Manuel et al v. Wells Fargo Bank, National Association, No. 3:2014cv00238 - Document 95 (E.D. Va. 2015)
Court Description: MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 8/19/2015. (jsmi, )
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Manuel et al v. Wells Fargo Bank, National Association Doc. 95 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division TERRELL MANUEL, Plaintiff, v. Civil Action No.: 3:14CV238 WELLS FARGO BANK, NATIONAL ASSOCIATION, Defendant. MEMORANDUM OPINION This matter is before the Court on PLAINTIFFS' MOTION FOR CLASS CERTIFICATION (Docket No. 59). For the reasons set forth below, the motion will be granted in part and denied in part. BACKGROUND A. PLAINTIFFS' CLAIMS On April 1, 2014 plaintiffs Terrell Manuel ("Manuel") and Charles White ("White") filed a class action complaint on behalf of and all others themselves defendant Wells the Fargo Bank, similarly situated alleging that N .A. Fair Credit Reporting Act ("Wells ( "FCRA") . complaint was amended three times, Fargo") had violated Docket No. 1. That and the operative complaint Dockets.Justia.com at this time is the Third Amended Class Complaint ("TAC") . Docket No. 41. The TAC alleges two counts under the alleges a violation of §1681b (b) (2) (A), person may not procure a report to be procured, any consumer, unless: been made Count FCRA. One which requires that "a consumer report, or cause a consumer for employment purposes with respect to (i) in writing a clear and conspicuous disclosure has to the consumer at any report is procured or caused to be procured, time before the in a document that consists solely of the disclosure, that a consumer report may be obtained for employment purposes; and (ii) the consumer has authorized in writing (which authorization may be made on the document in referred to report by that person. Count Two clause the procurement Wells Fargo of the 11 alleges §1682b(b) (3) (A) (i) (i)) of the that violated §168lb (b) (3) (A) (i) FCRA. requires that "in using a consumer report for employment purposes, before taking report, any adverse action based in whole or in part of the report; the the the person intending to take such adverse action shall provide to the consumer to whom the report relates: of on and consumer (ii) under ( i) a copy a description in writing of the rights this subchapter, as presented Bureau under section 168lg(c) (3) of this title." 2 by the Plaintiffs April 30, motion. 68. filed 2015. this Docket Docket No. Motion No. 65. 59. for Class Defendants Certification have Plaintiffs have replied. opposed on the Docket No. On July 20, 2015, the parties agreed that a hearing was not necessary on this motion. It will be decided on the briefing submitted. B. Factual Background1 a. Facts Regarding Plaintiff Manuel 2 On January 30, 2012, Manuel completed an online application for a position as Fargo. Docket No. an open loan document specialist at Wells On or about February 2 4, 60 at 11. 2012, Manuel completed an interview with Wells Fargo personnel and was offered the position conditioned upon the successful completion of a background check. he signed and returned. Id. Id. He was given an offer letter that On February 25, 2012, pursuant to 1 A large portion of what the parties label as "factual background" is, in fact, legal argument about the validity of Manuel's claims. As class certification does not ask about the merits of plaintiff's claims, but rather determines whether class certification is appropriate, these portions of the parties' briefs are not addressed unless germane to the class certification issue. 2 Plaitiffs have agreed that White is not a proper representative for the class, nor is he a class member. Docket No. 68. Thus, the individual facts of his case are not relevant to this analysis. White retains an individual claim and his case has been severed. 3 Wells Fargo's instructions, Manuel accessed the First Advantage 3 website and filled out two forms: the "Wells Fargo Application" and the "Wells Fargo Standard Consent". initiated a criminal background completed on April 3, 2012. On April 3, 2012 screening process Standard Id. This which was screening was Id. {the day the background completed), Manuel received a telephone call from a Wells Fargo representative who informed Manuel that he did not qualify for the job because of the contents of his background report. Id. On April 11 or 12, 2012, Manuel received a letter that referred to itself as a Pre-Adverse Action Notice and was dated April 3, 2012. Id. That letter included a copy of his background report After Manuel received the and an FCRA Summary of Rights. Id. Pre-Adverse "undertook process Action Notice, he contained therein and faced dispute to the of contents the appeal/dispute First Advantage his a written Pre-Employment/Security Screening." Docket No. 65 at 4 {citing Manuel Dep. at 82:13-20, 83:15-18). First which contained the still Advantage then generated convictions at a revised report, Id. Wells issue. Fargo contends that only then did it determine "on June 28, 2012 that Manuel was ineligible for employment with Wells Fargo." Id. 3 First Advantage conducts background checks for Wells Fargo. 4 b.Wells Fargo's Procurement and Use of Consumer Reports The parties have stipulated to the following facts Docket No . 4 3 ) : 1. Stipulation One: After March 1, 2010, Wells Fargo' s standard policy and procedure for using criminal background screenings in regards to current and prospective employees in its Home Mortgage Business Line was as follows: a. Wells Fargo refers indi victuals subject to criminal background screenings to a website operated by First Advantage Background Services Corporation. Such individuals use this website to complete a number of application forms, including disclosure and authorization forms related to the criminal background screening. After all application forms are completed First Advantage Background Services Corporation generates the criminal background screening report and provides its findings to Wells Fargo. Specifically, First Advantage enters the criminal background screening report into a database to which both First Advantage and Wells Fargo have access. b. Members of Wells Fargo's Background Screening Compliance Team then review the results to make a determination as to whether the current or prospective employee was ineligible for the relevant employment position in whole or in part because of the content of the criminal background check. If the reviewing members of the Background Screening Compliance Team believe that the individual in question would not meet employment eligibility requirements for the position to which he or she applied based in whole 5 (see or in part on the contents of his or her criminal background screening report, the reviewing members would then access the database to which both First Advantage and Wells Fargo have access and enter a code or other notation that the applicant would not be eligible for the employment position based in whole or in part on the contents of his or her criminal background screening report. Upon the entry of this coding, First Advantage generates and sends a notice, with the title "PreAdverse Action Notice", which was substantially similar at all relevant times to the ones sent to Plaintiffs Manuel and White, and mails it, along with an FCRA Summary of Rights Notice and a copy of the current or prospective employee's criminal background screening results, to the current or prospective employee. If the current or prospective employee does not appeal or dispute the results of his or her criminal background screening during the next five business days after the first notice is mailed, First Advantage generates and sends the applicant or employee an Adverse Action Notice, which was substantially similar at all relevant times to the ones sent to Plaintiffs Manuel and White. 