1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 VIRGINIA ABROGINA, as an Case No.: 16cv0662 DMS (WVG) individual, and on behalf of the putative 12 class, ORDER DENYING PLAINTIFF’S 13 MOTION FOR CLASS Plaintiff, CERTIFICATION AND APPROVAL 14 v. OF CLASS COUNSEL 15 KENTECH CONSULTING, INC., a 16 foreign corporation doing business in California; 17 BACKGROUNDCHECKS.COM, a 18 limited liability company doing business in California; and DOES 1-10, inclusive, 19 Defendants. 20 21 This case comes before the Court on Plaintiff’s motion for class certification 22 pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(3). Defendant Kentech 23 Consulting, Inc., the sole remaining defendant in this case, filed an opposition to the 24 motion,1 and Plaintiff filed a reply. For the reasons set out below, the motion is denied. 25 26
27 1 Plaintiff notes that Defendant’s opposition was filed five days after the deadline, and 28 1 I. 2 BACKGROUND 3 On January 6, 2009, Plaintiff was convicted of grand theft under California Penal 4 Code § 487(d)(1). (Second Am. Compl. (“SAC”) ¶34.) On September 13, 2013, after 5 having satisfactorily completed her sentence and terms of probation, Plaintiff’s conviction 6 was dismissed and “expunged” pursuant to California Penal Code § 1203.4. (Id. ¶35.) 7 Convictions that are expunged under § 1203.4 generally need not be reported on 8 background screening reports for most employment positions or for other purposes, such 9 as rental applications. 10 In January 2014, Plaintiff applied for a job at Alere, Inc.. (Id. ¶36.) Alere referred 11 Plaintiff to a staffing agency, Suna Solutions, Inc., to complete the hiring process. (Id. 12 ¶37.) 13 On February 10, 2014, Suna sent a request to Kentech for a background screening 14 report on Plaintiff. (Id.) To create the report, Kentech obtained Plaintiff’s criminal history 15 information from Backgroundchecks.com, (id.), and reviewed records from the San Diego 16 Superior Court. (Decl. of Devin Fok in Supp. of Mot. (“Fok Decl.”), Ex. 2 at 506.2) In the 17 “Investigative” section of Kentech’s report on Plaintiff, there are two subsections, one 18 entitled “County Validation” and the other entitled “Cops 360 Nationwide.” (Fok Decl., 19 Ex. 6 at 897-98.) The “County Validation” section lists Plaintiff’s theft conviction. (Id. at 20 897.) The “Cops 360 Nationwide” section also includes Plaintiff’s theft conviction. (Id. 21 at 898.) Kentech provided this report to Suna/Alere on February 11, 2014. (SAC ¶37.) 22 On February 12, 2014, Plaintiff was terminated from her employment at Alere. (Id. ¶38.) 23 / / / 24 25 26 Plaintiff is correct that Defendant’s opposition was untimely filed, but the Court declines 27 to grant the motion on that basis. 2 The page number cited here and to other of Plaintiff’s Exhibits is the number assigned by 28 1 Plaintiff filed a dispute with Kentech about her report. (Decl. of Virginia Abrogina 2 in Supp. of Mot. (“Abrogina Decl.”) ¶17.) Thereafter, Kentech provided an amended 3 report to Suna/Alere on March 5, 2014, which omitted Plaintiff’s theft conviction and 4 instead stated in both the “County Validation” and “Cops 360 Nationwide” sections, “No 5 Reportable Records Found.” (Fok Decl., Ex. 9.) Despite Kentech’s provision of this 6 amended report, Alere did not rehire Plaintiff. (Abrogina Decl. ¶19.) 7 As a result of these events, Plaintiff filed the present case against Defendants 8 Kentech and Alere in San Diego Superior Court. In the original Complaint, Plaintiff 9 alleged two claims against Kentech for violations of the Fair Credit Reporting Act 10 (“FCRA”), two claims against Alere for violations of the FCRA, and another claim against 11 Alere for violating California Labor Code § 432.7(a). On March 17, 2016, Defendant 12 Kentech removed the case to this Court on the basis of federal question jurisdiction. After 13 removal, Plaintiff filed a First Amended Complaint in which she amended her FCRA 14 claims against Kentech. Alere and Kentech both filed motions to dismiss, and Alere also 15 filed a motion to stay pending the resolution of arbitration proceedings between Plaintiff 16 and Suna. There was no opposition to the motion to stay, and thus, the Court granted that 17 motion and stayed the case. The case was stayed for nearly five years, after which Plaintiff 18 dismissed her claims against