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Gunther v. DSW Inc.

United States District Court, E.D. Wisconsin

November 3, 2016

PATRICK GUNTHER, individually and as a representative of the Class, Plaintiff,
DSW INC., Defendant.


          LYNN ADELMAN District Judge.

         Patrick 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.

         I. BACKGROUND

         The 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.[1]

         The 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.

         The 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.

         The 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).


         I first 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.

         DSW 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 not “concrete.”

         A “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, ‚ÄúCongress' 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 ...

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