2. Stipulation Two: During the putative class period, at least 1000 current or prospective employees associated with Wells Fargo's Home Mortgage Business Line were subjected to the process described in Stipulation One. 3. Stipulation Three: During the putative class period, at least 1000 current or prospective employees associated with Wells Fargo's Home Mortgage Business Line were notified by Wells Fargo, either in person or via telephone, communicating that the current or prospective applicant's criminal background screening report contains records 6 that may preclude employment with Wells Fargo before Wells Fargo or First Advantage generated and mailed a Pre-Adverse Action Notice along with an FCRA Summa.ry of Rights Notice and a copy of the applicant's criminal background screening results. 4. Stipulation Four: Wells Fargo retains detailed employment and application records related to all individuals who were rejected for employment based in whole or in part on the contents of a criminal background screening obtained from First Advantage Background Services Corporation. In the event that any class is certified in this case, Wells Fargo can identify these current or prospective employees described in Stipulations One, Two, and Three for the relevant time period. According to Manuel, Wells Fargo has admitted that all putative class members signed a standard FCRA authorization and disclosure hereby form which release the included Company, waiver First language Advantage Parties to the full extent permitted by law, stating: and all "You Third from any liability or claims arising from retrieving and/or reporting information concerning purposes." you and/or from Docket No. using for employment Docket No. 60-1; Docket No. Stipulations filed with 60 at 3-5; the Report 60-2, Int. 10-11. In Court, addition to the Joint this Wells Fargo also provided a detailed description of its background check process deposition of Timothy Brain. in a Fed. R. Civ. P. 30(b) (6) Docket No. 60 at 9; Docket No. 607 6. The same process was used in Wells Fargo's Mortgage Business Line and in other business lines. at 39:16 40:17. In that Brain Dep., Docket No. 60-6, deposition, Brain, designee, explained the process as follows: requests a background check background check run, is from First First as corporate First, Wells Fargo After Advantage. Advantage's computer a will automatically notify Wells Fargo "if there are findings that are available on the report that could potentially disqualify" the subject of the report. If a report has been Id. at 69:16-25. flagged in this way, it is reviewed by a Wells Fargo employee to determine Fargo. if Id. the at applicant 73:5-14, qualifies 82:2-12. for This employment process at is Wells called an "adjudication". After the "adjudication" has been completed, and if the employee is rendered ineligible, the Wells Fargo employee access the First Advantage website and enters a code that indicates that the applicant has been adjudicated to be ineligible. at 82:13-17. determination, Wells this a "preliminary" but Manuel argues that it is the only decision "made and taken by Wells the calls Fargo Id. determination and thus preliminary determination. Once Wells Fargo Fargo" unless the applicant disputes that it is unfair to call it a Id.; Docket No. 60 at 9-10. enters the 8 ineligibility code into the First Advantage computer system, sends a letter applicant. is taken labeled Brain Dep. in the a First Advantage generates and "Pre-Adverse at 82:18-83:6; next five Action" notice days, the If no action 85:5-86:1. business to First Advantage's system automatically prints and mails a second letter labeling the "Final Adverse Action Notice." Id. This automatic mailing can be stopped if the applicant disputes the first letter within five days after the mailing of the first Id. letter. process is standard for all Wells Fargo employees. This Id. at 40:4- 21. C. The Proposed Class and Class Claims Manuel seeks to certify two classes. The which Manuel calls the "Impermissible Use Class", first class, is defined as follows: All natural persons residing in the United States {including all territories and other political subdivisions of the United States), who applied for an employment position with Defendant or any of its subsidiaries within the two years immediately preceding the filing of the Complaint in this matter on April 1, 2014, and as part of this application process were the subject of a consumer report obtained by Defendant, and to whom Defendant attempted the disclosures required at 15 U.S.C. §1681b(b) {2) {A) through the First Advantage forms and/or portal. Plaintiff's Memorandum in Support Certification, at 12. 9 of Motion for Class The second proposed "Adverse Action Class" class, which Milbourne calls the (and identifies as "really a subclass"), is defined as follows: All natural persons residing in the United States (including all territories and other political subdivisions of the United States), who applied for an employment position with Defendant or any of its subsidiaries within the two years immediately preceding the filing of the Complaint in this matter on April 1, 2014, and as part of this application process were the subject of a consumer report obtained by Defendant, (a) against whom Defendant took an adverse employment action based in whole or in part on the report; (b) and to whom Defendant did not provide a copy of the consumer report as stated at 15 U.S.C. §1681b (b) (3) (A) at least five business days before the date the consumer report at First Advantage was first coded as ineligible for hire. Id. at 13. Count One of the Class Complaint is asserted on behalf of the "Impermissible Use Class" and Count Two of the Class Complaint Class". is asserted on behalf of the "Adverse Action Docket No. 41, 15-20. CLASS CERTIFICATION DISCUSSION To obtain class certification, a plaintiff must satisfy the four requirements of Fed. R. Civ. P. 23 (a). Additionally, the case must be consistent with at least one of the types of class actions defined in Fed. R. Civ. P. 23(b) and their requirements. Because Manuel proposes two different classes for certification, 10 each requirement will individual class. Numerosity or be addressed Wells Fargo Superiority in does elements the not are context of that contest satisfied each the for either class. A. Rule 23(a) Rule 23 {a) They are that: has four requirements for class certification. {1) the class is so numerous that joinder of all members is impracticable; common to the class; {2) there are questions of law or fact {3) the representative's claims or defenses are typical of those of the class; and ( 4) the representative will fairly and adequately represent the interests of the class. See 331, Broussard v. 337 Meineke {4th Cir. Disc. 1998.) Muffler Shops, 155 plaintiff bears The Inc., the burden proving all requirements of Rule 23. F. 3d of Lienhart v. Dryvit Systs., Inc., 255 F.3d 138, 146 {4th Cir. 2001). As the Fourth Circuit explained in 2004, the Court is not required "to accept plaintiffs' pleadings when assessing whether a class should be certified." Gariety v. 368 F.3d 356, 365 {4th Cir. 2004). must take a 'close look' at Grant Thornton, LLP, Rather, "the district court the facts relevant to the certification question and, if necessary, make specific findings on the propriety of certification." Life Ins. Co., 445 F.3d 311, 11 319 Thorn v. {4th Cir. Jefferson-Pilot 2006) {quoting Gariety, 368 F.3d at 365). "Such findings can be necessary even if the issues tend to overlap into the merits of the underlying case," but "[t]he likelihood of the plaintiffs' is merits not certification is proper." The Supreme Court relevant Id. to the success on the issue of whether (internal citations omitted). recently elaborated further upon the factual determinations at the class certification stage in WalMart Stores, (2011). Inc. v. Dukes, 564 131 U.S. S. Ct. 2541 In Dukes, the Supreme Court explained: Rule 23 does not set forth a mere pleading standard. A party seeking class certification must affirmatively demonstrate his compliance with the Rule - that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc. We recognized in Falcon that 'sometimes it may be necessary for the court to prove behind the pleadings before coming to rest on the certification question,' and that certification is proper only if 'the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.' 