Teske, Courtnie v. Great Wolf Resorts Holdings, Inc.

Brief in Opposition

W.D. Wis.October 3, 2016

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WISCONSIN COURTNIE TESKE, on behalf of herself and all others similarly situated, Plaintiff, v. GREAT WOLF RESORTS HOLDINGS, INC., Defendant. Case No. 16-CV-587 Removed from: Dane County Circuit Court Case No. 16-CV-2015 PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS FOR LACK OF STANDING Case: 3:16-cv-00587-jdp Document #: 10 Filed: 10/03/16 Page 1 of 37 i TABLE OF CONTENTS I. INTRODUCTION .................................................................................................................. 1 II. STATEMENT OF FACTS ..................................................................................................... 4 III. STANDARD OF REVIEW ................................................................................................. 6 IV. ARGUMENT ....................................................................................................................... 7 A. Spokeo Did Not Change The Requirements For Article III Standing. ............................ 7 B. Plaintiff Suffered Concrete and Particularized Harm Sufficient to Confer Standing .... 10 1. The FCRA Creates Substantive Rights. ..................................................................... 10 2. Plaintiff’s Invasion of Privacy Injury is Cognizable Under Spokeo. ......................... 11 3. Plaintiff’s Informational Injury is Cognizable Under Spokeo.................................... 21 C. In The Alternative, Remand, Not Dismissal, Is Appropriate. ........................................ 27 V. CONCLUSION ..................................................................................................................... 28 Case: 3:16-cv-00587-jdp Document #: 10 Filed: 10/03/16 Page 2 of 37 ii TABLE OF AUTHORITIES Cases Altman v. White House Black Mkt., Inc., No. 1:15-CV-2451-SCJ, 2016 WL 3946780 (N.D. Ga. July 13, 2016)............................... 24-25 Alvarez v. Longboy, 697 F.2d 1333 (9th Cir. 1983) .................................................................................................. 23 Am. Farm Bureau Fed'n v. U.S. Envtl. Prot. Agency, No. 15-1234, 2016 WL 4709117 (8th Cir. Sept. 9, 2016) ........................................................ 19 Aranda v. Caribbean Cruise Line, Inc., No. 12 C 4069, 2016 WL 4439935 (N.D. Ill. Aug. 23, 2016) .................................................. 16 Boelter v. Hearst Commc'ns, Inc., --- F. Supp. 3d ---, 2016 WL 3369541 (S.D.N.Y. June 17, 2016) ............................................ 15 Bona Fide Conglomerate, Inc. v. SourceAmerica, No. 3:14-cv-00751, 2016 WL 3543699 (S.D. Cal. June 29, 2016) .......................................... 15 Byrd v. U.S. E.P.A., 174 F.3d 239 (D.C. Cir. 1999) .................................................................................................. 23 Case v. Hertz Corp., No. 15-CV-02707-BLF, 2016 WL 1169197 (N.D. Cal. Feb. 26, 2016)..................................... 2 Church v. Accretive Health, Inc., No. 15–15708, 2016 WL 3611543 (11th Cir. July 6, 2016) ............................................... 18, 24 Ctr. for Biological Diversity, Inc. v. BP Am. Prod. Co., 704 F.3d 413 (5th Cir. 2013) .................................................................................................... 23 Dennis v. BEH-1, LLC, 520 F.3d 1066 (9th Cir. 2008) .................................................................................................. 11 Doe v. Pub. Citizen, 749 F.3d 246 (4th Cir. 2014) .................................................................................................... 23 Duqum v. Scottrade, Inc., No. 4:15-CV-1537-SPM, 2016 WL 3683001 (E.D. Mo. July 12, 2016).................................. 17 Earth Island Inst. v. Ruthenbeck, 490 F.3d 687 (9th Cir. 2007) .................................................................................................... 23 Fed. Election Comm'n v. Akins, 524 U.S. 11 (1998) .................................................................................................................... 21 Case: 3:16-cv-00587-jdp Document #: 10 Filed: 10/03/16 Page 3 of 37 iii Fisher v. Enterprise Holdings, Inc., No. 4:15CV00372 AGF, 2016 WL 4665899 (E.D. Mo. Sept. 7, 2016) ................................... 17 Grant ex rel. Family Eldercare v. Gilbert, 324 F.3d 383 (5th Cir. 2003) .................................................................................................... 23 Groshek v. Great Lakes Higher Educ. Corp., No. 15-CV-143-JDP, 2015 WL 7294548 (W.D. Wis. Nov. 16, 2015)....................................... 1 Groshek v. Time Warner Cable, Inc., No. 15-C-157, 2016 WL 4203506 (E.D. Wisc. Aug. 9, 2016) ................................................. 15 Gubala v. Time Warner Cable, Inc., No. 15-CV-1078-PP, 2016 WL 3390415 (E.D. Wis. June 17, 2016) ....................................... 17 Hancock v. Urban Outfitters, Inc., No. 14-7047, 2016 WL 3996710 (D.C. Cir. July 26, 2016) ..................................................... 17 Harris v. Home Depot U.S.A., Inc., 114 F. Supp. 3d 868 (N.D. Cal. 2015) ...................................................................................... 12 Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982) ............................................................................................................ 22, 26 Hawkins v. S2Verify, No. C 15-03502 WHA, 2016 WL 3999458 (N.D. Cal. July 26, 2016) .............................. 15, 19 Heartwood, Inc. v. U.S. Forest Serv., 230 F.3d 947 (7th Cir. 2000) .................................................................................................... 23 In re Brand Name Prescription Drugs Antitrust Litig., 123 F.3d 599 (7th Cir. 1997) ...................................................................................................... 6 In re Google Inc. Cookie Placement Consumer Privacy Litig., 806 F.3d 125 (3d Cir. 2015)...................................................................................................... 18 Int’l Primate Prot. League v. Adm’rs of Tulane Educ. Fund, 500 U.S. 72 (1991) .................................................................................................................... 27 Jamison v. Bank of Am., N.A., No. 2:16-CV-00422, 2016 WL 3653456 (E.D. Cal. July 7, 2016) ........................................... 17 Johnson v. Casey’s Gen. Stores, Inc., 116 F. Supp. 3d 944 (W.D. Mo. July 27, 2015).......................................................................... 2 Johnson v. Navient Sols., Inc., --- F., Supp. 3d ---, 2015 WL 8784150 (S.D. Ind. Dec. 15, 2015) ...................................................... 15 Case: 3:16-cv-00587-jdp Document #: 10 Filed: 10/03/16 Page 4 of 37 iv Jones v. Halstead Mgmt. Co., LLC, 81 F. Supp. 3d 324 (S.D.N.Y. Jan. 27, 2015) ............................................................................. 3 Kelchner v. Sycamore Manor Health Ctr., 305 F. Supp. 2d 429 (M.D. Pa. 2004) ................................................................................. 11, 12 Khan v. Children's Nat'l Health Sys., No. CV TDC-15-2125, 2016 WL 2946165 (D. Md. May 19, 2016) ........................................ 18 Kyles v. J.K. Guardian Sec. Servs., Inc., 222 F.3d 289 (7th Cir. 2000) ...................................................................................................... 9 Lagos v. The Leland Stanford Junior Univ., No. 5:15-CV-04524, 2015 WL 7878129 (N.D. Cal. Dec. 4, 2015) ............................................ 2 Lane v. Bayview Loan Servicing, LLC, Case No. 15 C 10446, 2016 WL 3671467 (N.D. Ill., July 11, 2016) ....................................... 25 Larroque v. First Advantage LNS Screening Sols., Inc., No. 15-CV-04684-JSC, 2016 WL 4577257 (N.D. Cal. Sept. 2, 2016) .................................... 17 Larroque v. First Advantage LNS Screening Sols., Inc., No. 15-cv-04684-JSC, 2016 U.S. Dist. LEXIS 80689 (N.D. Cal. June 21, 2016) ................... 17 Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) ...................................................................................................... 7, 8, 9, 13 Macon Cty., Ill. ex rel. Ahola v. Merscorp, Inc., 968 F. Supp. 2d 959 (C.D. Ill. 2013) .......................................................................................... 6 Manuel v. Wells Fargo Bank, Nat. Ass’n, 123 F. Supp. 3d 810 (E.D. Va. 2015) ....................................................................................... 23 Martin v. Fair Collections & Outsourcing, Inc., No. GJH-14-3191, 2015 WL 4064970 (D. Md. June 30, 2015) ................................................. 2 Matera v. Google Inc., No. 15-CV-04062-LHK, 2016 WL 5339806 (N.D. Cal. Sept. 23, 2016)................................. 14 McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178 (1936) .................................................................................................................... 6 Mey v. Got Warranty Inc., 5:15-CV-101, 2016 WL 3645195 (N.D. W. Va. June 30, 2016) ................................................ 9 Meza v. Verizon Comms., Inc.,, 2016-cv-739, 2016 WL 4721475 (E.D. Cal. Sept. 9, 2016) ................................................. 9, 14 Case: 3:16-cv-00587-jdp Document #: 10 Filed: 10/03/16 Page 5 of 37 v Miller v. Quest Diagnostics, 85 F. Supp. 3d 1058 (W.D. Mo. 2015) ....................................................................................... 2 Pavesich v. New England Life Ins. Co., 50 S.E. 68 (Ga. 1905)................................................................................................................ 13 Perrill v. Equifax Info. Servs., LLC, No. A-14-CA-612, 2016 WL 4572212 (W.D. Tex. Aug. 31, 2016)............................... 8, 15, 16 Pub. Citizen v. U.S. Dep’t of Justice, 491 U.S. 440 (1989) .................................................................................................................. 21 Rawlings v. ADS Alliance Data Sys., Inc., No. 2:15-CV-04051, 2015 WL 3866885 (W.D. Mo. June 23, 2015) ......................................... 3 Retired Chicago Police Ass’n v. City of Chicago, 76 F.3d 856 (7th Cir. 1996) ........................................................................................................ 6 Robrinzine v. Big Lots Stores, Inc., 156 F. Supp. 3d 920 (N.D. Ill. 2016) .......................................................................................... 