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Mitchell v. Winco Foods LLC

United States District Court, D. Idaho

March 7, 2017

WINCO FOODS, LLC, Defendant.


          B. Lynn Winmill Chief Judge


         The Court has before it two motions to dismiss (Dkts. 12 and 20). One motion relates to Article III standing, and the other is a Rule 12 Iqbal/Twombly motion. The Court heard oral argument on the motions on October 18, 2016, and now issues the following decision.


         Mitchell applied for a job at Winco in April 2015 using Winco's online application. The online application provided her with an FCRA disclosure informing her that WinCo would conduct a background check in connection with her application for employment.

         Mitchell alleges that she was presented another from entitled “Authorization for Background Check” at the same time she reviewed the disclosure. She was subsequently hired by Winco, but she alleges, on behalf of herself and a class, that the disclosure violated the FCRA because Winco failed to provide a “stand-alone” disclosure regarding the background check.


         I. Article III Standing

         The Supreme Court recently addressed standing in an FCRA case similar to this one. See Spokeo, Inc. v. Robins, 136 S.Ct. 1540 (2016). The Supreme Court reiterated the long-held standard that a plaintiff invoking federal jurisdiction must establish: (1) an injury in fact; (2) fairly traceable to the challenged conduct of the defendant; and (3) likely to be redressed by a favorable judicial decision. Id. at 1547. Winco argues that Mitchell has not established the first element - an injury in fact.

         The injury in fact element requires a plaintiff to show that she suffered “an invasion of a legally protected interest” that is “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.” Id. at 1548. For an injury to be particularized, it “must affect the plaintiff in a personal and individual way.” Id. To be concrete, an injury must be “de facto” - that is, it must be real; it must actually exist. Id. But intangible injuries can be concrete. Id. at 1549. However, a bare procedural violation of something like the FCRA does not satisfy the “concrete” element for Article III standing because a violation of the FCRA's procedural requirements may result in no harm. Id. at 1550. The real question here is whether Mitchell has alleged a “concrete” injury.

         Mitchell suggests she has met her burden by alleging that Winco provided her with an FCRA disclosure and authorization at approximately the same time, and that the disclosure contains extraneous information in violation the Act's requirement that the disclosure be essentially a stand-alone disclosure pursuant to 15 U.S.C. § 1681b. Mitchell suggests that failing to provide her with the stand-alone disclosure was a concrete harm because it caused her “informational harm” and “invaded her privacy.” But there is no allegation that Mitchell was harmed in any other way, such as Winco obtaining or distributing false information about her. And she received the very job she applied for at Winco.

         Two district courts have addressed standing in an FCRA case following the decision in Spokeo with mixed results. In the first, the Southern District of Ohio recently addressed a case with almost identical facts to this one. Smith v. Ohio State University, 191 F.Supp.3d 750 (S.D.Ohio 2016). In that case, the plaintiffs applied to work at Ohio State University and were hired. They alleged that OSU violated the FCRA when it provided a disclosure and authorization to them which improperly included extraneous information during the hiring process. In a somewhat conclusory finding, the district court relied heavily upon plaintiffs' admission that they did not suffer a concrete consequential damage as a result of OSU's alleged breach of the FCRA. Id. at *4. Thus, the court concluded there was no concrete and particularized injury in fact, and therefore no Article III standing. Id.

         In the second, Thomas v. FTS USA, LLC, 193 F.Supp.3d 623 (E.D.Va. 2016), the court addressed the issue with a more extensive factual record, and provided a much more detailed analysis of Article III standing in an FCRA case. In Thomas, an applicant for employment sued the prospective employer for violating the FCRA by (1) not providing a disclosure and written consent before obtaining the applicant's consumer report for employment purposes under 15 U.S.C. § 1681b(b)(2), and (2) by taking adverse employment action based on his consumer report before he received a copy of the consumer report and summary of rights under the FCRA at 15 U.S.C. § 1681b(b)(3). The court found that the plaintiff had standing.

         Although counsel and the Court focused a great deal of attention on these two cases during oral argument, neither case is controlling, and neither case is similar enough to the facts of this case to be persuasive. Ohio State is conclusory and lacks any real substantive analysis of the standing issue. Thomas contains an in depth analysis of the standing issue (much of which this Court agrees with), but the facts of that case are different enough from this case to warrant a different result. For example, only ...

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