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Frazier v. First Advantage Background Services Corp.

United States District Court, E.D. Virginia, Richmond Division

September 23, 2019

MICHAEL FRAZIER, et al., for themselves and on behalf of all similarly situated individuals, Plaintiffs,
v.
FIRST ADVANTAGE BACKGROUND SERVICES CORP., Defendant.

          MEMORANDUM OPINION

          M. Hannah Lauck, Judge

         This matter comes before the Court on Defendant First Advantage Background Services Corporation's (“First Advantage”) Motion to Dismiss. (ECF No. 39.) Plaintiffs[1] responded, (ECF No. 43), and First Advantage replied, (ECF No. 46). Plaintiffs also filed a Motion for Leave to File Supplemental Authority, (ECF No. 47), which First Advantage did not oppose. These matters are ripe for disposition. The Court dispenses with oral argument because the materials before it adequately present the facts and legal contentions, and argument would not aid the decisional process. For the reasons that follow, the Court will grant the Motion for Leave to File Supplemental Authority and the Motion to Dismiss.

         I. Factual and Procedural Background A. Summary of Allegations in the Second Amended Complaint[2]

         Plaintiffs' three-count Second Amended Class Complaint (the “Second Amended Complaint”), (ECF No. 34), alleges violations of the the Fair Credit Reporting Act (the “FCRA”), 15 U.S.C. § 1681 et seq., by First Advantage. Plaintiffs' allegations flow entirely from circumstances surrounding their applications for employment with Wells Fargo.[3] Reading the allegations favorably, Plaintiffs describe the hiring process as follows.

         1. Wells Fargo Required Applicants to Obtain an Employee Background Check from First Advantage before Hiring

         Plaintiffs applied for jobs with Wells Fargo on dates between August 17, 2012, (Donald Brasher), and April 10, 2015, (Nicholas Northington). (Second Am. Compl. ¶¶ 112, 100.)

         Plaintiffs allege that Wells Fargo asked First Advantage to “obtain a background check on each of the Plaintiffs, ” and that “[t]he application process was completed using First Advantage's Internet Portal.” (Id. ¶ 3 (emphasis added).) Plaintiffs acknowledged that stipulated facts in the Manuel case and those alleged here establish that “Wells Fargo sent applicants to the First Advantage portal . . . and that First Advantage then generated a consumer report[4] that was placed online [and] accessible by both First Advantage and Wells Fargo.”[5](Id. ¶ 48.) (emphasis added).)

         During the application process and before any report was generated, each plaintiff signed a disclosure authorizing First Advantage to obtain her or his consumer report. (Second Am. Compl. ¶ 30.) Plaintiffs allege that “First Advantage created a faux compliance scheme by drafting and providing within its own website a disclosure form it represented would satisfy the disclosure requirements” of the FCRA when, in fact, the form did not. (Id. ¶¶ 28, 29, 167.).

         Plaintiffs dub this compliance scheme a ruse because First Advantage created a Disclosure Form that violated the FCRA, provided it to Wells Fargo, and then allowed Wells Fargo to certify compliance to First Advantage using the very same violative form that First Advantage had created. (Second Am. Compl. ¶ 208.) This non-compliant form allegedly resulted in an invalid, defective, and improper certification. (Id. ¶¶ 27, 171, 220.) Moreover, because First Advantage supplied this form for Wells Fargo, Plaintiffs allege that First Advantage “knew or should have known” that the form did not comply with the FCRA. (Id. ¶¶ 32, 172.)

         2. First Advantage Authored the Defective Disclosure Form That Violates Consumers' Rights

         Plaintiffs assert that because “First Advantage knew that Wells Fargo used the disclosure form First Advantage provided with little, if any, alteration, and Wells Fargo certainly did not alter any of the release language, First Advantage . . . caused Wells Fargo to fail to provide Plaintiffs with an [sic] FCRA-compliant disclosure of Wells Fargo's intent to obtain a consumer report about them.” (Second Am. Compl. ¶ 186.) Plaintiffs add that, “[u]pon information and belief, First Advantage knowingly allowed Wells Fargo and comparable customer[s] to execute an ineffective certification that Wells Fargo would comply with the disclosure and authorization provisions of the FCRA.” (Id. ¶ 207.)