2 Ryals v. Strategic Screening Sols., Inc., 117 F. Supp. 3d. 746 (E.D. Va. 2015) ...................................................................................... 23 Saenz v. Buckeye Check Cashing of Illinois, No. 16 CV 6052, 2016 WL 5080747 (N.D. Ill. Sept. 20, 2016) ............................................... 24 Sartin v. EKF Diagnostics, Inc., No. CV 16-1816, 2016 WL 3598297 (E.D. La. July 5, 2016) .................................................. 17 Smith v. Ohio State Univ., 2016 WL 3182675 (S.D. Ohio Jun. 8, 2016) ............................................................................ 17 Smith v. Wisconsin Dep't of Agric., Trade & Consumer Prot., 23 F.3d 1134 (7th Cir. 1994) ................................................................................................ 4, 27 Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) ....................................................................................................... passim Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998) ................................................................................................................ 8, 27 Sterk v. Redbox Automated Retail, LLC, 770 F.3d 618 (7th Cir. 2014) ...................................................................................................... 9 Taylor v. Miller, 853 F. Supp. 305 (W.D. Wisc. 1994)........................................................................................ 20 Case: 3:16-cv-00587-jdp Document #: 10 Filed: 10/03/16 Page 6 of 37 vi Thomas v. FTS USA, LLC, No. 3:13-cv-825, 2016 WL 3653878 (E.D. Va. June 29, 2016) ........................................ passim U.S. Dep't of Def. v. Fed. Labor Relations Auth., 510 U.S. 487 (1994) .................................................................................................................. 19 U.S. Dep't of Navy, Navy Exch., Naval Training Station, Naval Hosp., Great Lakes, Ill. v. Fed. Labor Relations Auth., 975 F.2d 348 (7th Cir. 1992) .................................................................................................... 20 U.S. Dept. of Justice v. Reporters Comm. For Freedom of Press, 489 U.S. 749 (1989) .................................................................................................................. 20 United States v. Richardson, 418 U.S. 166 (1974) .................................................................................................................... 8 Vill. of Bellwood v. Dwivedi, 895 F.2d 1521 (7th Cir. 1990) .................................................................................................... 9 Willan v. Columbia Cty., 280 F.3d 1160 (7th Cir. 2002) .................................................................................................. 20 Woods v. Caremark PHC, L.L.C., No. 4:15-CV-0, 0535-SRB, 2015 WL 6742124 (W.D. Mo. Nov. 2, 2015) .......................................................... 2 Statutes 15 U.S.C. § 1681b .................................................................................................................. passim 28 U.S.C. § 1331 ......................................................................................................................... 6, 7 28 U.S.C.A. § 1447(c) .............................................................................................................. 4, 27 U.S. Const., Art. III ........................................................................................................................ 6 Other Authorities 138 Cong. Rec. H9370-03 ............................................................................................................ 12 140 Cong. Rec. H9797-05 ............................................................................................................ 12 Amy Howe, Opinion analysis: Case on standing and concrete harm returns to the Ninth Circuit, at least for now, SCOTUSblog (May 16, 2016) ......................................................................... 9 Restatement (Second) of Torts § 652A (1977) ............................................................................. 13 S. Rep. No. 104-185 ...................................................................................................................... 11 S. Rep. No. 91-157 ........................................................................................................................ 12 Case: 3:16-cv-00587-jdp Document #: 10 Filed: 10/03/16 Page 7 of 37 vii Daniel J. Solove, Spokeo, Inc. v. Robins: When Is a Person Harmed by a Privacy Violation?, Geo. Wash. L. Rev. On the Docket (May 19, 2016)................................................................... 9 Daniel Townsend, Who Should Define Injuries For Article III Standing?, 68 STAN L. REV. ONLINE 76 (2015) .................................................................................... 14 Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890) ....................................................................................................... 13 Kathryn Zeiler & Kimberly D. Krawiec, Common-law Disclosure Duties and the Sin of Omission, 91 Va. L. Rev. 1795 (2005) ..................................................................................... 25 Case: 3:16-cv-00587-jdp Document #: 10 Filed: 10/03/16 Page 8 of 37 I. INTRODUCTION Background reports used for employment purposes contain a wealth of private information and can have life-changing consequences. Recognizing the intrusive nature of these impersonal commercial reports, Congress sharply limited the circumstances in which an employer may obtain a background report. The Fair Credit Reporting Act (“FCRA”) made it illegal for employers to obtain background reports without first making a conspicuous disclosure that a report would be procured and without subsequently obtaining the consumer’s informed written authorization. Plaintiff and the members of the proposed Class suffered exactly the injury prohibited by Congress in enacting the FCRA: Great Wolf Lodge obtained background report on them, accessing private information, without making the Congressionally-required disclosure and without obtaining the subsequent informed consent. Instead of following the mandatory, yet simple, procedures set forth by Congress as to the required form of disclosure, Defendant included a raft of extraneous and misleading information in its forms. In so doing, Defendant thwarted Congress’s goals, and illegally obtained plaintiff’s report. Without obtaining plaintiff’s informed consent, Defendant had no right to procure a report on her. When it did so anyway, Defendant invaded Plaintiff’s privacy. Further, by failing to make the required disclosure, Defendant deprived Plaintiff of information Congress deemed it important for her to receive, causing her informational injury. The absence of properly informed consent also vitiates Defendant’s claim that Plaintiff’s “consent” to obtain the report somehow means that her privacy was not invaded. There is no doubt that Defendant’s disclosure form violated the FCRA. As this Court held: “By the terms of the statute, the required conspicuous disclosure about the report must consist solely of the disclosure, with the only exception being the consumer's authorization for the report.” Groshek v. Great Lakes Higher Educ. Corp., No. 15-CV-143-JDP, 2015 WL 7294548, at *2 (W.D. Case: 3:16-cv-00587-jdp Document #: 10 Filed: 10/03/16 Page 9 of 37 2 Wis. Nov. 16, 2015). At least five other courts have similarly found that forms that are substantially identical to the one at issue here may violate the FCRA.1 And many more courts have adjudicated disputes over the propriety of employers procuring consumer reports without making the required disclosures.2 1 As explained in Paragraph 36 of the First Amended Complaint, the form Defendant used is often referred to as the “Sterling Form.” Numerous courts have found it does not comply with the FCRA. See Case v. Hertz Corp., No. 15-CV-02707-BLF, 2016 WL 1169197, at *5 (N.D. Cal. Feb. 26, 2016) (denying motion to dismiss because “the Sterling Form does not appear to be a stand-alone disclosure.”); Robrinzine v. Big Lots Stores, Inc., 156 F. Supp. 3d 920, 927 (N.D. Ill. 2016) (“[T]he [Sterling] Consent Form includes an implied liability waiver, specific information regarding how consumer information will be collected, and over a page and a half of state-specific exceptions that are inapplicable to Ms. Robrinzine. Thus, the Complaint sufficiently pleads that the Consent Form, on its face, fails to comply with the FCRA-stand-alone disclosure requirement's “ordinary and plain meaning.”) (footnote and citation omitted); Jones v. Halstead Mgmt. Co., LLC, 81 F. Supp. 3d 324, 333 (S.D.N.Y. Jan. 27, 2015) (“[T]he Sterling Disclosure does not appear to be a standalone disclosure. In addition to the disclosure and an authorization, which is permitted, the Sterling Disclosure includes, inter alia: information regarding time frames within which the applicant must challenge the accuracy of any report; an acknowledgement that “all employment decisions are based on legitimate non-discriminatory reasons ... and all sorts of state-specific disclosures”); Martin v. Fair Collections & Outsourcing, Inc., No. GJH-14-3191, 2015 WL 4064970, at *4 (D. Md. June 30, 2015) (denying motion to dismiss where Sterling Form “contain[ed] an authorization to obtain the report, information on when the applicant must challenge the accuracy of any report, an acknowledgement that the employee understands that ‘all employment decisions are based on legitimate non-discriminatory reasons,’ .... and several pieces of state specific information ... With all of this information, there is no question that FCO’s disclosure form contains more than a disclosure that the background check would be obtained and an authorization to obtain the information.”); Miller v. Quest Diagnostics, 85 F. Supp. 3d 1058, 1061 (W.D. Mo. 2015) (finding “inclusion [on Sterling form] of the state-mandated consumer report information, administrative sections, and release language in the disclosure violates 15 U.S.C. § 1681b(b)(2)”). 