Witt et al v. CoreLogic SafeRent, LLC, No. 3:2015cv00386 - Document 89 (E.D. Va. 2016)
Court Description: MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 8/18/2016. (jsmi, )
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Witt et al v. CoreLogic SafeRent, LLC Doc. 89 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division CAROLYN WITT, et al., Plaintiffs, V. Civil Case No. CORELOGIC SAFERENT, LLC, 3:15-cv-386 et al. , Defendants. MEMORANDUM OPINION This matter RECONSIDERATION is before (ECF No. the 60). Court on DEFENDANTS' MOTION FOR For the reasons set forth herein, the motion will be granted in part and denied in part. BACKGROUND On February Alphonso Eric Robertson Gonzalez Hackett 2, II ('"Gonzalez"), Willie Stanley, ("SAC," ECF No. company 50) (collectively, National Witt Allen ("Stanley"), filed ("Witt"), ('"Allen"), ("Edwards"), ("White"), Shondel and a LLC Roberts Second Amended and all Plaintiffs allege that ("SafeRent") Background Lewis David Holmes on behalf of themselves In the SAC, CoreLogic SafeRent, CoreLogic Edwards "Plaintiffs") others similarly situated. defendants, White Jr. Carolyn Christopher Jourdin Tony (collectively, Complaint Plaintiffs {''Robertson"), ("Hackett"), ("Roberts"), ("Holmes") 2016, Data, and its sister LLC ("NBD") "Defendants") , violated the Fair Credit Reporting Dockets.Justia.com Act (''FCRA") . Count I, brought nationwide 1681k(a), certain either The SAC alleges three Counts^ under the FCRA. against class, alleges SafeRent that on behalf SafeRent of violated a 15 putative U.S.C. which requires consumer reporting agencies that sell types (1) furnished; of public notify the or (2) records consumer "maintain for ''at strict employment the time" purposes the procedures" to to records are ensure the public record information is ''complete and up-to-date." U.S.C. § that 15 § 1681k{a). The class alleged in Count I is: All natural States sold (a) persons who were by SafeRent's the Defendant Defendant residing in the United subject of a report SafeRent; database (b) where indicates that the report was furnished for an employment purpose; (c) Defendant SafeRent's database showed that the report contained at least one adverse within the criminal record "hit;" five period preceding the (d) filing of this action and during pendency. Excluded from the class definition are any employees, officers, directors of Defendant SafeRent, any attorney appearing in this case, and any judge assigned to hear this action. SAC ^ 58. ^ Although the SAC originally pled four claims under the FCRA, only three remain pending. Count III of the SAC alleged that NBD violated 15 U.S.C. § end-users of its reports. 1681e(e) by failing to identify the However, at oral argument, the Court granted Plaintiffs' motion to voluntarily dismiss Count III with prejudice. Therefore, Count III is not addressed further herein. There is also an alternate sub-class alleged in Count I: All natural persons States sold (a) residing in the United who were the subject of a by Defendant SafeRent; report (b) where Defendant SafeRent's database indicates that i t was furnished for an employment purpose; (c) where showed that one Defendant SafeRent's the report contained adverse jurisdiction criminal form which ''hit" Defendant database at least from a SafeRent does not obtain at least four digits of an associated social security number; (d) within the five year period preceding the filing date of this Complaint and during its pendency. Excluded from the class definition are any employees, officers, directors of Defendant SafeRent, any attorney appearing in this case, and any judge assigned to hear this Action. Id. SI 59. Count II, pled should the Court find Defendants were not furnished against consumer Defendants, alleges that the background reports for ''employment purposes," reports without violation of 15 U.S.C. § 1681b. All both natural persons a provided by then permissible Defendants purpose residing in the United States who were the subject of a report sold pendency. from the class definition are employees, officers, directors Defendants, any attorney appearing in case, and any judge assigned to hear action. in The asserted class consists of: by SafeRent to NBD and/or NBD to any third party within the five year period preceding the filing of this action and during its Excluded that, any of this this SAC 1 73. Count SafeRent IV is an pursuant individual to 15 claim, U.S.C. § brought by Witt 1681e{b). against That section requires that: Whenever a consumer reporting agency- prepares a consumer report it shall follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates. 15 U.S.C. § 1681e(b). establish or to Witt alleges that SafeRent ''failed to follow