131 S. Ct. at 2551 (quoting Falcon, 457 U.S. at 160-61 (emphasis in original)). some overlap claim. "Frequently that 'rigorous analysis' will entail with the merits That cannot be helped." of the plaintiff's underlying 131 S. Ct. at 2551. After Dukes, which "laid the groundwork for the heightened 'rigorous analysis' required of a 12 class certification petition that 'will entail some overlap with the merits of the plaintiff's underlying claim,' ... the Supreme Court issued a pair of 2013 opinions address clarifying merits issues Timothy Coughlin Tort Class Def. Couns. decisions Trust J. was 428, Amgen 113 that, 432 certification Lum, Inc. S. Ct. v. "[a] lthough some the overlap Rule with 23 merits grants we have must of courts at 2013). The no the questions may be considered to a court be In and the of the that and a license to engage certification and Court court's may plaintiff's 80 these Plans Amgen rigorous stage." Amgen, first cautioned can Mass Toxic Retirement {2013). merits inquiries Comcast, Connecticut 1184 which Digging Deeper: Dukes, (Oct. analysis ranging class Barbara A. & class-certification claim, to Certification After Funds, clarified extent the at the entail underlying in stage. freeMerits the extent -- but only to the extent -- that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied." Id. 1194-95 {internal citations omitted}. "Thus, at Amgen appears to limit inquiry into a case's merits where the class certification inquiry touches upon an indispensable element of the claim and on which a failure of proof would end the case." Coughlin and Lum, at 432 (internal citations omitted). 13 The Corp. second v. Supreme class Behrend, Court certification 133 further S. Ct. 1426 clarified case of 2013 In {2013). "that the was Comcast Comcast, 'rigorous the analysis' required for class certification reaches not only to issues of liability, at 432. but also to damages and causation." Coughlin When considered in conjunction with Dukes, "suggest[s] that courts are now obligated to conduct a analysis' expert's data certification stage ... To the methodology is 'arbitrary' the of expert's position an opinion "reaffirms considering or and for methodology extent class courts that certification Lum, Comcast 'rigorous the class expert's can reject certification." pronouncement class at the that 'speculative,' deny Dukes' motions and & Id. district often This courts must look beyond the pleadings to issues that overlap with the merits. But again, the extent to which a court must delve into the merits remains undefined." Id. at 433. Newberg on Class Actions also analyzed two of the latest Supreme Court decisions, noting that Dukes "encourage[ed] merits review at cautions certification," while against "free-ranging certification stage", relevant to different majority merits inquiries in Amgen at the and stating that merits questions "may be considered to the extent are a but only to the extent - determining whether the 14 Rule 23 that they prerequisites for class certification are satisfied." William B. Rubenstein, Newberg on Class Actions § 7:23 (5th ed. 2013). Keeping in mind the Supreme Court's views in Dukes, Amgen, and Comcast, we examine the definition of the proposed class. 1. Violation of Agreement Between the Parties As a preliminary matter, Wells Fargo argues that both class definitions "are fatally flawed from the outset because they run headlong into class counsel's representations to Defendant well as enforceable agreements between the parties." 65 at 10-11. fact According to Wells Fargo, discovery ... and Mortgage Business agreement to the No. 4 3. Id. issue on July 20, Docket No. Manuel agreed to "end [limit] ... this case to Wells Fargo's Home Line only" in exchange for joint stipulation of facts at 10. as Wells Fargo's entered as Docket An evidentiary hearing was held on this 2015. Docket No. Therein, 85. the Court determined that the parties had not come to any such agreement and that the class definition was not so restricted. Id. Thus, that argument is moot. 2. Ascertainability of the Proposed Class Rule 23 states that "[a]n order that certifies action must define the class and the class claims, defenses." the Fed. R. Civ. P. 23(c) (1) (B). certification requirements 15 listed a class issues, or This is in addition to in Rule 23(a). "The definition of the class is maintaining a class action." 1348 (4th Cir. 1976); see an essential prerequisite to Roman v. ESB, Inc., 550 F.2d 1343, also F.R.D. 49, 53 (M. D.N.C. 2004). Kirkman v. N.C. R. Co., 220 "The court should not certify a class unless the class description is 'sufficiently definite so that it is administratively feasible for the court to determine whether a particular individual is a member.'" Solo v. Bausch & Lomb Sept. Inc., 2009 WL 4287706, at (quoting 7A Charles Alan Wright, *4 (D.S.C. Arthur R. 25, Miller 2009) Mary Kay & Kane, Federal Practice & Procedure§ 1760 (3d ed. 2005)). In "[a] a recent class decision, cannot be the Fourth Circuit certified unless a explained that court can readily identify the class members in reference to objective criteria. /1 EQT Production Co v. Adair, 2014 WL 4070457, *7 (4th Cir. 2014); see also Wm. Moore et al., 5 Moore's Federal Practice § 23.21[1] (3d ed.) ("A definition class action provides a is court possible with only when tangible and the class practicable standards for determining who is and who is not a member of the class. 11 ) . "The plaintiffs need not be able to identify every class member at the time of certification. are impossible fact-finding inappropriate. or /1 to identify without 'mini-trials', EQT, But if class members extensive then a 2014 WL 4070457 at *7. 16 individualized class action Rather, is "[f]or a class to be sufficiently resolve the excluded Moore, defined, the court must question of whether class members from the supra, identifying class by reference to are "Where the members overly is to criteria." problematic, class able included or objective 23. 21 [3] [a]. § be practical issue the of court should consider that the administrative burdens of certification may outweigh the efficiencies expected in a class action." Cuming v. S.C. Lottery Comm'n, 2008 WL 906705, *1 (D.S.C. 2008). a. The Impermissible Use Class Manuel the argues that ascertainability confirmed ... that it the Impermissible Use requirement because and Advantage First employment and application records and that, any class certified, Docket No. members." it will be able 60 at 16-17. to Class Wells satisfies Fargo retain "has detailed in the event that identify the class Wells Fargo does not argue that the Impermissible Use Class is not ascertainable. Docket No. 65 at 10. Wells employment Fargo and has stipulated application that records it related "retains to all detailed indi victuals who were rejected for employment based in whole or in part on the contends of a criminal background screening obtained from First Advantage Background Services Corporation." at Sf 4. It has also admitted that, 17 "[i] n the Docket No. 43 event that any class is certified in this case, Wells Fargo can identify these current or prospective employees described in Stipulations One, Two, and Three for the relevant time period." One, Two and Three describe the process Id. Stipulations by which a criminal Id. at background check is conducted and adjudicated. 