18th Annual Workplace Class Action Report - 2022 Edition

596 Annual Workplace Class Action Litigation Report: 2022 Edition rights under the FCRA to the consumer to whom the report relates prior to taking such adverse action. Id . at *8. Plaintiff contended that Defendant used his consumer report to take adverse employment action against Plaintiff and other class members without: (i) providing a copy prior to the adverse action; (ii) providing a reasonable time to address any information or inaccuracies in the consumer report; or (iii) providing an FCRA Summary of Rights. Id . at *9. The Court opined that Plaintiff could have addressed his conviction contained in the background report with Defendant and persuaded Defendant to hire him had he been aware of the fact that Defendant conducted a background check on him. Defendant asserted that it had a policy and procedure that it would not hire applicants convicted of certain felonies within a certain period of time. In support of its assertion, Defendant submitted a spreadsheet outlining those different offences and the length of time for hiring consideration from the offences. Plaintiff argued that Defendant failed to prove the existence of its alleged policy. The Court determined that the ambiguity of Defendant’s chart was enough to create a reasonable dispute about material facts. The Court also observed that the record was insufficient to entitle Defendant to judgment as a matter of law on Plaintiff’s adverse action claim. Accordingly, the Court found that Plaintiff set forth specific facts showing that a genuine issue of material fact existed such that summary judgment was not appropriate. For these reasons, the Court denied Defendant’s motion. TransUnion LLC v. Ramirez, et al., 141 S. Ct. 2190 (2021). Defendant TransUnion prepared a credit report on Plaintiff. An alert on the report inaccurately indicated that Plaintiff was on the terrorist watch list. Plaintiff then requested a copy of his credit file from TransUnion, which responded in two separate mailings. The first mailing included his credit file and summary of rights under the FCRA, but it did not mention the alert on his report. The second mailing included the alert, but did not include a separate summary of rights. Plaintiff asserted that TransUnion violated the FCRA by failing to follow “reasonable procedures” to assure maximum possible accuracy of the class members’ credit files, and that TransUnion violated the “full file” disclosure requirements of the FCRA by not providing class members with copies of their complete credit files and not providing the required summary of rights. Id . at *4. The District Court granted certification of a class consisting of 8,185 class members and awarded over $60 million in damages. Only 1,853 class members actually had their reports sent to a third-party. The Ninth Circuit subsequently affirmed in relevant part, holding that all class members had standing, but it reduced the total award to about $40 million. On further appeal, the U.S. Supreme Court reversed the Ninth Circuit on the grounds that only Plaintiffs concretely harmed by a statutory violation have Article III standing to seek damages. The Supreme Court reinforced prior precedent that Article III standing requires a “concrete harm” even when there is a statutory violation and that “an injury-in-law is not an injury-in- fact.” Id . at *21. Applying the “concrete harm” requirement to the facts on appeal, the Supreme Court held that every class member must have Article III standing in order to recover individual damages, and that every class member bears the burden of establishing Article III standing with respect to each claim asserted. The Supreme Court also addressed standing with respect to the “reasonable procedures” claim. The Supreme Court indicated that it had “no trouble” concluding that the 1,853 class members whose credit reports actually were disseminated to third-parties showed a concrete harm and had Article III standing. Id . at *27. However, it was a “different story” for the remaining 6,332 class members, whose credit files were never sent to a third-party. Id . at *28. The Supreme Court held that the “mere presence of an inaccuracy in an internal credit file, if it is not disclosed to a third-party, causes no concrete harm” and fails to confer Article III standing. Id . at *30. The Supreme Court also rejected the argument that the “risk of future harm” was enough to satisfy Article III’s concrete harm requirement for the remaining 6,332 class members. Id. at *30-31. Finally, the Supreme Court addressed standing with respect to the “full file” claims. Applying the “concrete harm” standard, the Supreme Court held that no one in the class other than named Plaintiff had standing to recover for what it concluded was a “formatting” violation. Id . at *38. In so holding, the Supreme Court also rejected the argument that an actionable “informational injury” existed because “Plaintiffs did not allege that they failed to receive any required information,” but instead “argued only that they received it in the wrong format .” Id . at *40. For these reasons, the Supreme Court reversed and remanded the Ninth Circuit’s ruling. (xli) Forum Non-Conveniens In Class Action Litigation Elliott, et al. v. PubMatic, Inc., 2021 U.S. Dist. LEXIS 154053 (N.D. Cal. Aug. 16, 2021). Plaintiff, a U.K. citizen residing in England, filed a class action alleging that Defendant’s internet cookie placement practices violated the United Kingdom’s General Data Protection Regulation ("U.K. GDPR"). Defendant filed a motion to dismiss, and included with the motion an attorney declaration certifying that "if this Court dismisses Plaintiff’s