reasonable procedures to assure maximum possible accuracy in the preparation of the consumer report it furnished regarding Plaintiff Witt." SAC % 102. Count IV is not implicated by Defendants' motion. The SAC alleges that both Defendants committed all of the above violations willfully, and therefore statutory and punitive damages on all counts. the SAC seeks Witt also seeks actual damages on Count IV. PROCEDURAL HISTORY The original Complaint in this action was filed on June 26, 2015. (ECF No. (ECF No. claims were of 9) 1). SafeRent filed its first motion to dismiss on August 31, 2015, Plaintiffs Tyrone time-barred; (2) on the grounds that: Henderson SafeRent was and James not 0. subject (1) the Hines, Jr. to personal jurisdiction in Virginia with respect to the claims of Plaintiff John Moore; Hines, and and (3) Moore, upon dismissal of the claims of Henderson, Plaintiff dismissed for improper venue. Witt's claims (ECF No. 10). should also be Less than 24 hours later, in an apparent attempt to circumvent the issues raised in SafeRent's motion to dismiss, Plaintiffs filed an Amended Complaint, which was largely identical to the original Complaint except for the addition of brief and vague allegations pertaining to fourteen newly proposed Named Plaintiffs. No. (ECF 12). Both SafeRent and NBD again moved to dismiss pursuant to Fed. 2016, R. Civ. the P. 12(b)(6). Court dismissed the (ECF Nos. granted 26, Defendants' 37). motions claims of Plaintiffs Henderson, with prejudice. (ECF No. 49) . On January 12, in part Hines, and and Moore The Court also found that the claims of the fourteen so-called ^^Newly Named Plaintiffs" lacked any factual support, and therefore those plaintiffs had failed to plausibly allege any FCRA violations. Accordingly, the Court dismissed the Newly Named Plaintiffs' claims without prejudice, but with leave to amend. Id. Defendants' motion to dismiss the Amended Complaint was therefore denied as moot as to Witt. The SAC attempted to cure the defects of the Id. Amended Complaint by adding additional details concerning nine of the fourteen Newly Named Plaintiffs (the Plaintiffs do not appear in the SAC). other five Newly Named Defendants again moved to dismiss on the ground that requirements of Fed. R. Civ. granted as to the the Gonzalez, (ECF No. motion P. SAC 8 (a) failed to satisfy and 12(b)(6). Plaintiffs Robertson, the The Court Holmes, and and denied the motion as to the remaining plaintiffs. 56). On May 17, 2016, the day after the Supreme Court issued its opinion in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), Defendants moved the Court to reconsider its Memorandum Opinion ("Mem. Op.") granting in part and denying in part second motion to dismiss. part on the Spokeo limited topic. (ECF No. decision, 60). but Defendants' The motion is based in also goes well beyond that That motion is now ripe for review. DISCUSSION A. Legal Standard It is within the discretion of the Court to grant a motion for reconsideration of an interlocutory order. Hosp. v. Annes Dev. 2011). Mercury Constr. Co. The v. Corp., Trabich, "heightened 443 460 U.S. Fed. standards" Moses H. Cone Mem'1 1, Appx. 12 (1983); 829, applicable 832 to Saint (4th motions Cir. for reconsideration of final orders do not apply to reconsideration of interlocutory Murphy Farms, Court has requires." orders. Inc., "plenary Id. (quoting 326 F.3d 505, power" to Fayetteville Inv. 514-15 afford v. Am. Canoe (4th Cir. such relief Assoc. 2003)). "as Commercial Builders, v. The justice 936 F.2d 1462, 1473 {4th Cir. However, '"•^reargue motion to reconsider may not be used to the facts and law originally argued in the parties' briefs.'" Supp. a 1991). Projects 3d 539 Mgmt. (E.D. Co. Va. Smithfield Foods, Inc., v. DynCorp 2014) Intern., (quoting 969 F. Supp. 975, LLC, United 977 17 F. States v. (E.D. Va. 1997)). It is only appropriate for the court to review a previous decision where, for example, it ''has patently misunderstood a party, or has made a decision outside the adversarial issues presented to the Court by the parties, or has made an error not of reasoning but of apprehension. A further basis for a motion to reconsider would be a controlling or significant change in the law or facts to the and since the Court. the submission Such motion to of the issue rarely problems arise reconsider should be equally rare." Smithfield Foods, 969 F. Supp. at 977 (internal quotations and citations omitted). B. Analysis Defendants offer two grounds that, necessitate reconsideration. First, Court decision must reconsider Opinion '^reli [ed] its on alleged facts according because that do not (''Def. 61) that Second, Defendants contend the Memorandum appear in the (Defendants' Memorandum in Support of Motion for Reconsideration 3) . them, Defendants assert that the Complaint" in reaching its conclusions. at to Mem.," ECF No. Plaintiffs have failed to adequately allege that they have suffered any concrete and particularized injury-in-fact and based on the Supreme Court's May 16, therefore lack standing 2016 decision in Spokeo, Inc. V. Robins, 136 S. Ct. 1540 (2016).