Witt et al v. CoreLogic SafeRent, LLC

Filing 89

MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 8/18/2016. (jsmi, )

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

CAROLYN WITT,

et al.,

Plaintiffs,
V.

Civil Case No.

CORELOGIC SAFERENT,

LLC,

3:15-cv-386

et al. ,

Defendants.

MEMORANDUM OPINION

This

matter

RECONSIDERATION

is

before

(ECF No.

the

60).

Court

on

DEFENDANTS'

MOTION

FOR

For the reasons set forth herein,

the motion will be granted in part and denied in part.
BACKGROUND

On

February

Alphonso
Eric

Robertson

Gonzalez

Hackett

2,

II

('"Gonzalez"),

Willie

Stanley,

("SAC,"

ECF No.

company

50)

(collectively,

National

Witt
Allen

("Stanley"),

filed

("Witt"),
('"Allen"),

("Edwards"),

("White"),

Shondel
and

a

LLC

Roberts

Second Amended
and all

Plaintiffs allege that

("SafeRent")

Background

Lewis

David Holmes

on behalf of themselves

In the SAC,

CoreLogic SafeRent,

CoreLogic

Edwards

"Plaintiffs")

others similarly situated.

defendants,

White
Jr.

Carolyn

Christopher

Jourdin

Tony

(collectively,

Complaint

Plaintiffs

{''Robertson"),

("Hackett"),

("Roberts"),

("Holmes")

2016,

Data,

and its sister
LLC

("NBD")

"Defendants") , violated the Fair Credit Reporting

Act

(''FCRA") .

Count

I,

brought

nationwide

1681k(a),
certain

either

The SAC alleges three Counts^ under the FCRA.
against

class,

alleges

SafeRent
that

on

behalf

SafeRent

of

violated

a
15

putative
U.S.C.

which requires consumer reporting agencies that sell
types

(1)

furnished;

of

public

notify the
or

(2)

records

consumer

"maintain

for

''at

strict

employment

the

time"

purposes

the

procedures"

to

to

records

are

ensure

the public record information is ''complete and up-to-date."
U.S.C.

§

that

15

§ 1681k{a).

The class alleged in Count I is:

All

natural

States

sold

(a)

persons
who were

by

SafeRent's

the

Defendant

Defendant

residing

in

the

United

subject of a

report

SafeRent;
database

(b)

where

indicates

that

the report was furnished for an employment
purpose;
(c) Defendant SafeRent's database
showed that the report contained at least
one

adverse

within the

criminal

record

"hit;"

five period preceding the

(d)

filing

of this action and during pendency.
Excluded

from

the

class

definition

are

any

employees, officers, directors of Defendant
SafeRent,
any attorney appearing in this
case, and any judge assigned to hear this
action.

SAC

^

58.

^ Although the SAC originally pled four claims under the FCRA,
only three remain pending.
Count III of the SAC alleged that
NBD violated 15 U.S.C. §
end-users of its reports.

1681e(e) by failing to identify the
However, at oral argument, the Court

granted Plaintiffs' motion to voluntarily dismiss Count III with
prejudice.
Therefore, Count III is not addressed further
herein.

There is also an alternate sub-class alleged in Count I:

All

natural persons

States

sold

(a)

residing

in the United

who were the subject of a

by

Defendant

SafeRent;

report

(b)

where

Defendant SafeRent's database indicates that
i t was furnished for an employment purpose;

(c)
where
showed that
one

Defendant
SafeRent's
the report contained

adverse

jurisdiction

criminal

form

which

''hit"

Defendant

database
at least
from

a

SafeRent

does not obtain at least four digits of an
associated
social
security
number;
(d)
within the five year period preceding the

filing date of this Complaint and during its
pendency.
Excluded

from

the

class

definition

are

any

employees, officers, directors of Defendant
SafeRent,
any attorney appearing in this
case, and any judge assigned to hear this
Action.

Id.

SI 59.

Count

II,

pled

should the Court

find

Defendants were not

furnished

against

consumer

Defendants,

alleges

that the background reports

for

''employment purposes,"

reports

without

violation of 15 U.S.C. § 1681b.

All

both

natural persons

a

provided by

then

permissible

Defendants

purpose

residing

in the

United

States who were the subject of a report sold

pendency.
from

the

class

definition

are

employees,
officers,
directors
Defendants, any attorney appearing in
case, and any judge assigned to hear
action.

in

The asserted class consists of:

by SafeRent to NBD and/or NBD to any third
party within the five year period preceding
the filing of this action and during its

Excluded

that,

any

of
this
this

SAC 1

73.

Count

SafeRent

IV

is

an

pursuant

individual

to

15

claim,

U.S.C.

§

brought

by Witt

1681e{b).

against

That

section

requires that:

Whenever

a

consumer

reporting

agency-

prepares a consumer report it shall follow
reasonable
procedures
to
assure
maximum
possible
accuracy
of
the
information
concerning the individual about whom the
report relates.

15

U.S.C.

§

1681e(b).

establish or to

Witt

alleges

that

SafeRent

''failed

to

follow reasonable procedures to assure maximum

possible accuracy in the preparation of the consumer report it
furnished regarding Plaintiff Witt."

SAC % 102.

Count IV is

not implicated by Defendants' motion.

The SAC alleges that both Defendants committed all of the
above

violations

willfully,

and

therefore

statutory and punitive damages on all counts.

the

SAC

seeks

Witt also seeks

actual damages on Count IV.
PROCEDURAL HISTORY

The original Complaint in this action was filed on June 26,
2015.

(ECF No.

(ECF No.
claims
were

of

9)

1).

SafeRent filed its first motion to dismiss

on August 31,

2015,

Plaintiffs Tyrone

time-barred;

(2)

on the grounds that:

Henderson

SafeRent

was

and James
not

0.

subject

(1)

the

Hines,

Jr.

to

personal

jurisdiction in Virginia with respect to the claims of Plaintiff

John Moore;

Hines,

and

and

(3)

Moore,

upon dismissal of the claims of Henderson,

Plaintiff

dismissed for improper venue.

Witt's

claims

(ECF No. 10).

should

also

be

Less than 24 hours

later, in an apparent attempt to circumvent the issues raised in
SafeRent's

motion

to

dismiss,

Plaintiffs

filed

an

Amended

Complaint, which was largely identical to the original Complaint
except

for

the

addition

of

brief

and

vague

allegations

pertaining to fourteen newly proposed Named Plaintiffs.
No.

(ECF

12).

Both SafeRent and NBD again moved to dismiss pursuant to

Fed.

2016,

R.

Civ.

the

P.

12(b)(6).

Court

dismissed the

(ECF Nos.

granted

26,

Defendants'

37).

motions

claims of Plaintiffs Henderson,

with prejudice.

(ECF No. 49) .

On January 12,

in

part

Hines,

and

and Moore

The Court also found that the

claims of the fourteen so-called ^^Newly Named Plaintiffs" lacked

any factual support, and therefore those plaintiffs had failed
to plausibly allege any FCRA violations.

Accordingly, the Court

dismissed the Newly Named Plaintiffs' claims without prejudice,
but with leave to amend.

Id.

Defendants' motion to dismiss the

Amended Complaint was therefore denied as moot as to Witt.
The

SAC

attempted

to

cure

the

defects

of

the

Id.
Amended

Complaint by adding additional details concerning nine of the
fourteen

Newly

Named Plaintiffs

(the

Plaintiffs do not appear in the SAC).

other

five

Newly

Named

Defendants again moved to

dismiss

on

the

ground

that

requirements of Fed.

R.

Civ.

granted

as

to

the

the

Gonzalez,
(ECF No.

motion

P.