Alere. After five months of litigation against Kentech, 19 Plaintiff filed a Second Amended Complaint further refining her FCRA claims, and 20 alleging additional claims under California law. 21 Plaintiff now moves for class certification on her FCRA claims, which arise under 22 15 U.S.C. §§ 1681k(a)(2) and 1681e(b). Section 1681k(a)(2) provides that when a 23 consumer reporting agency furnishes a background report for employment purposes based 24 on public record information, and the information disclosed may have an adverse impact 25 on an individual’s ability to obtain employment, the agency must maintain “strict 26 / / / 27 / / / 28 / / / 1 procedures” to ensure that the information furnished is “complete and up to date.” To 2 establish a violation of this section, 3 a plaintiff must show that: (1) a [Consumer Reporting Agency, or] CRA furnished a consumer report for employment purposes compiled from public 4 records containing adverse information; (2) the CRA failed to maintain strict 5 procedures designed to insure that the information in that report was complete and up to date; and (3) the consumer report was either incomplete or not up to 6 date. 7 8 Farmer v. Phillips Agency, Inc., 285 F.R.D. 688, 700 (N.D. Ga. 2012). 9 Here, Plaintiff’s report was not “complete and up to date” because it identified 10 Plaintiff’s theft conviction when it had been expunged and should not have been disclosed 11 at all. As a result, Plaintiff lost her employment with Alere. However, that is not Plaintiff’s 12 theory of liability under the FCRA or the basis upon which she seeks class certification. 13 Instead, Plaintiff asserts her report was incomplete because (having disclosed the theft 14 conviction) it did not disclose other information relevant to her conviction, including: (1) 15 case number, (2) arrest/file/offense date, (3) offense, (4) severity, (5) final disposition, and 16 (6) disposition date. Consistent with that theory, Plaintiff seeks to certify the following 17 class against Kentech based on its dissemination of “incomplete” consumer reports under 18 § 1681k(a)(2): 19 All natural persons within the United States with respect to whom, during February 5, 2014 – August 25, 2015, Kentech furnished a consumer report to 20 21 22 3 15 U.S.C. § 1681k(a)(2) states: “A consumer reporting agency which furnishes a 23 consumer report for employment purposes and which for that purpose compiles and reports items of information on consumers which are matters of public record and are likely to 24 have an adverse effect upon a consumer’s ability to obtain employment shall-- … (2) 25 maintain strict procedures designed to insure that whenever public record information which is likely to have an adverse effect on a consumer’s ability to obtain employment is 26 reported it is complete and up to date. For purposes of this paragraph, items of public 27 record relating to arrests, indictments, convictions, suits, tax liens, and outstanding judgments shall be considered up to date if the current public record status of the item at 28 1 a non-police and [non] government entity for employment purposes, and whose report contained any criminal record information, and whose report 2 omits one or more of the following information: “case number”, 3 “arrest/file/offense date”, “offense”, “severity”, “final disposition”, “disposition date” in violation of 15 USC §1681k(a)(2) (“Class 2”). 4 5 The other FCRA statute at issue, 15 U.S.C. § 1681e(b), provides that when a CRA 6 prepares a consumer background report for employment or other purposes it must “follow 7 reasonable procedures to assure maximum possible accuracy of the information concerning 8 the individual about whom the report relates.” 15 U.S.C. § 1681e(b). In the Ninth Circuit, 9 a consumer report “can be ‘incomplete or inaccurate’ within the meaning of the FCRA 10 ‘because it is patently incorrect, or because it is misleading in such a way and to such an 11 extent that it can be expected to adversely affect credit decisions.’” Gorman v. Wolpoff & 12 Abramson, LLP, 584 F.3d 1147, 1163 (9th Cir. 2009) (quoting Sepulvado v. CSC Credit 13 Services, Inc., 158 F.3d 890, 895 (5th Cir. 1998)). 