United States District Court, W.D. Washington, Seattle
ORDER DIRECTING BRIEFING
L. ROBART United States District Judge.
the court is Plaintiff Julius Terrell's notice regarding
the Ninth Circuit's amended opinion in Syed v. M-I,
LLC, 846 F.3d 1034 (9th Cir. 2017) ("SyedF),
amended and superseded on denial of rehearing en banc by Syed
v. M-I, LLC, ___ F.3d ___, 2017 WL 1050586 (9th Cir.
Mar. 20, 2017) ("SyedIF). (SyedNol (Dkt. #
51).) The court's recent order denying Defendant Costco
Wholesale Corporation's motion to dismiss hinged on the
Article III standing analysis that the Ninth Circuit
undertook in Syed I. (See 3/10/17 Order
(Dkt. # 44) at 9-11.) Accordingly, Mr. Terrell brings
Syedllto the court's attention. (See
SyedNot. at 2-3.) Having reviewed Mr. Terrell's
notice, Syedl, Syed II, the other applicable law,
and the relevant portions of the record, the court DIRECTS
the parties to brief the issues discussed below.
BACKGROUND & ANALYSIS
a putative class action in which Mr. Terrell alleges that
Costco violated the Fair Credit Reporting Act
("FCRA"), 15 U.S.C. § 1681 et seq.,
by providing noncompliant disclosures to job applicants.
(See generally Compl. (Dkt. # 5-1).) On September 6,
2016, Costco removed this case from King County Superior
Court. (See Not. of Removal (Dkt. #1).) Costco then
moved to dismiss the case for lack of Article III standing
based on Spokeo, Inc. v. Robins, ___ U.S. ___, 136
S.Ct. 1540 (2016). (MTD (Dkt. #19).) Mr. Terrell responded
that his allegations supported standing and, at any rate, the
case should be remanded-not dismissed-if the court concluded
that he lacked standing. (See MTD Resp. (Dkt. #
court concluded that Mr. Terrell's complaint sufficiently
alleged concrete injury and that Mr. Terrell therefore had
Costco challenges whether Mr. Terrell pleaded an
injury-in-fact by alleging that Costco's Disclosure and
Authorization violated Section 1681b(b)(2)(A) of the FCRA,
without reference to any additional harm caused by the
statutory violation. Costco argues that Mr. Terrell's
allegations amount to "bare procedural violations"
that are insufficient to establish Article III standing after
Spokeo..... Mr. Terrell simply alleges that
Costco's Disclosure and Authorization violated Section
1681b(b)(2)(A) of the FCRA.....
Analyzing whether Mr. Terrell sufficiently pleaded an
injury-in-fact begins with the nature of the rights conferred
by Section 1681b(b)(2)(A). Thomas v. FTS USA, LLC,
193 F.Supp.3d 623, 631 (E.D. Va. 2016). "To determine
whether an intangible harm constitutes injury in fact, both
history and the judgment of Congress are instructive."
Spokeo, 136 S.Ct. at 1543; see also Thomas,
193 F.Supp.3d at 631 ("[C]ourts have turned to the
common law and to the judgment of Congress, as reflected in
the FCRA, to determine whether the violations of FCRA Section
1681b(b)(2)(A) constitute injuries capable of satisfying the
case or controversy requirement.").....
The Ninth Circuit recently addressed the issue before this
court, holding that Section 1681b(b)(2)(A) creates
substantive rights to information and privacy. [Syed
J], 846 F.3d at 1040. Accordingly, a defendant who
violates these statutory provisions has caused concrete harm.
Id. "By providing a private cause of action for
violations of Section 1681b(b)(2)(A), Congress has recognized
the harm such violations cause, thereby articulating a
'chain of causation that will give rise to a case or
controversy.'" Id. (quoting
Spokeo, 136 S.Ct. at 1549). Consequently, Mr.
Terrell has sufficiently pled an injury-in-fact and satisfies
the "irreducible constitutional minimum" of
standing. Lujan, 504 U.S. at 560-61.
(3/10/17 Order at 7-8, 10 (internal footnotes omitted).) As
the above excerpt demonstrates, this court's ruling
hinged on the Syedl court's conclusions that (1)
Section 1681b(b)(2)(A) confers a substantive right, and (2) a
plaintiff adequately alleges a concrete injury merely by
alleging a violation of that provision. (See Id. at
Ninth Circuit's amended opinion-Syedll-calls
into question whether Mr.Terrell has adequately alleged a
concrete injury sufficient to confer standing.
Compare Syedl, 846 F.3d at 1037-40,
with Syedll, 2017 WL 1050586, at *4-5. In
Syedl, the court identifies the alleged violations
of Section 1681b(b)(2)(A), determines that Section
1681b(b)(2)(A) confers substantive rights, and
straightforwardly concludes, "Therefore, Syed has
Article III standing to bring this lawsuit."
Syedl, 846 F.3d at 1037-40. In Syed
II, the court removes that conclusion and replaces
it with a paragraph that discusses the plaintiffs allegations
of concrete injury apart from the mere violation of Section
Syed alleged in his complaint that he "discovered
Defendant M-I's violation(s) within the last two years
when he obtained and reviewed his personnel file from
Defendant M-I and discovered that Defendant M-I had procured
and/or caused to be procured a 'consumer report'
regarding him for employment purposes based on the illegal
disclosure and authorization form." This allegation is
sufficient to infer that Syed was deprived of the right to
information and the right to privacy guaranteed by Section
1681b(b)(2)(A)(i)-(ii) because it indicates that Syed was not
aware that he was signing a waiver authorizing the credit
check when he signed it. Drawing all reasonable inferences in
favor of the nonmoving party, we can fairly infer that Syed
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.
Therefore, Syed did allege a concrete injury and has Article
III standing to bring this lawsuit.
Syed II, 2017 WL 1050586, at *5. The Ninth
Circuit's additional inquiry into the plaintiffs precise
allegations of concrete injury and the reasonable inferences
to be drawn therefrom renders infirm the basis for the
court's March 10, 2017, conclusion that Mr. Terrell
adequately alleged a concrete injury.
light of Syed II, Mr. Terrell indicates that he does
not oppose remand to King County Superior Court.
(Syed Not. at 2-3 ("Plaintiff does not wish to
expend the Court's resources on further litigation of
this matter only to have Defendant raise the issue of
subject-matter jurisdiction months, or even years, from now.
Nor does Plaintiff wish to litigate under the constant threat
of Defendant raising the issue of a lack of subject-matter
jurisdiction.")); see also Id. at 3
(citingMocek v. Allsaints USA Ltd., No. 16 C 8484,
2016 WL 7116590, at *2 (N.D. 111. Dec. 7, 2016))
("Post-S/wfeo, when faced with FCRA cases where neither
party chose to affirmatively shoulder the burden of asserting
subject-matter jurisdiction, other courts have
remanded.").) Costco has previously taken the position
that the court should dismiss the case if the court concludes
that Mr. Terrell lacks Article III standing. (MTD at 21-24;
MTD Reply (Dkt. # 30) at 10-11.) Furthermore, because
Syedlwas binding authority when the court issued its
March 10, 2017, order, the court has not analyzed whether Mr.
Terrell's allegations suffice under the approach espoused
in Syed ...