United States District Court, E.D. Virginia, Richmond Division
CAROLYN CLARK, on behalf of herself and all similarly situated individuals, Plaintiffs,
TRANS UNION, LLC, Defendant
Hannah Lauck United States District Judge
matter comes before the Court on the Motion for Class
Certification filed by Plaintiff Carolyn Clark, on behalf of
herself and all similarly situated individuals. (ECF No. 66.)
Defendant Trans Union, LLC ("TransUnion") has
responded to the Motion for Class Certification, (ECF No.
82), and Clark has replied, (ECF No. 104). The Court heard
oral argument on February 23, 2017. Accordingly, the matter
is ripe for disposition. The Court exercises jurisdiction
pursuant to 28 U.S.C. § 1331. For the reasons that follow,
the Court will grant the Motion for Class Certification.
Procedural and Factual Background
the named plaintiff, asserts six counts against TransUnion:
one proposed class claim and five individual claims. Count I,
the "Disclosure of Sources Claim" or the
"Class Claim" alleges a putative class action
arising out of TransUnion's violations of 15 U.S.C.
§ 1681g(a)(2) of the FCRA, which requires that consumer
reporting agencies "clearly and accurately"
disclose to consumers "[t]he sources of
information" in their credit files. 15 U.S.C. §
1681g(a)(2). Clark alleges that TransUnion's violations
of § 1681g(a)(2) entitle each consumer who received his
or her credit file with incorrect source information to
statutory damages under § 1681n(a) between $100 and $1,
the Supreme Court of the United States' opinion in
Spokeo, Inc. v. Robins, 136 S.Ct. 1540 (2016),
as revised (May 24, 2016), TransUnion moved to
dismiss this case on the grounds that Clark and the proposed
class lack standing. In its December 2016 Opinion, the Court
denied TransUnion's motion, explicitly rejecting
TransUnion's contention that each class member would need
to prove individualized injury in fact based on harm suffered
beyond the violation of § 1681g(a)(2) itself.
Clark, 2016 WL 7197391, at *11; see also Thomas
v. FTS USA, LLC, No. 3:13cv825, 2016 WL 3653878
(E.D. Va. June 30, 2016). The Court explained:
Thomas correctly acknowledged that Congress enacted
several substantive, and not merely procedural or technical,
rights to protect specific information in the FCRA. Analyzing
§ 1681b(b)(2) and an unauthorized disclosure of personal
information, the Thomas court aptly quoted
Spokeo's reliance on Akins and
Public Citizen when stating that "the violation
of a procedural right granted by statute can be sufficient in
some circumstances to establish an injury in fact." 2016
WL 3653878, at *11. "In other words, " the
Thomas court explained, "a plaintiff in such a
case need not allege any additional harm
[e.g., actual damages] beyond the one Congress has
identified." Id. (quoting Spokeo, 136
S.Ct. at 1549) (emphasis in original). Again relying directly
on Spokeo, the Thomas court also confirmed
that even a risk of real harm might satisfy the
concreteness requirement. Id. (citing
Spokeo, 136 S.Ct. at 1549) (emphasis added). This
Court agrees with Thomas that a consumer need not
necessarily prove any more harm than that suffered as a
result of the deprivation of FCRA information to which he or
she is entitled. The purpose of the FCRA as articulated in
legislative history supports this point.
Clark, 2016 WL 7197391, at *9. In a footnote, the
Court continued: "Mere factual differences ... do not
end the analysis. The finding of injury in fact in these
decisions rests in large part on the consumer's inability
to monitor his or her file for falsity when not provided the
relevant information." Id. at *10 n.20 (citing
Patel v. TransUnion, LLC, No. 14cv00522-LB, 2016 WL
6143191, at *4 (N.D. Cal. Oct. 21, 2016) ("[A] consumer
cannot monitor [his or] her file for falsity if [he or] she
is not given the relevant information. That impediment, that
non-disclosure, is thus a real injury. At the very least,
preventing a consumer from monitoring [his or] her file
presents a 'risk of real harm' of exactly the type
that [the] FCRA seeks to prevent (i.e., the
dissemination of incorrect information); and this risk can
itself'satisfy the requirement of
highlighting the remedial purpose of the FCRA, the Court
noted that "Congress intended that the FCRA be construed
to promote the credit industry's responsible
dissemination of accurate and relevant information and to
maintain the confidentiality of consumer reports."
Id. at * 8 (citing Thomas, 2016 WL 3653878,
at *7-8). Moreover, "Congress sought 'to establish [
] the right of a consumer to be informed of
investigations into his [or her] personal life.'"