4 1-3. Thus, the Impermissible Use class is readily ascertainable. b. The Adverse Action Class Manuel initially argued that the Adverse Action Class is ascertainable for the same reasons the Impermissible Use Class is ascertainable. Docket No. 60 at 16-17. Wells Fargo contests ascertainability as to the Adverse Action Class. Docket No. 65 at 10. Wells Fargo thates the view that "a necessary predicate to membership in unspecified consumer [this] 'adverse report. subclass action' is that Wells based in whole Ascertaining membership Fargo or in took in part this on an a class therefore requires this Court to undertake tens of thousands of mini-trials to determine what employment actions fit within the definition of 'adverse action' Wells Fargo took them." 4 Id. and, for those that qualify, why The FCRA defines an adverse action As stated above, Mr. Brian's Rule 30(b) (6) deposition confirmed that the process reflected in the Joint Stipulations - limited to the Home Mortgage Line is identical to the process undertaken for all potential employees. Thus, the factual statements made in the Joint Stipulations hold true for class members that fall outside of its explicit parameters. 18 as "a denial of employment or any other decision for employment purposes that employee." adversely affects 15 U.S.C. §1681a(k). is simple to determine, Wells any current or prospective While ''a denial of employment" Fargo argues that the grey area introduced by "any other decision for employment purposes that adversely affect" the employee would require min-trials in each case. Id. Manuel opposes Wells Fargo's argument for several reasons. Docket No. 68 at 5. "that the subject criminal background checks are used for First, he argues that there is no evidence any purpose other than to determine whether or not an applicant or employee will be 'rejected for employment'" as provided in the joint stipulations. Id. at 6. Thus, the only type of "adverse Second, Manuel action" at issue is a rejection from employment. argues that, if there were other "adverse actions", they are "made immaterial by other conditions within the putative class definition." Id. The requirement of the class - "adverse rather, action" no separate group [of not the only the applicant must also have been "coded as ineligible for hire." be is Id. plaintiffs] "Thus ... [t]here would that was ... employed and then later subjected to a lesser adverse action because of the First Advantage consumer report. " that the Court can amend Id. or modify 19 the Finally, class Manuel notes definition and argues class that that "[a] t the very worst, substituted 'adverse action' 'rejected the for Court could certify a employment' in place of in the Adverse Action claim class definition." Id. Wells Fargo has admitted that it keeps "detailed employment and application rejected for records employment related based to in all individuals whole or in who part were on the contents of a criminal background screening obtained from First Advantage Background Services Corporation." Docket No. 43 at Manuel has represented to Court in his Reply that that the only type of adverse action that is possible within this class definition is a rejection from employment because of the "coded as ineligible definition. for hire" Docket No. assertions and that, equivalent of language contained for hire" the class Manuel is correct in his 68 at 5-6. in this context, "rejected within "adverse action" is the and nothing else. Thus, ascertainability is satisfied by the class definition as provide by Manuel, but to be certain, the class definition will use the term "rejected for employment." 2. Rule 23(a) (1) Numerosity Rule 23(a) (1) for a j cinder class of provides that the second of the requirements action all is members that is the class be impracticable." 20 "so numerous Fed. R. Civ. that P. 23 (a) (1). "No specified number is needed to maintain a action under Fed. rule is to R. Civ. 23; P. considered be in circumstances of the case . & Nonsectarian Hosp. (finding a that 18 application of the of the particular Cypress v. Newport News Gen. 375 F.2d 648, of numerosity requirement). light II Ass'n, class [rather], class was 653 sufficient "Courts consider a (4th Cir. to 1967) fulfill the number of factors in considering whether joinder is practicable including the size of the class, ease their addresses, and their of identifying its and determining facility of making service on them if geographic Fargo Adams dispersion." F.R.D. 162, 170 (D. Md. 2000) Wells numbers does not v. joined Henderson, 197 (internal quotation omitted). dispute that the numerosity requirement is satisfied for either class. a. The Impermissible Use Class Wells Fargo has stipulated that "at least 1000 current or prospective employees associated with Wells Fargo's Home Mortgage Business Line" were subjected to the background check process described above. (And the number is even greater for all potential employees in Wells Fargo's other business lines as to whom the process was used.) the waiver that is at issue This includes the act of signing in 21 the Impermissible Use Class. Docket No. 43 at Thus, the numerosity requirement is easily satisfied. b. The Adverse Action Class Wells Fargo has stipulated that "at least 1000 current or prospective employees associated with Fargo' s Wells Mortgage Business Line were notified by Wells Home Fargo ... that the current or prospective applicant's criminal background screening reports contains records that may preclude employment with Wells Fargo before Wells Fargo or First Advantage generated and mailed a Pre-Adverse Action Notice along with an FCRA Summary of Rights Notice and a copy screening results. of the applicant's Docket No. 11 4 3 at criminal (And, background the number is even greater for all potential employees in Wells Fargo's other business lines as to whom the process was Thus, used.) the numerosity requirement is easily satisfied. 3. Rule 23(a) (2) Commonality Rule 23 (a) (2) requires fact common to the class. Dryv it Sys . , Inc . , 2 55 that there be questions of law or Fed. R. Civ. P. 23(a) (2); Lienhart v. F . 3d 13 8 , 14 6 ( 4th Cir . 2001 ) . The commonality requirement focuses on the claims of the class as a whole, and it "turn[s] on questions of law [or fact] in the same manner to each member of the class. Yamasaki, 442 U.S. 682, 701 22 (1979). To 11 applicable Califano v. satisfy this requirement, 636 noted single issue common to the See Cent. Wesleyan Coll. v. W.R. Grace & Co., 143 F.R.D. class. 628, there need be only a (D.S.C. previously focuses 1992), aff'd 6 F.3d 177 21-22, (4th Cir. herein, supra at the primarily on the issue of commonality. 1993). Dukes As decision The decision states in part: Commonality requires the plaintiff to demonstrate that the class members "have suffered the same injury." This does not mean merely that they have all suffered a violation of the same provision of law. *** [The proposed class members'] claims must depend upon a common contention for example, the assertion of discriminatory bias on the part of the same supervisor. That common contention, moreover, must be of such a nature that it is capable of classwide resolution which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke. Dukes, 131 S. Ct. at 2551. a. The Impermissible Use Class Manuel alleges that his impermissible use claim satisfies the commonality requirement issues of law or fact, and procedure violated because it presents two common namely,: "(a) whether Wells Fargo's form §1681b(b) (2) because it included the illegal waiver ... ;and (b) whether these violations are willful." Docket No. 60 at 18. Wells Fargo does not assert that Manuel 23 cannot satisfy commonality as to his Impermissible Use Class claim. This Court has held previously that the question of whether a standard question waiver form satisfying Rule Milbourne v. violated 23' s §168lb(b) (2) "commonality" JRK Residential America, was a common See 2014 WL 5529731, LLC, requirement. at *5 ("JRK has admitted that it has used a standardized waiver and disclosure Thus, not form for all class members, including Milbourne. if Milbourne is able to establish that JRK' s waiver did satisfy §1681b(b) (2)'s requirements this issue will be resolved not only in Milbourne's favor, but in the favor of all class members. nature that Thus, it is the legality of the forms is of capable of class wide 'such a resolution' and satisfied the commonality requirement for the Impermissible Use Class.") (quoting Dukes, 131 S.Ct. at 2251.) an identical claim under §168lb (b) (2). This case presents Thus, the commonality requirement is satisfied. In addition, willfulness is contention that this Court has held that "[t] he question of also a common [Defendant's] consumers varied in any way." a willfulness question in question ... [when] [t] here state to of mind Id. at *6. this case, as is no individual Manuel also presents and Wells Fargo has presented no evidence that its state of mind varied in any way 24 during the class period in Thus, question. the question of willfulness is also a common question in this case. b. The Adverse Action Class Manuel alleges that his adverse action claim satisfies the commonality standard because it presents law or fact, procedure namely,: "(a) whether violated ... §168lb(b) (3) two common issues of Fargo's form and Defendant does not Wells because send the required report and disclosures until after it has made and communicated violations argues are its hiring willful." Fargo a that common individualized proof." establish: (b) whether (a) Id. Manuel's first common violated §168lb (b) (3)) answer because it question "cannot necessitates Specifically, it states that, "[t]o question, this Court when and how Wells Fargo took each putative to Docket No. 65 at 12. by above Fargo commonality as be the Wells 23 Fargo's procedure answer these 18. {whether Well resolved whether at argues No. (b) 60 the Adverse Action Class. Docket and cannot establish Rule that Manuel Wells decision; plaintiff criminal background screening and a received necessarily must 'adverse action'; a copy of their pre-adverse action notice; {c) if so, when each putative plaintiff received a copy of their criminal background screening and a 25 pre-adverse action notice; and (d) at what time Wells Fargo 'made hiring decision' as to that applicant." Wells Fargo willfulness is also not a argues common and communicated its Id. at 13. that the question question because of "the its truth or falsity of Plaintiffs' central questions cannot be resolved on a class-wide basis [and therefore], Class cannot be certified." The commonality Plaintiff's Adverse Action Id. at 14. 5 requirement is satisfied if the Court determines that there is one question common to all members of the class resolution such - that which the means question that "is capable determination of its of classwide truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke." 2551. In Milbourne, this Court Dukes, found that 131 S. the Ct. at question of whether a Defendant's actions violated §1681b(b) (3) (A) Rule 23 (a)' s the commonality requirement. Defendant had "indicated satisfied It stated that, that its because practices were standardized during the class period ... if [its] actions violated Milbourne's §1681b(b) (3) (A) rights, class members' rights as well." 5 they also violated other Id. at *6. Wells Fargo also makes an argument about statutory damages within the context of commonality, citing Seutter for the proposition that "statutory damages 'cannot constitute a point of commonality under Rule 23(a)(2).'" Docket No. 65 at 14. However, as Wells Fargo admits, statutory damages were "not raised by Plaintiffs as a common issue." Id. 26 As actions in Milbourne, violated question of Fargo has whether satisfies §168lb{b) (3) {a) Wells requirement. the argued Wells the that comrnonali ty four fact thus issues destroy necessitate an commonality. None of these questions need to be resolved by the Court individualized and Fargo's inquiry However, in an individualized manner. they are largely resolved by the joint stipulations or by undisputed testimony. First, pursuant to the Court-amended class definition, all class members will have been "rejected for employment" at Wells Fargo based on their background check within the last two years. Thus, Wells Fargo's first issue will be resolved the same way for all members: they will all have suffered an adverse action between April 1, 2012 and April 1, adverse action, 2014 and, as part of that the class member was rejected for employment at Wells Fargo. Second, Wells Fargo's contention that Manuel would have to establish "whether each putative plaintiff received a their criminal background and a pre-adverse notice ... [and] if copy of their criminal background screening and a action notice" stipulated. so, screening ignores Whether copy of action when each putative plaintiff received a the and facts when to class which the members pre-adverse parties have received the documents mandated by §168lb(b) (3) (A) would be an important fact 27 in determining FCRA liability. However, Wells Fargo has already stipulated to the fact that the initial notice (titled the "PreAdverse Action Notice") was sent automatically after a Wells Fargo employee marked a putative class member as ineligible for employment Docket No. 43 at These procedures "standard policy and procedure" for the class period. The record shows that to be true for all of were Id. at 1. Wells Fargo's business lines. By the terms of the class definition, all putative class members will have been marked as ineligible for employment by a Wells Fargo employee in the First Advantage system. will have received a §1681b(b) (3) (A) procedure outlined above. Manuel notice Thus, pursuant to all the is arguing that the adverse action at issue for each class member is the action that Wells Fargo took "ineligible when it had an for employment" employee the First each applicant as Advantage system. Wells Fargo admits that it sent out all §168lb(b) (3) (A) notices after this event took place. in code Thus, if the FCRA was violated at all by this practice, it was violated when the code was entered by a Wells Fargo employee, received the FCRA letter. and the record otherwise not when an applicant or employee Because Wells Fargo has stipulated, shows, that this was a procedure, no individualized analysis is necessary. 28 standardized Finally, Wells Fargo's contention that Manuel would have to establish "at what time Wells Fargo 'made and communicated its hiring decision' as to [the individual] applicant" is incorrect. As Manuel notes, of circumstances and makes that language a new requirement for class membership. There is no facts Wells Fargo takes language from the recitation surrounding his own factual reason that Manuel would have to prove, or that the Court would have to determine, when each class member learned of Wells Fargo's decision not to hire him or her. violation, if any, Further, as the FCRA occurred when the "ineligible for hire" code was entered (as discussed above), the date on which an applicant learned of a hiring decision is of no consequence to this case. Wells coded an Fargo engaged in a employee standardized practice whereby it "ineligible for hire" and then had its background check service issue a letter that was meant to comply with §1681b(b) (3) (A). All subjected to this practice. class Thus, members will have whether §168 lb (b) ( 3) (A) been was violated as to each class member will be answered through one analysis of the practice as issue. capable of classwide resolution" Therefore, and the question "is commonality is satisfied for the Adverse Action class. For the reasons discussed previously, the willfulness issue also satisfies the commonality requirement for this class. 