2 See, e.g. Legrand v. IntelliCorp Records, Inc., No. 1:15-cv-2091, ECF No. 47 at 8 (N.D. Ohio April 22, 2016) (granting summary judgment on violation of §1681b(b)(2) where employer’s form contained an authorization to release information from “without reservation, any law enforcement agency, administrator, state or federal agency, institution, school or university (public or private), information service bureau, financial institution, employer, or insurance company”); Woods v. Caremark PHC, L.L.C., No. 4:15-CV-00535-SRB, 2015 WL 6742124, at *2 (W.D. Mo. Nov. 2, 2015) (finding disclosure to violate the FCRA when it contained an overly broad authorization); Lagos v. The Leland Stanford Junior Univ., No. 5:15-CV-04524, 2015 WL 7878129, at *2 (N.D. Cal. Dec. 4, 2015) (denying motion to dismiss where defendant had included state law notices and sentence that “nothing herein shall be construed as an offer of employment or contract for services”); Johnson v. Casey’s Gen. Stores, Inc., 116 F. Supp. 3d 944, 946-47 (W.D. Mo. July 27, Case: 3:16-cv-00587-jdp Document #: 10 Filed: 10/03/16 Page 10 of 37 3 Faced with clear-cut liability, Defendant attempts to avoid the consequences of its actions by characterizing Plaintiff’s injuries as merely procedural or technical, in effect arguing that individuals like Ms. Teske should have a claim under the FCRA only if their background check reveals anything negative or if they lose an employment opportunity. See Def. Br. at 2. Defendant’s argument ignores what it means when Congress deems certain information private: in such circumstances, the unlawful procurement of the information is itself the injury, and there is no need for a plaintiff to demonstrate an additional injury. So too where Congress creates a right for people to receive certain information: the deprivation of that information is itself the injury, and a plaintiff asserting such an injury need not show any further harm. The concept of intangible injury is hardly new; indeed, numerous torts at common law allowed for the recovery of nominal damages in circumstances where the plaintiff merely alleged the invasion of a protected interest, such as in libel or slander per se, but was unable to demonstrate additional consequential harm. See Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1549-50 (2016). Congress’s authority to bestow a substantive right to a specific form of disclosure as a prerequisite to obtaining private information is supported by Spokeo and ample case law that pre- and post-dates Spokeo. Spokeo explicitly affirmed that “intangible” injuries are sufficient to confer standing, 136 S. Ct. at 1549, and that a plaintiff in such a case “need not allege any additional harm beyond the one Congress has identified.” Id. (emphasis in original). In addition, Plaintiff’s 2015) (denying motion to dismiss stand-alone disclosure claim where it was alleged that defendant had an overly broad authorization); Rawlings v. ADS Alliance Data Sys., Inc., No. 2:15-CV-04051, 2015 WL 3866885, at *6 (W.D. Mo. June 23, 2015) (denying motion to dismiss where form contained extraneous state law information); Jones v. Halstead Mgmt. Co., LLC, 81 F. Supp. 3d 324, 332-33 (S.D.N.Y. Jan. 27, 2015) (finding disclosure to not be stand-alone when it included “information regarding time frames within which the applicant must challenge the accuracy of any report; an acknowledgement that ‘all employment decisions are based on legitimate non- discriminatory reasons;’…and all sorts of state-specific disclosures”). Case: 3:16-cv-00587-jdp Document #: 10 Filed: 10/03/16 Page 11 of 37 4 claims have strong common-law analogs (such as invasion of privacy and common law traditions requiring disclosures attendant to special relationships), which is an additional factor that the Supreme Court in Spokeo considered to be “instructive” when “determining whether an intangible harm constitutes injury in fact.” 136 S.Ct. at 1549. For these reasons, other courts that have analyzed the question of standing under Section 1681b(b)(2) of the FCRA have found that the plaintiffs had Article III standing, and that the protections the FCRA affords to job applicants by requiring employers to make certain disclosures before procuring consumer reports are “clearly substantive, and neither technical nor procedural.” Thomas v. FTS USA, LLC, No. 3:13-cv-825, 2016 WL 3653878 at *7 (E.D. Va. June 29, 2016). See also Meza v. Verizon Comms., Inc., 16-cv-739, 2016 WL 4721475 (E.D. Cal. Sept. 9, 2016). Lastly, even if the Court finds Plaintiff lacks standing, the proper remedy is remand, not dismissal. Plaintiff originally filed this case in state court, and Defendant removed the action to this Court. ECF No. 1. Defendant’s brief fails to even cite, let alone address, an on-point federal statute mandating remand in precisely this situation, 28 U.S.C.A. § 1447(c) (requiring remand of removed action if federal court lacks subject-matter jurisdiction), or unambiguous, binding authority from the Seventh Circuit requiring remand. See Smith v. Wisconsin Dep't of Agric., Trade & Consumer Prot., 23 F.3d 1134, 1139 & fn.10 (7th Cir. 1994) (“[T]he point of § 1447(c) is that a federal court does not have the authority to dismiss a claim over which it never had jurisdiction in the first instance.”). II. STATEMENT OF FACTS Plaintiff Courtney Teske applied for employment with Great Wolf Lodge on or around September, 2014 using its online application. First Amended Complaint (“FAC”), ECF No. 3, ¶¶ 19-20. As part of the application process, Plaintiff was given a form related to a background check Case: 3:16-cv-00587-jdp Document #: 10 Filed: 10/03/16 Page 12 of 37 5 (the Sterling Form). Id. ¶ 21. In the FAC, Plaintiff alleges that Great Wolf violated the FCRA “by procuring consumer reports on Plaintiff and the Class members without making the stand-alone disclosure required by the FCRA.” Id. ¶ 56. Despite not providing Plaintiff with a FCRA- compliant disclosure, Great Wolf procured a consumer report on her from Sterling, a third-party consumer reporting agency. Id. ¶ 22.3 The report included the results of Ms. Teske’s criminal background check, and noted that Sterling had performed an “SSN Trace” on Ms. Teske and had searched at least four criminal records databases. MacNaughton Decl. ¶ 8. Plaintiff alleges that Defendant’s disclosure form is flawed because it (1) purports to affect her right to challenge any employment-related decision by stating that the signer “fully understand[s] that all employment decisions are based on legitimate non-discriminatory reasons,” (2) contains extraneous information about various aspects of laws of various states, including states in which Plaintiff does not reside, (3) contains the inaccurate statement that applicants must dispute inaccurate information by notifying the employer within five days of receiving a copy of the report, and (4) purports to authorize Defendant to seek records such as school, financial, and other information that are protected by law from public disclosure. Id. ¶¶ 28-35. Plaintiff also pleads that Defendant’s violation of the FCRA caused concrete harm, in the form of informational injury and invasion of privacy. Id. ¶ 47. As to invasion of privacy, Defendant obtained private information on Plaintiff—in the form of a consumer report to which it had no legal right absent the FCRA— without first obtaining Plaintiff’s informed consent. Id. ¶¶ 17, 23-24, 34-35, 47. As to informational injury, Plaintiff was denied a disclosure about the background check in the substance and form mandated by Congress. Id. ¶¶ 26-35, 47. 3 Consumer reports are commonly referred to as background checks. Case: 3:16-cv-00587-jdp Document #: 10 Filed: 10/03/16 Page 13 of 37 6 Based on the foregoing facts, Plaintiff filed her proposed class action against Great Wolf on August 2, 2016, in the Dane County, Wisconsin Circuit Court. See ECF No. 3, Ex. A (Complaint). On August 25, 2016, Defendant removed to this Court, claiming that federal subject matter jurisdiction exists under 28 U.S.C. § 1331. See ECF No. 1. Shortly before removing, Great Wolf’s counsel sent Plaintiff’s counsel a document purporting to be the actual disclosure form provided to Plaintiff. See MacNaughton Decl. ¶ 4. In order to incorporate that document, Plaintiff filed her First Amended Complaint (“FAC”) on August 29, 2016. ECF No. 3. Then on September 12, 2016, Defendant filed the instant motion to dismiss. Despite previously invoking federal subject matter jurisdiction in its removal notice, Great Wolf now claims that federal subject matter jurisdiction does not exist under Article III of the United States Constitution. ECF No. 4. III. STANDARD OF REVIEW Great Wolf’s entire motion rests on the faulty premise that it is Plaintiff, not Defendant, who must prove standing. On the contrary: it is well established that “the party invoking federal jurisdiction bears the burden of establishing” the elements of standing. Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). Defendants “have the burden of establishing federal jurisdiction when they seek to remove a case from state to federal court, and so they must present evidence of federal jurisdiction once the existence of that jurisdiction is fairly cast into doubt.” In re Brand Name Prescription Drugs Antitrust Litig., 123 F.3d 599, 607 (7th Cir. 1997).4 This burden also applies to Article III’s injury-in-fact requirement. See Macon Cty., Ill. ex rel. Ahola v. Merscorp, Inc., 968 F. Supp. 2d 959, 964 (C.D. Ill. 2013), aff'd sub nom. Macon Cty., Ill. v. MERSCORP, Inc., 742 4 The cases quoted by Defendant that purport to place the burden on “the plaintiff” were filed by that plaintiff in federal court in the first instance, not removed by the defendants. See Retired Chicago Police Ass’n v. City of Chicago, 76 F.3d 856, 860-62 (7th Cir. 1996) (procedural history, noting case originally filed in federal court); McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 179-80 (1936) (plaintiff asserted diversity jurisdiction) (both quoted in Def. Br. at 3-4). Case: 3:16-cv-00587-jdp Document #: 10 Filed: 10/03/16 Page 14 of 37 7 F.3d 711 (7th Cir. 2014) (holding defendants had burden to establish standing when they “invoked federal jurisdiction by removing the case from state court to federal court” and yet “[p]erplexingly” chose to “challenge the constitutional standing of the claims even though they have the burden to establish standing”). Plaintiff originally filed this action in Dane County Circuit Court, and Defendant removed it to federal court, asserting that jurisdiction was proper under 28 U.S.C. §§ 1331, 1441, and 1446. (ECF No. 1.) Because Defendant chose to remove the case from state court, it is Defendant, not Plaintiff, who must demonstrate that the federal court has jurisdiction. Defendant’s heads-I-win, tails-you-lose strategy cannot be reconciled with its obligation as the removing party to have a good-faith basis for asserting federal subject matter