SAC

8 (a)

failed

to

satisfy

and 12(b)(6).

Plaintiffs

Robertson,

the

The Court

Holmes,

and

and denied the motion as to the remaining plaintiffs.
56).

On May 17, 2016, the day after the Supreme Court issued its

opinion

in

Spokeo,

Inc.

v.

Robins,

136

S.

Ct.

1540

(2016),

Defendants moved the Court to reconsider its Memorandum Opinion

("Mem.

Op.")

granting in part and denying in part

second motion to dismiss.

part

on the

Spokeo

limited topic.

(ECF No.

decision,

60).

but

Defendants'

The motion is based in

also

goes

well

beyond that

That motion is now ripe for review.
DISCUSSION

A. Legal Standard

It is within the discretion of the Court to grant a motion for

reconsideration of an interlocutory order.

Hosp.

v.

Annes

Dev.

2011).

Mercury Constr.
Co.

The

v.

Corp.,

Trabich,

"heightened

443

460

U.S.

Fed.

standards"

Moses H. Cone Mem'1

1,

Appx.

12

(1983);

829,

applicable

832

to

Saint

(4th

motions

Cir.

for

reconsideration of final orders do not apply to reconsideration
of

interlocutory

Murphy Farms,

Court

has

requires."

orders.

Inc.,

"plenary

Id.

(quoting

326 F.3d 505,

power"

to

Fayetteville Inv.

514-15

afford

v.

Am.

Canoe

(4th Cir.

such

relief

Assoc.

2003)).

"as

Commercial Builders,

v.

The

justice

936 F.2d

1462,

1473

{4th Cir.

However,

'"•^reargue

motion

to

reconsider

may

not

be

used

to

the facts and law originally argued in the parties'

briefs.'"

Supp.

a

1991).

Projects

3d

539

Mgmt.

(E.D.

Co.

Va.

Smithfield Foods, Inc.,

v.

DynCorp

2014)

Intern.,

(quoting

969 F. Supp. 975,

LLC,

United

977

17

F.

States

v.

(E.D. Va. 1997)).

It is only appropriate for the court to
review
a
previous
decision
where,
for
example, it ''has patently misunderstood a

party, or has made a decision outside the
adversarial issues presented to the Court by
the parties, or has made an error not of
reasoning but of apprehension.
A further
basis

for

a

motion

to

reconsider

would be

a

controlling or significant change in the law
or

facts

to

the

and

since

the

Court.

the

submission

Such

motion

to

of

the

issue

rarely

problems

arise

reconsider

should

be

equally rare."

Smithfield Foods,

969 F.

Supp.

at 977

(internal quotations and

citations omitted).

B. Analysis

Defendants

offer

two

grounds

that,

necessitate reconsideration.

First,

Court

decision

must

reconsider

Opinion '^reli [ed]

its

on alleged facts

according

because

that

do not

(''Def.

61)

that

Second,

Defendants

contend

the

Memorandum

appear in the

(Defendants' Memorandum

in Support of Motion for Reconsideration
3) .

them,

Defendants assert that the

Complaint" in reaching its conclusions.

at

to

Mem.," ECF No.
Plaintiffs

have

failed to adequately allege that they have suffered any concrete

and particularized

injury-in-fact

and

based on the Supreme Court's May 16,

therefore

lack standing

2016 decision in Spokeo,

Inc. V. Robins, 136 S. Ct. 1540 (2016).^

Id. at 5-14.

Although

typically standing must be addressed before other issues because

it implicates the Court's subject matter jurisdiction, here, the
resolution
resolution

of
of

Defendants'
the

second;

first

contention

the

Defendants'

therefore.

informs
arguments

are

addressed in order.

1. The Memorandum Opinion did not Rely on Facts Outside
the Record.

Defendants

Opinion that

take

public

issue

with

records

the

statement

in the

sold by SafeRent

Memorandum

and NBD

contain only limited identifying information'" and
do

not

contain

addresses[.]'"

identifying

(Def.

Mem.

data

at

such

3)

as

{citing

^sometimes

middle

Mem.

often

names

Op.

at

or

7).

Defendants argue that those facts were not in the SAC and that

they

improperly

^'guided

the

Court's

analysis

of

whether

Plaintiffs pleaded that the records returned by Defendants were

^ Defendants also argue, albeit implicitly, that the Court was
simply incorrect in holding that the claims of some of the Newly
Named

Plaintiffs

The Court
argument;

satisfied

has already
therefore,

reconsideration.

Fed.

R.

Civ.

explicitly and
it
is
not

Smithfield

Foods,

P.

12(b) (6)

and

8(a).

thoroughly rejected that
a
proper
ground
for
969

F.

Supp.

at

977.

However, to the extent that the standing inquiry necessarily
turns on the sufficiency of Plaintiffs' factual allegations,
that argument is addressed in more detail below.
8

incomplete[.]"

Id.

That argument mischaracterizes both the SAC

and the Memorandum Opinion.

Plaintiffs

alleged

that

SafeRent's

data

is

incomplete

because SafeRent '^^purchased or obtained criminal records in bulk
and

thus

without

the

security numbers."

identifying

SAC SI 44

information,

(emphasis added).

such

as

social

The use of the

phrase ^'such as" demonstrates that social security numbers are

merely one example of the sort of identifying information that
is alleged to be missing from SafeRent's records.

not

specify

what

other

identifying

Plaintiffs do

information

SafeRent's

records lack, but the allegation that SafeRent's records did not
contain ^^identifying information" is clearly present in the SAC.

The paraphrasing of those allegations in the Memorandum Opinion
merely recognizes this reality.

Moreover, to the extent that Defendants take issue with the
characterization

Memorandum

of

Opinion

^^middle

as

names

examples

of

and

addresses"

"identifying

in

the

information"

(which Plaintiffs have broadly and plainly alleged is absent in
all

of

SafeRent's

records),

that

detail

did

not

"'guide

the

Court's analysis of whether Plaintiffs pleaded that the records

returned by Defendants were incomplete[.]"
The

offending

sentence

was

located

in

(Def.
the

Mem.

section

at 3).
of

Memorandum Opinion entitled "'Factual Background," and was
that--background.

the
just

In analyzing whether Plaintiffs had proffered

sufficient allegations of incompleteness to satisfy Fed. R. Civ.
P.

12(b)(6),

the Memorandum Opinion,

directly quoting the SAC,

held that the following allegations were adequate:

Plaintiffs

allege

[SafeRent]
summaries,

furnishes to third parties are
indexes, or partial records that

it

obtains

SafeRent

that

from

never

its

SafeRent's

it

bulk

and

data

SI
43.
allege
because

records

thus

is

and

incomplete

without

information,

the

as

social

such

identifying

SI 44.

Op.

at

allegations,

Id.

16).^
on

which

was explicitly based,
SAC.

sources.

complete

obtained criminal

numbers."

(Mem.

the

records

record."
Id.
Named Plaintiffs

"'purchased or

in

public

courthouse

furnishes

up-to-date public
Specifically, the
that

''the

Therefore,

Defendants
the

do

conclusion

not

security

contend

regarding

were misquoted or not

Defendants'

first

argument

that

those

incompleteness

contained in the
in

support

of

reconsideration fails.^

^ Later in their brief, Defendants argue that the cited paragraph

''hinges on" the sentences to which Defendants object.
Mem. at 10) .
forth above,

That argument is both irrelevant

(Def.

(because, as set

the Court's inclusion of the disputed sentences was

not inappropriate) and it is incorrect (because, as is clear
from the plain language of the Memorandum Opinion,
that
paragraph is based on the allegations cited therein, which are
taken verbatim from the SAC).