Id. (citing Thomas, 2016 WL 3653878, at
*8). With respect to disclosure provisions in particular,
including § 1681g(a), the Court concluded that the FCRA
"promotes consumer oversight of compliance ... by
informing consumers of the source of the reported
information, thereby advancing the broader purposes of
'fair and accurate credit reporting."'
Id. (quoting Gillespie v. Equifax Info. Servs.,
LLC, 484 F.3d 938, 941 (7th Cir. 2007)). Looking to
these purposes of the FCRA, the Court ultimately reasoned
that the "failure to reveal source information reflects
the type of harm, or injury in fact, that Spokeo
recognizes as 'concrete' and
'particularized.'" Id. at *9.
this Court's December 2016 Opinion, TransUnion
relentlessly pursues its preferred interpretation of
Spokeo's effect on defining a
"concrete" injury. (See, e.g., Opp'n
Mot. Strike 10, ECF No. 117 (“Spokeo clarified
that a plaintiff does not satisfy the 'injury-in-fact
requirement by merely alleging a violation of a statutory
right, but must demonstrate a concrete injury even in the
context of a statutory violation." (citations
omitted)).) As discussed below, to the extent TransUnion
proffers more recent cases that have interpreted
Spokeo differently, none persuade the Court to
reconsider its December findings.
re Michaels Stores. Inc.
instance, TransUnion suggests that In re Michaels Stores,
Inc., No. 2:15cv2547, 2017 WL 354023 (D.N.J. Jan. 24,
2016), concluded that bare procedural violations of the FCRA
do not satisfy the injury-in-fact requirement of a standing
analysis. But the Michaels Stores decision provides
no analysis on the legislative history of the FCRA, or the
purpose of the statutory provision at issue. It thus ignores
Spokeo's requirement to consider the judgment of
Congress when evaluating whether an intangible injury
satisfies the "concreteness" requirement.
Spokeo, 136 S.Ct. at 1549. Spokeo
recognized that Congress '"has the power to define
injuries and articulate chains of causation that will give
rise to a case or controversy where none existed
before."' Id. (quotation omitted). But
Michaels Stores, without elaboration, unpersuasively
dismisses Spokeo's guidance in conclusory
fashion. 2017 WL 354023, at *7. And Michaels Stores
differs factually in an important way: those plaintiffs
"concede[d] that they d[id] not plead any concrete
harm." Id. at *3. Perhaps in view of this
pleading error, the Michaels Stores court permitted
plaintiffs leave to file amended complaints. Id. at
v. Paris Baguette America, Inc.
on Cruper-Weinmann v. Paris Baguette America, Inc.,
No. 13 CIV. 7013, 2017 WL 398657, at *3 (S.D.N.Y. Jan. 30,
2017), TransUnion next contends that Spokeo created
a two-part test to establish concrete injury: (1) that the
case involves a specific right created by "Congress ...
to protect a concrete interest of the plaintiff'; and,
(2) that "the alleged violation of [a] right presented a
material risk of harm to that concrete interest."
(Opp'n Mot. Strike 10.) However, TransUnion cites no
Fourth Circuit cases performing such a two-step inquiry, and
the Court sees none. But even assuming that
Cruper-Weinmann's test for informational injury
was sound, Clark likely would satisfy it. This Court has
recognized that Clark, and anyone not notified that
LexisNexis was a source of public records information, has
suffered the violation of a right created by Congress.
See Clark, 2016 WL 7197391, at *11. The violation of
that right creates "a material risk that LexisNexis
could... report inaccurate information to others in the
future." Id. (emphasis added).
Cruper-Weinmann, on the other hand, the plaintiff could
not assert standing under the Fair and Accurate Credit
Transactions Act (the "FACTA") because she did not
suffer a risk of harm after a restaurant
printed a receipt that displayed the expiration date of her
credit card. The court explained:
In 2007, FACTA was amended in order to provide a
retrospective safe harbor to persons who had previously
printed an expiration date on a receipt but otherwise
complied with FACTA's requirements. Credit and Debit Card
Receipt Clarification Act of 2007, Pub. L. No. 110-241, 122
Stat. 1565. That amendment contained Congress's finding
that "[e]xperts in the field agree that proper
truncation of the card number, by itself as required by
[FACTA], regardless of the inclusion of the expiration date,
prevents a potential fraudster from perpetrating identity
theft or credit card fraud." § 2(a)(6).
