Doe v. Trinity Logistics, Inc. et al

ANSWERING BRIEF in Opposition re MOTION to Dismiss and/or to Strike Class Claims

D. Del.September 18, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE JANE DOE, ) Individually and on behalf ) of all others similarly situated, ) Plaintiffs, ) ) Civil No. 1:17-CV-053-RGA v. ) CLASS ACTION TRINITY LOGISTICS, INC., et al., ) Defendants. ) ANSWERING BRIEF OF PLAINTIFF JANE DOE IN OPPOSITION TO DEFENDANT TRINITY LOGISTICS, INC.’S PARTIAL MOTION TO DISMISS PLAINTIFF’S SECOND AMENDED COMPLAINT AND/OR STRIKE PLAINTIFF’S CLASS CLAIMS Respectfully submitted, THE LAW OFFICE OF MARY HIGGINS By: /s/Mary Higgins Mary Higgins, DE ID No. 4179 260 Chapman Rd., Suite 201 Newark, DE 19713 Telephone: (302) 894-4357 Email mary.higgins@letsbelegal.com Attorneys for the Plaintiff Of Counsel: Susan Mary Rotkis (Pro hac vice) Arizona State Bar No. 032866 Virginia State Bar. No. 40693 CONSUMER LITIGATION ASSOCIATES WEST, P.L.L.C. 382 South Convent Ave. Tucson, AZ 85716 Telephone: (520) 622-2481 Email: srotkis@clalegal.com Case 1:17-cv-00053-RGA Document 52 Filed 09/18/17 Page 1 of 27 PageID #: 664 TABLE OF CONTENTS TABLE OF AUTHORITIES ............................................................................................................................................. ii I. NATURE AND STAGE OF THE PROCEEDINGS ........................................................................... - 1 - II. SUMMARY OF ARGUMENT ..................................................................................................................... - 1 - III. STATEMENT OF FACTS ............................................................................................................................. - 2 - IV. ARGUMENT ....................................................................................................................................................... - 6 - A. Standard of Review: Rule 12(b)(6) Motion to Dismiss & Rule 12(f) Motion to Strike .......... - 6 - 1. Motion to Dismiss .......................................................................................................................................... - 6 - 2. Motion to Strike. ............................................................................................................................................... - 7 - B. The Plaintiff’s initial § 1681b(b)(3) Notice class definition is not a fail-safe class and nearly identical classes have been certified ...................................................................................................................... - 9 - The “Notice Class” ............................................................................................................................................... - 13 - C. Striking the class definition at the pleading stage is unwarranted .............................................. - 15 - D. The Plaintiff seeks actual damages in the alternative in her request for issue certification under Rule 23(c)(4) .................................................................................................................................................... - 16 - 1. It is axiomatic that a plaintiff may plead in the alternative ........................................................ - 16 - 2. The Motion to Strike Class Claims pled in the alternative should be denied. ..................... - 17 - E. Plaintiff has properly stated an individual claim against Trinity in Count V ........................ - 18 - V. CONCLUSION ................................................................................................................................................ - 20 - i Case 1:17-cv-00053-RGA Document 52 Filed 09/18/17 Page 2 of 27 PageID #: 665 ii TABLE OF AUTHORITIES Cases Abella v. Student Aid Ctr., Inc., No. CV 15-3067, 2015 WL 6599747 (E.D. Pa. Oct. 30, 2015) ................................................................................................ - 7 -, - 10 - Am. Pipe & Const. Co. v. Utah, 414 U.S. 538 (1974) ................................................................ - 9 - Ashcroft v. Iqbal, 556 U.S. 662 (2009) .............................................................................. - 6 -, - 7 - Barghout v. Bayer Healthcare Pharmaceuticals, U.S. Dist Lexis 46197 (D.N.J. 2012) ......... - 16 - Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) .............................................................. - 6 -, - 7 - Benjamin ex rel. Yock v. Dep't of Pub. Welfare of Pa., 701 F.3d 938 (3d Cir. 2012) .............. - 10 - Beverly v. Wal-Mart Stores. Inc., Civ. No. 3:07-cv-00469-RLW (E.D. Va.) ............................. - 9 - Bogosian v. Gulf Oil Corp., 561 F.2d 434 (3d Cir.1977) ......................................................... - 18 - Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256 (3d Cir. 2006)................................................. - 6 - Byrd v. Aarons, Inc., 784 F.3d 154 (3d Cir. 2015) ................................................................... - 11 - Cannon v. Cherry Hill Toyota, Inc., 184 F.R.D. 540 (D.N.J.1999).......................................... - 18 - CertusView Technologies, LLC v. S & N Locating Services, LLC, 2:13CV346, 2015 WL 2454277 (E.D. Va. May 22, 2015)........................................................................................ - 20 - City Select Auto Sales, Inc. v. BMW Bank of North Am., 867 F.3d. 434, 2017 WL 3496532 (3d Cir. Aug. 16, 2017) .................................................................................... - 10 -, - 11 -, - 12 - Cohen v. Chicago Title Ins. Co., 242 F.R.D. 295 (E.D. Pa. Apr. 5, 2007). .............................. - 13 - Erickson v. Pardus, 551 U.S. 89 (2007) .......................................................................... - 7 -, - 16 - Fed. Trade Comm’n v. Innovative Mktg., Inc., 654 F. Supp. 2d 378 (D. Md. 2009) ................. - 7 - Forman v. Data Transfer, Inc., 164 F.R.D. 400 (E.D. Pa. 1995) ............................................. - 16 - G.M. Sign, Inc. v. Franklin Bank, SSB., Civ. 06-949, 2007 WL 4365359 (N.D.Ill. Dec. 13, 2007) ....................................................................................................... - 15 - Gates v. Rohm & Haas Co., 655 F.3d 255 (3d Cir. 2011) ........................................................ - 17 - Case 1:17-cv-00053-RGA Document 52 Filed 09/18/17 Page 3 of 27 PageID #: 666 iii Gen. Tel. Co. SW v. Falcon, 457 U.S. 147 (1982) .................................................................... - 10 - Geraghty v. United States Parole Comm'n, 579 F.2d 238 (3d Cir.1978) vacated on other grounds, 445 U.S. 388, 402-03 (1980) ................................................................................................ - 18 - Goode v. LexisNexis Risk & Info. Analytics Grp., Inc., 284 F.R.D. 238 (E.D. Pa. 2012)............................................................................................................ - 8 -, - 16 - Gunnells v. Healthplan Servs., Inc., 348 F.3d 417 (4th Cir.2003) ........................................... - 17 - Hohider v. UPS, Inc., 574 F.3d 169 (3d Cir. 2009) .................................................................. - 17 - In re Titanium Dioxide Antitrust Litig., 962 F.Supp.2d 840 (D. Md. Aug. 26, 2013)......................................................................................................... - 10 - Manuel v. Wells Fargo Bank, Nat. Ass'n, No. 3:14CV238, 2015 WL 4994549 (E.D. Va. Aug. 19, 2015) ....................................................................................................... - 8 - Marcus v. BMW of N. Am., LLC, 687 F.3d 583 (3d Cir. 2012) ............................................... - 12 - McInerney v. Moyer Lumber & Hardware, Inc., 244 F. Supp. 2d 393 (E.D. Pa.2002) ............. - 7 - McPeak v. S-L Distribution Co., Inc., No. 12-348, 2014 WL 4388562 (D.N.J. Sept. 5, 2014) ........................................................................................................... - 7 - Messner v. Northshore Univ. Health Sys., 669 F.3d 802 (7th Cir. 2012) .................................. - 15 - Milbourne v. JRK Residential Am. LLC, Civ. No. 3:12CV861-REP (E.D. Va.) ........................ - 8 - Murray v. GMAC Mort’g Corp., 434 F.3d 948 (7th Cir. 2003)................................................ - 17 - Natale v. Winthrop Res. Corp., No. 07-4686, 2008 WL 2758238 (E.D. Pa. July 9, 2008) ............................................................................................................ - 7 - Ostrzenski v. Seigel, 177 F.3d 245 (4th Cir.1999) .................................................................... - 20 - P.V. ex rel. Valentin v. Sch. Dist. of Phila., No. 2:11-CV-04027, 2011 WL 5127850 (E.D. Pa. Oct. 31, 2011) ......................................................................................................... - 8 - Philip A. Templeton, M.D., P.A. v. EmCare, Inc., 868 F. Supp. 2d 333 (D. Del. June 12, 2012) ........................................................................................................ - 16 - Phillips v. County of Allegheny, 515 F.3d 224 (3d Cir. 2008) ........................................... - 6 -, - 7 - Pinker v. Roche Holdings, Ltd., 292 F.3d 361 (3d. Cir. 2002) ................................................... - 6 - Case 1:17-cv-00053-RGA Document 52 Filed 09/18/17 Page 4 of 27 PageID #: 667 iv Reardon v. ClosetMaid Corp., Civ. 08-cv-1730, 2011 WL 1628041 (W.D. Pa. Apr. 27, 2011) ........................................................................ - 8 -, - 9 -, - 10 -, - 12 - Ridenour v. Multicolor Corp. et al., Civ. No. 2:15-cv-00041MSD (E.D. Va.) .......................... - 9 - River Road Devel. Corp. v. Carlson Corp., No. 89-7037, 1990 WL 69085 (E.D. Pa. May 23, 1990) ........................................................................................................ - 7 - Ryals v. Hireright Sols., Inc. Civ. No.3:09-cv-625-JAG (E.D. Va.) .......................................... - 9 - Soutter v. Equifax Info. Servs., LLC, 307 F.R.D. 183 (E.D.VA 2015) ..................................... - 13 - Soutter v. Trans Union, LLC, Civ. Action No. 3:10cv514, (E.D. Va. Dec. 9, 2013) (ECF No. 46.1); Final Approval Order at 2, Soutter v. Trans Union, LLC, Civ. Action No. 3:10cv514, (E.D. Va. June 4, 2014) (ECF No. 46.1) ............................................................................... - 13 - Stephenson v. Bell Atl. Corp., 177 F.R.D. 279 (D.N.J. 1997) .................................................. - 18 - Thomas v. FTS USA, LLC, Civ. No. 3:13CV825-REP (E.D. Va.) ............................................. - 8 - Thompson v. Merck & Co., Inc., Nos. 01-1004, 01-1328, 01-3011, 01-6029, 02-1196, 2004 WL 62710 (E.D. Pa. Jan. 6, 2004) .......................................................................................... - 8 - Umland v. PLANCO Fin’l Servs. Inc., 542 F.2d 59 (3d. Cir. 2008) ........................................... - 6 - Williams v. LexisNexis Risk Mgmt. Inc., 2007 U.S. Dist. LEXIS 62193 (E.D. Va. Aug. 23, 2007) ........................................................................................................ - 9 - Young v. Nationwide Mut. Ins. Co., 693 F.3d 532 (6th Cir. 2012) ............................................ - 15 - Zarichny v. Complete Payment Recovery Servs., Inc., 80 F.Supp.3d 610 (E.D. Pa. 2015)..................................................................................................................... - 10 - Statutes Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. ............................................................. passim Other Authorities Drug Policy Alliance, Drug War Statistics, http://www.drugpolicy.org/drug-war-statistics (last visited Aug. 1, 2014). .................................................................................................................. 2 Harry J. Holzer, et al., Perceived Criminality, Criminal Background Checks, and the Racial Hiring Practices of Employers, 49 J.L. & Econ. 451, 453-54 (2006). ....................................... 3 Case 1:17-cv-00053-RGA Document 52 Filed 09/18/17 Page 5 of 27 PageID #: 668 v IBISWorld, Inc., Background Check Services in the US: Report Snapshot (April 2014) .............. 3 Michelle Natividad Rodriguez & Maurice Ensellom, The National Employment Law Project, 65 Million "Need Not Apply": The Case for Reforming Criminal Background Checks for Employment 1 (2011) .................................................................................................................. 2 National Consumer Law Center, Broken Records: How Errors by Criminal Background Checking Companies Harm Workers and Businesses 20 (2012)................................................ 3 Rules FED. R. CIV. P. 8 ........................................................................................................... 6, 7, 18, 20 FED. R. CIV. P. 12 ................................................................................................................ passim FED. R. CIV. P. 23 ................................................................................................. 7, 11, 16, 17, 18 Case 1:17-cv-00053-RGA Document 52 Filed 09/18/17 Page 6 of 27 PageID #: 669 I. NATURE AND STAGE OF THE PROCEEDINGS Plaintiff originally filed an individual claim against defendants Trinity Logistics, Inc. (“Trinity”) and Pinkerton Consulting and Investigations (“Pinkerton”) for violations of the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. (“FCRA”). Defendants answered and cross- claimed against each other. Plaintiff then filed a First Amended Complaint (“FAC”) (D.I. 32) stating class action claims. Defendants Trinity and Pinkerton filed separate motions to dismiss, to which Plaintiff filed responses in opposition. Prior to filing her response to the motion to dismiss, Plaintiff filed a Second Amended Complaint (“SAC”) (D.I. 38), which is the operative complaint. Trinity filed a new partial motion to dismiss and a motion to strike the class allegations in the SAC. (D.I. 48). This is Plaintiff’s response to Trinity’s motion to dismiss and to strike class allegations. II. SUMMARY OF ARGUMENT Plaintiff has filed a fact-intensive complaint setting forth individual and class claims against Trinity. Each of the claims sets forth facts which would entitle