jurisdiction. Defendant then compounds this error by seeking dismissal on the merits rather than asking for this case to be remanded back to state court. As discussed below, Plaintiff demonstrably has standing, so this Court should require Defendant face the consequences of its decision to remove and retain jurisdiction. However, in the event the Court were to find there is no subject matter jurisdiction, remand, not dismissal, would be the only permissible result. IV. ARGUMENT A. Spokeo Did Not Change The Requirements For Article III Standing. Defendant does not dispute that Plaintiff has met two of the three requirements for Article III standing – namely, that Plaintiff’s injury must be “fairly traceable to the challenged action of the defendant,” that the injury will be “redressed by a favorable decision,” or that the injury is “actual or imminent, not conjectural or hypothetical.” Lujan, 540 U.S. at 560-61 (quoted in Def. Br. at 4). Instead, Defendant’s standing challenge rests on a challenge to the requirement that the Case: 3:16-cv-00587-jdp Document #: 10 Filed: 10/03/16 Page 15 of 37 8 injury must be “concrete.” Id. (quoted in Def. Br. at 4).5 Alleging a concrete injury is not a Herculean task. On this topic, the Court in Spokeo distilled several “general principles” from its prior cases. Spokeo, 136 S. Ct. at 1550. First, it acknowledged that, although tangible injuries (like physical or economic harm) are “perhaps easier to recognize” as concrete injuries, “intangible injuries can nevertheless be concrete,” as can injuries based on a “risk of harm.” Id. at 1549-50. Second, “[i]n determining whether an intangible harm constitutes injury in fact, both history and the judgment of Congress play important roles.” Id. at 1549. If the “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”—that is, if “the common law permitted suit” in analogous circumstances—the plaintiff has suffered a concrete injury. Id.; see also Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102 (1998).6 5 This element also requires particularity. However, Defendant’s argument centers only on the “concreteness” element, not “particularity”. A “particularized” injury is one that “affect[s] the plaintiff in a personal and individual way.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 n.1 (1992). An injury is not “particularized” when it is “undifferentiated and common to all members of the public.” United States v. Richardson, 418 U.S. 166, 177 (1974) (quoted in Spokeo, 136 S.Ct. at 1548) (citation and quotation marks omitted). Plaintiff’s injury is clearly particularized. Great Wolf Lodge did not procure consumer reports on the general public after failing to provide the required disclosures and obtain informed consent. Rather, Great Wolf Lodge procured reports on just Plaintiff and the other Class members. Spokeo explicitly recognized that an injury that is “widely shared”, such as in a mass tort, is not the same as a “generalized grievance” suffered by the public at large. Spokeo, 136 S.Ct. at 1548 n.7. 6 Spokeo does not require precise continuity with a common-law claim for a plaintiff to have standing. Spokeo, 136 S. Ct. at 1549 (standing can exist for claims with “a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts”); Perrill v. Equifax Info. Servs., LLC, No. A-14-CA-612, 2016 WL 4572212, at *3 (W.D. Tex. Aug. 31, 2016) (finding standing to assert FCRA claim because, inter alia, claim was “similar to” common-law invasion of privacy tort). Even if Plaintiff’s claims were not precisely cognizable at common law, the Supreme Court explained in Spokeo that “Congress may ‘elevat[e] to the status of legally cognizable injuries concrete, de facto injuries that were previously inadequate in law.’” Id. at 1549 (quoting Lujan, 504 U.S. at 578). Case: 3:16-cv-00587-jdp Document #: 10 Filed: 10/03/16 Page 16 of 37 9 The Court also reaffirmed that Congress has the power (and is “well positioned”) “to identify intangible harms that meet minimum Article III requirements,” even if those harms “were previously inadequate in law.” Spokeo, 136 S. Ct. at 1549. Accordingly, the third principle emphasized in Spokeo is that Congress can elevate a violation of procedural rights to a concrete injury if the rights at issue protect against an identified harm. A “person who has been accorded a procedural right to protect his concrete interests” has standing to assert that right “without meeting all the normal standards for redressability and immediacy.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 572 n.7 (1992). Critically, none of these principles are new. See Thomas, 2016 WL 3653878, at *4 (“Contrary to Defendants’ position, Spokeo did not change the basic requirements of standing.”); Mey v. Got Warranty Inc., 5:15-CV-101, 2016 WL 3645195, at *2 (N.D. W. Va. June 30, 2016) (“Spokeo appears to have broken no new ground.”).7 The fact that Spokeo broke no new ground is fatal to Defendant’s motion. Established Seventh Circuit precedent makes clear that “Congress does have the power to ‘enact statutes creating legal rights, the invasion of which creates standing, even though no injury would exist without the statute.’” Sterk v. Redbox Automated Retail, LLC, 770 F.3d 618, 623 (7th Cir. 2014) (quoting Kyles v. J.K. Guardian Sec. Servs., Inc., 222 F.3d 289, 294 (7th Cir. 2000)). See also Vill. of Bellwood v. Dwivedi, 895 F.2d 1521, 1526-27 (7th Cir. 1990) (“Congress can create new substantive rights, such as a right to be free from misrepresentations, and if that right is invaded the holder of the right can sue without running afoul of Article III, even if he incurs no other 7 See also Amy Howe, Opinion analysis: Case on standing and concrete harm returns to the Ninth Circuit, at least for now, SCOTUSblog (May 16, 2016), http://bit.ly/1TB3vd1 (describing Spokeo as a “narrow” decision); Daniel J. Solove, Spokeo, Inc. v. Robins: When Is a Person Harmed by a Privacy Violation?, Geo. Wash. L. Rev. On the Docket (May 19, 2016), http://bit.ly/20fyAmS. Case: 3:16-cv-00587-jdp Document #: 10 Filed: 10/03/16 Page 17 of 37 10 injury[.]”). Under this precedent, there is no question that Plaintiff in this case has sufficiently alleged standing, and Defendant makes no attempt to argue that Spokeo has displaced Sterk or Bellwood, or any other existing precedent. B. Plaintiff Suffered Concrete and Particularized Harm Sufficient to Confer Standing 1. The FCRA Creates Substantive Rights. By failing to comply with 15 U.S.C. § 1681b(b)(2), Great Wolf obtained a report when it had no legal right to do so, thereby invading Plaintiff’s privacy. Defendant also failed to give Plaintiff important information at a specific time, causing informational injury. Either of these injuries is sufficient to confer Article III jurisdiction on this Court. See Thomas, 2016 WL 3653878. That the provisions at issue in this case are substantive and not merely procedural has been affirmed by several courts. In a thorough and lengthy opinion which meticulously evaluated Spokeo in light of the text and legislative history of the FCRA, the Eastern District of Virginia found: § 1681b(b)(2) establishes two rights. First, it establishes a right to specific information in the form of a clear and conspicuous disclosure. The statutory requirement that the disclosure be made in "a document that consists solely of the disclosure" helps to implement the textual command that the disclosure be clear and conspicuous. Second, § 1681b(b)(2) establishes a right to privacy in one's consumer report that employers may invade only under stringently defined circumstances. Those protections are clearly substantive, and neither technical nor procedural. Thomas, 2016 WL 3653878, at *7 (emphasis added). The court went on to conclude that the plaintiff had alleged two concrete injuries stemming from the failure to provide a stand-alone disclosure under 15 U.S.C. § 1681b(b)(2)—deprivation of information and invasion of privacy. Id. at *8-11. These injuries were sufficient to confer standing under Article III, and the court therefore denied a motion to dismiss for lack of subject-matter jurisdiction. Case: 3:16-cv-00587-jdp Document #: 10 Filed: 10/03/16 Page 18 of 37 11 2. Plaintiff’s Invasion of Privacy Injury is Cognizable Under Spokeo. Plaintiff’s right to privacy in her background check report is well-grounded in both Congress’s clear intent behind the FCRA and in the traditional common-law protections for privacy interests. Congress enacted the FCRA in 1970 to protect the “consumer’s right to privacy” by ensuring “the confidentiality, accuracy, relevancy, and proper utilization” of consumer information. 15 U.S.C. § 1681(b). Employment background checks contain a wealth of information traditionally recognized as private: dates of birth, social security numbers, detailed address history, and information from a variety of jurisdictions and sources about criminal background and driving history. As the Ninth Circuit put it, consumer reporting agencies “traffic[] in the reputations of ordinary people.” Dennis v. BEH-1, LLC, 520 F.3d 1066, 1071 (9th Cir. 2008). A prime motivation for the FCRA was the impact of third-party data collection on the employment market and particularly on individual job seekers. When it passed the FCRA, Congress voiced a strong “concern[]” that “permit[ting] employers to obtain consumer reports pertaining to current and prospective employees...may create an improper invasion of privacy.” S. Rep. No. 104-185, at 35 (1995). The FCRA thus “sought to protect the privacy interests of employees and potential employees by narrowly defining the proper usage of these reports and placing strict disclosure requirements on employers.” Kelchner v. Sycamore Manor Health Ctr., 305 F. Supp. 2d 429, 435 (M.D. Pa. 2004), aff’d, 135 F. App’x 499 (3d Cir. 2005); see also id. at 436. The disclosure requirement at issue here is contained in Section 1681b, titled “Permissible Purposes of Consumer Reports.” Section 1681b(b)(2) requires employers to disclose to job seekers that “a consumer report may be obtained for employment purposes.” To ensure that prospective employees are adequately informed about their rights concerning these consumer reports, the Case: 3:16-cv-00587-jdp Document #: 10 Filed: 10/03/16 Page 19 of 37 12 FCRA requires that the disclosure be “clear and conspicuous” and provided “in a document that consists solely of the disclosure.” Id. § 1681b(b)(2)(A). Absent the job seeker’s informed consent, it is illegal for a company to obtain a job applicant’s consumer report for employment purposes. Id. (“[A] person may not procure a consumer report, or cause a consumer report to be procured, for employment purposes with respect to any consumer, unless” it complies with the disclosure and authorization requirements); Harris v. Home Depot U.S.A., Inc., 114 F. Supp. 3d 868, 869 (N.D. Cal. 2015) (“The FCRA makes it unlawful to ‘procure’ a report without first providing the proper disclosure and receiving the consumer’s written authorization.”). The FCRA’s employment-specific provisions go beyond the general privacy protections of the Act—that is, requiring employers to demonstrate a permissible purpose, provide a stand-alone disclosure form, and gain informed written consent from the consumer. These provisions demonstrate that Congress intended to allow consumers to make an informed choice over whether employers could view their reports. As one legislator explained, the FCRA’s protections represented “new safeguards to protect the privacy of employees and job applicants;” the Act as a whole, he continued, was “an important step to restore employee privacy rights.” 