         An employer's written disclosure that it uses to obtain an employment-purposed consumer report “must be presented in a clear, conspicuous, standalone form.” (Second Am. Compl. ¶ 206 (citing Manuel v. Wells Fargo Bank, Nat'l Ass'n., 123 F.Supp.3d 810, 817-18 (E.D. Va. 2015); Reardon v. Closet Maid Corp., No. 2:08-cv-01730, 2013 WL 6231606 at *5 (W.D. Pa. Dec. 2, 2013)).) Plaintiffs allege that the disclosure form at bar improperly “was buried in a lengthy application and contained unnecessary, additional language including a purported release of Plaintiffs' . . . FCRA rights and thus was not contained in a stand-alone document consisting solely of the disclosure.” (Id. ¶ 170.) This broad release-of-liability clause-on the same form- used “language [that] attempts to take clear ‘advantage' of the use of consumer information, purporting to leave consumers with no legal power over the [Credit Reporting Agency (“CRA”)], the information generated by the CRA, or how the information is potentially used against the consumer.” (Id. ¶ 29.) This disclosure form, Plaintiffs contend, “deprived them of their FCRA-guaranteed rights that their employment-purposed consumer reports are only to be procured by a specific, stand-alone disclosure and authorization, ” and “resulted in their consumer reports being issued without the appropriate authorization for . . . access of the reports.” (Id. ¶¶ 174-75.)

         Plaintiffs assert that the lack of proper certification rendered First Advantage's action an unlawful violation of Plaintiffs' FCRA rights because First Advantage “had no statutory permission to provide Wells Fargo with a report about Plaintiffs.” (Second Am. Compl. ¶¶ 177- 78.) Plaintiffs allege that First Advantage injured them by invading their “right to privacy when it provided highly confidential personal information without a statutory basis for doing so.” (Id. ¶ 181.) Plaintiffs maintain that this conduct is “precisely the type that Congress sought to prevent-protection of consumer privacy-with the restrictions it has imposed on access to consumers' sensitive, personal information.” (Id. ¶ 188.) Plaintiffs allege that had they “known that First Advantage would violate the FCRA in revealing their background reports to Wells Fargo, Plaintiffs would never have agreed to what they now know to be Wells Fargo's ineffective authorization.” (Id. ¶ 184.)

         3. First Advantage Allegedly Acted Improperly as a User and Not Just as a CRA

         Plaintiffs next allege that First Advantage works not only as a CRA, but also as a user of consumer information as defined under FCRA. “Separate and in addition” to the services rendered as a CRA, First Advantage “contracted to participate in the actual adjudication and adverse action process with Wells Fargo.” (Second Am. Compl. ¶ 35.) Plaintiffs assert that First Advantage “used the consumer reports and ‘adjudicated' Plaintiffs and the putative class members as eligible or ineligible for employment based on criteria specific to Wells Fargo.” (Id. ¶ 37.) Plaintiffs maintain that First Advantage adjudicated the applicants before sending each Plaintiff's consumer report to Wells Fargo, “compar[ing] the results of its just-performed background check against [Wells Fargo's] . . . hiring criteria and attach[ing] to those results a ‘score,' such as ‘eligible' or ‘ineligible' for employment.” (Id. ¶ 39.) Plaintiffs state this determination of eligibility for Wells Fargo constituted a “necessary” first step “in order for the consumer to be rejected for employment.” (Id. ¶ 38.)

