18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 595 immunity and did not include the FCRA among them. Since Plaintiffs here sought to hold Defendants liable for the content on their website, the Court opined that § 230 applied to Plaintiffs’ FCRA claims. The Court thus considered whether all the elements required for entitlement of § 230 were met, including: (i) Defendant was an interactive computer service; (ii) the content was created by an information content provider; and (iii) Defendant was alleged to be the creator of the content. Id . at *12-13. The Court held that Defendants satisfied all the requisite elements. Accordingly, the Court concluded that § 230 immunity applied to the FCRA claims and Defendants qualified for the immunity. For these reasons, the Court granted Defendants’ motion for judgment on the pleadings. Lyttle, et al. v. Truelive, Inc., 2021 U.S. Dist. LEXIS 152630 (M.D. Fla. Aug. 13, 2021). Plaintiff, a job applicant, brought a putative class action alleging violations of the Fair Credit Reporting Act (“FCRA”) after Defendant withdrew its conditional offer of employment and failed to provide him with pre-adverse action notice, a summary of his FCRA rights, and a copy of the consumer report prior to taking adverse action. Plaintiff further alleged that the violations of the FCRA were willful. After discovery, Plaintiff moved for class certification pursuant to Rule 23(b)(3), and the Court granted in part and denied in part Plaintiff’s motion. First, the Court concluded that the proposed class definition – that included all applicants and employees against whom Defendant took adverse action based, in whole or in part, on information within a consumer report obtained during the relevant five-year class period who were not provided notice, a copy of their report, or summary of rights under the FCRA – was adequately defined and clearly ascertainable. As to Rule 23(a)’s requirements of numerosity, commonality, adequacy and typicality, the Court found that they were all met. Defendant did not challenge numerosity, and the Court ruled that this requirement was satisfied as Plaintiff presented evidence that Defendant had denied employment to 1,047 applicants based upon their criminal histories. With respect to commonality, the Court determined that whether Defendant provided the information required under the FCRA before taking adverse employment action was a factual question common to Plaintiff and individual class members. Relatedly, whether Plaintiff willfully violated the FCRA was another question common to Plaintiff and the individual class members. Thus, the Court held that commonality was met. Likewise, the Court found that Plaintiff’s claims were typical of the claims of the class members. Defendant made several challenges to adequacy including that Plaintiff demonstrated serious credibility concerns and had a conflict with other putative class members. However, the Court rejected each of Defendant’s arguments and concluded that Plaintiff had carried his burden of demonstrating adequacy. As to Rule 23(b)(3)’s requirement of predominance, the Court observed that common questions of law and fact predominated as the central issue was whether Defendant provided applicants and employees with notice, a copy of their report, and summary of rights under FCRA before taking adverse action against them. Further, if Defendant violated the FCRA, another common question was whether the violations were willful. Defendant, for its part, did not expressly challenge predominance, but argued that the class definition required an individualized assessment of the class members’ eligibility because under the FCRA an action to enforce any liability must be brought not later than the earlier of: (i) two years after the date of the plaintiff’s discovery of the violation that is the basis for that liability; or (ii) five years after the date on which the violation that served as the basis for the liability occurs. As such, Defendant contended that, for every alleged violation occurring more than two years before the filing of the lawsuit, the Court would need to determine when the individual actually discovered the violation giving rise to the claim. The Court ruled that this was not a reason to deny class certification and instead it modified the class definition to include a class period of two years, rather than five years. Finally, the Court found that class action was the superior method of adjudication, since class members were unlikely to pursue individual actions because of the modest nature of each individual claims. For these reasons, the Court granted Plaintiff’s motion for class certification in part and denied it in part. Mathews, et al. v. Fieldworks, LLC, 2021 U.S. Dist. LEXIS 111102 (W.D. Mo. June 14, 2021). Plaintiff, a job applicant previously convicted of a felony, filed a class action alleging that Defendant failed to provide a copy of his background check to him prior to being told he would not be hired due to the results of the background check in violation of the Fair Credit Reporting Act (“FCRA”). After discovery, Defendant moved for summary judgment on the grounds that there was no genuine dispute as to any material fact as to the issue of Plaintiff’s standing to assert his claims. Id . at *6. The Court denied the motion. First, the Court explained that the FCRA mandates that when using a consumer report for employment purposes, a person intending to take an adverse action based in whole or in part on the consumer report shall provide a copy of the report and a description of the consumer’s