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Walmart’s alleged failure to give FCRA notice to class of 5M applicants supports certification

By Lorene D. Park, J.D.

In a suit claiming Walmart’s background checks failed to satisfy the notice requirements of the Fair Credit Reporting Act (FCRA) and California law, a federal district court in California granted certification to a class alleged to be roughly the size of 5,000,000. Walmart argued the class reps lacked standing and common issues didn’t predominate because some job applicants knew about the background checks and didn’t suffer a concrete injury, but the court disagreed. It noted that statutory violations with a real risk of harm satisfy standing under Spokeo . Also, whether Walmart complied with the “standalone” and “clear and conspicuous” disclosure requirements where issues common to the class. Finding the requirements of Rule 23(a) and 23(b) met, the court certified the class (Pitre v. Wal-Mart Stores, Inc., January 17, 2019, Carter, D.).

According to the plaintiffs, when they applied for jobs at Walmart, the retail giant performed a background check without proper and legal authorization, and without providing a disclosure that complied with the FCRA and California law. Specifically, Walmart allegedly included extraneous information on disclosure forms and procured consumer reports without informing applicants of their rights under the FCRA.

The plaintiffs moved to certify a class defined as all “current, former and prospective applicants for employment in the United States” who applied for a job when background check was performed starting five years before the suit was filed and ending on the date of final judgment.

Numerosity, typicality, and adequacy. Granting the motion, the court found that the proposed class of 5,000,000 plainly satisfied the numerosity requirement of Rule 23(a)(1) and that the claims of the proposed class reps were typical of the larger proposed class. According to the plaintiffs, all employees were subject to the same, allegedly improper, disclosures. The three reps also appeared to have no conflicts of interest with other class members and were adequate to represent the class.

Commonality. As for Rule 23(a)(2), the court found that the class members shared sufficient common issues of law and fact to meet commonality. Even if background check disclosures received from various Walmart stores were not identical, they did not have to be exactly the same “so long as a single common question that is ‘apt to drive the resolution of the litigation’ is present.” Here, the plaintiffs had adequately shown that whether Walmart’s disclosures violated state and federal law will turn on whether they “contained extraneous information.”

Predominance. With respect to Rule 23(b)(3)’s predominance requirement, the plaintiffs argued that “legality of Defendant’s forms comprises the near totality of issues that will need to be decided to resolve this matter on the merits.” Specifically, whether Walmart complied with the “standalone” and “clear and conspicuous” disclosure requirements was common to the class and common evidence would be used to establish violations. The plaintiffs further claimed that damages are capable of measurement on a classwide basis. In response, Walmart argued that individual issues predominate, and that the plaintiff lacks Article III standing because some of the putative class members knew about the background check so did not have a concrete injury.

Disagreeing, the court pointed to the Supreme Court’s ruling in Spokeo, Inc. v. Robins and held that the claim that Walmart accessed class members’ personal information in violation of their protected rights constituted a concrete harm rather than a “mere technical” violation of the FCRA. The plaintiff therefore had standing for class certification, and the predominance requirement was met.

Superiority. Finally, the court concluded that a class action was the superior method for adjudicating the FCRA and state-law claims here, so the superiority requirement of Rule 23(b)(3) was also met.