^ Id. at 5-14. Although typically standing must be addressed before other issues because it implicates the Court's subject matter jurisdiction, here, the resolution resolution of of Defendants' the second; first contention the Defendants' therefore. informs arguments are addressed in order. 1. The Memorandum Opinion did not Rely on Facts Outside the Record. Defendants Opinion that take public issue with records the statement in the sold by SafeRent Memorandum and NBD contain only limited identifying information'" and do not contain addresses[.]'" identifying (Def. Mem. data at such 3) as {citing ^sometimes middle Mem. often names Op. at or 7). Defendants argue that those facts were not in the SAC and that they improperly ^'guided the Court's analysis of whether Plaintiffs pleaded that the records returned by Defendants were ^ Defendants also argue, albeit implicitly, that the Court was simply incorrect in holding that the claims of some of the Newly Named Plaintiffs The Court argument; satisfied has already therefore, reconsideration. Fed. R. Civ. explicitly and it is not Smithfield Foods, P. 12(b) (6) and 8(a). thoroughly rejected that a proper ground for 969 F. Supp. at 977. However, to the extent that the standing inquiry necessarily turns on the sufficiency of Plaintiffs' factual allegations, that argument is addressed in more detail below. 8 incomplete[.]" Id. That argument mischaracterizes both the SAC and the Memorandum Opinion. Plaintiffs alleged that SafeRent's data is incomplete because SafeRent '^^purchased or obtained criminal records in bulk and thus without the security numbers." identifying SAC SI 44 information, (emphasis added). such as social The use of the phrase ^'such as" demonstrates that social security numbers are merely one example of the sort of identifying information that is alleged to be missing from SafeRent's records. not specify what other identifying Plaintiffs do information SafeRent's records lack, but the allegation that SafeRent's records did not contain ^^identifying information" is clearly present in the SAC. The paraphrasing of those allegations in the Memorandum Opinion merely recognizes this reality. Moreover, to the extent that Defendants take issue with the characterization Memorandum of Opinion ^^middle as names examples of and addresses" "identifying in the information" (which Plaintiffs have broadly and plainly alleged is absent in all of SafeRent's records), that detail did not "'guide the Court's analysis of whether Plaintiffs pleaded that the records returned by Defendants were incomplete[.]" The offending sentence was located in (Def. the Mem. section at 3). of Memorandum Opinion entitled "'Factual Background," and was that--background. the just In analyzing whether Plaintiffs had proffered sufficient allegations of incompleteness to satisfy Fed. R. Civ. P. 12(b)(6), the Memorandum Opinion, directly quoting the SAC, held that the following allegations were adequate: Plaintiffs allege [SafeRent] summaries, furnishes to third parties are indexes, or partial records that it obtains SafeRent that from never its SafeRent's it bulk and data SI 43. allege because records thus is and incomplete without information, the as social such identifying SI 44. Op. at allegations, Id. 16).^ on which was explicitly based, SAC. sources. complete obtained criminal numbers." (Mem. the records record." Id. Named Plaintiffs "'purchased or in public courthouse furnishes up-to-date public Specifically, the that ''the Therefore, Defendants the do conclusion not security contend regarding were misquoted or not Defendants' first argument that those incompleteness contained in the in support of reconsideration fails.