Plaintiff and the putative class to relief; therefore, Trinity’s motions to dismiss and to strike must be denied. Plaintiff’s individual claim relates to Trinity’s illegal procurement and use of the Pinkerton employment-purposed consumer report, while the class action claims relate to Trinity’s illegal failure to protect the Plaintiff and the class in its use of that report. With respect to the class claims, Plaintiff has adequately alleged Trinity took adverse action against her and the classes by failing to supply the statutorily required (i) copy of the report (Count I); and (ii) written description of their FCRA rights related to the report (Count II). Plaintiff has made specific factual allegations as to her experience with Trinity and has alleged that Trinity’s conduct toward her was the same as toward all other similarly situated applicants. Additionally, she has alleged that she and all class Case 1:17-cv-00053-RGA Document 52 Filed 09/18/17 Page 7 of 27 PageID #: 670 - 2 - applicants suffered the same harm due to Trinity’s improper treatment.1 For this reason, Plaintiff is seeking certification of a class of consumers and for relief including statutory and punitive damages, attorneys’ fees and costs. In the alternative, Plaintiff seeks issue certification, for which the Plaintiff and the class members are entitled to seek actual damages as to Counts I and II. SAC (D.I. 38) ¶¶ 126, 134. Courts have certified classes based on similar allegations. III. STATEMENT OF FACTS Plaintiff Jane Doe was excited about starting a new job at Trinity Logistics, Inc. (Trinity). Second Am. Compl. (“SAC”) ¶ 62 (D.I. 38). She met her new co-workers and even bought new clothes. Id. She provided a sample for a drug screening and authorized Trinity to obtain an employment-purposed consumer report. Id. Within a few short hours, her excitement was transformed from excitement to pain, humiliation, and economic loss because her employment was terminated by Trinity based on a consumer report that was not only inaccurate, but on its face, was never supposed to be used for an employment decision. SAC ¶¶ 63-65, 83 (D.I. 38). The reach of the criminal justice system has grown dramatically. Approximately one-fourth of all adults has a criminal record.2 The consequences of involvement in the criminal justice system are more serious and enduring than ever before. People face formidable barriers to achieving economic and social stability because of their criminal records, even those that are de minimis or decades old. These barriers are exacerbated by the commercial background check industry's 1 Plaintiff’s allegations in the SAC show that Trinity’s illegal conduct toward Ms. Doe was also true for the class. Plaintiff has alleged that injuries suffered by the Plaintiff were also suffered by the class. SAC ¶¶ 94, 100, 120-22; 129; 131 (D.I. 38). 2Sixty-five million Americans have a criminal record. Michelle Natividad Rodriguez & Maurice Ensellom, The National Employment Law Project, 65 Million "Need Not Apply": The Case for Reforming Criminal Background Checks for Employment 1 (2011), available at http://nelp.3cdn.net/e9231d3aeeld058c9e_55im6wopc.pdf (last visited Aug. 1, 2014). This increase is a result of unduly punitive drug laws. See generally Drug Policy Alliance, Drug War Statistics, http://www.drugpolicy.org/drug-war-statistics (last visited Aug. 1, 2014). Case 1:17-cv-00053-RGA Document 52 Filed 09/18/17 Page 8 of 27 PageID #: 671 - 3 - widespread dissemination of criminal record information. Ninety-two percent of employers run background checks on prospective employees.3 National Consumer Law Center, Broken Records: How Errors by Criminal Background Checking Companies Harm Workers and Businesses 20 (2012) (hereafter “NCLC”), available at http://www.ncic.org/images/pdf/pr-reports/broken- records-report.pdf; see Harry J. Holzer, et al., Perceived Criminality, Criminal Background Checks, and the Racial Hiring Practices of Employers, 49 J.L. & Econ. 451, 453-54 (2006). Trinity has over 300 employees in 95 locations, and uniformly uses consumer reports for hiring. SAC ¶ 17 (D.I. 38). Trinity knows about its FCRA duties to job applicants like Plaintiff. When an employer such as Trinity decides to use employment-purposed consumer reports to make hiring decisions, it must comply with the FCRA. In this case, when Trinity obtained and relied on the consumer reports about Ms. Doe and the class members, then took adverse employment actions, it did not comply with the FCRA’s requirements to provide the report and a summary of FCRA rights at least five business days prior to taking any action. Trinity’s conduct gives rise to three causes of action. First, Trinity may only obtain a consumer report about Ms. Doe for a permissible purpose. 15 U.S.C. § 1681b(a), (f). Trinity disclosed to Ms. Doe it was going to obtain a report for an employment purpose, which she authorized. However, the report that Trinity actually obtained from Pinkerton expressly prohibited the use of the report for employment purposes. SAC ¶¶ 58, 83 (D.I. 38). Ms. Doe did not authorize Trinity to obtain or use just any report for any purpose, yet Trinity obtained and used a report that specifically, in all capital letters on its face, stated “THE FOLLOWING INFORMATION SHOULD NOT BE USED FOR EMPLOYMENT DECISION PURPOSES.” (emphasis in 3The background-check industry takes in $2 billion in annual revenue. IBISWorld, Inc., Background Check Services in the US: Report Snapshot (April 2014), available at http://www.ibisworld.com/industry/background-check-services.html (last visited July 29, 2014). Case 1:17-cv-00053-RGA Document 52 Filed 09/18/17 Page 9 of 27 PageID #: 672 - 4 - original). SAC ¶ 83 (D.I. 38). In addition, and despite the express, facial prohibition on using it to make the employment decision, the report was labeled by Pinkerton as “FLAGGED.” SAC ¶ 29, 72 (D.I. 38). The lack of a permissible purpose to use a consumer report for which no authorization was given by Ms. Doe, forms the basis of Ms. Doe’s individual claim against Trinity. Next, upon receiving Ms. Doe’s flagged consumer report, Trinity immediately terminated her employment and communicated its decision to her. SAC ¶ 75 (D.I. 38). Before an employer may take an adverse action based in whole or in part on a consumer report, it must first provide a copy of the report and a summary of the applicant’s rights under the FCRA at least five business days before it can take the adverse action. 