140 Cong. Rec. H9797-05 (1994) (Statement of Congressman Vento); see also 138 Cong. Rec. H9370-03 (1992) (Statement of Congressman Wylie) (stating that the FCRA “would limit the use of credit reports for employment purposes, while providing current and prospective employees additional rights and privacy protections”). In addition to the risk of privacy-related harm, Congress also “found that in too many instances agencies were reporting inaccurate information that was adversely affecting the ability of individuals to obtain employment”—often without consumers’ knowledge. Id.; see S. Rep. No. 91-157, at 3-4 (1969). Case: 3:16-cv-00587-jdp Document #: 10 Filed: 10/03/16 Page 20 of 37 13 Congress’s concern for individuals’ privacy in their background check information is a modern adaptation of the common law’s traditional privacy protections. Invasion of privacy is a “harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts,” and thus is a cognizable injury for standing purposes. Spokeo, 136 S. Ct. at 1549. For more than a century, American courts have 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 (1977); see id. cmt. a (noting that “the existence of a right of privacy is now recognized in the great majority of the American jurisdictions”). In his seminal 1890 article, Justice Brandeis explained that “what is ordinarily termed the common-law right to intellectual and artistic property are . . . but instances and applications of a general right to privacy.” Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 198 (1890). American courts at the turn of the century identified the right of privacy as “derived from natural law.” Pavesich v. New England Life Ins. Co., 50 S.E. 68, 70 (Ga. 1905). Harm to an individual’s privacy has been regarded as a basis for suit. Even if Plaintiff’s claims were not precisely cognizable at common law, the Supreme Court explained in Spokeo that “Congress may ‘elevat[e] to the status of legally cognizable injuries concrete, de facto injuries that were previously inadequate in law.’” Spokeo, 136 S. Ct. at 1549 (quoting Lujan, 504 U.S., at 578). Here, Congress recognized that employers’ procurement of consumer reports without adequate disclosure and authorization harmed individuals’ privacy interests. Congress’s enactment of the FCRA is nothing more than its adjustment of the boundaries of the common-law right to privacy to account for changing marketplaces and technologies. Just as Plaintiff would have had certain privacy rights at common law, through the enactment of the Case: 3:16-cv-00587-jdp Document #: 10 Filed: 10/03/16 Page 21 of 37 14 FCRA, Congress codified those rights in the specific context of consumer reporting agencies selling reports for employment purposes. Applying the intangible injury analysis described in Spokeo (that is, considering both Congress’s judgment and the existence of a “close relationship” to rights actionable at common law), the Thomas court held Section 1681b(b)(2)’s disclosure requirement was “clearly substantive:” In these situations, legal rights reflect social judgments about where harm has and has not occurred. Often, these kinds of injuries exist where we think the harm is in the act itself. The public disclosure of private information or defamatory falsehoods does not need downstream consequences to be hurtful; neither does differential treatment on the basis of race. Procedural wrongs are an oft-seen category where the distinction between the legal violation and the injury may be so thin as to be essentially nonexistent. Proving the injury in many of these cases just entails proving the violation itself. . . . As a result, requiring some sort of additional indicia of harm beyond the violation itself ignores the nature of the injury and the reason for the remedy. Thomas, 2016 WL 3653878 at *6 (quoting Daniel Townsend, Who Should Define Injuries For Article III Standing?, 68 STAN L. REV. ONLINE 76, 80-81 (2015)). Numerous other courts have found Article III standing post-Spokeo based on breaches of privacy in analogous circumstances. See Matera v. Google Inc., No. 15-CV-04062-LHK, 2016 WL 5339806, at *8 (N.D. Cal. Sept. 23, 2016) (finding plaintiff had standing to assert claims under Wiretap Act and CIPA alleging “Google intercepts, scans, and analyzes the content of Plaintiff's private emails for commercial purposes and without consent,” id. at *8, finding plaintiff suffered privacy violation resulting from statutorily-created right: “three aspects of the Wiretap Act and California Invasion of Privacy Act – the existence of a private right of action, the availability of statutory damages, and the creation of a substantive private right – support finding that both Congress and the California Legislature intended to ‘grant[ ] persons in [Plaintiff's] position a right to judicial relief’ without additional allegations of injury.” Id. at *13 (citation omitted)); Meza, 2016 WL 4721475 at *3 (finding standing to assert FCRA disclosure claim, and following Thomas Case: 3:16-cv-00587-jdp Document #: 10 Filed: 10/03/16 Page 22 of 37 15 to find informational injury was concrete); Hawkins v. S2Verify, No. C 15-03502, 2016 WL 3999458 at *6 (N.D. Cal. July 26, 2016) (finding standing where defendant published public record information older than that allowed by the FCRA based upon plaintiff's statutorily established privacy interest in outdated information); Perrill, 14-cv-00612, ECF No. 116; Boelter v. Hearst Commc'ns, Inc., --- F. Supp. 3d ---, 2016 WL 3369541, at *3 (S.D.N.Y. June 17, 2016) (plaintiffs suffered a concrete injury in fact when defendant sold plaintiffs’ information to third parties in violation of the Video Privacy Protection Act); Johnson v. Navient Sols., Inc., --- F. Supp. 3d ---, 2015 WL 8784150, at *2 (S.D. Ind. Dec. 15, 2015) (finding standing based on a violation of the plaintiff's statutory right to privacy created by the Telephone Consumer Protection Act); Bona Fide Conglomerate, Inc. v. SourceAmerica, No. 3:14-cv-00751, 2016 WL 3543699, at *8 (S.D. Cal. June 29, 2016) (invasion of privacy was concrete injury under California wiretap law); Potocnik v. Carlson, 0:13-cv-02093, ECF No. 198 (D. Minn. July 15, 2016) (plaintiff had standing to challenge unauthorized access to plaintiff’s driver’s license record). That Defendant musters some purportedly contrary authority, Def. Br. at 7-10, is not surprising: courts have been grappling with the question of how to distinguish a concrete, intangible injury from a “bare procedural violation” since before Spokeo was decided. However, as the cases discussed herein demonstrate, there is a substantial weight of authority, including in this Circuit, upholding the FCRA’s remedial scheme as Congress intended. Defendant relies most heavily on Groshek v. Time Warner Cable, Inc., No. 15-C-157, 2016 WL 4203506 (E.D. Wisc. Aug. 9, 2016). See Def. Br. at 9-10. Plaintiff respectfully submits that the court in Groshek misinterpreted the law. The court based its ruling on the plaintiff’s testimony that he did not seek actual damages, id. at *3. However, reading an “actual damage” requirement into the FCRA is directly at odds with Congress’s provision for statutory damages in 15 U.S.C. § Case: 3:16-cv-00587-jdp Document #: 10 Filed: 10/03/16 Page 23 of 37 16 1681n(a)(1)(A). Further, such a requirement cannot be reconciled with the clear statements in Spokeo, Sterck, and Village of Bellwood that where Congress creates a statutory right, “a plaintiff in such a case need not allege any additional harm beyond the one Congress has identified.” Spokeo, 136 S.Ct. at 1549. See also Perrill, 2016 WL 4572212 at *4 (rejecting Groshek). Nor does the language Defendant quotes from Spokeo support its case. See Def. Br. at 10. Defendant quotes the Court’s statement that “even if a consumer reporting agency fails to provide the required notice to a user of the agency’s consumer information, that information regardless may be entirely accurate.” 