14 As with her claim under § 1681k(a)(2), Plaintiff does not assert here that her report 15 was inaccurate because it reported a conviction that had been expunged. Instead, she 16 alleges two other theories of inaccuracy under this section. First, she asserts her report was 17 inaccurate because it did not include the criminal record information set out above (case 18 number, arrest/file/offense date, offense, severity, final disposition, and disposition date). 19 Second, Plaintiff asserts her report was inaccurate because it listed her conviction more 20 than once, i.e., in both the “Cops 360 Nationwide” section and the “County Validation” 21 sections of her report. Consistent with these theories, Plaintiff seeks to certify the 22 following two classes based on Kentech’s furnishing of “inaccurate” consumer reports 23 under § 1681e(b): 24 All natural persons within the United States with respect to whom, during February 5, 2014 – August 25, 2015, Kentech furnished a consumer report to 25 a non-police and non-government entity, and whose report contained any 26 criminal record information, and whose report omits one or more of the following information: “case number”, “arrest/file/offense date”, “offense”, 27 “severity”, “final disposition”, “disposition date” in violation of 15 USC 28 §1681e(b) (“Class 1”); and 1 All natural persons within the United States with respect to whom, during the years February 5, 2014 – August 25, 2015, Kentech furnished a consumer 2 report to a third party, and whose report contained two or more criminal 3 records related to the same criminal offense in violation of 15 USC §1681e(b) (“Class 3”). 4 5 II. 6 DISCUSSION 7 Plaintiff asserts the three proposed classes meet the requirements of Federal Rules 8 of Civil Procedure 23(a) and (b)(3). Defendant argues Plaintiff has failed to show Article 9 III standing, and disputes that the requirements for class certification are met. 10 A. Standing 11 Before turning to the issue of class certification, the Court must first address 12 Defendant’s standing argument, which is that Plaintiff has failed to show any class member 13 suffered the requisite harm for Article III standing. 14 Defendant’s argument conflicts with the Supreme Court’s recent decision in 15 TransUnion LLC v. Ramirez, ___ U.S. ___, 141 S.Ct. 2190 (2021), and thus the Court 16 rejects it. In that case, in which the plaintiffs also alleged claims under the FCRA, the 17 Court found that the class members whose allegedly defective consumer reports were 18 disseminated to third-party businesses “suffered a concrete harm that qualifies as an injury 19 in fact.” Id. at 2208-09. Here, Kentech’s report on Plaintiff was disseminated to both Suna 20 and Alere. Therefore, Plaintiff has suffered the requisite harm for Article III standing. All 21 putative class members also will have suffered that same harm by virtue of the class 22 definitions, which require the dissemination of a consumer report to a third party. 23 Therefore, Plaintiff has satisfied the standing requirement. 24 B. Class Certification 25 “The class action is ‘an exception to the usual rule that litigation is conducted by and 26 on behalf of the individual named parties only.’” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 27 338, 348 (2011) (quoting Califano v. Yamasaki, 442 U.S. 682, 700-01 (1979)). To qualify 28 for the exception to individual litigation, the plaintiff must satisfy the requirements of 1 Federal Rule of Civil Procedure 23. This Rule “‘does not set forth a mere pleading 2 standard.’” Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013) (quoting Dukes, 564 U.S. 3 at 350). Rather, the plaintiff “must prove the facts necessary to carry the burden of 4 establishing that the prerequisites of Rule 23 are satisfied by a preponderance of the 5 evidence.” Olean Wholesale Grocery Cooperative, Inc. v. Bumble Bee Foods LLC, 31 6 F.4th 651, 665 (9th Cir.), cert denied, ___ U.S. ___, 143 S.Ct. 424 (2022). 7 To satisfy those prerequisites, the plaintiff “must make two showings. First, the 8 plaintiff[ ] must establish ‘there are questions of law or fact common to the class,’ as well 9 as demonstrate numerosity, typicality and adequacy of representation.” Id. at 663 (quoting 10 Fed. R. Civ. P. 23(a)). Second, the plaintiff must meet one of the requirements of Rule 11 23(b). In this case, Plaintiff asserts she meets the requirements of Rule 23(b)(3). To qualify 12 for class certification under this Rule, the plaintiff must show that “’the questions of law 13 or fact common to class members predominate over any questions affecting only individual 14 members, and that a class action is superior to other available methods for fairly and 15 efficiently adjudicating the controversy.’” Id. at 663-64 (quoting Fed. R. Civ. P. 23(b)(3)). 