United States District Court, E.D. Wisconsin
PATRICK GUNTHER, individually and as a representative of the Class, Plaintiff,
DSW INC., Defendant.
DECISION AND ORDER
ADELMAN District Judge.
Gunther has filed a complaint against the shoe retailer DSW,
Inc., alleging that DSW violated the Fair Credit Reporting
Act (“FCRA”) by obtaining a consumer report about
him for employment purposes without first providing him with
a written disclosure that complies with the FCRA's
requirements. See 15 U.S.C. § 1681b(b)(2)(A).
Before me now are two motions to dismiss filed by DSW: one to
dismiss the complaint for failure to state a claim upon which
relief can be granted, see Fed. R. Civ. P. 12(b)(6),
and one to dismiss the action for lack of subject matter
jurisdiction, see Fed. R. Civ. P. 12(b)(1), on the
ground that the plaintiff does not have Article III standing.
plaintiff alleges that, on February 25, 2015, he applied
online for a part-time sales supervisor position at DSW's
store in Mequon, Wisconsin. As part of the plaintiff's
application process, he “was given” a form
entitled “Disclosure and Authorization.” Compl.
¶ 17. (The plaintiff does not explain how the form was
given to him. But because he alleges that he applied online,
I assume that he downloaded the form from the Internet as
part of his online application.) This form stated, among
other things, that DSW “may obtain information about
[the plaintiff] for employment purposes from a third party
consumer reporting agency.” Compl. Ex. 1. The form also
contained an “acknowledgement and authorization”
section, which asked the plaintiff to authorize DSW to obtain
consumer reports about him. Id. The form had blanks
for the plaintiff to fill in his personal information,
including his social-security number, and also a signature
line. On March 3, 2015, DSW procured a consumer report about
the plaintiff from the consumer-reporting agency First
Advantage. Although the plaintiff does not allege that he
filled out and signed DSW's disclosure-and-authorization
form, he does not allege that DSW obtained a credit report
about him without first obtaining his written authorization,
and thus I assume that he signed the form.
plaintiff alleges that DSW's obtaining the consumer
report about him for employment purposes violated the FCRA,
specifically 15 U.S.C. § 1681b(b)(2)(A), which provides
in relevant part as follows:
[A] person may not procure a consumer report, or cause a
consumer report to be procured, for employment purposes with
respect to any consumer, unless-
(i) a clear and conspicuous disclosure has been made in
writing to the consumer at any time before the report is
procured or caused to be procured, in a document that
consists solely of the disclosure, that a consumer report may
be obtained for employment purposes; and
(ii) the consumer has authorized in writing (which
authorization may be made on the document referred to in
clause (i)) the procurement of the report by that person.
plaintiff alleges that DSW violated the this provision
because the disclosure it made to him before obtaining a
report about him was not “in a document that consists
solely of the disclosure.” Rather, the plaintiff
alleges that the disclosure was in a document that was three
pages long, contained “extraneous information, ”
and was attached to another form that required the plaintiff
to list any criminal convictions. Compl. ¶¶ 18-25
& Ex. 1.
plaintiff does not allege that he incurred any form of
tangible harm as a result of DSW's alleged violation of
the FCRA. However, he alleges that he “experienced a
concrete injury in the form of being deprived of a disclosure
to which he was statutorily entitled.” Compl. ¶
37. As relief for this alleged injury, the plaintiff seeks
statutory damages of not less than $100 and not more than $1,
000, pursuant to 15 U.S.C. § 1681n(a)(1)(A). Further,
the plaintiff seeks punitive damages under § 1681n(a)(2)
and costs and attorneys' fees under § 1681n(a)(3).
To obtain any of this relief, the plaintiff must prove that
DSW's noncompliance with the FCRA was
“willful.” 15 U.S.C. § 1681n(a).
address DSW's motion to dismiss for lack of standing. The
jurisdiction of federal courts is limited to
“Cases” and “Controversies” as
described in Article III, Section 2 of the Constitution.
Diedrich v. Ocwen Loan Servicing, LLC, ___ F.3d ___,
2016 WL 5852453, at *2 (7th Cir. 2016). There is no case or
controversy if the plaintiff lacks standing to challenge the
defendant's alleged misconduct. Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992). In order to have
standing, the plaintiff must have (1) suffered an injury in
fact, (2) that is fairly traceable to the challenged conduct
of the defendant, and (3) that is likely to be redressed by a
favorable judicial decision. Id. at 560-61.
contends that the plaintiff has not suffered an injury in
fact. An injury in fact occurs when the plaintiff experiences
an invasion of a legally protected interest that is (a)
“concrete and particularized, ” and (b) actual or
imminent, not “conjectural” or
“hypothetical.” Lujan, 504 U.S. at 560.
Recently, in Spokeo, Inc. v. Robins, the Court
emphasized that “concrete” and
“particularized” are distinct requirements. ___
U.S. ___, 136 S.Ct. 1540, 1545 (2016). In the present case,
there is no question that the plaintiff's injury is
“particularized, ” but DSW contends that it is
“concrete” injury must be “de
facto ”; that is, it must actually exist.
Spokeo, 136 S.Ct. at 1548. “Concrete” is
not, however, necessarily synonymous with “tangible,
” and “intangible injuries can nevertheless be
concrete.” Id. at 1549. “In determining
whether an intangible harm constitutes injury in fact, both
history and the judgment of Congress play important
roles.” Id. Thus, a court should
“consider whether an alleged intangible harm has a
close relationship to a harm that has traditionally been
regarded as providing a basis for a lawsuit in English or
American courts.” Id. Further, because
Congress has the power to define injuries, its judgment must
be considered. Id. However, “Congress'
role in identifying and elevating intangible harms does not
mean that a plaintiff automatically satisfies the
injury-in-fact requirement whenever a statute grants a person
a statutory ...