136 S. Ct. at 1550 (emphasis added). However, the notice referred to in this passage of Spokeo is not the consumer notice at issue in this case. Rather, that passage dealt with § 1681e(d), entitled “Notice to users and furnishers of information,” which requires that the CRA provide notice to “users” of consumer reports – that is, the entities “to whom a consumer report is provided by the agency,” § 1681e(d)(1)(B) – with “a notice of such person’s responsibilities under this subchapter.” In this case, the user would be Great Wolf, the entity to whom a report was provided. In such a circumstance, one can see how a consumer might be required to demonstrate harm stemming from the lack of such notice to a third party, although the Court acknowledged that even in such a situation, standing might exist. Here, Plaintiff is suing Defendant for procuring her report after failing to give her notice to which she had a statutory entitlement. Moreover, as one court in this Circuit has explained, the point of this passage in Spokeo is that a reviewing court must look to whether the alleged statutory violation bears a close enough relationship to “the interests Congress identified and sought to protect.” Aranda v. Caribbean Cruise Line, Inc., No. 12 C 4069, 2016 WL 4439935, at *5 (N.D. Ill. Aug. 23, 2016). As discussed at length here and below, there can be no doubt that in enacting the disclosure requirement at issue here, Congress identified and sought to protect individuals’ rights to privacy Case: 3:16-cv-00587-jdp Document #: 10 Filed: 10/03/16 Page 24 of 37 17 and their right to receive the specific, Congressionally-mandated form of disclosure before consenting to the release of their private background information. Other cases cited by Defendant are distinguishable on their facts and/or fail to consider the long line of precedent recognizing intangible injuries.8 Lastly, many of Defendant’s cases do not involve the FCRA at all, but were instead based on other statutory or common law claims; thus, those cases are of limited assistance for the Spokeo-mandated assessment of whether Congress properly created substantive rights to be remedied through Section 1681b(b)(2).9 8 The court in Smith v. Ohio State Univ., 2016 WL 3182675 (S.D. Ohio Jun. 8, 2016) did not even attempt to address the question of intangible injury; instead, its discussion of invasion of privacy is limited to a single sentence. Id. at *4. Although Defendant cites an order to show cause in Larroque v. First Advantage LNS Screening Sols., Inc., No. 15-cv-04684-JSC, 2016 U.S. Dist. LEXIS 80689, at *6 (N.D. Cal. June 21, 2016), the court’s later ruling on the motion to dismiss clearly distinguished that case from Thomas on the grounds that the Thomas plaintiff – like Ms. Teske – relied on an entirely different section of the FCRA: “whereas the court found that ‘the rights created by § 1681b(b)(2) are substantive rights,’ [Thomas,] 2016 WL 3653878, at *11, Plaintiff here alleges only that Defendant did not comply with the procedural requirements of Section 1681b(b)(1).” Larroque v. First Advantage LNS Screening Sols., Inc., No. 15-CV-04684- JSC, 2016 WL 4577257, at *5 (N.D. Cal. Sept. 2, 2016). Fisher v. Enterprise Holdings, Inc., No. 4:15CV00372 AGF, 2016 WL 4665899, at *4 (E.D. Mo. Sept. 7, 2016) does discuss Spokeo, but crucially, its discussion of Congress’s intent behind the FCRA is limited to a single sentence stating the basic purpose of the statute as a whole (ensuring fairness and accuracy of consumer reports), id. at *2, not the specific purpose of Section 1681b(b)(2)’s standalone disclosure requirement. That decision does not weigh Congress’s concern for privacy or informational interests or whether that concern has common-law analogs. Thus, Fisher stands in stark contrast to Thomas, the decision containing perhaps the most thorough discussion of the history and Congressional intent behind the FCRA’s disclosure requirements. 9 See Hancock v. Urban Outfitters, Inc., No. 14-7047, 2016 WL 3996710 (D.C. Cir. July 26, 2016) (claim under District of Columbia Consumer Identification Information Act for retailer’s practice of requesting customers’ zip codes; no discussion of city council’s intent to create substantive rights; additionally noting plaintiffs “do not allege, for example, any invasion of privacy, increased risk of fraud or identity theft, or pecuniary or emotional injury”, id. at *3); Duqum v. Scottrade, Inc., No. 4:15-CV-1537-SPM, 2016 WL 3683001 (E.D. Mo. July 12, 2016) (data breach case raising claims under common law and consumer protection statutes; no discussion of whether Congress or state legislature had explicitly created a right of action based on claimed injury); Jamison v. Bank of Am., N.A., No. 2:16-CV-00422, 2016 WL 3653456, at *4 (E.D. Cal. July 7, 2016) (Truth in Lending Act claim; no analysis of Congressional intent in enacting TILA); Sartin v. EKF Diagnostics, Inc., No. CV 16-1816, 2016 WL 3598297, at *1 (E.D. La. July 5, 2016) (“junk fax” case under Telephone Consumer Protection Act; Gubala v. Time Warner Cable, Inc., No. 15- Case: 3:16-cv-00587-jdp Document #: 10 Filed: 10/03/16 Page 25 of 37 18 Defendant essentially refuses to acknowledge the Supreme Court’s recognition of intangible injuries, see Spokeo, 136 S. Ct. at 1549, instead arguing that Plaintiff must demonstrate some additional harm, like the loss of a job opportunity or the revelation of embarrassing information in her criminal record, in order to have standing. Def. Br. at 2, 5-6. The Eleventh Circuit in Church made clear that, under Spokeo and the Article III precedent on which it was based, it is irrelevant that a statutory injury “may not have resulted in tangible economic or physical harm that courts often expect,” because “the Supreme Court has made clear an injury need not be tangible to be concrete.” Church v. Accretive Health, Inc., No. 15–15708, 2016 WL 3611543 at *3 (11th Cir. July 6, 2016). Moreover, as the Third Circuit stated in its first post-Spokeo opinion, “when it comes to laws that protect privacy, a focus on economic loss is misplaced.” In re: Nickelodeon Consumer Privacy Litig., No. 15-1441, slip op. at 21 (June 27, 2016). The court found that plaintiffs who alleged that a third party had disclosed information Congress deemed private had standing under Article III, despite lack of consequential harm: While perhaps “intangible,” the harm is also concrete in the sense that it involves a clear de facto injury, i.e., the unlawful disclosure of legally protected information. Insofar as Spokeo directs us to consider whether an alleged injury-in-fact “has traditionally been regarded as providing a basis for a lawsuit,” Google noted that Congress has long provided plaintiffs with the right to seek redress for unauthorized disclosures of information that, in Congress’s judgment, ought to remain private. Accordingly, we conclude that the plaintiffs have alleged facts which, if true, are sufficient to establish Article III standing. Id. at 25 (citing In re Google Inc. Cookie Placement Consumer Privacy Litig., 806 F.3d 125 (3d Cir. 2015)). The legislative history of § 1681b(b)(2) of the FCRA clearly demonstrates that Congress sought to protect consumer privacy by requiring consumers to be clearly informed that CV-1078-PP, 2016 WL 3390415, at *1 (E.D. Wis. June 17, 2016) (Cable Communications Policy Act; also distinguishable because alleged violation involved retention of personal information, not new disclosure of private information); Khan v. Children's Nat'l Health Sys., No. CV TDC-15- 2125, 2016 WL 2946165, at *3 (D. Md. May 19, 2016) (data breach case; claims under various state consumer protection laws and common law). Case: 3:16-cv-00587-jdp Document #: 10 Filed: 10/03/16 Page 26 of 37 19 an employer would procure a consumer report on them, and to provide written consent thereto. Defendant’s violation of this carefully balanced statutory framework invaded Plaintiff’s privacy, concretely injured her, and conferred Article III jurisdiction on this Court. Defendant also attempts to downplay the privacy violation at issue here by claiming that Great Wolf obtained only publicly available information on Plaintiff – namely, her lack of a criminal record. Def. Br. at 6-7. Defendant’s argument ignores that the report also includes information on the validity of Plaintiff’s social security number, as well as her home address, and that the report indicates that her social security number was transmitted to a third party or third parties to perform an “SSN Trace”. See MacNaughton Decl. ¶ 9.10 There is no indication that Plaintiff’s social security number or address were public in any sense, and each repeated transmission of this sensitive information caused a further violation of her privacy. Further, Defendant ignores a wealth of both pre-and post-Spokeo authority establishing that even where the information is publicly available, the act of consolidating it and providing it to a potential employer implicates privacy concerns. Am. Farm Bureau Fed'n v. U.S. Envtl. Prot. Agency, No. 15-1234, 2016 WL 4709117, at *6 (8th Cir. Sept. 9, 2016) (“‘An individual’s interest in controlling the dissemination of information regarding personal matters does not dissolve simply because that information may be available to the public in some form.’”) (quoting U.S. Dep't of Def. v. Fed. Labor Relations Auth., 510 U.S. 487, 500 (1994); Hawkins, 2016 WL 3999458, at *5-6 (finding 10 Sterling’s website states the SSN Trace “provides you with your candidate’s address history and is used as a roadmap to select court jurisdictions that should be researched”, and advertises that “Our proprietary technology translates the results of a Social Security Number Trace, automatically and in seconds, into county or state criminal records searches.” The site describes the trace as collecting information on “up to 10 years of address history,” “names and aliases associated with the social security number,” and “any “also known as” names such as maiden names, nicknames, common misspellings and more.” See http://www.sterlingtalentsolutions.com/Need/Social-Security-Number-Trace. Case: 3:16-cv-00587-jdp Document #: 10 Filed: 10/03/16 Page 27 of 37 20 standing based on invasion of privacy when consumer reporting agency reported information it was prohibited from reporting, notwithstanding the fact that the information was publicly available). Indeed, the Supreme Court has explicitly rejected Defendant’s claim that information which is publicly available does not implicate privacy interests. In U.S. Dept. of Justice v. Reporters Comm. For Freedom of Press, 489 U.S. 749, 764 (1989), the Court held that privacy interests forbade the release of a “rap sheet” because even though the information contained therein was publicly available, it was available only in bits and pieces from a variety of disparate sources, and the party had a privacy interest in preventing the dissemination of the compiled information.11 See also U.S. Dep't of Navy, Navy Exch., Naval Training Station, Naval Hosp., Great Lakes, Ill. v. Fed. Labor Relations Auth., 975 F.2d 348, 353 (7th Cir. 1992) (holding federal employees have 11 The cases Defendant cites are distinguishable. Both Willan v. Columbia Cty., 280 F.3d 1160, 1162-63 (7th Cir. 2002) and Taylor v. Miller, 853 F. Supp. 305 (W.D. Wisc. 1994) involved the question of whether the U.S. Constitution recognizes a right to privacy in one’s criminal record, which implicates a very different (and much more difficult to meet) set of standards than for establishing a privacy interest under the common law or a statute like FCRA. See Willan, 280 F.3d at 1163 (distinguishing common law privacy cases); Taylor, 853 F. Supp. at 307 (“[T]he question whether an individual's interest in privacy is protected by the Constitution is not the same question as the question of the statutory meaning of privacy under the FOIA or the question whether a tort action might lie for invasion of privacy.”). In neither case did the court announce a blanket rule that an individual has no privacy interest in his or her criminal record. In fact, Taylor cited Reporters Committee’s holding that “Reporters Committee established that some information that is a matter of public record may be protected under the personal privacy exemptions of FOIA.” 853 F. Supp. at 307. Willan is also distinguishable by its unique factual situation: it was a lawsuit by a former political candidate against law enforcement officials due to the disclosure of his criminal record. That case implicated a host of concerns not present here, including the First Amendment right to publish information about public figures; the “serious constitutional issues” that “would arise if candidates for office could use the concept of privacy to conceal their criminal records from the electorate”; and the fact that the candidate had issued a sworn declaration (required to run for office) stating he had never been convicted of a felony. Id. at 1162. Case: 3:16-cv-00587-jdp Document #: 10 Filed: 10/03/16 Page 28 of 37 21 privacy interest in preventing dissemination of their names and home addresses, despite information being publicly available). 