29 4. Rule 23(a) (3) Typicality The Fourth Circuit has described the typicality requirement as follows: The typicality requirement goes to the heart of a representative [party's] ability to represent a class, particularly as it tends to merge with the commonality and adequacyof-representation requirements. The representative party's interest in prosecuting [her] own case must simultaneously tend to advance the interests of the absent class members. For that essential reason, plaintiff's claim cannot be so different from the claims of absent class members that their claims will not be advanced by plaintiff's proof of [her] own individual claim. That is not to say that typicality requires that the plaintiff's claim and the claims of class members be perfectly identical or perfectly aligned. But when the variation in claims strikes at the heart of the respective causes of actions, we have readily denied class certification. In the language of the Rule, therefore, the representative party may proceed to represent the class only if the plaintiff establishes that [her] claims or defenses are typical of the claims or defenses of the class. Deiter v. Microsoft Corp., 436 F.3d 461, {emphasis in original) omitted). Thus, "involves[s] with those conduct 466-67 (internal citations and quotation marks the appropriate analysis a comparison of the plaintiffs' of that the absent analysis, {4th Cir. 2006) class members." [the district court] of typicality claims or defenses Id. at 467. begin[s] "To with a review of the elements of [the plaintiff's] prima facie case and 30 the facts on which the plaintiff would necessarily rely to prove it." Then, Id. the district court must determine "the extent to which those facts would also prove the claims of the absent class members." Id. Wells Fargo first argues that White did not qualify as a member of either class and thus that he could not satisfy the typicality standard Plaintiffs agreed as with Docket articulated. this statement, and No. have 65 stated White is no longer a named plaintiff or a class member. No. 68 at at 15. that Docket His in di vi dual action has been severed from the 9. class action. a. The Impermissible Use Class Wells Fargo does not contend that Manuel is not typical of the Impermissible Use Class. typical of the each of [the] Manuel argues that his claim is Impermissible Use elements Class [necessary to because prove his his advance the class claims in proportionate degree." 60 at 21. Further, his "interests are "proof of claim] ... will Docket No. squarely aligned with those of the putative class members", as there are no factual or legal differences claims in general. between his claim and the class members' Id. To establish a violation of §186lb(b) (2), Manuel must prove that Wells Fargo did not make 31 an appropriate "clear and conspicuous disclosure" as mandated at issue 6 , whether the disclosure FCRA prior to the resolution of this question will turn on waiver §1861b(b) (2)'s the As there are no controverted conducting its background check. facts by language on the In requirements. disclosure order to form did violate §1861b(b) (2), form establish violated that the Manuel will have to establish that legal precedent is such that the form violates the FCRA. All members of the proposed class make under §1861b(b) (2). identical claims They all signed identical forms containing the same language that would be at issue in the case. Because there are no factual differences between claims and the members all raise the same legal issue as Manuel, there are no factual or members' legal Manuel's differences claim. between This the indicates prosecuting his own case [would] class that Manuel's and "interest in simultaneously tend to advance the interests of the absent class members." 466. claims Deiter, 436 F.3d at Thus, typicality is satisfied. As in the case of commonality, the issue of willfulness would also likely satisfy the typicality requirement. The facts surrounding identical 6 Wells Fargo's actions or inactions are Wells Fargo has stipulated that it used the same consent form for all putative class members. The record confirms that fact as to all Wells Fargo business lines. 32 from class member to class member. Any individualized actions taken by class members are inconsequential to the analysis, willfulness turns on Wells Fargo's actions alone. the facts and law that Manuel would be as Thus, because presenting would be identical to the facts and law that all class members would be presenting, the question of willfulness also satisfies the typicality requirement. b. The Adverse Action Class Manuel argues that he satisfies the typicality requirement for the Adverse satisfies the Action class requirement for for the the same reasons Impermissible that Use he Class. Wells Fargo argues that Manuel's claims are not typical of the class and thus that typicality is not satisfied. Wells Fargo argues that, a theory Fargo's under which (preliminary) adverse hiring individual in question Advantage", Manuel's because Manuel's "motion suggests action decision takes is It again Wells to the not when it is communicated to First claim restates when communicated is necessarily therefore not typical of the class members'. 17. place that "resolving the individualized Docket No. claims and 65 at underlying Plaintiffs' Adverse Action Class requires this Court to conduct thousands of individualized inquired aimed at resolving whether Wels Fargo took an 'adverse employment 33 action' against each potential class member. factual claims inquiries would necessary not Action Class' Id. resolve "Put differently, at 17-18. to the resolve claims the of named the the Plaintiffs' proposed Adverse claims, as each require evidence of the moment at which they were contacted by Wells Fargo with an adverse hiring decision." Id. at 18. This argument argue that FCRA letter, "ineligible has §1681b (b) (3) (A) but for when hire" letter was sent out. applicants inquiry during is procedures been analyzed a in the all violated Wells the Fargo Manuel when employee First Advantage not received he does the labeled him as system before a This was the same procedure used for all class necessary. as was above. period. Manuel putative Thus, was class no individualized subjected members to it and the same is those procedures that are challenged. To establish a violation of §1861b (b) (3) (A), Manuel must prove that Wells Fargo did not provide him with a copy of his consumer report and a description of his rights an adequate time before taking adverse action. The facts necessary to prove Manuel's claims can be gleaned from the files that Wells Fargo kept that contain rejected for contents of a the employment details of whether based in whole or criminal background screening. 34 an individual in part Docket No. on was the 43 at Because we know that the procedures by which an individual was rejected were standardized, we know that any employee who was rejected for employment because he or she was ineligible was These procedures subjected to the same timeline of procedures. establish that a §1681b(b) (3) (A) alleged "adverse action" letter was not sent before the (the entering of the "ineligible" code within First Advantage's system) order to prevail, Manuel was completed. must establish that Therefore, this in procedure violates §1681b(b) (3) (A) of the FCRA. All members of the under §186lb(b) (3) (A). their criminal proposed class make identical claims They all were denied employment because background check rendered them ineligible, and they were all subjected to a procedure which did not sent out §1681b(b) (3) (A) notices indicated they system. that until were after a ineligible Wells in the Fargo First employee Advantage Because there are no factual differences between claims and the members all raise the same legal issue as Manuel, there are no factual or legal differences between the class members' claims and "interest tend to in Manuel's claim. prosecuting advance the his This own interests Deiter, 436 F.3d at 466. of indicates case the [would] absent that simultaneously class Thus, typicality is satisfied. 