On October 31, a United States District Court certified a Fair Credit Reporting Act class action involving claims that an employer procured a background check through an improper disclosure form and took adverse action without following the proper adverse action protocol. Although the Court’s decision did not address the merits of the case, the Court did address a number of arguments that frequently arise in FCRA class certification battles.
In Milbourne v. JRK Residential America, LLC, the named plaintiff alleged that the defendant violated the FCRA by using a background check disclosure form that included a liability release and waiver. He argued that including this language prevented the form from consisting solely of the disclosure that a background check would be obtained. The named plaintiff also alleged that he was terminated from employment the day before he received a copy of his background check and a summary of his rights under the FCRA. According to the plaintiff, the timing of these notices violated the FCRA’s adverse action protocol.
The Court concluded that both the background check disclosure class and the adverse action class satisfied the requirements for Rule 23 certification. In reaching this conclusion, the Court addressed several arguments frequently raised by defendants when opposing class certification.
Although the named plaintiff had a lengthy criminal record, the Court concluded that the age and circumstances surrounding the convictions did not undermine his adequacy as a class representative.
The Court also concluded that if the named plaintiff had attempted to certify a class spanning the previous five years, the statute of limitations analysis would involve individualized inquiries that destroy the predominance requirement of Rule 23. The plaintiff, however, only sought certification of a two-year class. This mitigated the statute of limitations concerns for the Court. As to the remainder of the predominance inquiry, the Court concluded that the language of the disclosure form, the defendant’s adverse action practices, and issues of willfulness were sufficiently common.
With respect to the superiority requirement, the Court concluded that a class action was superior, despite the defendant’s arguments that the statutory remedies were wholly disproportionate to any harm suffered by the class.
Although defendants certainly possess a number of arguments against class certification in any FCRA class action, the Milbourne decision serves as an example of the hurdles defendants can face in opposition to class certification.