions of law or
of the
the members
affecting
of
predominate
class
individual
(quoting Fed.
R.
any
Thorn
members.'"
Jefferson-Pilot Life Ins. Co., 445 F.3d 311, 319
(internal citation omitted)
over
v.
(4th Cir. 2006)
Civ.
P.
23 (b) (3)).
The predominance requirement "tests whether proposed classes are
sufficiently
cohesive
representation."
Gariety,
368
adjudication
warrant
to
F. 3d at
by
362
(internal
citation
Wells
Fargo's
liability
and quotation marks omitted) .
a. Impermissible Use Class
Manuel
"represents
Docket No.
argues
the
that
central,
60 at 24
the
issue
dominant
(quoting Dreher,
of
issue
before
the
2014 WL 2800766,
Court."
at *2-3).
While he appears to note that individual issues {such as "how to
38
best apportion statutory damages) may exist, he argues that the
language of the disclosure form,
which is common to all class
Further, he notes
members renders predominance satisfied.
Id.
that
identical
all
class
members
will
share
an
Wells Fargo's willfulness and its legal defense,
more common issues that predominate.
inquiry
into
thus providing
Id.
Wells Fargo does not assert that Manuel has not established
the
predominance
element
for
the
Impermissible
Use
Class.
Docket No. 65 at 18.
The
Fourth
Circuit
has
held
"where ... the
that,
qualitatively overarching issue by far is the liability issue of
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",
satisfied.
273
{4th
Solutions,
2014}
Stillmock v.
Cir.
See
2010}.
Inc.,
2014 U.S.
{"The question of
central,
questions
damages,
dominant
may
those
Weis Markets,
issue
exist
also
Dist.
as
to
how
questions
do
not
liability from predominating.").
385 F. App'x 267,
_D_r_e_h_e_r v~·_____
___
E_x~p_e_r_i_a_n
____
I_n_f_o_.
LEXIS 85951,
[Defendant's]
before
Inc.,
predominance is
the
to
at *6
{E.D.
Va.
liability represents the
Court,
best
preclude
and
while
apportion
the
common
some
statutory
issue
of
Further, "common issues of law
and fact predominate if they have a direct impact on every class
39
member's
effort
member's
entitlement
Stillmock,
385
to
establish
Fed.
to
liability
and
injunctive
App'x
at
273
and
on
every
monetary
(internal
class
relief.
quotation
/1
marks
omitted) .
As explained above,
the
same
FCRA
each class member's case is based on
disclosure
Thus,
form.
"the
purported
class
members were exposed to the same risk of harm every time the
defendant violated the statute in the identical manner."
Id.
Thus, the resolution of whether Wells Fargo's FCRA form complied
with
§168lb(b) (2)
will
have
"a
direct
member's effort to establish liability.
impact
on
Id.
/1
every
class
Predominance is
satisfied for the Impermissible Use Class.
b. Adverse Action Class
Manuel
argues
that
predominance
is
satisfied
for
the
Adverse Action Class because, as in the Impermissible Use Class,
Wells
Fargo engaged in identical behavior with respect to the
adverse actions taken against all class members.
at 24.
Thus,
class
members
notes
that
if Wells
for
the
willfulness
Fargo is
same
and
liable,
violation.
Wells
Fargo's
Docket No.
60
it is liable to all
Additionally,
legal
Manuel
defense
also
satisfy
the
bolster its predominance case.
Wells
Fargo
argues
that
Manuel
cannot
predominance standard for the Adverse Action Class.
40
Docket No.
65 at 18.
In a now familiar refrain,
" [ i] n determining Wells
have
to
examine
the
Fargo's
timing,
'adverse employment action.'"
Wells Fargo argues that
liability,
existence,
Id.
a
jury would first
and rationale
Further,
at 19.
for
any
it argues
that "before Plaintiffs could recover a single cent of statutory
damages,
a
jury
would
have
to
examine
the
totality
of
the
circumstances involved in each consumer's interaction with Wells
Fargo in connection to tis willfulness inquiry."
it
argues
that,
even
if
willfulness
was
Finally,
Id.
established,
a
jury
would have to conduct an individualized inquiry into each class
member to determine statutory damages.
Id.
Wells Fargo is arguing that each class member will have to
establish that he or she suffered an adverse action and that he
or she did not receive the mandated FCRA disclosures before the
adverse action was taken.
It also argues that each class member
will have to establish when Wells Fargo "made and communicated
its
hiring
decision"
to
the
fundamentally
misunderstands
arguing
Wells
that
Fargo
applicant.
Manuel's
acted
in
case.
This
analysis
Manuel
individualized
is
ways
not
that
potentially violated the FCRA rights of applicants differently.
Rather,
Manuel is arguing that Wells
"ineligible
for
action notice.
employment"
code
Fargo always entered the
before
sending
the
adverse
He is arguing that entering that code was the
41
adverse action because it was a final decision of a refusal to
hire.
Because Wells
Fargo has admitted that it did not send
letters before that code was entered
triggered
the
necessarily
letter),
have
been
all
sent
(the entering of the code
class
after
members'
what
Manuel
letters
argues
would
is
the
adverse action.
No individualized inquiry is necessary to determine whether
As discussed above,
a class member suffered an adverse action.
the
class
definition
has
been
changed
to
replace
the
term
"adverse action" with "rejected for employment." Thus, all class
members
share
the
same
adverse
Further,
action.
individualized inquiry is necessary to determine when a
member received the
FCRA disclosures,
because Wells
no
class
Fargo has
conceded that all of them received their disclosures after the
Further, as Wells Fargo
"ineligible for hire" code was entered.
has
admitted
class
time
that
it
period
standardized
had
and
procedures,
standardized
Manuel
the
is
issue
procedures
challenging
of
willfulness
during
only
the
those
would
deal
only with Wells Fargo's approach to those procedures and their
compliance
with
the
FCRA.