^ Ironically,
Defendants also simultaneously criticize the
Memorandum Opinion for failing to decide issues that clearly are
outside the record.
Those arguments are also not valid grounds
for reconsideration.
For example. Defendants contend that the

Memorandum Opinion "misapprehended" the SAC because "it failed
to address whether the SSNs with respect to any data returned by

NBD were available in the public record in the first instance,"
because "all of the Plaintiffs allegedly reside in Virginia,
10

2. The Standing Issue

Defendants'
is

that

primary argument in support of reconsideration

Plaintiffs

particularized

harm,

have

as

failed

required

to

by

allege

"concrete

Spokeo[,]"

lack standing to pursue all of their claims.

and

and

therefore

{Def. Mem. at 5) .

For the following reasons. Defendants' motion will be granted as
to

the

claims

Roberts,
denied as
all

of

Plaintiffs

Allen,

and Stanley in Count
to

Witt's

Plaintiffs'

a.

I.

Hackett,

Defendants'

claim in Count

claims in Count

Edwards,

I

and will

White,

motion will be
be

denied as

to

II.

Legal Framework

Contrary to Defendants' position, Spokeo did not change the
basic

requirements

of

standing.

Indeed,

the

Supreme

Court

reaffirmed that a plaintiff must have ""(1) suffered an injury in
fact,
the

(2)

that is fairly traceable to the challenged conduct of

defendant;

favorable

and

judicial

(3)

that

is

decision."

likely

Spokeo,

to

be

136

redressed

S.

Ct.

which prohibits the disclosure of SSNs by statute."
at

12) .

As

noted

above,

SSNs

are merely

one

by

at

a

1547

(Def. Mem.

example

of

the

broader category of ^^identifying information" that Plaintiffs
allege is lacking from Defendants' records.
And, Plaintiffs
repeatedly allege that the records maintained and sold by
Defendants are ^'public records."
E.g., SAC fSI 2, 10, 14, 18,
39.
The nature of the specific items of information available
for Defendants to purchase and the legal consequences, if any,
of the interaction between Defendants' processes and statutory
limitations on dissemination of ^''public records" depend on facts

not currently available in the record and are therefore issues
inappropriate for resolution at the pleading stage.
11

(citing Lujan v.
(1992)).

As

Plaintiffs
Lujan,

Defenders of Wildlife,
the

bear

504 U.S.

parties

the

burden

invoking
of

504

U.S.

federal

establishing

555,

560-61

jurisdiction,

those

elements.

at 560.

It is undisputed that the alleged statutory violations are

redressable by statutory damages.

Accordingly, the remainder of

the discussion on the standing issue is addressed solely to the
requirements of injury-in-fact and traceability.

In Spokeo,

the Court reiterated that to satisfy the first

element of the Lujan test, a plaintiff must establish that he or
she suffered ^^^an invasion of a legally protected interest'

is

^concrete

and particularized'

conjectural

U.S.

504

at

560).

To

^actual

or imminent,

136

or hypothetical.'"

Lujan,

and

S.

at

that

be

Ct.

1548

^^particularized,"

not

(quoting
an

injury

^must affect the plaintiff in a personal and individual way,'"
Spokeo,

136 S. Ct. at 1548

(citing Lujan,

as opposed to an "undifferentiated,
all citizens share.

However,

number

"the

of

fact

people

nonjusticiable

generalized grievance" that

Lance v. Coffman,

that

does

an

not

generalized

549 U.S.

injury may be

of

itself

grievance,"

individual suffers a particularized harm."
at

1548

n.7.

12

504 U.S. at 560 n.l),

437,

442

suffered by

make
as

that
long

Spokeo,

(2007).

a

large

injury
as

a

"each

136 S.

Ct.

A ^^concrete"

"^real,'

and

injury,

not

on the other hand,

^abstract.'"

Spokeo,

is one that is

136

S.

Ct.

at

1548

{citing Webster's Third New International Dictionary 472 (1971);
Random House

Tangible

Dictionary of the

injuries

plainly

English Language

satisfy

this

305

(1967)).

requirement,

intangible injuries may also ^^nevertheless be concrete."
1549.

but
Id. at

In evaluating whether an intangible injury satisfies the

"concreteness"

requirement,

important considerations:

the

(1)

Spokeo

Court

offered

two

''whether an alleged intangible

harm has a close relationship to a harm that has traditionally

been regarded as providing a basis for a lawsuit in English or
American

courts[;]"

'*has the power

and

(2)

the

judgment

of

Congress,

which

to define injuries and articulate chains of

causation that will give rise to a case or controversy where
none existed before.'"

Id.

(quoting Luj an,

504

U.S.

at

580

(Kennedy, J., concurring in part and concurring in judgment)).
The Supreme Court then elaborated on the connection between

statutory standing created by Congress and concrete injury.

To

begin, the Court explained that "Article III standing requires a
concrete injury even in the context of a statutory violation,"
and,

therefore,

that

[the plaintiff]

allege a bare procedural violation,
harm,

and

III."

Id.

satisfy

the

for example,

divorced from any concrete

injury-in-fact

(citing Summers v.

could not,

requirement

of

Earth Island Institute,
13

Article
555 U.S.

488,

496

(2009)

{'MD] eprivation of a procedural

right without

some concrete interest that is affected by the deprivation... is
insufficient

to create Article

clarify that distinction,
one

of

the

FCRA's

credit reporting,

how

the

standing")).

Attempting to

the Court then noted that,

purposes

is

''not all

any risk of harm":

III

to

protect

inaccuracies

against

although
inaccurate

cause harm or present

for example, 'Mi]t is difficult to imagine

dissemination

of

an

incorrect

could work any concrete harm."
At the same time,

zip

code,

without

more,

Id. at 1550.

the Court observed that,

in cases where

''harms may be difficult to prove or measure[,]" "the violation
of

a

procedural

sufficient. . . [and]

any additional
Id.

at 1549

11,

20-25

U.S.

granted

by

statute

harm beyond the

one Congress

has

Public Citizen v.

449

(1989))

these

(emphasis

has

situations,

judgments

in

not

legal

about

occurred.

original).

rights

where

Often,

As

harm

these

reflect

has
kinds

and
of

injuries exist where we think the harm is in
the

act

itself.

The

public

disclosure

of

private information or defamatory falsehoods
does

not

need downstream consequences

hurtful; neither does
on the basis of race.

to

be

differential treatment
Procedural wrongs are

an oft-seen category where the distinction
between the legal violation and the injury
14

524 U.S.

Department of Justice,

commentator has put it;

In

be

identified."

(citing Federal Election Common v. Akins,

social

can

a plaintiff in such a case need not allege

(1998);

440,

right

491
one

may

be

so

thin

nonexistent.
these
cases
violation

as

to

be

essentially

Proving the injury in many of
just
entails
proving
the

itself—that

certain

words

were

spoken, certain information disclosed, or
certain procedures flouted.
As a result,
requiring some sort of additional indicia of
harm beyond the violation itself ignores the
nature of the injury and the reason for the
remedy.

Daniel

Townsend,

Who

Should

Define

Injuries

For

Article

III

Standing?, 68 Stan L. Rev. Online 76, 80-81 (2015) .

In sum, then, the proposition that " [t]he... injury required

by Article III may exist solely by virtue of ^statutes creating
legal rights, the invasion of which creates standing'" survives
Spokeo subject to qualification, depending on the facts of each
case and the considerations articulated above,

intact.

Warth

v.

Seldin,

Linda R.S. v. Richard D.,

fundamental

principles

422

U.S.