         This scoring by First Advantage, Plaintiffs allege, amounts to a determination “that [each Plaintiff] could not be hired under Wells Fargo's hiring requirements based on his [or her] consumer report.” (Id. ¶ 57.) Plaintiffs describe the division of labor during the background check as follows:

First Advantage initially used a consumer report for determining whether or not an applicant should be adjudicated as “ineligible” based on pre-defined Wells Fargo hiring criteria. Once First Advantage made that decision, it entered it within the applicant's file with the brand or code of “ineligible.” While Wells Fargo then would have to later confirm and second that decision, the initial First Advantage adjudication was a necessary condition for the rejection of a consumer applicant and itself constituted an adverse action.

(Id. ¶ 5.) According to Plaintiffs, First Advantage's scoring combined with Wells Fargo's confirmation completed the “adverse action” against the consumer applicant. (Id.) Each step of the two-part evaluation-the first one taken by First Advantage and the second by Wells Fargo- “constituted part of an ‘adverse action' taken against the consumer applicant.” (Id. ¶ 38.) Plaintiffs allege that “Wells Fargo rarely does more than little with First Advantage's ineligible adjudication, adopting it wholesale and without alteration in nearly every instance.”[6] (Id. ¶ 42.) Wells Fargo merely “parrot[s] back” the First Advantage determination of ineligibility. (Id.)

         Plaintiffs allege that discovery will show that Wells Fargo “seldom” changes the determination, “meaning that a determination of ineligible by First Advantage will nearly always result in that applicant being denied employment at Wells Fargo.” (Id. ¶ 44) (emphases added).) Finally, Plaintiffs aver that discovery will “further confirm that Wells Fargo believes so strongly in the adjudication grades assigned by First Advantage that it no longer considers an applicant that First Advantage adjudicates ineligible” as a possible hire. (Id. ¶ 45.)

         Plaintiffs assert that this process transforms First Advantage into a user as well as a CRA. As such, Plaintiffs state that First Advantage failed to provide them and the putative class members “with at-the-time notice that it reported adverse public record information that was likely to have an adverse effect on their ability to obtain employment as required by the FCRA.” (Id. ¶ 191.) Plaintiffs claim this violates their “common-law right to know the information that entities like First Advantage report.” (Id. ¶ 192.) They also contend that this “deprived them of the ability to dispute inaccurate information in their reports or proactively discuss negative information with Wells Fargo before it decided not to hire them.” (Id. ¶ 192.) Plaintiffs note Congress enacted the FCRA precisely to protect consumers from dissemination of private, sensitive, and personal information in this manner. (Id. ¶ 194.)

         4. Summary of Claims in the Second Amended Complaint

         Based on these aspects of Wells Fargo's application procedures, Plaintiffs contend that First Advantage violated the FCRA in three ways. In Count One (the “Certification Claim”), Plaintiffs assert that First Advantage willfully violated 15 U.S.C. § 1681b(b)(1)(A)[7] because it did not “receiv[e] a valid certification” from Wells Fargo certifying that Wells Fargo's disclosure form complied with the relevant parts of the FCRA. (Second Am. Compl. ¶ 224.) Although Wells Fargo did in fact “execute a[] . . . certification that [it] would comply with the disclosure and authorization provisions of the FCRA, ” Plaintiffs contend that First Advantage knew the certification was ineffective because First Advantage “provided the disclosure and authorization form” to Wells Fargo. (Id. ¶ 207, 208.) This action, Plaintiffs allege, violated both Plaintiffs FCRA-generated rights and their right to privacy which FCRA was enacted to protect. (Id. ¶ 181.)

         In Count Two (the “Adverse Action Claim”), Plaintiffs contend that First Advantage violated 15 U.S.C. § 1681b(b)(3)(A)[8] when it “failed to provide a copy of the consumer report used to make an employment decision to Plaintiffs . . . at least five days before taking an adverse action that was based in whole or in part on the consumer report.” (Second Am. Compl. ¶ 235.) Because Plaintiffs contend that First Advantage knows “it acts in dual roles as both consumer reporting agency and user when it both generates the consumer report for an employer customer and also adjudicates that applicant's eligibility for hire, ” (Id. ¶ 209), Plaintiffs allege that First Advantage knew that it took an adverse action against Plaintiffs when it adjudicated their consumer reports “ineligible, ” and it knew that it was therefore required to give a notice of an adverse action, which it failed to do.