Cruper-Weinmann, 2017 WL 398657, at *1. As such, the
statutory violation in Cruper-Weinmann, unlike
TransUnion's alleged violations of § 1681g(a)(2),
resulted in no risk of harm to the plaintiff. Accordingly,
even were TransUnion's standing argument before this
Court properly, it likely would fail.
also had sought to strike class certification in its Motion
to Dismiss. In the December 2016 Opinion, the Court rejected
that challenge as untimely because class certification would
be "more appropriately [brought] on the more complete
record than the parties' briefing" then provided.
Clark, 2016 WL 7197391, at *5. Although discovery
disputes continue to plague this litigation,  the Court now
considers the Motion for Class Certification.
noted in the December 2016 Opinion, although the Motion for
Class Certification pertains exclusively to Clark's
ability to certify the class and advance the Class Claim,
Clark's five individual counts provide context to the
entire action. Accordingly, the Court outlines the Class
Claim, Clark's individual claims, and the facts framing
all allegations below.
The Named Plaintiffs Individual Claims (Counts II through
alleges that on August 7, 2014, TransUnion provided to her a
copy of her credit file that incorrectly listed two civil
judgments entered against her. TransUnion listed the sources
of the two judgments as "Henrico District Court"
and "Virginia Federal Court, " respectively. (First
Am. Class Compl. ¶ 27.) Clark contends that another
source of the judgments was LexisNexis, the third-party
vendor that retrieved the data.
Cash allegedly entered one of the judgments against Clark in
November 2008 in the amount of $575, even though that
judgment had been appealed and dismissed. Clark submitted
multiple demand letters requesting that TransUnion correct
its error. TransUnion, however, purportedly failed to conduct
a "timely and reasonable reinvestigation" and
continued to report the Quik Cash judgment as unpaid.
(Id. ¶ 35.)
events, according to Clark, give rise to five individual
claims. Count II, the "Reasonable Procedure Claim,
" proceeds under 15 U.S.C. §
1681e(b). Count III, the "Reasonable
Reinvestigation Claim, " invokes 15 U.S.C. §
1681i(a)(1). Count Four, the "Failure to Send
Furnisher all Relevant Information Claim, " cites 15
U.S.C. § 1681i(a)(2). Count Five, the "Failure to Review
Consumer Communication Claim" relies upon 15 U.S.C.
§ 1681i(a)(4).Finally, Count Six, the "Failure to
Delete Claim, " proceeds under 15 U.S.C. §
1681(a)(5). For each of these five individual
claims, Clark seeks actual damages, statutory damages,
punitive damages, costs, and attorneys' fees under
§§ 168In and 1681o.
The Class Claim (Count I)
Class Claim, Clark alleges that TransUnion violated §
1681g(a)(2) by failing to convey on her credit file that
LexisNexis was a source of the judgment information. To
advance the claims of similarly situated individuals, Clark
proposes to certify a class as follows:
All natural persons residing in the Fourth Circuit[:] (a) who
requested their consumer file from Trans Union or any of its
affiliated companies, subsidiaries, or any other Trans Union
entity, (b) within five years preceding this filing of this
action and during its pendency, and[J (c) to whom Trans Union
provided a response that did not include any reference to its
public records vendor as the source of public records
information within the consumer's file disclosure.
Excluded from the class definition are any employees,
officers, or directors of Trans Union, any attorney appearing
in this case, and any judge assigned to hear this action.
Am. Class Compl. ¶ 62.) Clark seeks statutory and
punitive damages in the amount of not less than $100 and not
more than $1, 000 per violation per class member, as set
forth in 15 U.S.C. § 1681n(a).
seeks to certify a class comprised of individuals who
received credit reports from TransUnion "that did not
include any reference to its public records vendor as the
source of public records information within the
consumer's file disclosure." (First Am. Class Compl.
¶ 62.) At the heart of the Class Claim rests the
straightforward allegation that TransUnion has a systemic
procedure of willfully omitting its source of public records
information in its consumer reports. In spite of this direct
theory of liability, TransUnion opposes certification.
opposition to the Motion for Class Certification repeatedly
highlights the factual differences regarding the purported
inaccuracies on the class members' consumer reports.