410 U.S.

guide

the

490,

614,

in mind,

it is necessary,

500

(1975)

617 n.3

analysis

questions raised in Defendants' motion.

but nevertheless

of

(quoting

(1973)).

the

These

standing

With those principles

as Spokeo instructs,

to look to the

common law and to the judgment of Congress, as reflected in the
FCRA,

alleged

to

determine

by

whether

Plaintiffs

the

constitute

violations

concrete

of

and

that

particularized

injuries that satisfy the case or controversy requirement.

15

statute

b. Count

i.

I

Section 1681k(a)

Section 1681k: of the FCRA provides that;

A consumer reporting agency which furnishes
a

consumer

report

for

employment

and which for that purpose
reports items of information

purposes

compiles and
on consumers

which are matters of public record and are
likely to have an adverse effect upon a
consumer's
ability
to
obtain
employment
shall—

(1)
at
the
time
such
public
record
information is reported to the user of such
consumer report, notify the consumer of the

fact that public record information is being
reported by the consumer reporting agency,
together with the name and address of the
person to whom such information is being
reported;

or

(2) maintain strict procedures designed to
insure
that
whenever
public
record
information
which
adverse effect on

is
likely
to
have
a consumer's ability

an
to

obtain employment is reported it is complete
and up to date.
For purposes of this
paragraph, items of public record relating
to arrests, indictments, convictions, suits,
tax liens, and outstanding judgments shall
be considered up to date if the current

public record status of the item at the time
of the report is reported.

15

U.S.C.

§

1681k(a).

That

section

arose

out

of

concern t h a t :

Most

credit

bureaus

systematically

compile

public record information such as records of
suits,
tax
convictions,

liens,
arrests,
indictments,
bankruptcies, judgments and the

like.

information

This

is

then

included

on

a
person's
report
when
he
applies
for
credit, or in some cases when he applies for
16

Congress'

employment.

Unfortunately,

the information

cannot always be kept up to date because it
is costly or because the correct information
is
simply not
available... Because public
record information is reported to employers
well as creditors, a consumer's future

as

employment

career

could

be

jeopardized

because of an incomplete credit report.

S. Rep. No. 91-517 at 4 (emphasis added).

Therefore,

reporting

Congress enacted § 1681k to prevent CRAs from

"adverse

items

of

public

record

information

for

employment purposes unless they maintain strict procedures to

keep the information [complete and] up to date.
be

done,

the

consumer

must

be

notified

If this cannot

that

the

adverse

information is being reported and to whom at the time the report
is made."

Id. at 7

(emphasis added).

The language and the alternative structure of § 1681k make
clear that the ultimate harm that Congress sought to prevent was

damage to consumers' employment prospects caused by reporting of
incomplete

or

out-of-date

public

records.

objective. Congress offered CRAs two options:
(1)

To

further

that

they could either

"maintain strict procedures" to minimize the reporting of

incomplete
consumer

to

or

out-of-date

the

existence

public
of

the

records;
report

so

or

(2)

that

alert

the

the

consumer

himself could remedy any mistakes in the report before adverse
employment action occurred.

17

Thus,

§ 1681k(a)

§ 1681k(a)

public

creates two substantive rights.

conferred on consumers the right that,

record

adversely

information

affect

their

is

disseminated

employment

must be complete and up-to-date.
absolute;

the

requirement

of

that

prospects,

''strict

when adverse

is

the

This right,

First,

likely

information

however,

procedures"

to

is not

serves

as

a

limit on liability that might otherwise attach for incomplete or

out-of-date
Servs.,

reports.

Inc.,

See,

199 F.3d 263,

Credit Servs.,

29

F.3d 280,

e.g.,
267

Washington

(5th Cir.

284

v.

CSC

2000); Henson v.

(7th Cir.

1994).

Second,

statute creates a contingent right to information:

fails

to

comply

with

§

1681k(a)(2),

Credit

then

the

CSC
the

the CRA

consumer

is

statutorily entitled to receive notice of the furnishing of the
report.

Both the right to complete and up-to-date reports and the

right to notice are substantive.
nor technical.
redress

a

Moreover, Congress permitted consumers to sue to

breach

of

the

foregoing subsection and,
statutory,
1681n.

In

substantive

doing,

as

rights

if successful,

and punitive damages,
so

Neither is merely procedural

set

set

in

in

the

to be awarded actual,

as applicable.

forth

forth

further

15

U.S.C.

detail

§

below.

Congress defined injuries and articulated chains of causation
that give rise to a case or controversy.

18

iii.

Count I:

Plaintiff Witt

a. Concreteness

Having

identified

the

interests

that

§

1681k

seeks

to

protect and the mechanism by which it seeks to do so, it becomes
clear

that

Witt

has

suffered a

concrete

informational

injury:

that is, Witt has alleged that she was deprived of a disclosure
to which she was statutorily entitled.

Court

in

Spokeo

confirmed

Election Common v.

its

Importantly, the Supreme

previous

holdings

Akins^ and Public Citizen v.

in

Federal

Department of

Justice,^ both of which teach that Congress may create a legally

cognizable right to specific information,
which

constitutes

Article

III.

a

136

Supreme Court

S.

found

concrete
Ct.

injury

at

sufficient

1549-50.

standing where

the deprivation of

In

to

those

satisfy

cases,

the plaintiffs

sought

the

to

obtain, and were denied, information that was subject to public
disclosure

under

the

Federal

Election

Campaign

Act

and

the

Federal Advisory Committee Act, respectively.

Similarly,
Court

held

that

in Havens Realty Corp.
the

plaintiffs

v.

Coleman,

(individuals

''who,

the Supreme
without

an

intent to rent or purchase a home or apartment, pose as renters

or purchasers for the purpose of collecting evidence of unlawful
steering practices,") had suffered a concrete injury under the
^ 524 U.S. 11, 20-25 (1998) .
® 491 U.S. 440, 449 (1989) .
19

Fair

Housing

Act

information,

information

363,

373

even

for

plaintiffs'

they

though

any

(1982).

when

received

they

purpose

did

other

untruthful

not

than

seek

use

the

455

litigation.

The Supreme Court held that,

motives,

to

housing

U.S.

regardless of the

Congress had created ''an enforceable right

to truthful information concerning the availability of housing,"
and

that

a

''tester

who

has

been

misrepresentation made unlawful under
suffered injury in precisely the
to guard against,

the

object

of

[the Fair Housing Act]

form the

statute was

a

has

intended

and therefore has standing to maintain a claim

for damages under the Act's provisions."
In

the

wake

of

Havens,

Akins,

Id.

and

Public

Citizen,

it

is

well-settled that Congress may create a legally cognizable right
to information,
injury.

the deprivation of which constitutes a

That is exactly the case here.

concrete

Witt has alleged that

SafeRent did not furnish complete and up-to-date public records
because
social

its

records

security

lacked

numbers."

"identifying
SAC

SI

44.

information,

And,

more

such

as

specifically,

Witt has alleged that the report furnished by SafeRent contained
several

criminal

to Witt.
sufficient

SAC SISI
to

furnished

in

"complete

and

conviction public
29-30.

support
response

At
a

this

plausible

to

up-to-date."

Witt's
See,
20

records
stage,

that
those

e.g.,

belong

allegations

inference
employer's

did not

that

the

inquiry

Haley

v.

are

report
was

not

TalentWise,

Inc. ,
V.

9 F.

First

(N.D.

Supp.

Advantage

Ohio

SafeRent

Sept.

did

Id.

1194

Screening

25,

and

timeliness

only

exist,

thereof

and

strict
of

2012

Apr.