^ ^ Later in their brief, Defendants argue that the cited paragraph ''hinges on" the sentences to which Defendants object. Mem. at 10) . forth above, That argument is both irrelevant (Def. (because, as set the Court's inclusion of the disputed sentences was not inappropriate) and it is incorrect (because, as is clear from the plain language of the Memorandum Opinion, that paragraph is based on the allegations cited therein, which are taken verbatim from the SAC). ^ Ironically, Defendants also simultaneously criticize the Memorandum Opinion for failing to decide issues that clearly are outside the record. Those arguments are also not valid grounds for reconsideration. For example. Defendants contend that the Memorandum Opinion "misapprehended" the SAC because "it failed to address whether the SSNs with respect to any data returned by NBD were available in the public record in the first instance," because "all of the Plaintiffs allegedly reside in Virginia, 10 2. The Standing Issue Defendants' is that primary argument in support of reconsideration Plaintiffs particularized harm, have as failed required to by allege "concrete Spokeo[,]" lack standing to pursue all of their claims. and and therefore {Def. Mem. at 5) . For the following reasons. Defendants' motion will be granted as to the claims Roberts, denied as all of Plaintiffs Allen, and Stanley in Count to Witt's Plaintiffs' a. I. Hackett, Defendants' claim in Count claims in Count Edwards, I and will White, motion will be be denied as to II. Legal Framework Contrary to Defendants' position, Spokeo did not change the basic requirements of standing. Indeed, the Supreme Court reaffirmed that a plaintiff must have ""(1) suffered an injury in fact, the (2) that is fairly traceable to the challenged conduct of defendant; favorable and judicial (3) that is decision." likely Spokeo, to be 136 redressed S. Ct. which prohibits the disclosure of SSNs by statute." at 12) . As noted above, SSNs are merely one by at a 1547 (Def. Mem. example of the broader category of ^^identifying information" that Plaintiffs allege is lacking from Defendants' records. And, Plaintiffs repeatedly allege that the records maintained and sold by Defendants are ^'public records." E.g., SAC fSI 2, 10, 14, 18, 39. The nature of the specific items of information available for Defendants to purchase and the legal consequences, if any, of the interaction between Defendants' processes and statutory limitations on dissemination of ^''public records" depend on facts not currently available in the record and are therefore issues inappropriate for resolution at the pleading stage. 11 (citing Lujan v. (1992)). As Plaintiffs Lujan, Defenders of Wildlife, the bear 504 U.S. parties the burden invoking of 504 U.S. federal establishing 555, 560-61 jurisdiction, those elements. at 560. It is undisputed that the alleged statutory violations are redressable by statutory damages. Accordingly, the remainder of the discussion on the standing issue is addressed solely to the requirements of injury-in-fact and traceability. In Spokeo, the Court reiterated that to satisfy the first element of the Lujan test, a plaintiff must establish that he or she suffered ^^^an invasion of a legally protected interest' is ^concrete and particularized' conjectural U.S. 504 at 560). To ^actual or imminent, 136 or hypothetical.'" Lujan, and S. at that be Ct. 1548 ^^particularized," not (quoting an injury ^must affect the plaintiff in a personal and individual way,'" Spokeo, 136 S. Ct. at 1548 (citing Lujan, as opposed to an "undifferentiated, all citizens share. However, number "the of fact people nonjusticiable generalized grievance" that Lance v. Coffman, that does an not generalized 549 U.S. injury may be of itself grievance," individual suffers a particularized harm." at 1548 n.7. 12 504 U.S. at 560 n.l), 437, 442 suffered by make as that long Spokeo, (2007). a large injury as a "each 136 S. Ct. A ^^concrete" "^real,' and injury, not on the other hand, ^abstract.'" Spokeo, is one that is 136 S. Ct. at 1548 {citing Webster's Third New International Dictionary 472 (1971); Random House Tangible Dictionary of the injuries plainly English Language satisfy this 305 (1967)). requirement, intangible injuries may also ^^nevertheless be concrete." 1549. but Id. at In evaluating whether an intangible injury satisfies the "concreteness" requirement, important considerations: the (1) Spokeo Court offered two ''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[;]" '*has the power and (2) the judgment of Congress, which to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before.'" Id. (quoting Luj an, 504 U.S. at 580 (Kennedy, J., concurring in part and concurring in judgment)). The Supreme Court then elaborated on the connection between statutory standing created by Congress and concrete injury. To begin, the Court explained that "Article III standing requires a concrete injury even in the context of a statutory violation," and, therefore, that [the plaintiff] allege a bare procedural violation, harm, and III." Id. satisfy the for example, divorced from any concrete injury-in-fact (citing Summers v. could not, requirement of Earth Island Institute, 13 Article 555 U.S. 488, 496 (2009) {'MD] eprivation of a procedural right without some concrete interest that is affected by the deprivation... is insufficient to create Article clarify that