16 “The requirements of Rule 23(b)(3) overlap with the requirements of Rule 23(a): the 17 plaintiff[ ] must provide that there are ‘questions of law or fact common to class members’ 18 that can be determined in one stroke, in order to prove that such common questions 19 predominate over individualized ones.” Id. at 664 (citations omitted). 20 It is a well-recognized precept that “the class determination generally involves 21 considerations that are ‘enmeshed in the factual and legal issues comprising the plaintiff’s 22 cause of action.”’ Coopers & Lybrand v. Livesay, 437 U.S. 463, 469 (1978) (quoting 23 Mercantile Nat’l Bank v. Langdeau, 371 U.S. 555, 558 (1963)). However, “[a]lthough 24 some inquiry into the substance of a case may be necessary to ascertain satisfaction of the 25 commonality and typicality requirements of Rule 23(a), it is improper to advance a decision 26 on the merits to the class certification stage.” Moore v. Hughes Helicopters, Inc., 708 F.2d 27 475, 480 (9th Cir. 1983) (citation omitted); see also Nelson v. United States Steel Corp., 28 709 F.2d 675, 680 (11th Cir. 1983) (plaintiff’s burden “entails more than the simple 1 assertion of [commonality and typicality] but less than a prima facie showing of liability”) 2 (citation omitted). Rather, the court’s review of the merits should be limited to those 3 aspects relevant to making the certification decision on an informed basis. See Fed. R. Civ. 4 P. 23 advisory committee notes. If a court is not fully satisfied that the requirements of 5 Rule 23(a) and (b) have been met, certification should be refused. Gen. Tel. Co. v. Falcon, 6 457 U.S. 147, 161 (1982). 7 1. Rule 23(a) 8 Rule 23(a) and its prerequisites for class certification—numerosity, commonality, 9 typicality, and adequacy of representation—are addressed in turn. 10 a. Numerosity 11 Rule 23(a)(1) requires the class to be “so numerous that joinder of all members is 12 impracticable.” Fed. R. Civ. P. 23(a)(1); Staton v. Boeing Co., 327 F.3d 938, 953 (9th Cir. 13 2003). The plaintiff need not state the exact number of potential class members; nor is a 14 specific minimum number required. Arnold v. United Artists Theatre Circuit, Inc., 158 15 F.R.D. 439, 448 (N.D. Cal. 1994). Rather, whether joinder is impracticable depends on 16 the facts and circumstances of each case. Id. 17 Here, Plaintiff argues the numerosity requirement is met for each proposed class. 18 Specifically, she argues Kentech produced 523 reports that contain “incomplete” criminal 19 record information, i.e., they omit the “case number,” “arrest/file/offense date,” “offense,” 20 “severity,” “final disposition,” or “disposition date,” and 353 reports that contain the same 21 criminal case more than once. (Mem. of P. & A. in Supp. of Mot. at 18.) Defendant 22 responds that Plaintiff has not shown numerosity because she failed to submit any evidence 23 to support her proposed numbers, and specifically failed to present the reports underlying 24 her argument. 25 After Defendant filed its reply brief, Plaintiff’s counsel filed a supplemental 26 declaration in support of the motion and attached a spreadsheet of the reports underlying 27 his numerosity argument. (See Supp. Decl. of Devin Fok in Supp. of Mot. (“Supp Fok 28 / / / 1 Decl.”)) In that declaration, Counsel states his office reviewed the background screening 2 reports produced by Defendant during discovery, and discovered that 523 reports contain 3 “incomplete” information and 353 reports contain repetitive information. (Supp. Fok Decl. 4 ¶¶2-6.)5 5 Although this evidence speaks to the completeness and accuracy aspects of the first 6 and second proposed classes, it does not address the other elements of those class 7 definitions, namely, (1) the date the report was furnished, (2) the nature of the receiving 8 entity, i.e., police, government, or private, or (3) whether the report was prepared for 9 employment purposes, which is a requirement of the second proposed class. Absent 10 evidence addressing all the elements of the first and second proposed classes, Plaintiff has 11 not shown the numerosity requirement is met for those classes. 12 For the third proposed class, Plaintiff has shown the numerosity requirement is met 13 for the accuracy aspect of that class by virtue of the repetitive criminal information in the 14 353 reports, but again, she fails to address whether those reports were furnished during the 15