Witt

procedures"

its

public

indexes,

of

or

summaries

thereto

2,

2014); Moore

WL 4461505,

the SAC alleges

the purveying
indices

Wash.

Moreover,

"summaries,

Reasonably construed,

records

Corp.,

""maintain

sells

(W.D.

2012).

not

completeness
SafeRent

3d 1188,

at

alleged

to

records
partial

that,

a

that

ensure

the

because
records."

when complete

and partial

manifests

*2-*3

lack

versions

of

strict

procedures to assure that the purveyed public record information

is

complete

and

up-to-date.

That

is

sufficient

to

allege

a

violation of the strict procedures clause of § 1681k; (a).
Based on the

SafeRent

did

not

foregoing

comply

allegations,

with

15

furnished her consumer report,
notice under § 1681k(a) (1) .
not receive that notice.

U.S.C.

Witt

§

has

alleged

1681k(a){2)

SAC 1

when

it

right

thereby triggering the

And,

that

to

Witt has alleged that she did

41.

Where,

as here,

a

consumer

alleges'a deprivation of information or notice to which she was

statutorily

entitled,

the

consumer

has

alleged

a

concrete

informational injury.
b. P a r t i c u l a r i z a t i o n

Defendants do not seriously contest that Witt's allegations
are

sufficiently particularized to

they,

because

Witt

has

confer standing.

specifically alleged
21

that

Nor could

SafeRent

and

NBD furnished an incomplete and misleading consumer report about
her that

was

contained incomplete criminal

materially

Defendants'

adverse

to

arguments

her

record information that

employment

concerning

prospects.

Rather,

particularization

exclusively addressed to the Newly Named Plaintiffs.

are

Therefore,

those arguments are addressed in the following section,
iv.

Count I:
Edwards,

Plaintiffs Robertson, Allen, Gonzalez,
Hackett, White, Roberts, Stanley, and

Holmes

Defendants

argue

that

Plaintiffs

have

not

alleged

'"concrete" injuries in Count I because "the Complaint fails to
allege

any

allegedly
all

facts

supplied

plaintiffs

about

except

inaccurate[.]"
do

demonstrating

by

prospects

in

analysis

Defendants'
any

way."

[in Spokeo],

even

a

related

create particularized,

Second,

have

failed

because

Witt]

Plaintiffs

was

Spokeo

Named

information

Plaintiffs,"

incomplete,

NBD

i.e.,

outdated,

or

Nor, according to Defendants,

allege

[sic]

"how any incomplete data

affected

Defendants

also

I . . . indicated that a

inaccuracy—is

their

employment

contend

that

"th[e]

not

technical violation—

necessarily

enough

to

Newly

Plaintiffs

concrete harm."

Defendants

to

the

which is directly on point with this case

and the claim in Count

and

"Newly

(Def. Mem. at 8).

the Newly Named

returned

[the

that

plead

prevents

argue

a

that

the

"particularized"

Plaintiffs
22

from

Named

injury

pleading

in

Count

I

allegations

that are common to all plaintiffs in a single allegation.
Mem.

at 11) .

Specifically,

allegations

as

to

SafeRent's

records

Plaintiffs

were

exception of Witt)

Defendants contend that Plaintiffs'

''incompleteness"

particularized because

(Def.

are

merely

incomplete,

not

sufficiently

allege

and

do

that

not

all

(with

of
the

specifically allege what records Defendants

returned as to them were incomplete, out-of-date, or inaccurate.
Plaintiffs

constitutional

Plaintiffs

respond

that

requirements

argue

that

concrete injuries.

Spokeo

for

every

First,

did

not

standing.

Named

alter

In

Plaintiff

any

has

the

event.

pled

two

Plaintiffs allege that "defendants'

failure to comply with section 1681k(a) posed a

^material risk

of harm' to consumers that expressly motivated Congress to enact
the

FCRA—namely,

that

the

affect

defendants
consumers'

Memorandum

in

Reconsideration

Second,
the

the risk that

reported

inaccuracies

to

employment
Opposition

("PI.

Mem.

notice

to

in

pursuant

users

EOF

Defendants'
to

§

Motion

No.

69)

the

explicit

1681k(a)(1)

warnings

at

for

15).

failure to provide
"caused

plaintiffs to suffer a separate, informational injury."
Notwithstanding

adversely

(Plaintiffs'

Defendants'

0pp.,"

information

would

prospects."

Plaintiffs assert that

required

other

in the

in

the

the

Id.
Memorandum

Order granting Defendants' first motion to dismiss (EOF No. 49),

Plaintiffs Allen, Edwards, Hackett, White, Roberts, and Stanley
23

(''the Newly Named Plaintiffs")

have failed to demonstrate that

their claims in Count I satisfy either the injury-in-fact or
traceability elements of standing.

More specifically, because

the Newly Named Plaintiffs have failed to plead specific facts
from

which

the

Court

could

infer

incomplete reports about them,

that

SafeRent

furnished

they have failed to plausibly

allege that (1) they suffered any particularized injury, and (2)
any

damage

to

their

employment

prospects

was

traceable

to

a

statutory violation by SafeRent.

As SafeRent points out,

the Newly Named Plaintiffs do not

'"identify the substance of NBD's^ reporting and/or the type of
record(s) that were allegedly returned," nor do they "allege any
facts demonstrating that the information NBD allegedly supplied
about the Newly Named Plaintiffs was incomplete,

outdated,

inaccurate."

Newly Named

Plaintiffs

{Def. Mem.
rely

at

on general

8).

Rather,

allegations

that:

the
(1)

or

they were

denied employment because of information believed to have been
furnished

by

Defendants;

and

(2)

''Defendant

SafeRent

never

furnishes the complete and up-to-date public record," because it
furnishes only "summaries, indexes, or partial records[.]"

Although Count

I

is pled only against SafeRent,

Defendants

often refer to NBD's actions when making their arguments
pertaining to Count I.
However, because it appears that NBD
simply acts as a conduit between SafeRent and the reseller CRAs,
the Court treats Defendants' references to NBD as applying
equally to SafeRent unless specifically indicated otherwise.
24

a. Particularization

The Newly Named Plaintiffs have failed to allege that they

have suffered a particularized
protected interests

injury to

because they have

their

failed

statutorily

to describe with

any specificity how any of their reports were incomplete or out-

of-date,

or

how

all

reports,

incomplete or out-of-date.
reports

were

Plaintiffs
pursuant

incomplete

cannot
to

§

their

own,

were

Without any allegation that their
or

show

including

out-of-date,

that

they

1681k{a){l).

were

the

Newly

entitled

Therefore,

the

Named

to

notice

Newly

Named

Plaintiffs have not demonstrated a particularized informational

injury.
by

Nor have they adequately pled that any illegal conduct

SafeRent

affected

led

them

to

in

their

such

a

denial
way

statutory violation "affected
personal

and

individual

of

as

employment

to

charge

or

that

otherwise
SafeRent's

[the Newly Named Plaintiffs]

way."

Spokeo,

(citing Lujan, 504 U.S. at 560 n.l).

136

S.

Ct.

in a

at

1548

Simply put, in the absence

of any specific allegations concerning the incompleteness of the
Newly Named Plaintiffs' reports, the Newly Named Plaintiffs have
not alleged that SafeRent violated the statute as to them.