         In Count Three (the “Notice Claim”), Plaintiffs aver that First Advantage “failed to and could not comply with § 1681k(a)(2)[9] and yet still failed to provide the written § 1681k(a)(1) notice at the same time class member reports were provided to Wells Fargo.” (Second Am. Compl. ¶ 248.) First Advantage cannot also satisfy § 1681k(a)(2)'s strict requirements because First Advantage “buys bulk data consisting of incomplete and outdated abstracts of courthouse records, which do not meet the requirements of § 1681k(a)(2).” (Id. ¶ 193.)

         In sum, Plaintiffs contend that First Advantage knew of its obligations under the FCRA, and that those obligations “are well established in the statute's plain language, judicial decisions interpreting the Act, and in the Federal Trade Commission's and Consumer Financial Protection Bureau's promulgations.” (Second Am. Compl. ¶ 203.) Accordingly, Plaintiffs allege First Advantage knowingly violated the FCRA provisions at issue.

         B. Procedural History

         Plaintiffs filed their original Class Complaint on January 13, 2017. (ECF No. 1.) After First Advantage filed a Motion for More Definite Statement pursuant to Federal Rule of Civil Procedure 12(e), [10] (ECF No. 12), Plaintiffs filed a First Amended Complaint as of right (ECF No. 14), pursuant to Federal Rule of Civil Procedure 15(a)(1)(B).[11] First Advantage then filed a motion to dismiss, arguing that Plaintiffs' First Amended Complaint should be dismissed pursuant to Federal Rules of Civil Procedure 12(b)(1)[12] and 12(b)(6).[13] (ECF No. 18.) After the motion to dismiss was fully briefed, Plaintiffs filed a Stipulation of Dismissal as to Count Three of the Complaint, which the Court entered. (ECF No. 27.) The Court granted the motion to dismiss, but granted Plaintiffs leave to amend their Complaint. (Frazier I 17, ECF No. 32.)

         Plaintiffs then filed the Second Amended Complaint, which brings three claims:

Count One: Violation of the FCRA, 15 U.S.C. § 1681b(b)(1)(A), the “Certification Claim” - First Advantage furnished a consumer report for employment purposes without receiving a valid certification from Wells Fargo, and based on a disclosure and authorization form that it knew or should have known was unlawful. (Second Am. Compl. ¶¶ 224-25.)
Count Two: Violation of the FCRA, 15 U.S.C. § 1681b(b)(3)(A), the “Adverse Action Claim” - First Advantage failed to timely provide a copy of the consumer reports and FCRA summaries of rights to Plaintiffs before taking adverse employment action. (Second Am. Compl. ¶¶ 235-36.)
Count Three: Violation of the FCRA, 15 U.S.C. § 1681k(a)(1-2), the “Notice Claim” - First Advantage did not notify Plaintiffs that it would provide Wells Fargo with a consumer report containing public record information likely to have an adverse effect on their ability to obtain employment nor did First Advantage maintain strict procedures to ensure the adverse public record information was complete and up to date. (Second Am. Compl. ¶¶ 248-49.)

         Plaintiffs allege that the violations were willful. They seek statutory and punitive damages, and costs and attorney's fees for all three counts. They also seek to certify three classes and one subclass under definitions that are not relevant to the Motion to Dismiss.

         First Advantage renewed its Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Plaintiffs responded, and First Advantage replied. Plaintiffs also filed a Motion for Leave to File Supplemental Authority.[14] (ECF No. 47.)