35 Manuel's members." For the reasons set forth previously, Fargo's typicality the satisfy also would willfulness the issue of Wells requirement. 5. Rule 23 (a) (4) Adequacy of Representation The adequacy Court be representation Fed. 23{a} {4). plaintiff has the [c] lass' qualified, This interests; and experienced and 151 representative standard interests common with, litigation." Litig., "the the fairly and adequately protect the interests of the class." P. that requires will Civ. satisfied prerequisite parties R. to of In re F.R.D. Se. 597, is met if "the named and not antagonistic to, the plaintiff's attorney is . generally Hotel 606-07 able Props. (W.D.N.C. to Ltd. conduct P'ship 1993). the Investor Because the same counsel and named plaintiff seek to represent both classes, the following analysis applies to both the Adverse Action and Impermissible Use Classes. Taking the second part of the standard first, the Court should find that Manuel's counsel is qualified, experienced, and able to conduct this class action work, litigation. Counsel is experienced as well as consumer protection issues, in and has been approved by this Court and others as class counsel in numerous cases. not adequate Wells Fargo's passing argument that counsel is because they failed 36 to adhere to an agreement between the parties has been addressed above. evidence in support of this argument and thus There is no it will not be addressed further. Manuel argues that he adequately represents the class because he "does not have any interests antagonistic to those of the proposed pursued class this alleged." and has litigation Docket No. cooperated vigorously 60 at 23. with to his redress counsel the and wrongs Wells Fargo does not contest Manuel's adequacy as a representative. All evidence presented so far in the case indicates that Manuel is an adequate representative. interests members' that and interests Manuel Thus, case has Manuel is appear to be and cases. cooperated an in As explained above, identical Further, the adequate to putative counsel has prosecution representative his class submitted of this case. for the class members. B. Rule 23(b) (3) In order to be certified as a class action, satisfy at 23(b). the class must least one of the class categories defined in Rule Manuel here moves for certification under Rule 23{b) {3). Certification under Rule 23(b) (3) is appropriate where the Court finds that questions of law or fact common to the members of the class predominate over any questions affecting only individual 37 members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. 1. Predominance "Rule 23(b) (3)'s demanding' Gariety 2004) than Rule 23 (a)' s v. Grant Thornton, requirement is 'far more ,, commonality requirement LLP, 368 F. 3d 356, (quoting Arnchem 521 U.S. at 623-24). requires 362 (4th Cir. "Whereas cormnonality little more than the presence of common questions law and fact, fact predominance Rule 23 (b) (3) common to questions requires that only 'questions of law or of the the members affecting of predominate class individual (quoting Fed. R. any Thorn members.'" Jefferson-Pilot Life Ins. Co., 445 F.3d 311, 319 (internal citation omitted) over v. (4th Cir. 2006) Civ. P. 23 (b) (3)). The predominance requirement "tests whether proposed classes are sufficiently cohesive representation." Gariety, 368 adjudication warrant to F. 3d at by 362 (internal citation Wells Fargo's liability and quotation marks omitted) . a. Impermissible Use Class Manuel "represents Docket No. argues the that central, 60 at 24 the issue dominant (quoting Dreher, of issue before the 2014 WL 2800766, Court." at *2-3). While he appears to note that individual issues {such as "how to 38 best apportion statutory damages) may exist, he argues that the language of the disclosure form, which is common to all class Further, he notes members renders predominance satisfied. Id. that identical all class members will share an Wells Fargo's willfulness and its legal defense, more common issues that predominate. inquiry into thus providing Id. Wells Fargo does not assert that Manuel has not established the predominance element for the Impermissible Use Class. Docket No. 65 at 18. The Fourth Circuit has held "where ... the that, qualitatively overarching issue by far is the liability issue of the defendant's willfulness, and the purported class members were exposed to the same risk of harm every time the defendant violated the statute in the identical manner", satisfied. 273 {4th Solutions, 2014} Stillmock v. Cir. See 2010}. Inc., 2014 U.S. {"The question of central, questions damages, dominant may those Weis Markets, issue exist also Dist. _D_r_e_h_e_r ___ as to how questions do not liability from predominating."). 385 F. App'x 267, _____ LEXIS 85951, [Defendant's] before Inc., the to predominance is ____ I_n_f_o_. at *6 {E.D. Va. liability represents the Court, best preclude and while apportion the common some statutory issue of Further, "common issues of law and fact predominate if they have a direct impact on every class 39 member's effort member's entitlement Stillmock, 385 to establish Fed. to liability and injunctive App'x at 273 and on every monetary (internal class relief. quotation /1 marks omitted) . As explained above, the same FCRA each class member's case is based on disclosure Thus, form. "the purported class members were exposed to the same risk of harm every time the defendant violated the statute in the identical manner." Id. Thus, the resolution of whether Wells Fargo's FCRA form complied with §168lb(b) (2) will have "a direct member's effort to establish liability. impact on Id. /1 every class Predominance is satisfied for the Impermissible Use Class. b. Adverse Action Class Manuel argues that predominance is satisfied for the Adverse Action Class because, as in the Impermissible Use Class, Wells Fargo engaged in identical behavior with respect to the adverse actions taken against all class members. at 24. Thus, class members notes that if Wells for the willfulness Fargo is same and liable, violation. Wells Fargo's Docket No. 60 it is liable to all Additionally, legal Manuel defense also satisfy the bolster its predominance case. Wells Fargo argues that Manuel cannot predominance standard for the Adverse Action Class. 40 Docket No. 65 at 18. In a now familiar refrain, " [ i] n determining Wells have to examine the Fargo's timing, 'adverse employment action.'" Wells Fargo argues that liability, existence, Id. a jury would first and rationale Further, at 19. for any it argues that "before Plaintiffs could recover a single cent of statutory damages, a jury would have to examine the totality of the circumstances involved in each consumer's interaction with Wells Fargo in connection to tis willfulness inquiry." it argues that, even if willfulness was Finally, Id. established, a jury would have to conduct an individualized inquiry into each class member to determine statutory damages. Id. Wells Fargo is arguing that each class member will have to establish that he or she suffered an adverse action and that he or she did not receive the mandated FCRA disclosures before the adverse action was taken. It also argues that each class member will have to establish when Wells Fargo "made and communicated its hiring decision" to the fundamentally misunderstands arguing Wells that Fargo applicant. Manuel's acted in case. This analysis Manuel individualized is ways not that potentially violated the FCRA rights of applicants differently. Rather, Manuel is arguing that Wells "ineligible for action notice. employment" code