No
individualized proof
would
be
necessary to determine the issue of willfulness.
Finally,
statutory
Wells
damages
Fargo's
preclude
a
argument
finding
42
of
that
individualized
predominance
ignored
precedent
which
established
that
damages may be individualized but
the
predominance
Services, LLC,
it
argues
that ... the
analysis."
this
common
of
was
of
statutory
is minimally influential
v.
(E. D. Va.
holding
issue
question
Sautter
2015 WL 1787236
that
"the
Equifax
2015),
"underpinned
liability
in
Information
at *25.
by
While
the
predominates
notion
over
the
question of how to best apportion statutory damages" and that
this
underpinning
renders
that
does
argument
not
exist
here,
above
Docket
inconsequential.
the
No.
analyses
65
at
21
(internal quotation omitted).
As explained above,
each class member's case is based on
his or her rejection for employment at Wells Fargo.
Further,
the parties have stipulated that all FCRA letters were sent out
Thus,
after this "adverse action" was taken.
"the purported
class members were exposed to the same risk of harm every time
the
Id.
defendant
violated
Stillmock,
[Defendant's]
best
preclude
apportion
the
Dreher at *6.
Fed.
statute
App'x
liability represents
before the Court,
to
385
the
in
at
the
273.
identical manner."
"The
the central,
question
of
dominant issue
and while some questions may exist as to how
statutory
common
issue
damages,
of
those
liability
Predominance is satisfied.
43
questions
from
do
not
predominating."
2.
Superiority
Superiority
requires
that
use
of
a
class
action
be
"superior to other available methods for fairly and efficiently
adjudicating
the
controversy."
Fed.
Superiority "'depends greatly on the
R.
Civ.
23 (b) (3).
P.
circumstances
surrounding
each case,'" and "' [t] he rule requires the court to find that
the
objectives
achieved.'"
the
the
class-action
procedure
Stillmock, 385 F. App'x at 274
Miller & Kane,
whether
of
supra,
class
§
really
will
be
{quoting 7A Wright,
1779). When making a "determination of
action 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).
limited
Brown v. Cameron-Brown Co., 92 F.R.D. 32, 49 (E.D. Va.
Factors the court
to,
"the
class
should consider include,
members'
interest
in
but are not
individually
controlling the prosecution or defense of separate actions; the
extent and nature of any litigation concerning the controversy
already begun by or against class members;
the desirability or
undesirability of concentrating the litigation of the claims in
the particular forum;
the class action."
and the
likely difficulties
Fed. R. Civ. P. 23(b) (3) (A)-(D).
44
in managing
Manuel argues that a class action is superior in this case
to other methods available for adjudication.
25.
He
argues
that
it
would
waste
Docket No.
judicial
and
60 at
indi victual
resources to have hundreds of trials, that individual plaintiffs
are not likely to understand the FCRA and that they might have a
case under it,
a
lawsuit
that individual plaintiffs are unlikely to bring
under
the
FCRA
because
of
the
marginal
statutory
damages, and that litigation under the class action framework is
effectively the
the
FCRA.
only way that private
Id.
at
25-28.
Wells
indi victuals
Fargo
does
can enforce
not
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
in the case of a willful violation,
are
Constitution.
The FCRA allows statutory damages
A
limited
by
the
successful
effort,
in
an
federal
court
attorney's
plaintiff's
acceptance
forced
pay
to
requires
attorneys'
the
can
In comparison,
willingness
of
process
plaintiff
attorney's fees and court costs.
action
due
the
to
possibility
fees
if
clause
also
he
the
that
does
of
the
receive
initiating an
plaintiff's
take
punitive
time
and
case,
and
the
he
could
be
not
prevail.
Additionally, as Manuel pointed out, many plaintiffs will not be
45
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'
cases,
instance
for
the class action is a
several
judicial economy.
It
issues presented on a
practical
saves
superior method in this
First,
reasons.
time
and
resources
class-wide basis
rather
it
to
preserves
settle
the
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.
controlling
First,
individual
likely to
receive
would
individual
in
Second,
the
there
seems
cases,
same
as
to
be
little
individual
award
in
class
litigation,
if
they
class members
litigation as
even
in
are
they
pursued
it.
there is no other related litigation pending that bears
on this
analysis.
Third,
because potential class members
spread over the entirety of the United States,
desirable to hear the
more
interest
efficient,
similarity of
factual
action
be
would
perspective.
Thus,
it would be very
case in one forum and thus
consolidated
and legal
manageable
resolution.
issues
from
the
are
allow for a
Finally,
indicates
that
parties'
and
a
the
class
court's
the class action appears to be the superior
method of pursuing this FCRA claim in this case.
46
CONCLUSION
For the reasons set forth above, the Plaintiff's MOTION FOR
CLASS CERTIFICATION (Docket No.
denied in part.
be
59)
will be granted in part and
Specifically, the Impermissible Use Class will
certified according
to Manuel's
proposed class
definition.
The Adverse Action 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 Defendant or any of its
subsidiaries
within
the
two
years
immediately preceding the filing of the
Complaint in this matter on April 1, 2014,
and as part of this application process were
the subject of a consumer report obtained by
Defendant,
(a) who Defendant rejected for
employment; (b) and to whom Defendant did
not provide a copy of the consumer report as
stated at 15 U.S.C. §1681b(b) (3) (A) at least
five business days before the date the
consumer report at First Advantage was first
coded as ineligible for hire.
It is so ORDERED.
Isl
Robert E. Payne
Senior United States District Judge
Richmond, Virginia
Date: August
11 ,
2014
47
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