16 17 4 Defendant objects to this evidence on the ground it is untimely, and also objects to Counsel’s Declaration on the following grounds: (1) lack of foundation, (2) lack of 18 personal knowledge, (3) hearsay, (4) speculation, and (5) lack of authentication. (Def.’s 19 Objection to Late Filed Documents in Supp. of Mot. for Class Cert.) Having filed its opposition brief five days late, Defendant can hardly be heard to complain about the 20 timeliness of Plaintiff’s supplemental filing. Defendant’s foundation and authentication 21 objections are also overruled, see U.S. Wholesale Outlet & Distrib., Inc. v. Innovation Ventures, LLC, No. 18-cv-1077-CBM-Ex, 2019 WL 8504725, at *2 (C.D. Cal. Aug. 7, 22 2019) (overruling similar objections to documents that were produced during fact 23 discovery), as are its objections based on lack of personal knowledge, hearsay, and speculation. Counsel’s statements in his Declaration are based on percipient information, 24 (Supp. Fok Decl. ¶1), and Defendant has not shown the source of Counsel’s Declaration, 25 which are Defendant’s own documents, “indicate a lack of trustworthiness.” Fed. R. Evid. 803(6)(E). 26 5 In addition to the supplemental declaration and spreadsheet from Plaintiff’s counsel, 27 Plaintiff also filed a motion to file all 588 reports with the Court. Simply filing the reports with the Court, however, does not satisfy Plaintiff’s burden to show the numerosity 28 1 relevant time period. Accordingly, the numerosity requirement is not met for the third 2 proposed class either.6 3 b. Commonality 4 The second element of Rule 23(a) requires the existence of “questions of law or fact 5 common to the class[.]” Fed. R. Civ. P. 23(a)(2). This element has “‘been construed 6 permissively,’ and ‘[a]ll questions of fact and law need not be common to satisfy the rule.’” 7 Ellis v. Costco Wholesale Corp., 657 F.3d 970, 981 (9th Cir. 2011) (quoting Hanlon v. 8 Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998)). “However, it is insufficient to 9 merely allege any common question[.]” Id. Instead, the plaintiff must allege the existence 10 of a “common contention” that is of “such a nature that it is capable of classwide 11 resolution[.]” Dukes, 564 U.S. at 350. As summarized by the Supreme Court: 12 What matters to class certification ... is not the raising of common ‘questions’—even in droves—but, rather the capacity of a classwide 13 proceeding to generate common answers apt to drive the resolution of the 14 litigation. Dissimilarities within the proposed class are what have the potential to impede the generation of common answers. 15
16 Id. (quoting Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 17 N.Y.U. L. Rev. 97, 132 (2009)). 18 Here, Plaintiff contends the commonality requirement is met for both of her FCRA 19 claims. On her first claim under 15 U.S.C. § 1681k(a)(2), Plaintiff argues the commonality 20 requirement is met because the claim presents a common question, namely, “whether 21 disclosing patently incomplete information violated 15 USC § 1681k(a)(2) requiring strict 22 procedures to ensure that the reported information is complete and up to date[.]” (Mem. 23 of P. & A. in Supp. of Mot. at 20.) On her second claim under § 1681e(b), Plaintiff asserts 24 the commonality requirement is met because it raises the common questions of whether 25