Fargo always entered the before sending the adverse He is arguing that entering that code was the 41 adverse action because it was a final decision of a refusal to hire. Because Wells Fargo has admitted that it did not send letters before that code was entered triggered the necessarily letter), have been all sent (the entering of the code class after members' what Manuel letters argues would is the adverse action. No individualized inquiry is necessary to determine whether As discussed above, a class member suffered an adverse action. the class definition has been changed to replace the term "adverse action" with "rejected for employment." Thus, all class members share the same adverse Further, action. individualized inquiry is necessary to determine when a member received the FCRA disclosures, because Wells no class Fargo has conceded that all of them received their disclosures after the Further, as Wells Fargo "ineligible for hire" code was entered. has admitted class time that it period standardized had and procedures, standardized Manuel the is issue procedures challenging of willfulness during only the those would deal only with Wells Fargo's approach to those procedures and their compliance with the FCRA. No individualized proof would be necessary to determine the issue of willfulness. Finally, statutory Wells damages Fargo's preclude a argument finding 42 of that individualized predominance ignored precedent which established that damages may be individualized but the predominance Services, LLC, it argues that ... the analysis." this common of was of statutory is minimally influential v. (E. D. Va. holding issue question Sautter 2015 WL 1787236 that "the Equifax 2015), "underpinned liability in Information at *25. by While the predominates notion over the question of how to best apportion statutory damages" and that this underpinning renders that does argument not exist here, above Docket inconsequential. the No. analyses 65 at 21 (internal quotation omitted). As explained above, each class member's case is based on his or her rejection for employment at Wells Fargo. Further, the parties have stipulated that all FCRA letters were sent out Thus, after this "adverse action" was taken. "the purported class members were exposed to the same risk of harm every time the Id. defendant violated Stillmock, [Defendant's] best preclude apportion the Dreher at *6. Fed. statute App'x liability represents before the Court, to 385 the in at the 273. identical manner." "The the central, question of dominant issue and while some questions may exist as to how statutory common issue damages, of those liability Predominance is satisfied. 43 questions from do not predominating." 2. Superiority Superiority requires that use of a class action be "superior to other available methods for fairly and efficiently adjudicating the controversy." Fed. Superiority "'depends greatly on the R. Civ. 23 (b) (3). P. circumstances surrounding each case,'" and "' [t] he rule requires the court to find that the objectives achieved.'" the the class-action procedure Stillmock, 385 F. App'x at 274 Miller & Kane, whether of supra, class § really will be {quoting 7A Wright, 1779). When making a "determination of action device is superior to other methods available to the court for a fair and efficient adjudication of the controversy ... [the court should] not contemplate the possibility that no action at all might be superior to a class action." 1981). limited Brown v. Cameron-Brown Co., 92 F.R.D. 32, 49 (E.D. Va. Factors the court to, "the class should consider include, members' interest in but are not individually controlling the prosecution or defense of separate actions; the extent and nature of any litigation concerning the controversy already begun by or against class members; the desirability or undesirability of concentrating the litigation of the claims in the particular forum; the class action." and the likely difficulties Fed. R. Civ. P. 23(b) (3) (A)-(D). 44 in managing Manuel argues that a class action is superior in this case to other methods available for adjudication. 25. He argues that it would waste Docket No. judicial and 60 at indi victual resources to have hundreds of trials, that individual plaintiffs are not likely to understand the FCRA and that they might have a case under it, a lawsuit that individual plaintiffs are unlikely to bring under the FCRA because of the marginal statutory damages, and that litigation under the class action framework is effectively the the FCRA. only way that private Id. at 25-28. Wells indi victuals Fargo does can enforce not argue that superiority is not satisfied. The potential class members' claims for statutory damages are small when considered in comparison to the effort it would take to assert them in court. up to $1,000 and, damages which in the case of a willful violation, are Constitution. The FCRA allows statutory damages A limited by the successful effort, in an federal court attorney's plaintiff's acceptance forced pay to requires attorneys' the can In comparison, willingness of process plaintiff attorney's fees and court costs. action due the to possibility fees if clause also he the that does of the receive initiating an plaintiff's take punitive time and case, and the he could be not prevail. Additionally, as Manuel pointed out, many plaintiffs will not be 45 aware that their rights were violated because of the technical nature of the FCRA and thus would not be able to bring a suit at all. In addition to ensuring a full and fair adjudication of all members' cases, instance for the class action is a several judicial economy. It issues presented on a practical saves superior method in this First, reasons. time and resources class-wide basis rather it to preserves settle the than to conduct several hundred individual trials on the same issues. Second, the factors listed in Rule 23 weigh in favor of a class action's superiority. controlling First, individual likely to receive would individual in Second, the there seems cases, same as to be little individual award in class litigation, if they class members litigation as even in are they pursued it. there is no other related litigation pending that bears on this analysis. Third, because potential class members spread over the entirety of the United States, desirable to hear the more interest efficient, similarity of factual action be would perspective. Thus, it would be very case in one forum and thus consolidated and legal manageable resolution. issues from the are allow for a Finally, indicates that parties' and a the class court's the class action appears to be the superior method of pursuing this FCRA claim in this case. 46 CONCLUSION For the reasons set forth above, the Plaintiff's MOTION FOR CLASS CERTIFICATION (Docket No. denied in part. be 59) will be granted in part and Specifically, the Impermissible Use Class will certified according to Manuel's proposed class definition. The Adverse Action Class will be defined as follows: All natural persons residing in the United States (including all territories and other political subdivisions of the United States), who applied for an employment position with Defendant or any of its subsidiaries within the two years immediately preceding the filing of the Complaint in this matter on April 1, 2014, and as part of this application process were the subject of a consumer report obtained by Defendant, (a) who Defendant rejected for employment; (b) and to whom Defendant did not provide a copy of the consumer report as stated at 15 U.S.C. §1681b(b) (3) (A) at least five business days before the date the consumer report at First Advantage was first coded as ineligible for hire. It is so ORDERED. Isl Robert E. Payne Senior United States District Judge Richmond, Virginia Date: August 11 , 2014 47
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