         II. Analysis: Motion to Dismiss for Lack of Standing

         First Advantage argues that Plaintiffs lack standing to pursue their claims against First Advantage because Plaintiffs have alleged no injury-in-fact or, alternatively, because Plaintiffs' injuries are not fairly traceable to First Advantage's purported wrongdoing. Because standing is a jurisdictional question, the Court examines First Advantage's standing argument first. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95 (1998) (“The requirement that jurisdiction be established as a threshold matter ‘spring[s] from the nature and limits of the judicial power of the United States' and is ‘inflexible and without exception.'” (quoting Mansfield, C. & L.M.R. Co. v. Swan, 111 U.S. 379, 382 (1884))). The Court finds that Plaintiffs lack standing to pursue Count One, the Certification Claim, and assume without deciding, that Plaintiffs have standing to pursue Count Two, the Adverse Action Claim. Because the Court will dismiss Count Three on other grounds, the Court does not determine whether Plaintiffs have standing to pursue Count Three.

         A. Legal Standard: Standing

         1. The Three-Part Test Used to Evaluate Article III Standing

         Article III, Section 2, clause 1 of the Constitution limits federal court jurisdiction to “Cases” and “Controversies.” U.S. Const. art. III, § 2, cl. 1. As the Supreme Court has explained, an “essential and unchanging part of the case-or-controversy requirement” is that a plaintiff must establish Article III standing to sue. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). In Spokeo, Inc. v. Robins, the Supreme Court reiterated that, in order to establish standing, a plaintiff must have: “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant;[15] and[, ] (3) that is likely to be redressed by a favorable judicial decision.[16]136 S.Ct. 1540, 1547 (2016) (citing Lujan, 504 U.S. at 560-61).

         As the party invoking federal jurisdiction, Plaintiffs bear the burden of properly alleging standing. Lujan, 504 U.S. at 560; see also Balzer & Assocs., Inc. v. Union Bank & Trust Co., No. 3:09cv273, 2009 WL 1675707, at *2 (E.D. Va. June 15, 2009) (“On a motion to dismiss pursuant to Rule 12(b)(1), the party asserting jurisdiction has the burden of proving subject matter jurisdiction.” (citing Richmond, Fredericksburg & Potomac R.R. v. United States, 945 F.2d 765, 768 (4th Cir. 1991))). “Where, as here, a case is at the pleading stage, the plaintiff must ‘clearly . . . allege facts demonstrating' each element.” Spokeo, 136 S.Ct. at 1547 (quoting Warth v. Seldin, 422 U.S. 490, 518 (1975)). In a class action matter, courts analyze standing “based on the allegations of personal injury made by the named plaintiffs.” Beck v. McDonald, 848 F.3d 262, 269 (4th Cir. 2017) (citing Doe v. Obama, 631 F.3d 157, 160 (4th Cir. 2011)). “‘Without a sufficient allegation of harm to the named plaintiff in particular, plaintiffs cannot meet their burden of establishing standing.'” Id. at 270 (quoting Doe, 631 F.3d at 160).

         2. Standard to Demonstrate an Injury in Fact

         In Spokeo, the Supreme Court discussed the manner in which a plaintiff must allege “injury in fact” in order to establish standing for what courts call a “statutory violation” resulting in an “informational injury.” Spokeo, 136 S.Ct. at 1549. The Supreme Court confirmed that, to establish an injury in fact, a plaintiff must demonstrate that he or she suffered “‘an invasion of a legally protected interest' that is ‘concrete and particularized' and ‘actual or imminent, not conjectural or hypothetical.'” Id. at 1548 (quoting Lujan, 504 U.S. at 560). In doing so, the Spokeo court refined standing law by defining “particularized” and “concrete” with specificity. Id. at 1548-49.

         First, the Spokeo court found that, for an injury to be ‘“particularized,' it ‘must affect the plaintiff in a personal and individual way.'” Id. at 1548 (citing Lujan, 504 U.S. at 560 n.1). Thus, an “undifferentiated, generalized grievance” that all citizens share would not qualify as particularized. Lance v. Coffman, 549 U.S. 437, 442 (2007). “The fact that an injury may be suffered by a large number of people does not of itself make that injury a nonjusticiable generalized grievance.” Spokeo, 136 S.Ct. at 1548 n.7. The proper inquiry is whether “each individual suffers a particularized harm.” Id.

