In Fosbrink v. Area Wide Protective, Inc., William Fosbrink sued defendant Area Wide Protective in a class action complaint for allegedly violating the Fair Credit Reporting Act’s provisions regarding employment background checks. According to Fosbrink, Area Wide violated the FCRA in three ways: (1) it failed to provide him with a stand-alone disclosure informing him that it would obtain a background check; (2) it failed to properly obtain his authorization to procure a background check; and (3) it failed to provide him with a copy of his background check before taking adverse action. In response, Area Wide brought a motion to strike the class allegations prior to any discovery, which the Court rejected.
According to the court, the basis of Area Wide’s motion was that Fosbrink could not satisfy Rule 23’s requirements for class certification in any conceivable scenario. That is because the class was allegedly inadequately defined, the allegations turn on each individual’s state of mind, liability must be determined before the class members can be identified, and common issues do not predominate. Although the court recognized that Rule 23 requires it to address class certification “at an early practicable time,” it easily concluded that Area Wide Protective’s arguments were premature.
In the court’s view, the allegations in the complaint were “not so facially defective to allow” the court “to deny certification without Plaintiff being allowed to take discovery.” According to the court, class certification is often an “evidentiary issue.” The court concluded that, while Area Wide is “free to raise” its arguments once Fosbrink moves for class certification, its motion to strike was wholly premature.