United States District Court, E.D. Virginia, Richmond Division
E. Payne Senior United States District Judge.
matter is before the Court on DEFENDANT'S MOTION TO
STRIKE: (1) PLAINTIFFS' PROPOSED SUBCLASSES; AND (2) THE
DECLARATIONS OF ROBERT SMITH AND MICHAEL HOLLANDER (ECF No.
294). For the reasons set forth herein, Defendant's
motion will be denied.
16, 2015, Plaintiffs Tyrone Henderson ("Henderson")
and James Hines ("Hines") filed a second amended
class action complaint on behalf of themselves and all others
similarly situated, alleging that Defendant National
Background Data, LLC PNBD") had violated the Fair Credit
Reporting Act ("FCRA"). (Second Amended Complaint
("SAC"), ECF No. 189). The SAC presents two claims
under the FCRA. Count One alleges, on behalf of the putative
nationwide class, that NBD violated the FCRA by failing to
send notices to consumers and to "maintain strict
procedures" to ensure that the criminal records it
provided to its customers were "complete and up to date,
" in violation of 15 U.S.C § 1681k(a). Count Two,
an individual claim on behalf of Henderson and Hines, alleges
that NBD failed to use reasonable procedures to assure
maximum accuracy of its reports, in violation of U.S.C.
August 25, 2015, Plaintiffs filed a renewed motion for class
certification, seeking to certify the following class:
All natural persons residing in the United States who (a)
were the subject of a report sold by NBD to Verifications,
ADP or HR Plus, (b) where NBD's "Results
Returned" database indicates that it was furnished for
an employment purpose, (c) where NBD's "Results
Returned" database showed that the report contained at
least one adverse criminal record "hit, " (d)
within five years next preceding the filing of this action
and during its pendency.
(ECF No. 196) . The Court heard oral argument on that motion
on April 18, 2016. At the hearing, the Court expressed
concerns that the class definition was overly broad and was
not adequately tethered to the element of
"incompleteness" that Plaintiffs are required to
prove to succeed on their § 1681k claim. See
Transcript of Apr. 18, 2016 Hearing ("Hrg. Tr., "
ECF No. 279). Therefore, the Court denied Plaintiffs'
motion without prejudice and ordered the parties to rebrief
the class certification issues, mindful of the Court's
concerns expressed at the hearing. (ECF No. 275).
accordance with that Order, Plaintiffs filed a third motion
for class certification on May 9, 2016. In their memorandum
in support of that motion, Plaintiffs argue that the Court
should certify the following class:
All natural persons residing in the United States (a) who
were the subject of a report sold by NBD to Verifications,
ADP or HR Plus, (b) where NBD's Results Returned database
indicates that it was furnished for an employment purpose
(Code 6), (c) where NBD's Results Returned database
showed that the report contained at least one adverse
criminal record "Hit, " (d) within five years next
preceding the filing of this action and during its
pendency...[excluding] any employees, officers, directors of
Defendant, any attorney appearing in this case, and any judge
assigned to hear this action.
(ECF No. 282).
also contend that, should the Court find that the foregoing
class does not meet the requirements of Fed.R.Civ.P. 23, the
Court should certify one or more of Plaintiffs' three
proposed subclasses, defined as follows:
SUBCLASS 1: (i) NBD's Results Returned database shows a
criminal record hit from a Virginia General District Court;
(ii) NBD did not return a SSN to its customers; and (iii) the
computer database of the Executive Secretary of the Supreme
Court of Virginia contains a SSN or Drivers License number
associated with that criminal record.
SUBCLASS 2: (i) NBD's Results Returned database shows a
criminal record hit from a [Pennsylvania] General District
Court; (ii) NBD did not return a SSN to its customers; and
(iii) the computer database of the Pennsylvania
Administrative Office of Pennsylvania Courts (AOPC) contains
a SSN associated with that criminal record.
SUBCLASS 3: (i) NBD's Results Returned database show
[sic] a criminal record hit from a state Sex Offender
Registry; (ii) where the age and/or date of birth provided
for that consumer by Verifications, ADP or HR Plus did not
match the age and/or date of birth contained in that
State's publically accessible Sex Offender Registry.
support of their first and second proposed subclasses,
Plaintiffs have offered the declarations of Robert Smith
("Smith") and Michael Hollander
("Hollander"), respectively. Smith is an employee
in the Office of the Executive Secretary of the Supreme Court
of Virginia. (ECF No. 282-29 ¶ 2) . In his declaration,
Smith explains that, based on his review of a sample of
General District Court records, most of the records contain
Social Security Numbers ("SSNs") and/or
operator's license numbers. Id.¶¶4-5.
Hollander is a staff attorney at Community Legal Services,
Inc., a free legal services program based in Pennsylvania.
(ECF No. 282-31, ¶¶ 2-3). Hollander's
declaration briefly discusses the operation of the records
database maintained by the Administrative Office of
Pennsylvania Courts and describes the procedures for
accessing that database. Id. ¶¶ 7-10.
to Fed.R.Civ.P. 37(c), NBD has filed a motion to strike
Plaintiffs' proposed subclasses and the Smith and
Hollander declarations offered in support thereof. First, NBD
argues that Plaintiffs' proposed subclasses must be
stricken because Plaintiffs' "belated
disclosure" of the subclasses was a "complete
surprise" and "Plaintiffs had never mentioned the
use of any third-party governmental databases to try and
achieve class certification in this case, let alone databases
that were specific to Virginia, Pennsylvania, or state sex
offender websites." (Defendant's Memorandum in
Support of Motion to Strike: (1) Plaintiffs' Proposed
Subclasses; and (2) the Declarations of Robert Smith and
Michael Hollander ("Def. Mem., " ECF No. 295) at 5)
. NBD argues that those subclasses represent a completely new
legal theory against which NBD is unprepared to defend.
Id. Moreover, NBD contends, Plaintiffs are bound by
the class definition alleged in their Complaint, and cannot
demonstrate good cause to amend the Complaint. Id.
at 11. Therefore, NBD concludes, the Court should not
consider the proposed subclasses in deciding the motion for
NBD argues that the Smith and Hollander declarations should
be excluded because Plaintiffs did not disclose these
witnesses as required by Fed.R.Civ.P. 26 before attaching the
declarations in support of their motion for class
certification. Id. at 5. NBD also argues that both
declarations are irrelevant because the declarations do not
show that SSNs were "publically available" in
either database, and the refore have no relevance to the
analysis required by § 1681k(a), which pertains only to
"public records." Id. at 9-10.
following reasons, it is appropriate for the Court to
consider Plaintiffs' proposed subclasses, and NBD's
motion will be denied as to them. And, because Smith and
Hollander were not disclosed as required by Fed.R.Civ.P. 26,
it is appropriate to allow NBD an opportunity to conduct
discovery respecting the topics therein presented, and to
require briefing on certification of the three subclasses.
facets of NBD's motion proceed under Fed.R.Civ.P. 37(c)
which provides that:
If a party fails to provide information or identify a witness
as required by Rule 26(a) or (e), the party is not allowed to
use that information or witness to supply evidence on a
motion, at a hearing, or at a trial, unless the ...