         Second, the Spokeo court stated that for an injury to be “concrete, ” it must be “de facto, ” meaning that it must be “real, ” and not “abstract.” Id. at 1548 (citation omitted). That said, an injury need not be “tangible” in order to be “concrete.” Id. at 1549. An intangible injury may constitute injury in fact. Id. (citations omitted). The Spokeo court noted that even the risk of real harm might satisfy concreteness. Id. (citations omitted). The United States Court of Appeals for the Fourth Circuit has recently reiterated that a substantive statutory violation may, without more, confer standing to an injured party. Curtis v. Propel Prop. Tax Funding, LLC, et al., 915 F.3d 234, 241 (4th Cir. 2019). In evaluating whether an intangible injury satisfies the “concreteness” requirement, the Supreme Court recounted two important considerations: (1) history, which may reveal “whether an alleged intangible harm has a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts”; and, (2) the judgment of Congress, which “‘has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before.'” Spokeo, 136 S.Ct. at 1549 (quoting Lujan, 504 U.S. at 580 (Kennedy, J., concurring in part and concurring in judgment)); see also Curtis, 915 F.3d at 241 (recognizing Congressional authority to define substantive rights, the violation of which confer Article III standing).

         With respect to this congressionally-defined, or statutory, standing, the Spokeo Court explained: “Article III standing requires a concrete injury even in the context of a statutory violation.” Spokeo, 136 S.Ct. at 1549. Thus, a plaintiff “could not, for example, allege a bare procedural violation, divorced from any concrete harm, and satisfy the injury-in-fact requirement of Article III.” Id. (“[D]eprivation of a procedural right without some concrete interest that is affected by the deprivation . . . is insufficient to create Article III standing.”) (citing Summers v. Earth Island Inst., 555 U.S. 488, 496 (2009)). Regarding the FCRA, the Supreme Court noted that “not all inaccuracies cause harm or present any material risk of harm.” Id. at 1550. For example, it would be “difficult to imagine how the dissemination of an incorrect zip code, without more, could work any concrete harm.” Id.

         The Supreme Court also observed that in cases in which “harms may be difficult to prove or measure[, ]” “the violation of a procedural right granted by statute can be sufficient . . . [and] a plaintiff in such a case need not allege any additional harm beyond the one Congress has identified.” Id. at 1549 (citing Fed. Election Comm'n v. Akins, 524 U.S. 11, 20-25 (1998); Pub. Citizen v. Dep't of Justice, 491 U.S. 440, 449 (1989)). A plaintiff may therefore suffer “a concrete informational injury where he [or she] is denied access to information required to be disclosed by statute, and he ‘suffers, by being denied access to that information, the type of harm Congress sought to prevent by requiring disclosure.'” Dreher v. Experian Info. Sols., Inc., 856 F.3d 337, 345 (4th Cir. 2017) (quoting Friends of Animals v. Jewell, 828 F.3d 989, 992 (D.C. Cir. 2016)). In such a situation, an informational injury can become constitutionally cognizable when “a person lack[s] access to information to which he [or she] is legally entitled and . . . the denial of that information creates a ‘real' harm with an adverse effect.” Id. at 345.

         3. Standard to Demonstrate Causation

         At the motion to dismiss stage, a plaintiff seeking to establish standing must also plead facts that support a reasonable inference that the defendant caused the plaintiff's particularized and concrete harm. In the standing context, this requires a showing that the plaintiff's injury is “fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court.” Lujan, 504 U.S. at 560 (quoting Simon, 426 U.S. at 41-42); see also Lane v. Holder, 703 F.3d 668, 674 (4th Cir. 2012) (“Because any harm to the plaintiffs results from the actions of third parties not before this court, the plaintiffs are unable to demonstrate traceability.”).