15 U.S.C. § 1681b(b)(3)(A)(i) & (ii). In this case, the failure to provide a copy of the report, and the summary of rights, form two separate class claims, under subsections (i) and (ii). Trinity terminated Ms. Doe the very same day it received her consumer report from Pinkerton without providing the summary of rights or a copy of the report itself, thus depriving Ms. Doe of any opportunity to correct adverse information in the report. The failure to comply with the “pre-adverse action” notice requirements of the FCRA was uniform as to all members of the class, i.e., Trinity treated Ms. Doe the same way that it treats all employees and job applicants about whom it obtains a consumer report and against whom it takes adverse action. SAC ¶¶ 20, 27, 46, 52, 54, 120, 121, 123, 129 (D.I. 38). At the time the report is “FLAGGED,” the adverse action is taken and the employee or applicant class members only learn about the adverse action after it has been taken, in violation of the “pre-adverse action” notice requirements. The report that Trinity relied upon contained items that never should have been there: (i) arrest records older than 7 years in violation of 15 US.C. § 1681c(a); and (ii) criminal information that could not be found in any public record because it had been expunged. Although the report was seriously flawed due to the actions of Pinkerton, this case against Trinity has nothing to do with Case 1:17-cv-00053-RGA Document 52 Filed 09/18/17 Page 10 of 27 PageID #: 673 - 5 - the accuracy of the report or whether Trinity had a right to fire Ms. Doe because of it. This case is only about whether Trinity complied with the FCRA’s requirements. With respect to the Class Claims, Trinity did not have the right to take adverse action against Ms. Doe or any class member if it based its action on a consumer report without first complying with the pre-adverse action notice requirements of 15 U.S.C. § 1681b(b)(3)(A)(i)&(ii). With respect to Ms. Doe’s individual claim, it is not complicated. Simply put, when Ms. Doe authorized the acquisition of an employment-purposed consumer report, she only did so based on Trinity’s misrepresentations about the type of report it would obtain - a report that could be used for employment purposes. The moment Trinity obtained - and then used - a report that specifically stated it was not to be used to make an employment decision, it nullified the authorization. SAC ¶ 32 (D.I. 38). The SAC alleges that Ms. Doe did not and never would have authorized acquisition of a report that was not usable for employment purposes. She simply did not give permission to Trinity to obtain anything other than a consumer report for employment purposes, nor did Trinity have any other permissible purpose for doing so. SAC ¶¶ 98-99 (D.I. 38). Without a permissible purpose, the acquisition and use of the report was an illegal trespass into Ms. Doe’s privacy that caused her both economic damages and non-economic damages. Trinity delegates the determination of an applicant’s employability to Pinkerton, which applies Trinity’s criteria to the applicant’s consumer report immediately after creating it. Trinity does not provide a pre-adverse action notice, consumer report or summary of rights. SAC ¶¶ 51-53 (D.I. 38). Trinity’s willful disregard of its duties exacts serious consequences on applicants and interstate commerce, and prejudices consumers’ ability to challenge improper information. SAC ¶ 54 (D.I. 38). The Plaintiff alleged that her experience was in accordance with Trinity’s standard Case 1:17-cv-00053-RGA Document 52 Filed 09/18/17 Page 11 of 27 PageID #: 674 - 6 - procedures. SAC ¶ 63 (D.I. 38). The readily ascertainable classes reflect objective criteria upon which to determine membership. Such classes have been certified in other cases. IV. ARGUMENT A. Standard of Review: Rule 12(b)(6) Motion to Dismiss & Rule 12(f) Motion to Strike 1. Motion to Dismiss. On a Rule 12(b)(6) motion to dismiss, the general rules of pleading require only a short and plain statement of the claim showing that the pleader is entitled to relief; detailed factual allegations are not necessary. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). The court must “’accept all factual allegations in the complaint as true and view them in the light most favorable to the plaintiff’ [and] ‘determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.’” Umland v. PLANCO Fin’l Servs. Inc., 542 F.2d 59, 64 (3d. Cir. 2008)(quoting Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006), and Pinker v. Roche Holdings, Ltd., 292 F.3d 361, 374 n. 7 (3d. Cir. 2002)). “’Rule 12(b)(6) does not countenance . . . dismissals based on a judge’s disbelief of a complaint’s factual allegations.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” “A well-pleaded complaint may proceed even if it appears that a recovery is very remote and unlikely.” Id. As the Third Circuit has held in Phillips, Twombly “’simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element.” 515 F.3d at 234. The Court’s analysis under Rule 12(b)(6) is tempered by the requirement of Rule 8 that the Complaint contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). The 12(b)(6) determination is inherently context-specific, Case 1:17-cv-00053-RGA Document 52 Filed 09/18/17 Page 12 of 27 PageID #: 675 - 7 - permitting the Court to “draw upon ‘judicial experience and common sense[.]’” Fed. Trade Comm’n v. Innovative Mktg., Inc., 654 F. Supp. 2d 378, 385 (D. Md. 2009) (discussing Iqbal, 556 U.S. 662). The Court expressly rejected a heightened pleading standard and explained that it was not requiring a particularized complaint, just one that alleged facts which would entitle the Plaintiff to relief. Twombly, 550 U.S. at 569 & n.14 (emphasis added); accord Erickson v. Pardus, 551 U.S. 89, 93 (2007); Iqbal, 556 U.S. at 678; Phillips, 515 F.3d at 234. 2. Motion to Strike. Rule 12(f) provides, “The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” “‘The purpose of a motion to strike is to clean up the pleadings, streamline litigation, and avoid unnecessary forays into immaterial matters.’” Natale v. Winthrop Res. Corp., No. 07-4686, 2008 WL 2758238, at *14 (E.D. Pa. July 9, 2008) (quoting McInerney v. Moyer Lumber & Hardware, Inc., 244 F. Supp. 2d 393 (E.D. Pa.2002)). Relief under Rule 12(f) is disfavored and will be denied unless the allegations “‘have no possible relation to the controversy and may cause prejudice to one of the parties, or if the allegations confuse the issues in the case.’” Id. (quoting River Road Devel. Corp. v. Carlson Corp., No. 89-7037, 1990 WL 69085, at *2 (E.D. Pa. May 23, 1990)). Courts within this circuit have observed that “[i]t is only when no amount of discovery or time will allow for plaintiffs to resolve deficiencies in class definitions under Rule 23, that a motion to strike class allegations should be granted.” McPeak v. S-L Distribution Co., Inc., No. 12-348, 2014 WL 4388562, at *4 (D.N.J. Sept. 5, 2014), see Abella v. Student Aid Ctr., Inc., No. CV 15-3067, 2015 WL 6599747, at *3 (E.D. Pa. Oct. 30, 2015). Under Rule 23(d)(1)(D), a court adjudicating a class action may allow the pleadings to be amended. Courts rarely grant motions to strike under Rule 23(d)(1)(D) prior to class discovery, see P.V. ex rel. Valentin v. Sch. Dist. of Phila., No. 2:11-CV-04027, 2011 WL 5127850, at *3 Case 1:17-cv-00053-RGA Document 52 Filed 09/18/17 Page 13 of 27 PageID #: 676 - 8 - (E.D. Pa. Oct. 31, 2011) (striking only where “[n]o amount of additional class discovery will alter th[e] conclusion” that the class is not maintainable), Thompson v. Merck & Co., Inc., Nos. 01- 1004, 01-1328, 01-3011, 01-6029, 02-1196, 2004 WL 62710, at *2 (E.D. Pa. Jan. 6, 2004). Goode v. LexisNexis Risk & Info. Analytics Grp., Inc., 284 F.R.D. 238, 243-44 (E.D. Pa. 2012) Often, recitation of the standard of review is a formality. In this case, it is a