United States District Court, W.D. Washington, Seattle
ORDER DENYING DEFENDANT'S MOTION TO
L. ROBART United States District Judge
matter comes before the court on Defendant Costco Wholesale
Corp.'s (“Costco”) motion to dismiss
Plaintiff Julius Terrell's complaint for lack of
standing. (Mot. (Dkt. # 19).) Mr. Terrell opposes the motion
(see Resp. (Dkt. # 28)), and Costco has filed a
reply (Reply (Dkt. # 30)). Having considered these
submissions, the appropriate portions of the record, and the
relevant law, and considering itself fully advised,
court DENIES Costco's motion for the reasons described
November 2014, Mr. Terrell applied for a job with Costco, a
national retail chain headquartered in Washington State.
(Compl. (Dkt. # 1) ¶¶ 21-22.) As part of the online
application process, Costco required Mr. Terrell to undergo a
background check, which third-party vendor First Advantage
LNS Screening Solutions, Inc. (“First Advantage”)
performed. (Id. ¶ 24.) Because Costco sought
information about Mr. Terrell's credit capacity,
character, general reputation, and personal characteristics,
the Fair Credit Reporting Act (“FCRA”), 15 U.S.C.
§ 1681 et seq., required Costco to provide Mr.
Terrell with a “clear and conspicuous” document
that consisted solely of the disclosure that a consumer
report may be obtained for employment purposes. (Id.
¶¶ 12, 22, 24, 28.)
of a standalone disclosure, however, Costco provided Mr.
Terrell with a document titled, “Pre-Application FCRA
Disclosure and Authorization.” (Id.
¶¶ 27-28; id., Ex. A.) As the title
suggests, that document included both a disclosure and an
authorization permitting Costco to gather information about
Mr. Terrell from a wide array of sources, including:
[A]ny law enforcement agency, administrator, state or federal
agency, institution, school or university (public or
private), information service bureau, employer, or insurance
(Id., Ex. A.) Additionally, the Disclosure and
Authorization discouraged Mr. Terrell from contacting First
Advantage or Kronos, the human resources company hosting
Costco's online application:
Please do not contact First Advantage Corporation for the
status of your employment application. First Advantage
Corporation does not have access to this information and will
not be able to respond to your request. Please do not contact
Kronos for results of the background check. Kronos does not
have access to the report and will not be able to respond to
(Id. ¶ 35; id., Ex. A.) Mr. Terrell
was required to authorize the background check to complete
his application. (Id., Ex. A.)
August 10, 2016, Mr. Terrell filed a putative class action
against Costco in King County Superior Court, Washington.
(See Not. of Removal (Dkt. # 1) ¶¶ 5-6;
Am. Not. of Removal (Dkt. # 8) ¶¶ 5-6.) On
September 6, 2016, Costco removed the action to federal
court, invoking the court's federal question and
diversity jurisdiction. (See id.); 28 U.S.C.
§§ 1331-32, 1441, 1446.
Terrell complains that under Section 1681b(b)(2) of the FCRA,
Costco's Disclosure and Authorization: (1) constitutes
“an impermissible attempt to secure permission from the
applicant to access a variety of records that would otherwise
be protected from disclosure” (Compl. ¶¶
32-33); (2) discouraged Mr. Terrell from contacting First
Advantage when he was entitled to receive information about
his background check upon request (id. ¶ 35);
(3) falsely states that First Advantage does not have access
to information about Mr. Terrell's employment application
(id.); and (4) is not “clear and
conspicuous” and contains more information than is
permitted for an FCRA disclosure (id. ¶ 38).
Based on these allegations, Mr. Terrell seeks statutory and
punitive damages on behalf of himself and a class of those
similarly situated. (Id. ¶ 59.)
moves to dismiss Mr. Terrell's complaint. (See
Mot.) It contends that Mr. Terrell has failed to sufficiently
allege a concrete injury and thus lacks standing to sue in
federal court. (Id.) The court now turns to the
question of whether Mr. Terrell has sufficiently alleged
Article III standing.