3. Plaintiff’s Informational Injury is Cognizable Under Spokeo. In addition to alleging Great Wolf procured information in a circumstance where it had no right to do so, Ms. Teske has also alleged that Great Wolf deprived her of information she was entitled to receive. Spokeo explicitly embraced informational injuries as the kinds of injuries which are sufficient to confer standing “without more.” Spokeo, 136 S. Ct. at 1550. Noting that the “plaintiff need not allege any additional harm beyond the one which Congress has identified,” the Court cited two cases which held that statutory violations, without more, constituted injury in fact: Fed. Election Comm'n v. Akins, 524 U.S. 11 (1998) and Pub. Citizen v. U.S. Dep’t of Justice, 491 U.S. 440 (1989). Spokeo, 136 S. Ct. at 1549. In both cases, the Court rejected the idea that plaintiffs who were deprived of information they were entitled to receive had to demonstrate an additional injury. Instead, the deprivation of information itself sufficed to constitute the required injury for purposes of Article III. In Public Citizen, non-profit groups sued for access to records related to the American Bar Association’s (“ABA”) participation in the federal judicial nomination process, arguing that the ABA’s involvement in that process brought it under the ambit of the disclosure requirements of the Federal Advisory Committee Act (“FACA”), 5 U.S.C. § APP. 2 § 1, et seq. In addition to disputing the merits, the ABA challenged the groups’ standing. The ABA argued that the plaintiffs had not “alleged injury sufficiently concrete and specific to confer standing.” 491 U.S. at 448. The Supreme Court soundly rejected that argument, holding that “refusal to permit appellants to scrutinize the ABA Committee’s activities to the extent FACA allows constitutes a sufficiently distinct injury to provide standing to sue.” Id. at 449. Importantly, the Court did not require the Case: 3:16-cv-00587-jdp Document #: 10 Filed: 10/03/16 Page 29 of 37 22 plaintiffs to demonstrate some additional injury beyond not being able to access the information to which they had a right. Plaintiffs were not required to show they lost money, or faced the risk of any other consequence as a result of not having the information to which they were entitled. Instead, the injury was coterminous with the violation of the statutory right. The injury the Court identified was not being able to access the information “to the extent the [law] allows.” Id. Akins entailed the same analysis. In that case, the Court held that “a plaintiff suffers an ‘injury in fact’ when the plaintiff fails to obtain information which must be publicly disclosed pursuant to a statute.” 524 U.S. at 11, 21 (citing Public Citizen). Another instructive case is Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982), cited in Spokeo, 136 S.Ct. at 1553. Havens involved “testers” applying for private housing they had no intention of ever living in for the purpose of determining whether the defendant-realtor would provide legally required disclosures. The Court described the tester as having no “intention of buying or renting a home” and said that he “fully expect[ed] that he would receive false information,” 455 U.S. at 373-374. In other words, the tester suffered no tangible injury. Nonetheless, the Court held that “[a] tester who has been the object of a misrepresentation made unlawful under [the statute] has suffered injury in precisely the form the statute was intended to guard against, and therefore has standing.” Id. In Akins, Public Citizen, and Havens, plaintiffs had standing despite that they (1) had suffered no monetary damages or other consequential harm, and (2) would not have had any entitlement to the information at issue absent Congress creating that entitlement by statute. So too here. Havens, 455 U.S. at 373; see also Spokeo, 136 S. Ct. at 1549 (noting that “a plaintiff in [certain] case[s] need not allege any additional harm beyond the one Congress has identified” in the statute). The same result should obtain here. Whether Plaintiff knew Defendant would obtain Case: 3:16-cv-00587-jdp Document #: 10 Filed: 10/03/16 Page 30 of 37 23 her report is irrelevant for standing purposes so long as he suffered the type of injury the FCRA “was intended to guard against,” namely the deprivation of information. Havens, 455 U.S. at 373; see also Spokeo, 136 S. Ct. at 1549 (noting that “a plaintiff in [certain] case[s] need not allege any additional harm beyond the one Congress has identified” in the statute). Numerous circuit courts, including the Seventh Circuit, have followed the Supreme Court’s lead and found that informational injury confers Article III standing in a wide variety of contexts, including FCRA cases and other consumer actions seeking statutory damages. See Heartwood, Inc. v. U.S. Forest Serv., 230 F.3d 947, 952 n.5 (7th Cir. 2000) (finding plaintiffs environmental group, land owner, and user of national forests had stated cognizable informational injury due to Forest Service’s failure to conduct an environmental assessment before adopting policies relating to timber harvests).12 Spokeo does nothing to undermine the conclusions of these courts. In fact, 12 See also Doe v. Pub. Citizen, 749 F.3d 246, 263 (4th Cir. 2014) (observing that “[t]he Supreme Court consistently has held that a plaintiff suffers an Article III injury when he is denied information that must be disclosed pursuant to a statute”); Alvarez v. Longboy, 697 F.2d 1333, 1338 (9th Cir. 1983) (finding migrant workers demonstrated Article III standing by alleging they had been deprived of a written disclosure they were entitled to receive pursuant to the Farm Labor Contractor Registration Act); Grant ex rel. Family Eldercare v. Gilbert, 324 F.3d 383, 387 (5th Cir. 2003) (“The ‘inability to obtain information’ required to be disclosed by statute constitutes a sufficiently concrete and palpable injury to qualify as an Article III injury-in-fact.”); Ctr. for Biological Diversity, Inc. v. BP Am. Prod. Co., 704 F.3d 413, 429 (5th Cir. 2013) (access to environmental information under the Emergency Planning and Community Right-to-Know Act); Byrd v. U.S. E.P.A., 174 F.3d 239, 243 (D.C. Cir. 1999); Earth Island Inst. v. Ruthenbeck, 490 F.3d 687, 693 (9th Cir. 2007), aff'd in part, rev'd in part sub nom. Summers, 555 U.S. at 488 (“Procedural and informational injuries may be the basis for injury-in-fact for standing purposes.”); Manuel v. Wells Fargo Bank, Nat. Ass’n, 123 F. Supp. 3d 810, 817-18 (E.D. Va. 2015) (holding plaintiffs had Article III standing in a case alleging a violation of § 1681b(b)(2), because defendant failed to provide plaintiff with the “kind of disclosure” that the FCRA “guarantees” before “procur[ing] a consumer report containing his information.”); Panzer v. Swiftships, LLC, No. 2:15-cv-2257, ECF No. 27 at 11-12 (E.D. La. Oct. 23, 2015) (finding plaintiff had standing based upon informational injury when defendant failed to comply with § 1681b(b)(2)); Ryals v. Strategic Screening Sols., Inc., 117 F. Supp. 3d. 746, 753 (E.D. Va. 2015) (finding standing where, like here, the plaintiff alleged “that he did not receive the required information at the required time, as required by the FCRA”). Case: 3:16-cv-00587-jdp Document #: 10 Filed: 10/03/16 Page 31 of 37 24 by citing Public Citizen and Akins with approval, and for the explicit proposition that statutory injuries can, without more, confer Article III standing, the Spokeo reinforced this line of cases. The post-Spokeo case law on information injury has continued in this vein. The Eleventh Circuit recently confirmed that informational injury confers Article III standing. In Church v. Accretive Health, Inc., No. 15-15708, __ F. App’x __, 2016 WL 3611543, at *3 (11th Cir. July 6, 2016), the plaintiff alleged that the defendant had failed to provide proper disclosures under the Fair Debt Collection Practices Act (“FDCPA”). Id. In finding that the plaintiff had standing under Article III, the Eleventh Circuit noted that “through the FDCPA, Congress has created a new right—the right to receive the required disclosures in communications governed by the FDCPA— and a new injury—not receiving such disclosures.” Id. The court further found that Spokeo’s “bare procedural violation” language did not apply to the claim at hand because “Congress provided Church with a substantive right to receive certain disclosures and Church has alleged that Accretive Health violated that substantive right.” Id. at *3 n. 2. The court concluded that Church had standing because she “has sufficiently alleged that she has sustained a concrete—i.e., ‘real’— injury because she did not receive the allegedly required disclosures. The invasion of Church's right to receive the disclosures is not hypothetical or uncertain; Church did not receive information to which she alleges she was entitled.” Id. at *3. Importantly, the Court emphasized that “[w]hile this injury may not have resulted in tangible economic or physical harm that courts often expect, the Supreme Court has made clear an injury need not be tangible to be concrete.” Id. at *3. Other post-Spokeo decisions have confirmed this logic. See, e.g. Saenz v. Buckeye Check Cashing of Illinois, No. 16 CV 6052, 2016 WL 5080747, at *2 (N.D. Ill. Sept. 20, 2016) (holding Fair Debt Collection Practices Act plaintiff had standing: “Saenz was harmed by receiving a deficient and allegedly misleading communication