26 27 6 Although the Court finds the numerosity requirement is not met for any of the proposed classes, the Court will proceed to address the remaining requirements of Rule 23(a) and 28 1 Defendant had procedures to ensure the accuracy of its consumer reports, and if so, whether 2 those procedures were reasonable to ensure the reports were accurate. 3 Whether Defendant had any procedures to ensure the completeness and accuracy of 4 its consumer reports is a question common to Plaintiff’s claims. Whether those procedures 5 met the strictness requirement of § 1681k(a)(2) to ensure the reports were complete, and 6 whether the procedures met the reasonableness requirement of § 1681e(b) to ensure the 7 reports were accurate, are also questions common to Plaintiff’s claims.7 8 Defendant does not dispute these factual and legal questions “can be determined in 9 one stroke[.]” Olean, 31 F.4th at 664. Instead, it argues Plaintiff’s claims will require 10 individualized review of each credit report to determine whether it is incomplete or 11 inaccurate. This argument, however, goes to the predominance requirement. It does not 12 rebut Plaintiff’s showing that her claims raise common questions that are “capable of 13 classwide resolution[.]” Dukes, 564 U.S. at 350. 14 c. Typicality 15 The next requirement of Rule 23(a) is typicality, which focuses on the relationship 16 of facts and issues between the class and its representatives. “[R]epresentative claims are 17 ‘typical’ if they are reasonably co-extensive with those of absent class members; they need 18 19 20 7 The third proposed class also raises the common question of whether the inclusion of 21 repetitive or duplicative criminal record information in a consumer report renders that report inaccurate. Several courts have held that “it is reasonable—and plausible—to infer 22 that duplicative reporting of criminal cases on a single report creates an adverse 23 presentation of Plaintiff to a prospective employer.” Smith v. HireRight Solutions, Inc., 711 F.Supp.2d 426, 436 (E.D. Penn. 2010). See also Dougherty v. Quicksius, LLC, No. 24 15-6432, 2016 WL 3757056, at *4-5 (E.D. Penn. July 14, 2016) (finding allegation of 25 duplicative reporting of criminal record information gives rise to an inference of inaccurate reporting); Haley v. TalentWise, Inc., 9 F.Supp.3d 1188, 1193 (W.D. Wash. 2014) (denying 26 motion to dismiss claim under § 1681e(b) where plaintiff alleged defendant included 27 duplicative and inconsistent criminal records in her report). Although these cases do not find the inclusion of repetitive or duplicative criminal record information renders a report 28 1 not be substantially identical.” Hanlon, 150 F.3d at 1020. “The test of typicality is whether 2 other members have the same or similar injury, whether the action is based on conduct 3 which is not unique to the named plaintiffs, and whether other class members have been 4 injured by the same course of conduct.” Hanon v. Dataproducts Corp., 976 F.2d 497, 508 5 (9th Cir. 1992) (citation and internal quotation marks omitted). The typicality requirement 6 will occasionally merge with the commonality requirement, Parsons v. Ryan, 754 F.3d 7 657, 687 (9th Cir. 2014), because “[b]oth serve as guideposts for determining whether under 8 the particular circumstances maintenance of a class action is economical and whether the 9 named plaintiff’s claim and the class claims are so interrelated that the interests of the class 10 members will be fairly and adequately protected in their absence.” Dukes, 564 U.S. at 349 11 n.5. 12 Here, Plaintiff contends the typicality requirement is met because Defendant 13 prepared a consumer report on her that “contained both incomplete and duplicate criminal 14 history information.” (Mem. of P. & A. in Supp. of Mot. at 21.) Defendant disputes this 15 assertion, and argues Plaintiff’s claims are not typical of any of the proposed classes.8 16 For the first and second classes, Defendant’s argument centers on the requirement 17 that the class member’s report “omits one or more of the following information: ‘case 18 number’, ‘arrest/file/offense date’, ‘offense’, ‘severity’, ‘final disposition’, ‘disposition 19 date’[.]” (Mem. of P. & A. in Supp. of Mot. at 3.) Defendant argues Plaintiff’s report 20 contains all of this information, therefore her claim is not typical of the claims of other 21 class members. Plaintiff does not dispute that all of this information is included in the 22 “Cops 360 Nationwide” section of her report, but argues the information is not also 23 included in the “County Validation” section of her report. The problem with Plaintiff’s 24 argument, however, is her proposed class definition does not require that the information 25
