United States District Court, D. Arizona
ORDER
DOMINIC W. LANZA UNITED STATES DISTRICT JUDGE
Pending
before the Court is Defendant's motion, under Rule
12(b)(1), to dismiss Count One of the complaint for lack of
standing. (Doc. 27.) As explained below, the motion will be
denied.[1]
BACKGROUND
A.
Factual Allegations
The
complaint was filed on May 23, 2018. (Doc. 1.) The following
summary assumes the truth of all allegations contained
therein.
Under
the Fair Credit Reporting Act (“FCRA”), codified
at 15 U.S.C. § 1681 et seq., an employer that
wishes to obtain and use consumer reports regarding its job
applicants and employees must provide a “clear and
conspicuous” disclosure of its intention to do so
“in a document that consists solely of the
disclosure.” (Doc. 1 ¶ 3.)
In or
around January 2018, Justin Downing (“Plaintiff”)
was hired by Haven Health Group, LLC
(“Defendant”).[2] (Doc. 1 ¶ 12.) During the hiring
process, Plaintiff was presented with various disclosure and
authorization forms. (Id. ¶ 13.) However, the
form that disclosed Defendant's intention to obtain
consumer reports concerning Plaintiff “was replete with
extraneous information” (see Id. ¶ 14)
and the separate form that sought authorization to obtain
such reports was “similarly riddled with extraneous
information” (see Id. ¶ 15). The presence
of this extraneous information caused Plaintiff to become
“confused as to the nature of the report being procured
about him” and “deprived [him] of [his] ability
to meaningfully understand and authorize the reports.”
(Id. ¶ 16.) Plaintiff “wouldn't have
authorized” Defendant to obtain his consumer reports
“had a lawful disclosure been made.”
(Id.)
“Shortly
after” Plaintiff was hired, Defendant obtained a
consumer report pertaining to him, which revealed that
Plaintiff had a criminal history. (Id. ¶ 17.)
In February 2018, Defendant terminated Plaintiff's
employment, effectively immediately, without showing him the
consumer report and without providing any advance notice of
its intent to take an adverse employment action.
(Id. ¶¶ 18-19.)
B.
Legal Theory
The
complaint, which asserts claims on behalf of a class of
similarly-situated individuals (see Doc. 1
¶¶ 24-31), contains two counts. Count One-which is
the only count challenged in the motion to dismiss-is a claim
that Defendant willfully violated 15 U.S.C. §
1681b(b)(2)(A)(i) by failing to provide a clear and
conspicuous disclosure, in a standalone form, of
Defendant's intention to obtain consumer reports
concerning its employees. (Doc. 1 ¶¶ 32-41.) Count
Two is a claim that Defendant willfully violated 15 U.S.C.
§ 1681b(b)(3) by terminating Plaintiff without first
providing a copy of his consumer report or providing notice
of its intent to take adverse action. (Doc. 1 ¶¶
42-50).
DISCUSSION
A.
Legal Standard
In
Spokeo, Inc. v. Robins, 136 S.Ct. 1540 (2016)
(“Spokeo I”), the Supreme Court
considered whether a plaintiff alleging a violation of the
same regulatory scheme at issue in this case-the FCRA-had
standing to pursue his claim. The Court began by reiterating
several long-established standing principles, including that
the plaintiff “must have (1) suffered an injury in
fact, (2) that is fairly traceable to the challenged conduct
of the defendant, and (3) that is likely to be redressed by a
favorable judicial decision, ” that the plaintiff,
“as the party invoking federal jurisdiction, bears the
burden of establishing these elements, ” and that the
injury-in-fact element is satisfied only if the plaintiff
“suffered ‘an invasion of a legally protected
interest' that is ‘concrete and particularized'
and ‘actual or imminent, not conjectural or
hypothetical.'” Id. at 1547-48 (citations
omitted). The Court further stated that for an injury to be
“particularized, ” “it ‘must affect
the plaintiff in a personal and individual way.'”
Id. at 1548 (citation omitted). And for an injury to
be “concrete, ” it “must be ‘de
facto'; that is, it must actually exist.”
Id. The Court cautioned, however, that
“concrete” is not “necessarily synonymous
with ‘tangible.' Although tangible injuries are
perhaps easier to recognize, . . . intangible injuries can
nevertheless be concrete.” Id. at 1549.
After
articulating these standards, the Court applied them to the
FCRA claim before it. The Court concluded, on the one hand,
that standing doesn't automatically arise whenever a
plaintiff alleges a violation of a statutory scheme. The
Court explained that “Congress' role in identifying
and elevating intangible harms does not mean that a plaintiff
automatically satisfies the injury-in-fact requirement
whenever a statute grants a person a statutory right and
purports to authorize that person to sue to vindicate that
right, ” that “Article III standing requires a
concrete injury even in the context of a statutory violation,
” and that a plaintiff therefore cannot “allege a
bare procedural violation, divorced from any concrete harm,
and satisfy the injury-in-fact requirement of Article
III.” Id. at 1549. On the other hand, the
Court recognized that “the violation of a procedural
right granted by statute can be sufficient in some
circumstances to constitute injury in fact. In other words, a
plaintiff in such a case need not allege any
additional ...