A job applicant lacked Article III standing to sue an employer for violation of the FCRA’s requirement that it give a job applicant a copy of his credit report and an explanation of his rights under the FCRA to correct inaccuracies before the employer takes adverse action based on the credit report. Here, the statute was designed to protect a job applicant’s concrete interests in avoiding injury from inaccurate information. But the plaintiff failed to show how the specific violation alleged in his complaint actually harmed him or presented a material risk of harming him. However, on summary judgment, State Farm’s declaration established that it would have taken the same adverse action against plaintiff even if he had corrected all the alleged inaccuracies in his credit report—because the correctly reported information disqualified him for employment under State Farm’s employment policies. Under N.D. Cal.’s local rules a party moving for summary judgment may submit new evidence with its reply memorandum. The opposing party may object or seek leave to file a sur-reply. What the opposing party cannot do (and what plaintiff did here) was nothing. By neither objecting nor requesting leave to file a sur-reply, the plaintiff waived any objection to the evidence.
Ninth Circuit Court of Appeals (Vitaliano, J., sitting by designation); July 13, 2018; 2018 U.S. App. LEXIS 19349