That

is the very definition of particularization.
Taken

Plaintiffs'

to

its

theory,

logical

any

conclusion,

under

consumer who was

the

the

Newly

subject

Named

of

any

report sold by SafeRent could bring a claim under § 1681k(a)(1)
25

without alleging any specific deficiencies in his or her report.®
That is particularly apparent in light of the stark contrast

between the Newly Named Plaintiffs' threadbare allegations that
they were denied employment ''because of the information that NBD

supplied about
factual

[them]," ^

allegations

SAC If 23-21, and Witt's specific

concerning

the

circumstances

of

her

application for employment and the errors in her report further

demonstrates

that

the

Newly

Named

Plaintiffs

lack

any

information about the contents of their own reports.^
Allowing

circumstances

the

would

action

to

undermine

proceed

the

under

purpose

the

of

the

foregoing

standing

The Court does not mean to imply that a plaintiff must allege
what amounts to actual damages in order to survive a motion to

dismiss a claim under § 1681k{a).
Nor does it mean to imply
that an FCRA plaintiff could not satisfy the particularization
requirement
could infer
outdated in
would still

by alleging specific facts from which the Court
that all of SafeRent's reports were incomplete or
the same way.
The point here is that the plaintiffs
have to allege that their reports suffered from that

defect.
Plaintiffs' allegations that SafeRent ''is not the type
of entity that can avail itself of the compliance option set
forth at 15 U.S.C. § 1681k (a) (2" that "[a] § 1681k{a){2)
option is not available to SafeRent," and that

"SafeRent never

furnishes the complete and up-to-date public record" are merely
legal conclusions that (1) may not be credited by the Court, and
(2)
do
not
provide
the
necessary
demonstrate particularized injury.

individualization

to

^ In fact, given the hasty addition of the Newly Named Plaintiffs
to this action and the lack of any allegation in either
Complaint in which they appear that any of the Newly Named
Plaintiffs' reports contained any errors or any explanation of
how the reports sold by SafeRent led to the denial of the Newly
Named Plaintiffs' employment, it appears that these plaintiffs
in particular were added merely because they reside in the
Richmond Division of the Eastern District of Virginia.
26

requirement, which ''assures an actual factual setting in which
the litigant asserts a claim of injury in fact,

[so that]

a

court may decide the case with some confidence that its decision

will not pave the way for lawsuits which have some, but not all,
of the

facts

actually decided by the

court."

Valley Forge

Christian Coll. V. Ams. United for Separation of Church & State,
In^^,

454

U.S.

464,

472

(1982).

Thus,

the

Newly

Named

Plaintiffs have failed to satisfy the ''particularization" aspect
of injury-in-fact.

When

Plaintiffs'

pressed

at

failure

incompleteness.

oral

to

argument

provide

about

the

particularized

Newly

Named

allegations

of

Plaintiffs argued that it is only possible to

plead generalized allegations of incompleteness against SafeRent

because SafeRent purposely conceals its role in the background

check process by causing the data that it sells to pass through
multiple resellers before reaching its ultimate destination, and
therefore consumers never have an opportunity to view or receive
the reports that SafeRent provides.

impossible

for

particularity,

them
and

to

so

allege

any

such

Plaintiffs claim that it is

incompleteness
requirement

with

would

any
allow

Defendants to escape their obligations under the FCRA.

It
relaxed

is
to

true

that

allow

a

sometimes

pleading

plaintiff

to

requirements must

discover

exclusively within the defendant's control.
27

facts

that

be
are

See, e.g., Moore,

2012 WL 4461505, at *3 (noting that a defendant's intent "may
not be capable of any more definite factual assertion prior to

discovery," and therefore finding generalized allegations of
willfulness sufficient).
case.
copy

However, here, that is simply not the

Witt's allegations clearly reveal that she has obtained a
of

the

report

that

Defendants

furnished

about

her.

Similarly, Tyrone Henderson and James Hines, who are currently
pursuing a § 1681k claim in a related action against NBD and
were

originally

named

as

plaintiffs

in

this

case,

but

were

dismissed on statute of limitations grounds, were able to allege
specific errors in their reports that gave rise to an inference
of

incompleteness.

Moreover,

Plaintiffs

are

not

without

a

remedy; the FCRA provides that a consumer reporting agency must
''clearly

and

accurately"

consumer's file"

upon a

disclose

"[a] 11

consumer's request,

limitations.15 U.S.C. § 1681g(a)(l).
or

NBD were

Plaintiffs'

to

refuse

request.

information

to

provide

Plaintiffs

the

have

even if SafeRent

reports

in

option

Defendants for a separate violation of the FCRA;
the

same

Defendants'

information

from

the

reseller

the

subject to certain

Thus,

the

in

CRAs

response

to
or

that

(1)

(2)

to

sue

obtain

relied

on

reports in creating the consumer reports that were

In any event, even though it may be difficult—though clearly

not impossible—for Plaintiffs to obtain their consumer reports
under the circumstances presented here, that fact does not
excuse them from the pleading requirements of the Federal Rules
and the requirements of Spokeo.
28

ultimately furnished to the Newly Named Plaintiffs'
employers.

putative

The Newly Named Plaintiffs do not appear to have

pursued any of those options, instead choosing to proceed based
on

guesswork

alone

with

the

hopes

of

securing

venue

in

the

Richmond Division and unearthing the basic facts of their case
in discovery.

the

Supreme

approach.

Neither the Federal Rules of Civil Procedure nor

Court's

standing

jurisprudence

such

an

Accordingly, Plaintiffs' argument is not persuasive.

For the foregoing reasons,

failed

permits

to

allege

the Newly Named Plaintiffs have

particularized

injury-in-fact

sufficient

to

confer standing.
b.

Traceability

The Newly Named Plaintiffs' failure to plead particularized
injury is closely and inextricably related to their failure to

plead that they have suffered an injury traceable to wrongdoing

by

SafeRent.

easily

The

explained

nexus
through

between
the

those

shortcomings

following

is

hypothetical.

most
If

SafeRent sold a complete and up-to-date report showing that a
person had a conviction for a violent felony,

that person could

be disqualified from consideration for employment on the basis
of

SafeRent's

report.

In

that

scenario,

entitled to notice under § 1681k(a) (1)
complete

and

up-to-date;

therefore,

the

person

is

not

because the report was
the

consumer

has

not

suffered the harm that the statute was designed to prevent, and
29

there is no informational injury.

Thus,

the damage to that

consumer's employment prospects was not caused by any improper
conduct on the part of SafeRent.

Because the Newly Named Plaintiffs have failed to provide

facts regarding whether, or how, their reports were complete
or up-to-date,
example

or

it is impossible to tell whether they fit
whether

what

Saferent

did

caused

them

informational and notice injury on which they rely.

the
the

Indeed, it

appears that even the Newly Named Plaintiffs themselves do not

know.

More

precisely,

without

allegations of incompleteness,
not plausibly pled that

some

reasonably

specific

the Newly Named Plaintiffs have

they were entitled to notice under §

1681k(a)(1), and thus have not plausibly pled that they suffered

informational

injury.

And,

concerning whether or how the

because

no

detail

is

provided

criminal

record information that

caused the Newly Named Plaintiffs to be denied employment was
incomplete

or

out-of-date,

the

Court

cannot

infer

that

the

damage to the Newly Named Plaintiffs' employment prospects was
causally

related

to

any

statutory

violation

by

SafeRent.

Therefore, the Newly Named Plaintiffs have not alleged that they
suffered any harm that actually resulted from a violation of §
1681k(a).

For the foregoing reasons,

the Newly Named Plaintiffs have

failed to demonstrate that they have standing to ' pursue their
30

claims in Count I.

Accordingly, the claims of Plaintiffs Allen,

Edwards, Hackett, White, Roberts and Stanley in Count I will be
dismissed.
c. Count

II

In Count II of the SAC, brought against both Defendants and

pled in the alternative to Count I, Plaintiffs allege that, if

Defendants'

background reports were not sold for

employment

purposes"

(as NBD has previously represented to be the case in

Henderson

v.