26 27 8 Defendant raises these arguments in the context of the adequacy requirement, (see Opp’n to Mot. at 18-21), but the arguments are more properly addressed to the typicality 28 1 be included in both sections of the report. It simply requires that the information not be 2 omitted, and in Plaintiff’s case, that requirement is not met. Her claim is therefore not 3 typical of the first and second proposed classes. 4 On the third proposed class, Defendant argues Plaintiff’s claim is not typical because 5 there is no repeat of Plaintiff’s criminal conviction on her report. The Court disagrees. 6 Clearly, Plaintiff’s criminal conviction is listed in both the “Cops 360 Nationwide” section 7 as well as the “County Validation” section of her report. (See Fok Decl., Ex. 6.) Thus, 8 Plaintiff has satisfied the typicality requirement for the third proposed class. 9 d. Adequacy of Representation 10 The final requirement of Rule 23(a) is adequacy. Rule 23(a)(4) requires a showing 11 that “the representative parties will fairly and adequately protect the interests of the class.” 12 Fed. R. Civ. P. 23(a)(4). This requirement is grounded in constitutional due process 13 concerns; “absent class members must be afforded adequate representation before entry of 14 a judgment which binds them.” Hanlon, 150 F.3d at 1020 (citing Hansberry v. Lee, 311 15 U.S. 32, 42-43 (1940)). In reviewing this issue, courts must resolve two questions: “(1) do 16 the named plaintiffs and their counsel have any conflicts of interest with other class 17 members and (2) will the named plaintiffs and their counsel prosecute the action vigorously 18 on behalf of the class?” Id. (citing Lerwill v. Inflight Motion Pictures, Inc., 582 F.2d 507, 19 512 (9th Cir. 1978)). The named plaintiffs and their counsel must have sufficient “zeal and 20 competence” to protect the interests of the rest of the class. Fendler v. Westgate-California 21 Corp., 527 F.2d 1168, 1170 (9th Cir. 1975). 22 Here, Plaintiff asserts there are no conflicts between herself and absent class 23 members, and she and her counsel will zealously prosecute this case. However, the Court 24 finds Plaintiff’s failure to meet the typicality requirement for the first two proposed classes 25 renders her an inadequate representative of those classes. See In re American Medical 26 Systems, Inc., 75 F.3d 1069, 1083 (6th Cir. 1996) (“The adequate representation 27 requirement overlaps with the typicality requirement because in the absence of typical 28 claims, the class representative has no incentives to pursue the claims of the other class 1 members.”) On the third proposed class, however, Plaintiff is an adequate representative, 2 as is her counsel. 3 2. Rule 23(b)(3) 4 The Court now turns to consider whether Plaintiff has satisfied the requirements of 5 Rule 23(b)(3). Class certification under Rule 23(b)(3) is proper “whenever the actual 6 interests of the parties can be served best by settling their differences in a single action.” 7 Hanlon, 150 F.3d at 1022 (internal quotations omitted). Rule 23(b)(3) calls for two 8 separate inquiries: (1) do issues of fact or law common to the class “predominate” over 9 issues unique to individual class members, and (2) is the proposed class action “superior” 10 to other methods available for adjudicating the controversy. Fed. R. Civ. P. 23(b)(3). In 11 adding the requirements of predominance and superiority to the qualifications for class 12 certification, “the Advisory Committee sought to cover cases ‘in which a class action 13 would achieve economies of time, effort, and expense, and promote … uniformity of 14 decisions as to persons similarly situated, without sacrificing procedural fairness or 15 bringing about other undesirable results.’’’ Amchem Prods. v. Windsor, 521 U.S. 591, 615 16 (1997) (quoting Fed. R. Civ. P. 23(b)(3) advisory committee notes). 17 A “central concern of the Rule 23(b)(3) predominance test is whether ‘adjudication 18 of common issues will help achieve judicial economy.’’’ Vinole v. Countrywide Home 19 Loans, Inc., 571 F.3d 935, 944 (9th Cir. 2009) (quoting Zinzer v. Accufix Research Inst., 20 Inc., 253 F.3d 1180, 1189 (9th Cir. 2001)). Thus, courts must determine whether common 21 issues constitute such a significant aspect of the action that “there is a clear justification for 22 handling the dispute on a representative rather than on an individual basis.” 7A Charles 23 Alan Wright, et al., Federal Practice and Procedure § 1778 (3d ed. 2005). The 24 predominance inquiry under Rule 23(b)(3) is rigorous, Amchem, 521 U.S. at 624, as it “tests 25 whether proposed classes are sufficiently cohesive to warrant adjudication by 26 representation.” Id. at 623. 