from Buckeye—a harm defined and made Case: 3:16-cv-00587-jdp Document #: 10 Filed: 10/03/16 Page 32 of 37 25 cognizable by the statute, but a concrete harm nonetheless.”); Altman v. White House Black Mkt., Inc., No. 1:15-CV-2451-SCJ, 2016 WL 3946780, at *4 (N.D. Ga. July 13, 2016) (citing Thomas and Church and finding that plaintiff had standing where defendant violated plaintiff’s substantive statutory right to receive a truncated credit card receipt); Thomas, 2016 WL 3653878 at *9 (“[Plaintiff] has alleged a concrete informational injury: that is, [Plaintiff] has alleged that he was deprived of a clear disclosure stating that Defendants sought to procure a consumer report before the report was obtained”); Lane v. Bayview Loan Servicing, LLC, Case No. 15 C 10446, 2016 WL 3671467 (N.D. Ill., July 11, 2016) (denying Spokeo motion when plaintiff was deprived of information he was entitled to under the FDCPA). Defendant’s disclosure violations also correspond with longstanding claims at common law. For instance, the common law often recognizes heightened disclosure requirements in the case of transactions between parties in a confidential or fiduciary relationship; transactions concerning the acquisition of insurance, surety, or a release from liability; transactions in which the parties have unequal access to information; and transactions concerning the transfer of real property, among others. See Kathryn Zeiler & Kimberly D. Krawiec, Common-law Disclosure Duties and the Sin of Omission, 91 Va. L. Rev. 1795–1882 (2005). Congress’s decision to expand the circumstances in which heightened disclosures are required, or to allow the recovery of statutory damages in lieu of proving actual damages to the certainty required in litigation, does not negate the fact that courts have historically recognized disclosure violations as conferring cognizable injuries. Congress’s decision to update the law to account for new business practices does not break the “close relationship” that statutory claims have with traditional common-law duties, and it does not deprive Plaintiff of standing. Case: 3:16-cv-00587-jdp Document #: 10 Filed: 10/03/16 Page 33 of 37 26 Defendant argues that Plaintiff suffered no informational injury because the disclosure form did technically notify Plaintiff that a background check report would be obtained on her. Def. Br. at 5-6. This argument mischaracterizes the rights granted to Plaintiff by the FCRA: the FCRA does not simply create a right to be informed that a report will be procured, but to be informed in particular way, at a particular time. Clearly the form of disclosure was sufficiently important to Congress, which set forth requirements that are both painstakingly specific, and blindingly easy to follow: provide a “clear and conspicuous” disclosure “in a document that consists solely of the disclosure”. 15 U.S.C. § 1681b(b)(2)(A)(i). As the Thomas court recognized, with regard to statutes requiring disclosures followed by informed consent, there is no meaningful distinction between form and substance—the whole purpose of requiring the disclosure to be in a stand-alone document is to call attention to it, to ensure the consumer understands precisely what they are agreeing to, and not to encumber the consumer’s agreement with a raft of extraneous agreements or acknowledgments (i.e., that all of Great Wolf’s hiring decisions are non-discriminatory, or that the consumer has only five days to challenge the contents of the report.) Great Wolf’s form defeated those goals, and its conduct deprived Plaintiff of the right to receive a particular kind of information at a particular time. Thomas, 2016 WL 3653878 at *10 (“where a consumer alleges…that he or she has received a disclosure that does not satisfy [the FCRA’s] requirements, the consumer has alleged a concrete informational injury.”). Whether Plaintiff knew from Great Wolf’s faulty disclosure that it would obtain her report is irrelevant for standing purposes so long as she suffered the type of injury the FCRA “was intended to guard against.” Havens Realty Corp. v. Coleman, 455 U.S. 363, 373 (1982); see also Spokeo, 136 S. Ct. at 1549-50. In order to ensure that prospective employees are adequately informed about their rights concerning these consumer reports, the FCRA’s strict requirements Case: 3:16-cv-00587-jdp Document #: 10 Filed: 10/03/16 Page 34 of 37 27 provide that the disclosure be provided “in a document that consists solely of the disclosure.” 15 U.S.C. § 1681b(b)(2)(A). In other words, “[i]n Congress’ legislative judgment, where the disclosure does not satisfy [the FCRA’s] requirements, the consumer has been deprived of a fully appreciable disclosure to which he or she is entitled.” Thomas, 2016 WL 3653878, at *10. Defendant therefore caused exactly the risk of harm Congress identified in the statute. Further, receiving information buried among other text creates a risk that consumers will not be adequately informed of their rights by making it less likely that they will read and understand the importance and scope of the authorization they provide prospective employers to access personal, private information. In Spokeo the Court explicitly acknowledged that a risk of harm can be sufficient for standing purposes. 136 S. Ct. at 1549. Defendant’s improper disclosure is therefore actionable. C. In The Alternative, Remand, Not Dismissal, Is Appropriate. If the Court does decide that there is no jurisdiction in this case, it must be remanded to state court, not dismissed. 28 U.S.C.A. § 1447(c) states that “[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” As the Supreme Court stated, “the literal words of § 1447(c) on their face, give no discretion to dismiss rather than remand an action.” Int’l Primate Prot. League v. Adm’rs of Tulane Educ. Fund, 500 U.S. 72, 89 (1991) (quote omitted). See also Smith v. Wisconsin Dep't of Agric., Trade & Consumer Prot., 23 F.3d 1134, 1139 & fn.10 (7th Cir. 1994) (“[T]he point of § 1447(c) is that a federal court does not have the authority to dismiss a claim over which it never had jurisdiction in the first instance.”). Defendant’s brief contains no discussion of § 1447(c), despite the fact that it is controlling. Further, the court must decide the subject matter jurisdiction prior to reaching the merits. If the court finds no subject matter jurisdiction it may not proceed, in the alternative or otherwise, to analyze the sufficiency of Plaintiff’s claims on the merits. Steel Co.v. Citizens for a Case: 3:16-cv-00587-jdp Document #: 10 Filed: 10/03/16 Page 35 of 37 28 Better Envʹt, 523 U.S. 83, 93 (1998). V. CONCLUSION For the foregoing reasons, Great Wolf’s motion to dismiss for lack of standing should be denied. However, if the Court were to find that it lacks subject matter jurisdiction under Article III, for the reasons discussed above, the appropriate result would not be to enter a dismissal on the merits, but instead to remand the case back to the Dane County Circuit Court. Dated: October 3, 2016 BERGER & MONTAGUE, P.C. /s/ E. Michelle Drake E. Michelle Drake 43 SE Main Street Suite 505 Minneapolis, MN 55414 Tel.: (612) 594-5933 Fax: (612) 584-4470 emdrake@bm.net Jennifer MacNaughton 1622 Locust Street Philadelphia, PA 19103 Tel.: (215) 875-3025 Fax: (215) 875-4604 jmacnaughton@bm.net FIRST ALBRECHT & BLONDIS, S.C. Thomas C. Lenz, SBN 1055135 Broadway Theatre Center 158 North Broadway, Suite 600 Milwaukee, WI 53202 Tel.: 414.271.1972 Fax: 414.271.1511 tlenz@fabattorneys.com Attorneys for Plaintiff and Proposed Class Case: 3:16-cv-00587-jdp Document #: 10 Filed: 10/03/16 Page 36 of 37 29 CERTIFICATE OF SERVICE I hereby certify that on this date, a true and correct copy of the foregoing Plaintiff’s Opposition to Motion to Dismiss for Lack of Standing has been served on counsel for all parties by means of filing on the Court’s ECF system. /s/ E. Michelle Drake Case: 3:16-cv-00587-jdp Document #: 10 Filed: 10/03/16 Page 37 of 37 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WISCONSIN COURTNIE TESKE, on behalf of herself and all others similarly situated, Plaintiff, v. GREAT WOLF RESORTS HOLDINGS, INC., Defendant. Case No. 16-CV-587 Removed from: Dane County Circuit Court Case No. 16-CV-2015 DECLARATION OF JENNIFER MACNAUGHTON 1. I, Jennifer MacNaughton, am senior counsel in the law firm of Berger & Montague, P.C. I make this Declaration based on my personal knowledge and information provided by other Berger & Montague employees. If called as a witness, I could and would competently testify to the matters stated herein. 2. I submit this Declaration in support of Plaintiff’s Opposition to the Motion to Dismiss for Lack of Standing. 3. Plaintiff filed her original complaint in the Wisconsin Circuit Court, Dane County Branch, on August 2, 2016. The original complaint was based on the disclosure provided to individuals applying for employment with Defendant online. That form was attached as Exhibit A to the Complaint. See ECF No. 3, Ex. A to Ex. A. 4. On or around August 18, 2015, counsel for Defendant informed Plaintiff’s counsel that, in connection with her application for employment, Defendant had provided another disclosure form to Plaintiff, Plaintiff had signed that form, and that form was the basis Case: 3:16-cv-00587-jdp Document #: 10-1 Filed: 10/03/16 Page 1 of 2 upon which Defendant had procured her background check report. Defense counsel emailed that form to Plaintiff’s counsel on August 18, 2016. 5. Defendant removed to this Court on August 25, 2016. 6. On August 29, Plaintiff filed her Amended Class Action Complaint (ECF No. 3). Plaintiff’s main purpose in amending was to account for the newly-produced disclosure form. That form is attached to the Amended Complaint as Exhibit A. 7. By letter dated May 12, 2016, Plaintiff’s counsel issued a request to Sterling Backcheck requesting copies of any information in Ms. Teske’s file. 8. By letter dated May 31, 2016, a representative of Sterling Backcheck responded to counsel’s letter and transmitted materials from Ms. Teske’s file. These materials include what appears to be the background check report Great Wolf Lodge obtained from Sterling on Ms. Teske. 9. The report notes that Sterling had performed a “SSN Trace” on Ms. Teske, and that Sterling had performed searches in at least four criminal records databases. I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct to the best of my knowledge. Dated: October 3, 2016 ______________________________ Jennifer MacNaughton Case: 3:16-cv-00587-jdp Document #: 10-1 Filed: 10/03/16 Page 2 of 2