Defendants

Nat'l

furnished

''permissible purpose"

Background

Data,

Plaintiffs'

LLC,

consumer

in violation of

3:12-cv-97),
reports

15 U.S.C.

then

without

a

§ 1681b{a).

Defendants assert that Plaintiffs lack standing to pursue Count
II under Spokeo because "Plaintiffs do not allege any concrete
or particularized harm stemming from the fact that NBD/SafeRent

were supposedly involved in a return of data to a background

screening company that itself indisputably had an
purpose'

to

obtain

that

data."^^

{Def.

Mem.

^employment
at

13).

As noted above. Count II is pled in the alternative to Count
I, which alleges that Defendants furnished Plaintiffs' consumer

reports for "employment purposes."

Interestingly, so eager are

Defendants to minimize the injury alleged in Count II that they
have all but admitted outright that the reports were furnished

for employment purposes.
See, e.g., Def. Mem. at 12 (noting
that '^the alleged return of records for each Plaintiff.. .was
done in connection with an employment background screening,
which is allowed under the FCRA.
See 15 U.S.C. § 1681b,").
However, Defendants declined to concede that point at oral
argument.

And,

important to the

because

future

the

resolution

course of this
31

of

that

issue

is

case and because the

Additionally,

according to Defendants,

"one

steps

or

two

removed

from

their transactions were

the

potential

transfer

of

information to any employer, which would be the only time that
Plaintiffs'

interests could even possibly be affected or that

any concrete injury could occur."

Id.

Plaintiffs respond that "defendants'

section 1681b results

invasion of privacy.

in a

classic

alleged violation of

form of

cognizable harm:

It is common sense that a party's sale of

deeply personal information about an individual to a user for a

statutorily

interests."

impermissible

(PI. Mem.

use

harms

in 0pp. at 24).

the confidentiality of consumers'
of Congress'

that

individual's

privacy

Plaintiffs argue that

personal

information was one

core concerns when it enacted the FCRA, and one of

the ways that Congress sought to achieve that objective was by

limiting the circumstances under which consumer reports could be
disseminated.

Id.

Moreover,

Plaintiffs point out,

invasion of

question whether the reports were for "employment purposes" is
ultimately a factual issue, the Court has directed the parties
to propose a plan for expedited discovery to resolve the
questions of whether Defendants provided reports for "employment
purposes"
and,
relatedly,
claims may proceed.

which

of

Plaintiffs'

alternative

The Court recognizes the right to plead alternative legal
theories, but is aware of no authority that allows the pleading
of alternative facts where one set of which is entirely opposite
the other.
Thus,
the Court apprehends that Defendants'
divergent
views
{"for
employment
purposes"
or
"not
for
employment purposes") is a violation of the rule that one may
not approbate and reprobate at the same time.
The expedited
discovery will flush out the truth.
32

privacy, though often unaccompanied by actual damages, has long
been cognizable at common law,

at 24-25.

Plaintiffs have

the better of that argument.

One of the problems that Congress recognized and sought to
remedy

when

person's

it

enacted

credit

confidential."

Accordingly,
the

FCRA

the

file
S.

FCRA

[was]

Rep.

to

protect

that

not

No. 91-517,

one of Congress'

was

was

"information

always

kept

91st Cong.,

in

a

strictly

1st Sess.

4.

enumerated purposes in enacting

the

confidentiality

of

consumers'

personal information, thereby protecting the consumers' right to
privacy.

15 U.S.C. § 1681; see also Trans Union Corp. v. FTC,

81 F.3d 228,

234

(D.D.C.

1996)

(^^Along with the accuracy of

collected information, a major purpose of the Act is the privacy

of a consumer's credit-related data.").
which

Congress

effectuated

this

"One of the means by

purpose

was prohibiting

the

release of consumer...reports unless the release occurs for one of

the permissible purposes set forth in 15 U.S.C.
Cole

V.

United

States

Capital,

389

F.3d

719,

§ 1681b(a)."
725

(7th

Cir.

2004); see also Harris v. Database Mqmt. & Marketing, Inc., 609
F.

Supp.

2d

509,

513

{D.

Md.

2009)

("The

FCRA achieves

this

design [of preserving consumer privacy] by imposing restrictions
on

access

§ 1681b (a)

to

individuals'

creates

a

legally

limiting dissemination of

credit

information.").

protected

consumers'
33

privacy

reports

Thus,

interest

in

to circumstances

falling

within

the

''permissible

purposes''

enumerated

in

that

records

were

section.

Therefore,
not

sold

for

statutorily
violation

by

alleging

an

employment

permissible

of

their

confidentiality

that,

purpose.

their

Defendants'

purpose,

statutorily

of

if

Defendants

Plaintiffs
created

personal

lacked

have

right

to

any

alleged

a

privacy

and

The

FCRA

information.

provides that an employer may not obtain an applicant's consumer
report,

unless

thereby invading his or her statutory right of privacy,

the

voluntary
required

employer

written
by

§

first

obtains

consent

to

the

secure

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

The

recognized a right to personal privacy,
and

the

literal

individual's

person."
Freedom of

understandings

control

of

information

United States Dept.
Press,

489

of

U.S.

consumer's

763

as

common

law

has

long

and ''both the common law
privacy

encompass

concerning

of Justice v.

749,

and

information,

that

knowing

his

the

or

her

Reporters Comm.

(1989)

(defining

for

"private"

as "intended for or restricted to the use of a particular person

or

group

or

public").

right

to

class

of

Moreover,

privacy

particularly

in

powerful

persons:
as

the

not

Supreme

compilations
because

the

of

freely
Court

available
has

personal

"power

of

to

the

observed,

the

information

is

compilations

to

affect personal privacy that outstrips the combined power of the
bits

of

information

contained

34

within."

Id.

at

7 65.

Accordingly,

it

dissemination

has

of

long

one's

been

personal

showing of actual damages,

constitutes a
sue.

See

Similarly,

it

or

is

bring

suit

e.g.,

18

to

to

under

U.S.C.

Warren

193

privacy

§

unauthorized

even

without

a

& Louis

statute

that

Brandeis,

Congress

certain
law,

privacy

to

D.

The

(18 90) .

common

the

2707(c)

to confer standing to

in

informational

the

an

information,

well-settled

replaces

right

D.

4 Harv. L. Rev.

right

statutory

that

concrete injury sufficient

Right to Privacy,

strengthens

case

is an invasion of one's privacy that

generally Samuel

statutory

the

create

information
and

has

vindicate

(authorizing

may

citizens

been

that

that
whose

invaded

right.

statutory

a

may

See,

damages

for

violations of the Electronic Communications Privacy Act of 1985
("ECPA"));

12

the

to

Right

2710(c)(1)
Video

§

3417

Financial

(establishing

Privacy

defendant

U.S.C.

(statutory damages

Privacy

a

private

Protection Act

fails

to

Act

right

with

protecting the plaintiff's privacy,

been

unlawfully

regardless

of

invaded

actual

June

plaintiffs

27,

2016)

with

the

he

damages.

Consumer Privacy Litiq.,

Cir.

and

has
See,

right

that
to

action

U.S.C.

under

Furthermore,

statutory

suffered
e.g..

§

the

where

a

prerequisites

concrete
In

re

redress

has
for

injury,

Nickelodeon

2016 WL 3513782,

"Congress

seek
35

of

18

under

the plaintiff's privacy has

-- F.3d —,

(noting

(^^RFPA") ) ;

C'VPPA")).

comply

available

long

at *7

(3d

provided

unauthorized

disclosures of information that, in Congress's judgment, ought
to

remain

private")

Automated Retail.

