United States District Court, E.D. Virginia, Richmond Division
DERRICK A. MILBOURNE, On his own behalf and on Behalf of those similarly Situated, Plaintiff,
JRK RESIDENTIAL AMERICA, LLC, Defendant.
Robert E. Payne Senior United States District Judge
This matter is before the Court on DEFENDANT'S MOTION TO DECERTIFY THE IMPERMISSIBLE USE AND ADVERSE ACTION CLASSES (ECF No. 151), PLAINTIFFS' CROSS-MOTION TO AMEND ORDER CERTIFYING CLASS (ECF No. 171), and PLAINTIFFS' UNOPPOSED MOTION TO AMEND PLAINTIFFS' CROSS-MOTION TO AMEND ORDER CERTIFYING CLASS (ECF No. 190). For the reasons set forth herein, Defendant's motion will be denied, Plaintiffs' cross-motion will be granted in part and denied in part, and Plaintiffs' unopposed motion will be granted.
A. Class Claims
On October 26, 2015, Plaintiffs Derrick A. Milbourne ("Milbourne"), Timothy Robins ("Robins"), and Samantha Churcher ("Churcher") (collectively, "Named Plaintiffs") filed a First Amended Complaint ("FAC, " ECF No. 147) on behalf of themselves and all others similarly situated, alleging that Defendant JRK Residential America, LLC ("JRK") violated two sections of the Fair Credit Reporting Act ("FCRA") . In Count One, the Named Plaintiffs allege that the disclosure form JRK provided to all potential employees ("the Standard Disclosure Form") violated 15 U.S.C. § 1681b(b)(3)(A), which requires that:
In using a consumer report for employment purposes, before taking any adverse action based in whole or in part on the report, the person intending to take such adverse action shall provide to the consumer to whom the report relates: (i) a copy of the report; and (ii) a description in writing of the rights of the consumer under this subchapter, as presented by the Bureau under Section 1681g(c)(3) of this title.
On March 15, 2016, for the reasons set forth in a separate Memorandum Opinion, the Court granted Plaintiffs' Second Motion for Partial Summary Judgment (ECF No. 162) on the issue of JRK's violation of § 1681b (b) (3) as alleged in Count One. (ECF No. 198) .
In Count Two, the Named Plaintiffs allege that JRK's use of the Standard Disclosure Form also violated 15 U.S.C. § 1681b(b)(2)(A), which provides that:
A person may not procure a consumer report, or cause a consumer report to be procured, for employment purposes with respect to any consumer, unless: (i) a clear and conspicuous disclosure has been made in writing to the consumer at any time before the report is procured or caused to be procured, in a document that consists solely of the disclosure, that a consumer report may be obtained for employment purposes; and (ii) the consumer has authorized in writing (which authorization may be made on the document referred to in clause (i)) the procurement of the report by that person.
The Court also granted Plaintiffs' motion for partial summary judgment as to Count Two, holding that the Standard Disclosure Form does not comply with § 1681b (b) (2) (A) as a matter of law. (ECF No. 198) .
Count Three, filed on behalf of a putative subclass of the class represented in Count Two, alleges that a second disclosure form that JRK provided to some potential employees ("the Standalone Disclosure Form" or "the contingency form") also violated § 1681b(b)(2)(A).
On March 15, 2016, for the reasons set forth in a separate Memorandum Opinion, the Court granted JRK's Second Motion for Summary Judgment (ECF No. 148) on Count Three, holding that the Standalone Disclosure Form satisfies § 1681b(b)(2)(A) as a matter of law. (ECF No. 200) . For the same reasons, the Court denied Plaintiffs' motion for partial summary judgment as to Count Three. (ECF No. 198).
B. Factual History
1. The Standard Disclosure Form
In November 2010, Milbourne applied for and conditionally received a job with JRK pending satisfactory completion of a background check. FAC "31
¶ 7-9. Before JRK obtained a consumer report on Milbourne, he signed two disclosure forms. FAC §1 15- 18. The first form, the "Standard Disclosure Form, " provides in part:
I certify that the information contained herein is true and understand that any falsification will result in the rejection of my application or termination of my employment. I also understand that the requested information is for the sole purpose of conducting a background investigation which may include a check of my identity, work and credit history, driving records, and any criminal history which may be in the files of any state or local criminal agency...
I hereby authorize this company, its corporate affiliates, its employees, its authorized agents, and representatives...to verify all information contained in this form or in my application and to inquire into any character, general reputation, personal characteristics, and mode of living...I hereby release this company, its corporate affiliates, its employees, its authorized agents and representatives and all others involved in this background investigation from any liability in connection with any information they give or gather and any decisions made concerning my employment based on such information. I understand that any offer of employment I may receive is contingent upon the successful completion of the background investigation. I further understand that I have a right, under Section 606(B) of the Fair Credit Reporting Act, to make a written request to this company within a reasonable period of time for a complete and accurate disclosure of the nature and scope of the investigation requested.
ECF No. 4 9-2 at 2 (emphasis added) . Robins and Churcher also signed the Standard Disclosure Form when they applied for employment with JRK in April 2011 and September 2013, respectively. FAC ¶¶ 27-31.
On October 31, 2014, the Court certified two classes based on the alleged deficiencies of ...