In Williams v. Nichols Demos, Inc., No. 5:17-CV-07101-EJD, 2018 WL 3046507, (N.D. Cal. 2018), the Honorable Edward Davila of the Northern District of California granted defendants’ motion for judgment on the pleadings and remanded the case back to state court after finding that the plaintiff lacked Article III standing pursuant to the Supreme Court’s ruling in Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547 (2016).  In Williams, plaintiff brought a class action claiming that defendants’ employment application, which contained a “Background Screening Consent Form” that included both a disclosure and liability waiver –  violated the Fair Credit Reporting Act’s (“FCRA”) “stand-alone” requirement of 15 U.S.C. § 1681b(b)(2)(A)(i).

Judge Davila first defined the parameters of Spokeo and explained that:

Applying the principles above, the Supreme Court [in Spokeo] concluded that a plaintiff cannot satisfy Article III “by alleging a bare procedural violation” of the FCRAA because the procedural violation may result in no harm. Id. at 1550. “For example, even if a consumer reporting agency fails to provide the required notice to a user of the agency’s consumer information, that information regardless may be entirely accurate. In addition, not all inaccuracies cause harm or present any material risk of harm.” Id.

Williams at *4.  Next, the District Court distinguished the case from the Ninth Circuit’s recent holding in Syed v. M-I, LLC, 853 F.3d 492 (9th Cir. 2017) which found that a plaintiff had Article III standing when alleging an employment application violated FCRA’s “stand alone” requirement by including a liability waiver.   The critical distinction between the cases is that, in Syed, the plaintiff sufficiently alleged actual confusion regarding what was being signed and agreed to.  In Williams, Judge Davila stated:

Importantly, the Syed court reasoned that the plaintiff had pled a concrete injury because it could be inferred from plaintiff’s discovery of his consumer report that the plaintiff was not aware he was signing a waiver authorizing the credit check when he signed it; that the plaintiff “was confused by the inclusion of the liability waiver with the disclosure and would not have signed it had it contained a sufficiently clear disclosure, as required in the statute.” Id. at 499-500. Many district courts have dismissed FCRA claims that are based on bare procedural violations similar to the alleged disclosure violation in Syed. See e.g., Saltzberg v. Home Depot, U.S.A. Inc., No. 17-5798 RGK, 2017 WL 4776969, at *2 (C.D. Cal. Oct. 18, 2017) (inclusion of liability release provision on the same page as disclosure insufficient to establish concrete injury); Bercut v. Michaels Stores, Inc., No. 17-1830 PJH, 2017 WL 2807515, at *5 (N.D. Cal. June 29, 2017) (Syed “mak[es] clear that actual confusion or some other non-procedural harm must be alleged to create an Article III controversy.”); Benton v. Clarity Services, Inc., No. 16-6583 MMC, 2017 WL 345583, at *2 (N.D. Cal. Jan. 24, 2017) (allegation that defendant failed to disclose source of information in violation of Section 1681g was in the nature of a bare procedural violation, and thus insufficient to establish standing); Lee v. Hertz Corp., No. 15-4562 BLF, 2016 WL 7034060, at *5 (N.D. Cal. Dec. 2, 2016) (allegation that disclosure form contained “extraneous” information insufficient, without more, to demonstrate standing); Case v. Hertz Corp., No. 15-2707 BLF, 2016 WL 6835086, at *4-5 (N.D. Cal. Nov. 21, 2016) (allegation that disclosure form did not technically comply with the requirements of FCRA because it contained extraneous information is a bare procedural violation); Nokchan v. Lyft, Inc., No. 15-3008 JCS, 2016 WL 5814287, at *9 (N.D. Cal. Oct. 5, 2016) (allegations that disclosure form contained extraneous information and that defendant failed to inform plaintiff of right to request summary of rights insufficient to establish standing); Larroque v. First Advantage LNS Screening Solutions, Inc., No. 15-4684 JSC, 2016 WL 4577257, at *5 (N.D. Cal. Sept. 2, 2016) (allegation that defendant failed to certify it had complied with the disclosure and authorization requirements set forth in FCRA is “nothing more than a bare procedural violation of the FCRA” that does not satisfy the injury-in-fact requirement of Article III). 

Williams at *4.  Finally, the District Court determined in Williams that “Plaintiff alleges only a ‘bare procedural violation’ of FCRA.”  Williams at *5.  Ultimately, Judge Davila made his final ruling based the plaintiff’s failure to allege anything beyond a technical violation.  The District Court held that:

Plaintiff alleges that Defendants provided her with the “Background Screening Consent Form” for employment purposes. Plaintiff does not allege that she was “confused” by the disclosure or that she would not have signed the authorization had it been presented separately from the waiver. Plaintiff does not allege that she was not aware she was authorizing a criminal background report when she “filled out” the Background Screening Consent Form. Nor does Plaintiff allege that she was unaware she was releasing liability when she “filled out” the Background Screening Consent Form. Plaintiff does not allege that she was denied employment based on the consumer report that Defendants allegedly procured. Nor does Plaintiff allege that the consumer report was inaccurate.

 Williams at *5.