Hawkins v. S2verify

          ORDER CERTIFYING CLASS

          WILLIAM ALSUP UNITED STATES DISTRICT JUDGE.

         INTRODUCTION

         This order certifies a statutory damages class for FCRA claims, appoints the named plaintiff as class representative, and appoints class counsel.

         STATEMENT

         Defendant S2Verify, LLC is a consumer reporting agency that provides consumer reports to employers, landlords, and creditors. One of S2Verify’s specialities is providing consumer reports for employment purposes.

         On June 6, 2013, plaintiff Regmon Hawkins applied to work as a security guard for IPC Corporation, a firm specializing in providing security services to various businesses (Hawkins Decl. ¶ 3; Amd. Compl. ¶ 23). IPC then requested and obtained a consumer report regarding plaintiff from S2Verify. The report listed plaintiff’s prior convictions (he has a criminal history) as well as three charges that did not result in criminal convictions and were older than seven years. Specifically, the report listed three criminal charges that listed a disposition of “No Bill by Grand Jury” with a disposition date of more than seven years before the date of the report (Hawkins Decl., Exh. A). IPC allegedly denied plaintiff’s employment application on the basis of that report.

         Plaintiff is a former drug addict who committed various petty theft crimes in the 1990s in order to sustain his drug habit. He was convicted multiple times for theft and once for criminal trespass (id., Exh. A). Additionally, in January 2006, Hawkins pled guilty to child abduction related to a domestic dispute. In 2009, however, this conviction was dismissed pursuant to California Penal Code Section 1203.4 (id. at ¶ 6).

         Plaintiff asserts that he has completely transformed himself and that he has been clean and sober for more than fifteen years. He is currently employed as a supervisor at Security Code 3, a security guard company where he has worked since July 2012 (id. at ¶¶ 6-7).

         1. The Fair Credit Reporting Act.

         Under the FCRA, consumer reports may not contain information regarding “[c]ivil suits, civil judgments, and records of arrest that, from date of entry, antedate the report by more than seven years or until the governing statute of limitations has expired, whichever is the longer period.” 15 U.S.C. 1681c(a)(2). The FCRA provides certain exceptions to this prohibition, however, including where a consumer report is prepared in connection with “the employment of any individual at an annual salary which equals, or which may reasonably be expected to equal $75, 000, or more.” One might have expected Congress to have included a further exception for school teachers, security guards, and health-care workers, among others in sensitive positions, but no such exception was included.

         2. S2Verify’s Practices.

         Plaintiff submits deposition testimony by S2Verify’s President James Zimbardi that S2Verify made exceptions to the “FCRA standards” for certain clients (Zimbardi Dep. at 254-55 (errors in original)):

[W]e made exceptions, if you will, for approximately 16 or 17 clients who demonstrated either statutory, legal licensing requirements to be able to have or use that data. And so we processed them as exceptions under FCRA based on our belief at that time that their requirements, and based on what they were trying to accomplish on behalf of the consumer, licensed them, put the health home care worker into someone’s home, give them a right to that data.

         In particular, S2Verify made exceptions for IPC and the other companies identified in the class definition proposed by plaintiff (id. at 171). In March 2014, S2Verify changed its practices with respect to these identified clients and, after that point, no longer provided stale, non-conviction history in the reports (id. at 125, 170, 193).

         3. Claims for Relief and Proposed Class.

         Plaintiff’s complaint asserts three claims against S2Verify: (1) violation of 15 U.S.C. 1681e(b) and 1681k(a) for failing to “use reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates” and failing to use “strict procedures” to ensure that the public-record information reported is complete and up to date; (2) violation of 15 U.S.C. 1681c(a)(2) and (5) for reporting old charges that were dismissed and older than seven years; and (3) violation of 15 U.S.C. 1681n for acting willfully. S2Verify previously moved to strike the complaint’s class allegations. An order denied the motion (Dkt. No. 22). S2Verify then moved to dismiss the claims. A subsequent order denied that motion, too (Dkt. No. 60).

         Plaintiff now seeks certification of the following class:

(1) Regmon L. Hawkins and (2) all other natural persons within the United States (including all territories and other political subdivisions of the United States) (a) who were the subject of a consumer report S2VERIFY furnished to Chase Professionals, IPC International, Inc., Foodtemps, Inc. d/b/a Foodstaff, Mississippi Gaming Commission, StaffMasters, Inc., T&T Staff Management, Inc., Tarrant Regional Water District, TRC Staffing Services, or United Refining Company, (b) from June 16, 2013 through February 28, 2014, and (c) whose report contained any public record of criminal arrest, charge, information, indictment, or other adverse item of information other than records of an actual conviction of a crime, which antedated the report by more than 7 years.

Excluded from the class definition are any employees, officers, or directors of S2VERIFY, any attorneys appearing in this case, and any judges assigned to hear this case as well as their immediate family and staff.

         Plaintiff further seeks appointment of Regmon L. Hawkins as class representative, and appointment of the law firms of Caddell & Chapman and DHF Law, P.C. as class counsel, with ...