necessary reminder of the Court’s obligation to construe factual allegations in the complaint liberally and provide every inference in favor of the Plaintiff, especially where the Defendant has injected its own factual assertions, misrepresented the contents of the SAC and urged the court improperly to apply a different standard. Where a complaint may lack factual matter in support of an element, the complaint may be amended as long as it does not prejudice the non-movants. The Plaintiffs FCRA class claims are the same class claims that have survived motions to dismiss and then have been successfully certified in § 1681b(b)(3) cases against users of employment-purposed reports. See e.g. Reardon v. ClosetMaid Corp., Civ. 08-cv-1730, 2011 WL 1628041 (W.D. Pa. Apr. 27, 2011) (certifying a § 1681b(b)(3) class as to the employer), class definition clarified in 2011 WL 13135937 (Sept. 6, 2011); Goode v. LexisNexis Risk & Info. Analytics Group, Inc., 848 F. Supp. 2d at 542-543 (denying motion to dismiss § 1681b(b)(3) class claims, and holding that both employers and consumer reporting agencies may be liable for failure to provide pre-adverse action notices); Goode v. First Advantage LNS Screening Sols, Inc., f/k/a LexisNexis Risk & Info. Analytics Group, Inc., 2014 WL 12616753 (E.D. Pa. Aug. 1, 2014) (certifying a pre-adverse action injunctive relief class); Manuel v. Wells Fargo Bank, Nat. Ass'n, No. 3:14CV238, 2015 WL 4994549, at *4 (E.D. Va. Aug. 19, 2015); Thomas v. FTS USA, LLC, Civ. No. 3:13CV825-REP (E.D. Va.)(same); Milbourne v. JRK Residential Am. LLC, Civ. No. 3:12CV861-REP (E.D. Va.)(same); Williams v. LexisNexis Risk Mgmt. Inc., 2007 U.S. Dist. Case 1:17-cv-00053-RGA Document 52 Filed 09/18/17 Page 14 of 27 PageID #: 677 - 9 - LEXIS 62193 (E.D. Va. Aug. 23, 2007); Beverly v. Wal-Mart Stores. Inc., Civ. No. 3:07-cv-00469- RLW (E.D. Va.); Ryals v. Hireright Sols., Inc., Civ. No.3:09-cv-625-JAG (E.D. Va.); Ridenour v. Multicolor Corp. et al., Civ. No. 2:15-cv-00041MSD (E.D. Va.) (certifying pre-adverse action settlement class). B. The Plaintiff’s initial § 1681b(b)(3) Notice class definition is not a fail-safe class and nearly identical classes have been certified Trinity argues that Plaintiff’s § 1681b(b)(3) Notice class definition is an impermissible fail- safe definition, which must be stricken, because Plaintiff’s definition “parrots the language of the section which is its namesake” and complains that the Plaintiff requests mini-trials in order to determine whether § 1681b(b)(3) has been violated. Def.’s Br. (D.I. 48) at 11. Trinity goes on to complain that the administrative feasibility of identifying the class members would be “an administrative headache,” because “the Court will be required to examine each and every background report, compare that to Trinity’s alleged hiring policies, to discern whether any entry could have run afoul of those alleged policies.” Def.’s Br. (D.I. 48) at 12. Referring to statutory requirements or even including the words “in violation of” the statute does not, necessarily, a fail-safe class make. Rather, incorporating essential elements of liability into the class definition (thus making liability a necessary element of class membership) creates a fail-safe class. Am. Pipe & Const. Co. v. Utah, 414 U.S. 538, 547 (1974)(explaining criticism of one-way intervention because class members could hedge to join the class or not--depending on how things went at trial or even after judgment). Whether a fail-safe class has been defined turns on Defendant’s liability as an element of class membership. In other words, the class cannot be defined until a case is resolved on its merits and liability is established. The Defendant has not articulated how the Plaintiff has made the ultimate question of liability an element of the class Case 1:17-cv-00053-RGA Document 52 Filed 09/18/17 Page 15 of 27 PageID #: 678 - 10 - definition at all. In fact, nearly identical § 1681b(b)(3) class definitions have been certified within the Third Circuit. For instance, in Reardon v. ClosetMaid Corp., certified the following: Pre Adverse Action Sub-Class All employees or prospective employees of Defendant residing in the United States (including all territories and political subdivisions of the United States) who were the subject of a consumer report which contained any negative (derogatory) credit history, driving record, public record criminal arrest, charge or conviction, civil judgment, bankruptcy or tax liens, regarding such employee or prospective employee within the period prescribed by the FCRA, 15 U.S.C. § 1681p, prior to the filing of this action and for whom defendants did fail to provide that applicant with a copy of their consumer report and/or FCRA summary of rights at least five days before the employee or prospective employee was notified that ClosetMaid may take adverse action. No. CIV.A. 08-1730, 2011 WL 1628041, at *2 (W.D. Pa. Apr. 27, 2011), order clarified, No. CV 08-1730, 2011 WL 13135937 (W.D. Pa. Sept. 6, 2011). Even if the Plaintiff had pled a fail-safe class, it is not fatal to a class complaint or even to certification because the class definition is modifiable. Gen. Tel. Co. SW v. Falcon, 457 U.S. 147, 160 (1982); Benjamin ex rel. Yock v. Dep't of Pub. Welfare of Pa., 701 F.3d 938, 952 (3d Cir. 2012)(discussing that the court could modify the class definition with respect to intervenors); accord In re Titanium Dioxide Antitrust Litig., 962 F. Supp. 2d 840, 861 (D. Md. Aug. 26, 2013). The Defendant has conflated ascertainability with one-way intervention. Although the two concepts are related, they are not exactly the same. A fail-safe class definition may not be certified because it may not meet the ascertainability requirement. Abella v. Student Aid Center, Civ. No. 15-3067, 2015 WL 6599747, at *3, (E.D. Pa. 2015)(certifying a class finding that it was ascertainable and distinguishing Zarichny v. Complete Payment Recovery Servs., Inc., 80 F.Supp.3d 610, 615 (E.D. Pa. 2015) to find it was not a fail-safe class, observing that the Third Circuit has not ruled on the permissibility of fail-safe classes.) Though the Third Circuit has not ruled on the permissibility of fail-safe classes, it has recently clarified its standard for analyzing whether a class is ascertainable. City Select Auto Sales, Inc. v. Case 1:17-cv-00053-RGA Document 52 Filed 09/18/17 Page 16 of 27 PageID #: 679 - 11 - BMW Bank of North Am., 867 F.3d. 434, 2017 WL 3496532 (3d Cir. Aug. 16, 2017). It is with this in mind that Plaintiff addresses whether the class she has defined is reliable and administratively feasible, which is really what the Defendant seems to be arguing. In City Select, the court reviewed the “quartet” of cases in which it established the contours of the ascertainability analysis and the three principal rationales: to protect (1) absent plaintiff’s opt- out rights; (2) defendant’s due process rights; and (3) the efficiency of the class action mechanism. Id. at *4. There, the court reversed the district court’s refusal to certify a class of independent car dealers who received unwanted broadcast faxes from BMW Bank through its business-to-business marketing service, Creditsmarts. Id. at *1. Creditsmarts database contained the contact information for the dealerships. City Select sought to certify a class defined as: All auto dealerships that were included in the Creditsmarts database on or before December 12, 2012, with fax numbers identified in the database who were sent one or more telephone facsimile messages between November 20, 2012, and January 1, 2013, that advertised the commercial availability of property, goods or services offered by “BMW Bank of North America.” Id. at *2. Like the class in City Select, which included dealerships in the Creditsmarts database on dates certain, the proposed class definition in this case is limited to Trinity employees or job applicants on or after August 26, 2016, thus fulfilling the first two rationales for the ascertainability standard. Id. at *5. The Plaintiff has alleged that this information can be identified by using Trinity’s and Pinkerton’s records. SAC (D.I. 38) ¶ 116. This is merely the pleading stage, but even at class certification, the Third Circuit has held, “Rule 23 does not require an objective way of determining class membership at the certification stage, but only that there be ‘objective criteria’ for class membership and a ‘reliable and administratively feasible’ means of determining whether these criteria are met.” Id. at *6 (quoting Byrd v. Aarons, Inc., 784 F.3d 154, 163 (3d Cir. 2015)). Case 1:17-cv-00053-RGA Document 52 Filed 09/18/17 Page 17 of 27 PageID #: 680 - 12 - Trinity asserts that the Court would have to “examine each and every background report, compare that to Trinity’s alleged hiring policies, to discern whether any entry could have run afoul of those alleged policies” and then apply “§ 1681b(b)(3)(A)(i)&(ii) to each and every prospective class member to determine whether the statute has been violated.” Trinity’s assertion is just plain silly. Trinity’s hiring policies, its contract with Pinkerton, its employee and job applicant records, and the timing and contents of the pre-adverse action notices is all information within Trinity’s possession and control, just as the information was within Creditsmarts’ control in City Select. This case sharply contrasts with the difficulties posed in a case in which there is not any specific set of documents that can provide a near-complete class identity. For example, in Marcus, the Third Circuit considered a lawsuit about defective “run flat” tires sold by an auto manufacturer. BMW argued on appeal that it did not retain records as to whether or not a particular automobile was sold with the “run flat” tires, let alone whether those tires were later replaced or repaired by a third party. Marcus v. BMW of N. Am., LLC, 687 F.3d 583, 594 (3d Cir. 2012). The court remanded the case to the district court to “resolve the critical issue of whether the defendants’ records can ascertain class members and, if not, whether there is a reliable, administratively feasible alternative” and rejected the alternative of simply counting on “class members’ [to] say so[.]” Id. In Marcus, the problem was that a critical fact--whether a class member purchased the run flat tires--could not be objectively determined. Trinity’s attempt to strike the class definition because it would be a “headache” is dwarfed not just by Reardon, but also by the examples from other similar class actions, including against large consumer reporting agencies. For instance, in Soutter v. Trans Union, LLC, the parties together with a third-party class administrator successfully determined class membership for a class in excess of 150,000, including whether or not such class members had disputed judgments on their Case 1:17-cv-00053-RGA Document 52 Filed 09/18/17 Page 18 of 27 PageID #: 681 - 13 - consumer reports. See Settlement Agreement at ¶ 7.5, Soutter v. Trans Union, LLC, Civ. Action No. 3:10cv514, (E.D. Va. Dec. 9, 2013) (ECF No. 46.1); Final Approval Order at 2, Soutter v. Trans Union, LLC, Civ. Action No. 3:10cv514, (E.D. Va. June 4, 2014) (ECF No. 46.1). There, the court granted class certification and approved the ultimate settlement. Id. Even if the determination of whether the consumer job applicants and employees must be determined by manual, class member-by-class member review, the inquiry is not one which requires the court to hold a mini-trial. It is just arduous, which one court described: What Equifax is really arguing when it laments the burden imposed is manageability, not ascertainability. The difficulty and burden of such an undertaking are undoubtedly relevant to a manageability analysis under the superiority factor explored below. Unlike ascertainability, however, the manageability of adjudication by class is measured in relation to the manageability of adjudication by other means. See infra at 217-18. As such, manageability should only be used to deny certification “where the attention and resources which would have to be devoted strictly to administrative matters will overwhelm any relief ultimately accruing to the plaintiff class.” And, that simply is not the case here. Soutter v. Equifax Info. Servs., LLC, 307 F.R.D. 183, 197 (E.D.VA 2015) (citation omitted). While it may be relevant at class certification whether manageability of the classes bear on the superiority, it does not bear on ascertainability. It “strains credulity” that a large, multi-state logistics company and multi-national consumer reporting agency, both with sophisticated databases, lack the ability to compile information on job applicants and reports procured. This is just like the case where a title insurance company complained about its ability to compile information about insurance policies it issued. Cohen v. Chicago Title Ins. Co., 242 F.R.D. 295, 302 (E.D. Pa. Apr. 5, 2007). The “Notice Class” - (SAC - D.I. 38, ¶ 103) This class is defined as: 1. All natural persons residing in the United States (including all territories and other political subdivisions of the United States) Case 1:17-cv-00053-RGA Document 52 Filed 09/18/17 Page 19 of 27 PageID #: 682 - 14 - This provision is objective, in that class members are natural persons that reside in the United States, thus providing clear guidance of the geographic boundaries, and class members can’t be other than natural persons, for instance corporations, other legal fictions or estates. 2. who were employees of Trinity or who applied for an employment position with Trinity This provision is also objective. This class is made up of Trinity employees or job applicants. Pinkerton has a contract with Trinity and both have records of the Trinity employees and job applicants about whom Pinkerton furnished a consumer report. 3. as part of this application process were the subject of a consumer report used by Trinity and/or Pinkerton on or after August 26, 2016, and through the pendency of this action This provides another objective criterion, i.e., the employees who were the subject of a report used by Trinity on or after a date certain. When the Plaintiff moves for class certification, the Court will have the opportunity to decide the definition of the class period, but as an initial matter, the Plaintiff has identified the date on which her consumer report was used by Trinity. 