         B. Legal Standard: The Right to Privacy and the FCRA

         At its core, this case concerns the right to privacy in the context of an individual's employment-purposed consumer report. Because protection of the right to privacy serves as one of the primary purposes of FCRA, the Court first reviews the right to privacy as traditionally understood in American courts before turning to the applicable FCRA provisions.

         1. The Right to Privacy

         American courts have long recognized that “[o]ne who invades the right of privacy of another is subject to liability for the resulting harm to the interests of the other.” Restatement (Second) of Torts, § 652A(1). Claims involving the right to privacy frequently turn on control over, and consent for, the personal information at issue. See generally Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890).[17] To that end, the Supreme Court has observed that an individual's right to privacy “encompass[es] the individual's control of information concerning his or her person.” U.S. Dep't of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 763 (1989).

         Nonetheless, the right to privacy is not unbounded. Under the common law, it was well-understood that “consent to any publication . . . that invades privacy, creates an absolute privilege.” Restatement (Second) of Torts, § 652F cmt. b.; see also Farrington v. Sysco Food Servs., Inc., 865 S.W.2d 247, 254 (Tex. App. 1993) (“[Plaintiff's] consent negates any claim for invasion of privacy.”); Lewis v. LeGrow, 670 N.W.2d 675, 688 (Mich. Ct. App. 2003) (“Like other torts, there can be no invasion of privacy under the theory of intrusion upon the seclusion of plaintiffs if plaintiffs consented to defendant's intrusion.”)[18] Federal statutes similarly recognize that an individual's consent defeats what may otherwise be considered an invasion of privacy. See, e.g., Right to Financial Privacy Act, 12 U.S.C. §§ 3401, 3404 (government must receive the consent of the customer before they can access financial information); Driver's Privacy Protection Act of 1994, 18 U.S.C. §§ 2721-25 (prohibiting states from selling driver's license information without prior consent); Gramm-Leach-Bliley Act of 1999, 15 U.S.C. §§ 6801-09 (limiting information sharing by financial institutions without prior consent by customers). Just as Congress has legislated in other arenas of personal information to protect privacy interests, it similarly sought to limit the use of personal information contained in consumer reports when it enacted the FCRA.

         2. Purposes of the FCRA

         Enacted in 1970, the FCRA enshrined an employee's right to privacy in the modern technological age, while maintaining that proper consent vitiates an invasion of privacy. As the Senate noted while passing § 1681b(b)(2)(A), that section

permits employers to obtain consumer reports pertaining to current and prospective employees. The Committee is concerned, however, that this provision may create an improper invasion of privacy. Section 403 of this bill requires that employers provide prior written disclosure to current and prospective employees that their consumer reports may be procured in connection with their employment. Further, employers must obtain a specific or general written authorization prior to procuring such a report.

S. REP. NO. 104-185, at 35 (1995).

         From this statement, and a commonsense reading of the statute's plain language, it becomes evident that Congress included the “stand-alone” provision to make the disclosure authorizing the background check obvious to the applicant. In other words, through § 1681b(b)(1), Congress sought to “prevent employers from hiding the required disclosure among other provisions that could distract the applicant from the disclosure itself, and thereby result in the applicant unknowingly authorizing an employer to obtain his or her background check.” Morris v. Gen. Info. Servs., No. 3: 17cv195, 2018 WL 4609943, at *17 (E.D. Va. Sep. 25, 2018); see also Groshek v. Time Warner Cable, Inc., 865 F.3d 884, 887 (7th Cir. 2017), cert. denied, 138 S.Ct. 740 (2018) (concluding that the “stand-alone” disclosure requirement “is clearly designed to decrease the risk of a job applicant unknowingly providing consent to the dissemination of his or her private information” (emphasis added)); Shoots v. iQor Holdings USInc., No. 15-CV-563, 2016 WL 6090723, at *7 (D. ...


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