United States District Court, E.D. Virginia, Richmond Division
E. Payne Senior United States District Judge
matter is before the Court on PLAINTIFFS' RENEWED MOTION
FOR CLASS CERTIFICATION (ECF No. 281) . For the reasons set
forth herein, the motion will be denied.
16, 2015, Plaintiffs Tyrone Henderson ("Henderson")
and James Hines ("Hines") (collectively,
"Plaintiffs") filed a Second Amended Class Action
Complaint on behalf of themselves and all others similarly
situated, alleging that Defendant National Background Data,
LLC ("NBD") had violated the Fair Credit Reporting
Act ("FCRA"). (Second Amended Complaint
("SAC"), ECF No. 191). The SAC alleges two Counts
under the FCRA. Count One alleges, on behalf of a putative
nationwide class, that NBD violated the FCRA by failing to
"maintain strict procedures" to ensure that the
public records it provided to its customers were
"complete and up to date" and by failing to notify
consumers when such records were provided about them, 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.
now seek to 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.
Plaintiffs failed to provide NBD with notice of some
important evidence underlying the subclasses, NBD was denied
the opportunity to conduct discovery necessary to fully brief
that issue. Therefore, Plaintiffs' motion will be denied
without prejudice as to the three subclasses, and the parties
will be given an opportunity to conduct expedited discovery
as to the viability of the subclasses. However, for the
reasons set forth below, Plaintiffs' motion will be
denied with prejudice as to the putative nationwide class.
a company that provides its customers access to a database
("The Multistate Database" or "the
Database") of criminal record information.
(Defendant's Memorandum in Support of its Renewed Motion
for Partial Summary Judgment on Count I of the Second Amended
Complaint (ECF No. 195), Statement of Undisputed Facts
("SOF") ¶ 18). NBD's customers, which in
this instance are consumer reporting agencies
("CRAs"), pay to search the Multistate Database by
way of the Internet. The Multistate Database then returns
results (such as arrest records) that are responsive to the
search criteria entered by NBD's customer. Id.
Multistate Database is owned and managed by CoreLogic
SafeRent, LLC ("SafeRent"), a sister company to
NBD. Id. SafeRent obtains most of the criminal
record data in the Database electronically from governmental
sources, although approximately ten percent of the data is
purchased from a third party vendor. Id. ¶ 19.
SafeRent buys criminal records in bulk, formats the records
it purchases so that they can be properly incorporated into
the Multistate Database, and updates the records at varying
intervals. Id. ¶¶ 20-24. Because SafeRent
purchases criminal record data in bulk, the public records in
the Multistate Database often contain only limited
identifying information. For example, public records
purchased in bulk rarely, if ever, contain Social Security
Numbers ("SSNs") . Id. ¶¶ 16-17.
Based on the reports generated by NBD in response to queries
regarding Plaintiffs, it is clear that the records sometimes
also lack other identifying data such as middle names or
addresses. (ECF No. 196 Exs. 13, 14). Therefore, the portions
of the public records that are in the Multistate Database
often are not sufficient to link the data supplied with the
particular consumer to whom the records pertain. ECF No. 195,
SOF ¶¶ 5-6.
oversees all formatting, updating, and maintenance of the
Multistate Database; NBD merely acts as an intermediary
between SafeRent and the customer CRAs, and transmits this
data to its customers without change. The contracts between
NBD and its customers obligate the customers independently to
verify the records returned in response to their search
queries before providing consumer reports to their clients.
Id. ¶¶ 8-15.
and Hines present factually similar cases. Specifically,
Henderson and Hines were denied employment based on allegedly
inaccurate and incomplete criminal history information
supplied by NBD. Henderson applied for a job at Interstate
Brands Corporation ("Interstate") in August or
September of 2009. (SAC ¶ 19). Interstate made Henderson
a conditional offer of employment, and subsequently requested
a background check on Henderson from Verifications, Inc.
("Verifications), a third party CRA. Id. ¶
21. As part of the background check process, Verifications
conducted a search of the Multistate Database by inputting
Henderson's last name, the first three letters of his
first name, and his date of birth. (ECF No. 195, SOF ¶
29) . The results of this search correctly included
Henderson's criminal history, but the search results also
contained several records, including felony convictions,
belonging to at least one other individual who had the same
first and last name and date of birth as Henderson. (SAC M
24-26) . In the background check that it provided to
Interstate, Verifications included multiple criminal records
that were incorrectly attributed to Henderson by NBD.