TransUnion proffers this argument in several ways, ultimately
contending that these disparities necessarily mean that the
class members suffered different injuries. According to
TransUnion, such dissimilarities cannot survive the rigorous
analysis this Court must undertake before certifying a class
under Federal Rule of Civil Procedure 23. In so
arguing, TransUnion either continues to dispute this
Court's ruling on standing or it erroneously adds an
element of accuracy to § 1681g(a)(2)'s plain
language. Both of TransUnion's arguments founder. The
Class Claim seeks redress not for inaccurate public
records information, but for TransUnion's failure to
disclose the sources of public records information
on the class members' consumer reports-irrespective of
the accuracy of the information those sources provide.
reasons stated below, Clark readily meets the Rule 23
requirements. The Court will certify the class.
Standard for Class Certification
as plaintiff, bears the burden of proving all requirements of
Rule 23. Lienhart v. Dryvit Sys., Inc., 255 F.3d
138, 146 (4th Cir. 2001). First, her proposed class must
satisfy the four requirements of Federal Rule of Civil
Procedure 23(a). Those requirements are that: (1) the
class is so numerous that joinder of all members is
impracticable; (2) there are questions of law or fact common
to the class; (3) the class representative's claims or
defenses are typical of those of the class; and, (4) the
class representative will fairly and adequately represent the
interests of the class. See Broussardv. Meineke Disc.
Muffler Shops, Inc., 155 F.3d 331, 337 (4th Cir. 1998).
Clark's proposed class must align with at least one of
the types of class actions delineated in Federal Rule of
Civil Procedure 23(b),  and meet the corresponding
prerequisites for certification. Here, Clark moves for
certification under Rule 23(b)(3). A court may certify a
class under Rule 23(b)(3) when it finds that: (1) questions
of law or fact common to the members of the class predominate
over any questions affecting only individual members; and,
(2) a class action is superior to other available methods for
the fair and efficient adjudication of the controversy.
United States Court of Appeals for the Fourth Circuit has
explained, courts need not "accept plaintiffs'
pleadings when assessing whether a class should be
certified." Gariety v. Grant Thornton, LLP, 368
F.3d 356, 365 (4th Cir. 2004). Rather, "the district
court must take a 'close look' at the facts relevant
to the certification question and, if necessary, make
specific findings on the propriety of certification."
Thorn v. Jefferson-Pilot Life Ins. Co., 445 F.3d
311, 319 (4th Cir. 2006) (quoting Gariety, 368 F.3d
at 365). "Such findings can be necessary even if the
issues tend to overlap into the merits of the underlying
case, " but "[t]he likelihood of the
plaintiffs' success on the merits ... is not relevant to
the issue of whether certification is proper."
Id. (internal citations omitted).
Supreme Court recently elaborated on a district court's
ability to make factual determinations at the class
certification stage in Wal-Mart Stores, Inc. v.
Dukes, 541 U.S. 338 (2011). In Dukes, the
Supreme Court explained:
Rule 23 does not set forth a mere pleading standard. A party
seeking class certification must affirmatively demonstrate
his compliance with the Rule-that is, he must be prepared to
prove that there are in fact sufficiently numerous parties,
common questions of law or fact, etc. We recognized
in Falcon that "sometimes it may be necessary
for the court to probe behind the pleadings before coming to
rest on the certification question, " and that
certification is proper only if "the trial court is
satisfied, after a rigorous analysis, that the prerequisites
of Rule 23(a) have been satisfied."
541 U.S. at 350 (quoting Gen. Tel. Co. of Sw. v.
Falcon, 457 U.S. 147, 160-61 (1982) (emphasis in
original)). "Frequently that 'rigorous analysis'
will entail some overlap with the merits of the plaintiff s
underlying claim. That cannot be helped." Mat 351.
Clark Satisfies the Requirements of Rule 23
delineated above, Clark must satisfy the numerous
requirements of Rule 23 before this Court may certify the
proposed class. Upon review, the Court determines that Clark
has done so. The Court will address the requirements of Rule
23(a) and Rule 23(b) seriatim.
Clark Satisfies the Four Requirements of Rule
class satisfies the four requirements of Rule 23(a): (1)
numerosity of the class makes joinder of all members
impracticable; (2) there are questions of law or fact common
to the class; (3) Clark's claims typify those of the
class; and, (4) Clark will fairly and adequately represent
the interests of the class. See Broussard, 155 F.3d
Clark's Class is So Numerous That Joinder of All Members
TransUnion does not oppose Clark's assertion that
numerosity makes joinder of all class members impracticable.
Clark easily satisfies this requirement. Although no there is
no minimum number of potential class members needed to
fulfill the numerosity requirement, see Holsey v. Armour
& Co.,743 F.2d 199, 217 (4th Cir. 1984), joinder
usually becomes impracticable where the class exceeds 40
members, see Kennedy ...