(footnote

LLC,

770

omitted);

F.3d 618,

Sterk

623

v.

Redbox

(7th Cir.

2014)

(holding that the plaintiffs suffered a concrete injury-in-fact
when defendant sold plaintiffs' information to third parties in
violation of the VPPA); Coelter v. Hearst Commc'ns, Inc.. -- F.

Supp. 3d

, 2016 WL 3369541, at *3 (S.D.N.Y. June 17, 2016)

(same); Johnson v. Navient Sols., Inc., — F. Supp. 3d —, 2015

WL 8784150, at *2 (S.D. Ind. Dec. 15, 2015) (finding standing
based on a violation of the plaintiff's statutory right to
privacy

created

by

the

Telephone

Consumer

C'TCPA")); United States v. Koranki,
(W.D.

Okla.

July

16,

2015)

Protection

Act

2015 WL 4394947, at *1

(finding

that

the

government's

failure to follow necessary procedures before procuring bank
customer's financial records invaded the customer's statutory

right to privacy under the RFPA, which conferred standing);
Cousineau v. Microsoft Corp.,

992 F. Supp.

2d 1116, 1122-23

(W.D. Wash. 2012) (finding an invasion of privacy sufficient to

constitute injury-in-fact where defendant collected smartphone
user's location data without her consent).

Here, every plaintiff, including each of the Newly Named
Plaintiffs,

has

background

check

plainly
about

alleged
him or

application for employment.

SAC
36

that

her

in

Defendants
connection

21, 23-27, 29-30.

sold
with

a
an

And, the

plaintiffs have alleged that,
reports

were

not

for

should the Court find that those

''employment

purposes,"

then

Defendants

lacked a permissible purpose for either the sale or use of the

reports.

were

Id. ^ 46.

procured

in

Although the fact that Plaintiffs' reports

connection

with

applications

for

employment

might appear fatal to their claim that Defendants' reports were
furnished

without

a

permissible

purpose

(because

"employment

purposes" are a "permissible purpose" as defined in 15 U.S.C.
1681b),

Count

assertions,
Henderson

reports

that,

II

has

arisen

because

of

Defendants'

§

strenuous

both in this litigation and in the related case of
v.

CoreLoqic

Nat'l

Background

that they sell are not

because

Defendants

are

for

Data

LLC,

that

the

"employment purposes," and

"data wholesalers,"

they do

not

need to show any "permissible purpose" to furnish information to
other CRAs.

97) .

See SAC SI 47

(citing Henderson,

Case No.

3:12-cv-

Defendants insist that that is true for all of the reports

that they sold regarding the Named Plaintiffs.

Therefore,

at

this stage, every named Plaintiff has alleged the same concrete
and particularized harm that

wrongful

conduct.

That

is

a

direct

allegedly

result

of

Defendants'

impermissible

disclosure

constitutes an invasion of the statutory right to privacy and a
concrete injury sufficient to confer Article III standing.
Defendants

cite

four

cases

from

district

courts

outside

this Circuit for the proposition that an invasion of privacy is
37

not

necessarily a

13) .

To

the

legally cognizable

extent

privacy caused by

information

is

that

those

unlawful

not

a

harm.

cases

hold

dissemination

concrete

(Def.
that

of

Mem.

an

one's

at

invasion

12of

confidential

and particularized injury,

the

Court declines to follow that holding for the reasons set forth
above and in Thomas v.
June 30,

FTS

USA LLC,

2016 WL 3653878

(E.D.

Va.

2016).

Defendants next argue that Plaintiffs have failed to allege
an invasion of privacy in Count II because ''that alleged harm is
not

pled.

The

Complaint."

point.

(Def.

of

privacy was

because

with

consumer."
Offices,

to

invaded.

238

at

does

13).

not

show

that

enacting

the

15 U.S.C.

§

willful

1681h(e);

F.3d 1068,

1074

plead

their

in

the

misses

the

claim

for

a

statutory

right

to

so would have been futile

FCRA,

of privacy "except
or

appear

argument

explicitly

to do

malice

even

That

not

Indeed,

in

invasion

furnished

need

privacy"

Congress,

for

'privacy'

Reply

Plaintiffs

"invasion

suits

word

as

explicitly

to

intent

false
to

2001)

information

injure

see also Myers v.

{9th Cir.

preempted

[the]

Bennett Law

("When a

consumer

brings an action for violation of the disclosure provisions of
the

FCRA,

the

Act's

purpose

confidentiality is implicated.

of

protecting

In that respect,

consumer

such cases are

akin to invasion of privacy cases under state law—cases where

the plaintiff alleges that the defendant unlawfully invaded the
38

plaintiff s

privacy

confidential.")
inherent

by

obtaining

(collecting cases).

in

Plaintiffs'

claim

information

deemed

An invasion of privacy is
that

their

confidential

information was improperly disseminated.
Defendants

also

appear

to

argue

that

Plaintiffs

did not

adequately allege an injury in Count II because FTC regulations
and

guidance

permit

the

transfer

reporting agencies,

and therefore.

unlawful.

argument

That

of

data

between

Defendants'

concerns

the

consumer

conduct was not

legal

merits

of

Plaintiffs' claim, not the constitutional adequacy of the injury
that has been alleged,

and has no connection to the Supreme

Court's decision in Spokeo.
proper

ground

for

Accordingly, that argument is not a

reconsideration,

and

the

Court

declines

to

consider i t further.

Finally,

Defendants claim that ''Plaintiffs'

privacy could

not have been ^invaded' when they consented to the background
screening process."

(Def.

Reply at 13).

Defendants also made

much of this point at oral argument, arguing that, because the
FCRA

requires

procuring

employers

their

to

consumer

obtain

reports

consumers'

for

consent

employment

before

purposes.

Plaintiffs must have given such consent and therefore had no
expectation

of

privacy

furnished about them.

reach

far

beyond

in

the

information

that

Defendants

Here, again. Defendants ask the Court to

the

record.
39

Contrary

to

Defendants'

implication, the fact that employers are required by statute to

obtain current or potential employees' consent before procuring
their consumer reports by no means gives rise to the inference

that such consent was actually obtained, as evidenced by the
plethora of lawsuits arising out of employers' failure to comply
with that particular statutory requirement.
— — C a s e No.

3:13-cv-825.

whether such consent was obtained and,

what extent
determined

it
at

absolves
this

Defendants

stage

of

of

See, e.g., Thomas
Thus,

the

questions

if so, whether and to

liability cannot

litigation.

Therefore,

be
that

argument is similarly not a proper ground for reconsideration.

Thus,

for

the

reasons

set

forth

above,

the

motion

to

reconsider the Memorandum Opinion denying Defendants' motion to
dismiss Count II will be denied.
CONCLUSION

For

the

foregoing

reasons,

DEFENDANTS'

MOTION

FOR

RECONSIDERATION (ECF No. 60} will be granted in part and denied
in part.

Defendants' motion will be granted as to the claims of

Plaintiffs Allen, Edwards, Hackett, White, Roberts, and Stanley
in Count I, and those claims will be dismissed with prejudice.
Defendants' motion will be denied as to Witt's claim in Count I.
Defendants' motion will be denied as to Count II.

Count III has

been dismissed with prejudice upon Plaintiffs' oral motion made

40

in open court, and therefore Defendants' motion will be denied
as moot as to Count III.
It is so ORDERED.

/s/

n,

Robert E. Payne

Senior United States District Judge

Richmond, Virgin^

Date: August JXr 2016

41