Id. ¶ 27. As a result of the incorrect
information, Interstate withdrew its conditional offer of
applied for a position as a physical therapist with CareSouth
Homecare Professionals ("CareSouth") in May 2011.
Id. ¶ 39. As part of its consideration of Hines
for that position, CareSouth purchased a consumer report from
ADP Screening and Selection Services ("ADP"), a CRA
similar to Verifications. Id. ¶¶ 41-42. As
part of the compilation of this report, ADP conducted a
search of the Multistate Database by inputting Hines'
first and last names and his date of birth. (ECF No. 195, SOF
¶ 41). These search results contained criminal records
correctly attributed to Hines, but also contained records
belonging to at least one other individual with the same
first name, last name, and date of birth, including an
Indiana record indicating that Hines was a registered sex
offender. (SAC ¶¶ 42-45). ADP included this
incorrect information in the consumer report that it provided
to CareSouth. As a result of the incorrect information, Hines
was not hired for the position at that time. Id.
obtain class certification, a plaintiff must satisfy the four
requirements of Fed.R.Civ.P. 23(a). Additionally, the
proposed class must be consistent with at least one of the
types of class actions delineated in Fed.R.Civ.P. 23(b), and
must meet the corresponding prerequisites for certification.
However, before the Court undertakes the Rule 23 analysis,
there are three threshold disputes to be resolved.
begin, NBD contends that "Plaintiffs cannot establish
Article III standing for the absent class members."
(Defendant's Memorandum in Opposition to Plaintiffs'
Renewed Motion for Class Certification ("Def. Mem. in
Opp., " ECF No. 296) at 19) . More specifically, says
NBD, every class member must "establish that any return
of incomplete records by NBD caused him or her
'concrete' and 'particularized' harm
sufficient to establish Article III standing."
Id. (citing Spokeo v. Robins, 136 S.Ct.
1540 (2016)). Before proceeding to the merits of the motion,
the Court must first resolve any issues relating to standing
because that issue affects the Court's subject matter
Court need not delve into the issue of absent class
members' standing here, however, because NBD's
argument simply misapprehends the role of constitutional
standing in the class action context. There is no dispute
that the named plaintiffs- that is, Henderson and Hines-have
standing; therefore, there is a justiciable case and
controversy between the parties before the Court. That is all
that Article III requires. See, e.g., ProEnglish
v. Bush, 70 F.App'x 84, 87 (4th Cir. 2003) (quoting
Harris v. Evans, 20 F.3d 1118, 1121 (11th Cir.
1994)) (observing that the "'central purpose of the
standing requirement [is] to ensure that the parties
before the court have a concrete interest in the outcome
of the proceedings such that they can be expected to frame
the issues properly.'") (emphasis added).
given that Henderson and Hines indisputably have standing,
NBD's argument concerning whether, and to what extent,
the absent class members have suffered harm is more aptly
characterized as identifying perceived differences between
the named plaintiffs' claims and the claims of the absent
class members: in other words, NBD's standing argument
really presents issues that are pertinent to the questions of
predominance, typicality, and adequacy of representation,
which must be analyzed under Fed.R.Civ.P. 23.
leading class action treatise has succinctly explained this
distinction, noting that, although the constitutional
requirement of standing and the statutory prerequisites of
Rule 23(a) "appear related as they both aim to measure
whether the property party is before the court to tender the
issues for litigation, " "whether or not the named
plaintiff who meets individual standing requirements may
assert the rights of absent class members is neither a
standing issue nor an Article III case or controversy but
depends on meeting the prerequisites of Rule 23 governing
class actions." Alba Conte & Herbert Newberg,
Newberg on Class Actions § 2:6 (5th ed. 2013)
(hereafter "Newberg § ___") . Therefore, Rule
23, rather than Article III, is the appropriate rubric for
evaluating these differences because, "while standing
doctrine is primarily concerned with ensuring that a real
case or controversy exists, Rule 23(a)'s requirements are
designed precisely to address concerns about the relationship
between the class representative[s] and the class."
Id. Accordingly, to the extent that injury (or lack
thereof) to absent class members is relevant to the Rule 23
analysis, it is addressed in more detail below.
Incompleteness is a Required Element of ...