4. where that consumer report contained an item that would disqualify the person from such position under Trinity’s hiring policies, Whether the consumer reports for the class members contained an item that would disqualify them from a position can be found in Trinity’s hiring policies that were in force during the class period. Trinity will be able to review their records to determine the class members whose consumer reports contained such a disqualifying item. The allegations of the complaint demonstrate that Pinkerton had the ability to “flag” these items. 5. which consumer was not then approved or hired for the position, Both Pinkerton and Trinity are able to determine whether individuals were hired. 6. and to whom Trinity did not provide a copy of the consumer report and other disclosures required by 15 U.S.C. § 1681 b(b)(3)(A)(i) & (ii) Case 1:17-cv-00053-RGA Document 52 Filed 09/18/17 Page 20 of 27 PageID #: 683 - 15 - Trinity will be able to identify from its records whether it was under an obligation to provide notices required by FCRA provision 15 U.S.C. § 1681 b(b)(3)(A)(i) & (ii). The citation in the class definition to the statutory pre-adverse action notice requirements (containing consumer report and FCRA summary of rights) merely identifies the requirements, but does not give rise to a fail- safe class by mentioning the code. Whether Trinity sent the consumer report and summary of rights described in § 1681 b(b)(3)(A)(i) & (ii) are objective criteria. 7. at least five business days before the date the employment decision was made. Whether or when Trinity provided Plaintiff and job applicants pre-adverse action notices containing the consumer report and FCRA summary of rights is objective. If it was sent, Trinity’s records will demonstrate whether it was at least five business days prior to Pinkerton and/or Trinity taking adverse action. Deferring to the allegations in the SAC (D.I. 38), this class is administratively feasible because it can be determined by examining the records of Defendants. C. Striking the class definition at the pleading stage is unwarranted The cases cited by Trinity don’t support its argument for striking the class definition. First, in Young v. Nationwide Mut. Ins. Co., the Sixth Circuit affirmed the district court’s grant of class certification, finding that the class was not defined as a fail-safe class. 693 F.3d 532, 538 (6th Cir. 2012)(rejecting Defendant’s arguments that a case requiring “a large number of individual determinations to ascertain class membership” as a “fail-safe” class or as one that was not administratively feasible.) There the class was defined as All persons in the Commonwealth of Kentucky who purchased insurance from or underwritten by [Defendant insurer] during the Relevant Time Period [ (June 16, 2001, through the present) for 06-141 and (June 22, 2001, through the present) for 06-146] and who were charged local government taxes on their payment of premiums which were either not owed, or were at rates higher than permitted. Case 1:17-cv-00053-RGA Document 52 Filed 09/18/17 Page 21 of 27 PageID #: 684 - 16 - 693 F.3d at 536. This case is more like Young, where there may be elements of the claim that overlap with elements of the class definition, but liability need not be established in order to ascertain the class. See e.g. Messner v. Northshore Univ. Health Sys., 669 F.3d 802, 825 (7th Cir. 2012) (reversing trial court and holding that a fail-safe class should not cause a class not to be certified, but can be remedied by amending the class definition); G.M. Sign, Inc. v. Franklin Bank, SSB., Civ. 06-949, 2007 WL 4365359, at *3 (N.D. Ill. Dec. 13, 2007) (denying plaintiff’s motion to certify a Telephone Consumer Protection Act (TCPA) at certification stage because defendant was required to mount a merits defense in order to define the class); Forman v. Data Transfer, Inc., 164 F.R.D. 400, 403 (E.D. Pa. 1995) (denying TCPA class at the certification stage). All of the remaining cases cited by Trinity are TCPA cases in which the court granted leave to amend the TCPA class definitions. This case is not like a TCPA case, however, where the defendant would have to “mount a defense” like TCPA defendants to define the class. D. The Plaintiff seeks actual damages in the alternative in her request for issue certification under Rule 23(c)(4) 1. It is axiomatic that a plaintiff may plead in the alternative It is well-established that a plaintiff may plead competing and even inconsistent theories of liability and damages by pleading in the alternative. Philip A. Templeton, M.D., P.A. v. EmCare, Inc., 868 F. Supp. 2d 333, 340 (D. Del. June 12, 2012). Where the plaintiff plausibly states a cause of action under any theory, dismissal is improper. Erickson, 551 U.S. at 93. Defendant argues that the Plaintiff’s demand for actual damages must be stricken because it would require “the court to engage in a trial on damages for each and every individual member of the class . . . [a]s a result, plaintiff’s class claims against Trinity must be stricken.” Def.’s Br. (D.I. 48) at 2. Plaintiff has alleged enough factual matter to meet the “low” pleading standard of Rule 8, including for the class allegations, and has a right to discovery on this issue. Courts within and Case 1:17-cv-00053-RGA Document 52 Filed 09/18/17 Page 22 of 27 PageID #: 685 - 17 - adjacent to the Third Circuit agree, it is rare to strike class allegations prior to discovery. Goode v. LexisNexis Risk & Info. Analytics Group, Inc., 284 F.R.D. 238 (E.D. Pa. 2012) (motion to strike class allegations was premature until the plaintiff had the opportunity to conduct class discovery); Barghout v. Bayer Healthcare Pharmaceuticals, 2012 U.S. Dist. Lexis 46197 (D.N.J. 2012); accord Mazzola v. Roomster Corp., 849 F. Supp. 2d 395, 410 (S.D. N.Y. 2012) (“[a] motion to strike class allegations … is even more disfavored because it requires a reviewing court to preemptively terminate the class aspects of … litigation, solely on the basis of what is alleged in the complaint, and before plaintiffs are permitted to complete the discovery to which they would otherwise be entitled on questions relevant to class certification”) (internal quotations omitted). 