27 In this case, Plaintiff argues the predominance requirement is satisfied because the 28 “common and predominating legal issues here are whether Defendant violated the FCRA 1 with respect to class members and whether those violations were willful.” (Mem. of P. & 2 A. in Supp. of Mot. at 22.) Defendant responds that determining whether the reports were 3 incomplete or inaccurate will require an individualized review of each report, and that 4 individualized review process will predominate over all other issues. 5 Plaintiff does not dispute that an individualized review of the consumer reports is 6 necessary. In fact, Plaintiff’s counsel states he has already conducted that review and 7 determined which reports fall into which proposed class. Specifically, he has found which 8 reports are either “inaccurate” or “incomplete” as a result of the omission of Plaintiff’s self- 9 selected criteria (proposed classes 1 and 2), and which reports are presumably “inaccurate” 10 because they contain repeat or duplicate entries for a single criminal offense (proposed 11 class 3). 12 Aside from this information, it is unclear why further individualized review of the 13 reports would be necessary.9 Defendant cites the need to determine each report’s 14 “propriety or impropriety,” (Opp’n at 24), but the issue of propriety is irrelevant to the 15 claims at issue, which turn on accuracy and completeness. Given the objective criteria 16 Plaintiff has selected for determining those issues (omission of case number, 17 arrest/file/offense date, offense, severity, final disposition, and disposition date, and 18 repeated or duplicate listings of a single criminal offense), and Defendant’s failure to 19 identify any other issues that would necessitate individualized review, the Court finds the 20 predominance requirement is met for each of the proposed classes. 21 22
23 9 As mentioned above, further review of the reports may be necessary to determine whether 24 the numerosity requirement is met, i.e., whether the reports were prepared during the class 25 period, the nature of the entity receiving the reports, and whether the reports were prepared for employment purposes, but those are not the sort of qualitative, individualized inquiries 26 that would preclude a finding of predominance. See Soutter v. Equifax Info. Services, LLC, 27 307 F.R.D. 183, 214 (E.D. Va. 2015) (quoting Stillmock v. Weis Markets, Inc., 385 Fed. Appx. 267, 272 (4th Cir. 2010) (“Rule 23(b)(3)’s commonality-predominance test is 28 1 Finding the predominance requirement is met, the only remaining issue is whether 2 superiority requirement is also met. 3 Generally the factors relevant to assessing superiority include “(A) the class A members’ interests in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the 5 controversy already begun by or against class members; (C) the desirability 6 or undesirability of concentrating the litigation of the claims in the particular forum; and (D) the likely difficulties in managing a class action.” 7 8 || Wolin v. Jaguar Land Rover North Am., LLC, 617 F.3d 1168, 1175 (9® Cir. 2010) (quoting 9 || Fed. R. Civ. P. 23(b)(3)(A-D)). 10 Plaintiff does not address these factors, but the Court finds they weigh in favor of a 11 || finding of superiority. First, there is no evidence that any members of the proposed classes 12 filed similar actions against Defendant. Second, Plaintiff is a resident of this District, 13 |} and thus it would be desirable to litigate this case here. Third, and assuming Plaintiff can 14 || show the numerosity requirement is satisfied, the proposed classes do not appear to present 15 ||any management difficulties. Thus, the superiority requirement is also satisfied. 16 I. 17 CONCLUSION 18 For the reasons set out above, the Court denies Plaintiff's motion for class 19 || certification and approval of class counsel. Specifically, the motion is denied as to the first 20 second proposed classes for failure to meet the numerosity, typicality, and adequacy 21 ||requirements, and denied as to the third proposed class for failure to satisfy the numerosity 22 requirement. 23 IT IS SO ORDERED. 24 || Dated: May 8, 2023 » J 25 a Yn: Hon. Dana M. Sabraw, Chief Judge 26 United States District Court 27 28