2. The Motion to Strike Class Claims pled in the alternative in Counts I and II for issue-only certification under Fed. R. Civ. P. 23(c)(4) and for damages under 15 U.S.C. §§ 1681o should be denied. Ms. Doe suffered actual damages as a result of Trinity’s willful actions, but she has opted to seek statutory damages, punitive damages, and attorneys’ fees on behalf of the class as provided in the statute for this claim. It is well settled that a representative plaintiff has the right to forego individual damages in favor of statutory damages in order to achieve class certification. Murray v. GMAC Mort’g Corp., 434 F.3d 948, 953 (7th Cir. 2003). In the alternative, Plaintiff has alleged that she and the class are entitled to issue certification and an appropriate remedy, if any, under § 1681o. SAC (D.I. 38) ¶¶ 126, 134. It is well settled that a district court may certify a single cause of action or issue such as liability within a suit pursuant to Fed. R. Civ. P. 23(c)(4). Gates v. Rohm & Haas Co., 655 F.3d 255, 272 (3d Cir. 2011). The Third Circuit has noted a split regarding Rule 23(c)(4) certification, and provided a framework for certifying issue classes. Hohider v. UPS, Inc., 574 F.3d 169, 200-01 (3d Cir. 2009). Case 1:17-cv-00053-RGA Document 52 Filed 09/18/17 Page 23 of 27 PageID #: 686 - 18 - In Gunnells v. Healthplan Servs., Inc., 348 F.3d 417, 441-42 (4th Cir.2003), the Fourth Circuit made a thorough analysis on whether it is proper to certify a single issue, whether it is liability or some other discrete issue, as long as it satisfies the rigorous requirements of Rule 23. Id. at 439 (collecting cases). The court observed that issue certification “should be used to separate one or more claims that are appropriate for class treatment, provided that within that claim or claims ... the predominance and all other necessary requirements of [Rule 23(a) and (b)] are met.” Id. at 441. The Gunnells court surveyed relevant cases within and outside of the Fourth Circuit, finding that courts had explicitly or implicitly endorsed issue certification when appropriate under Rule 23(c)(4). Numerous courts within the Third Circuit have favorably cited or followed the Fourth Circuit’s guidance in Gunnells. See, e.g., Cannon v. Cherry Hill Toyota, Inc., 184 F.R.D. 540, 544 (D.N.J. 1999); Stephenson v. Bell Atl. Corp., 177 F.R.D. 279, 289 & n. 4, 295 (D.N.J. 1997). The Third Circuit has reversed district court decisions not to certify single issue or partial certification. Bogosian v. Gulf Oil Corp., 561 F.2d 434, 453 (3d Cir. 1977); Geraghty v. United States Parole Comm'n, 579 F.2d 238, 252-53 (3d Cir.1978) vacated on other grounds, 445 U.S. 388, 402-03 (1980). Trinity has cited no cognizable authority that prevents the Plaintiff and the class from seeking issue certification at the appropriate time as alternative relief. E. Plaintiff has properly stated an individual claim against Trinity (Count V) Trinity argues that Ms. Doe has no claim for a violation of § 1681b(f) because, as an employer, it had a permissible purpose to obtain Ms. Doe’s consumer report and she authorized it. Def.’s Br. (D.I. 48) at 7. (D.I. 48.) If those were the facts in this case, Trinity might have a winning argument; however, there’s more to the story, and Trinity’s use of the Plaintiff’s report was an impermissible invasion of her privacy. Plaintiff has alleged that although she applied for a job with Trinity and authorized the procurement of an employment-purposed consumer report, she did not authorize Case 1:17-cv-00053-RGA Document 52 Filed 09/18/17 Page 24 of 27 PageID #: 687 - 19 - the procurement of a report that was specifically not to be used for employment decisions. In this case, the report at issue contained a disclaimer that “THE FOLLOWING INFORMATION SHOULD NOT BE USED FOR EMPLOYMENT DECISION PURPOSES.” Ms. Doe did not authorize a report that was not complete, not up-to-date, or maximally accurate. As soon as Trinity received the report that prohibited its use for employment purposes, Plaintiff’s authorization - and thus, the permissible purpose - was extinguished. The FCRA prohibits the acquisition of a consumer report about another person unless (1) there is a permissible purpose enumerated in the statute and (2) the user certifies the permissible purpose. 15 U.S.C. § 1681b(f). The user, Trinity, must certify that it will comply with §1681b(b)(3) (relating to Pre-Adverse Action notice). Not only did Trinity obtain and use a report that the Plaintiff did not authorize, it followed its normal procedures (to not send notices), and thus its certification was also a nullity. The fact that Trinity obtained and used a report that the Plaintiff did not authorize - nor would have authorized - are facts that plausibly allege a violation of the “permissible” purpose requirements and for which a jury could reasonably find Trinity liable. Trinity argues that there is nothing in the FCRA that prevents it from relying on a consumer report that it obtained for a purpose authorized by a user, even if the report was flawed. Def.’s Br. (D.I. 48) at 7. Nevertheless, those are not the facts of this case, and they are not the facts that the Plaintiff has alleged. Nor may those facts be inferred from the complaint viewing all facts in the light most favorable to the Plaintiff. Trinity argues that the allegations in the SAC demonstrate that it actually complied with the permissible purpose requirements of § 1681b(a) & (f). Trinity thereby sets up a dispute about the facts, and, moreover, completely ignores the necessity of compliance with § 1681b(b) and the fact that the report that it ordered, received, and relied upon was specifically not to be used for employment decisions. Its compliance argument is a ruse and Case 1:17-cv-00053-RGA Document 52 Filed 09/18/17 Page 25 of 27 PageID #: 688 - 20 - sham because it does not meaningfully address allegations that demonstrate the procurement and use of the report was not simply “flawed,” it was specifically not be used for the purpose that it certified. Trinity ignores the long history of FCRA jurisprudence directly on point, impermissibly promotes its own version of the facts, and cites to cases that have nothing to do with the FCRA. Ms. Doe has filed a fact-intensive SAC, beyond the requirements of FED. R. CIV. P. 8, which states her individual and class claims for legal relief. V. CONCLUSION For these reasons, the Plaintiff respectfully requests that the Court deny the Motion to Dismiss in its entirety. If the court has found that the Plaintiff’s complaint fails to sufficiently allege facts required to state FCRA claims or properly define the class, the Plaintiff respectfully requests leave to amend. Courts normally grant leave to amend following a dismissal under FED. R. CIV. P. 12(b)(6). CertusView Technologies, LLC v. S & N Locating Services, LLC, 2:13CV346, 2015 WL 2454277, at *18 (E.D. Va. May 22, 2015) (citations omitted); see also Ostrzenski v. Seigel, 177 F.3d 245, 252-53 (4th Cir.1999)). The Court “may deny leave to amend if the amendment would be prejudicial to the opposing party, there has been bad faith on the part of the moving party, or the amendment would have been futile.” Id. (internal citations omitted). At this stage, there has been no answer or discovery filed. There is no scheduling order. The Defendants are well aware of the facts and allegations; thus, they can suffer no legal prejudice from granting leave to amend. Respectfully submitted, THE LAW OFFICE OF MARY HIGGINS By: /s/Mary Higgins Mary Higgins, DE ID No. 4179 260 Chapman Rd., Suite 201 Newark, DE 19702 Telephone: (302) 894-4357 Email mary.higgins@letsbelegal.com Attorneys for the Plaintiff Case 1:17-cv-00053-RGA Document 52 Filed 09/18/17 Page 26 of 27 PageID #: 689 - 21 - Of Counsel: Susan Mary Rotkis (Pro hac vice) Arizona State Bar No. 032866 Virginia State Bar. No. 40693 CONSUMER LITIGATION ASSOCIATES WEST, P.L.L.C. 382 South Convent Ave. Tucson, AZ 85716 Telephone: (520) 622-2481 Date: September 18, 2017 Email: srotkis@clalegal.com Case 1:17-cv-00053-RGA Document 52 Filed 09/18/17 Page 27 of 27 PageID #: 690