distinction, one of the FCRA's credit reporting, how the standing")). Attempting to the Court then noted that, purposes is ''not all any risk of harm": III to protect inaccuracies against although inaccurate cause harm or present for example, 'Mi]t is difficult to imagine dissemination of an incorrect could work any concrete harm." At the same time, zip code, without more, Id. at 1550. the Court observed that, in cases where ''harms may be difficult to prove or measure[,]" "the violation of a procedural sufficient. . . [and] any additional Id. at 1549 11, 20-25 U.S. granted by statute harm beyond the one Congress has Public Citizen v. 449 (1989)) these (emphasis has situations, judgments in not legal about occurred. original). rights where Often, As harm these reflect has kinds and of injuries exist where we think the harm is in the act itself. The public disclosure of private information or defamatory falsehoods does not need downstream consequences hurtful; neither does on the basis of race. to be differential treatment Procedural wrongs are an oft-seen category where the distinction between the legal violation and the injury 14 524 U.S. Department of Justice, commentator has put it; In be identified." (citing Federal Election Common v. Akins, social can a plaintiff in such a case need not allege (1998); 440, right 491 one may be so thin nonexistent. these cases violation as to be essentially Proving the injury in many of just entails proving the itself—that certain words were spoken, certain information disclosed, or certain procedures flouted. As a result, requiring some sort of additional indicia of harm beyond the violation itself ignores the nature of the injury and the reason for the remedy. Daniel Townsend, Who Should Define Injuries For Article III Standing?, 68 Stan L. Rev. Online 76, 80-81 (2015) . In sum, then, the proposition that " [t]he... injury required by Article III may exist solely by virtue of ^statutes creating legal rights, the invasion of which creates standing'" survives Spokeo subject to qualification, depending on the facts of each case and the considerations articulated above, intact. Warth v. Seldin, Linda R.S. v. Richard D., fundamental principles 422 U.S. 410 U.S. guide the 490, 614, in mind, it is necessary, 500 (1975) 617 n.3 analysis questions raised in Defendants' motion. but nevertheless of (quoting (1973)). the These standing With those principles as Spokeo instructs, to look to the common law and to the judgment of Congress, as reflected in the FCRA, alleged to determine by whether Plaintiffs the constitute violations concrete of and that particularized injuries that satisfy the case or controversy requirement. 15 statute b. Count i. I Section 1681k(a) Section 1681k: of the FCRA provides that; A consumer reporting agency which furnishes a consumer report for employment and which for that purpose reports items of information purposes compiles and on consumers which are matters of public record and are likely to have an adverse effect upon a consumer's ability to obtain employment shall— (1) at the time such public record information is reported to the user of such consumer report, notify the consumer of the fact that public record information is being reported by the consumer reporting agency, together with the name and address of the person to whom such information is being reported; or (2) maintain strict procedures designed to insure that whenever public record information which adverse effect on is likely to have a consumer's ability an to obtain employment is reported it is complete and up to date. For purposes of this paragraph, items of public 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 the time of the report is reported. 15 U.S.C. § 1681k(a). That section arose out of concern t h a t : Most credit bureaus systematically compile public record information such as records of suits, tax convictions, liens, arrests, indictments, bankruptcies, judgments and the like. information This is then included on a person's report when he applies for credit, or in some cases when he applies for 16 Congress' employment. Unfortunately, the information cannot always be kept up to date because it is costly or because the correct information is simply not available... Because public record information is reported to employers well as creditors, a consumer's future as employment career could be jeopardized because of an incomplete credit report. S. Rep. No. 91-517 at 4 (emphasis added). Therefore, reporting Congress enacted § 1681k to prevent CRAs from "adverse items of public record information for employment purposes unless they maintain strict procedures to keep the information [complete and] up to date. be done, the consumer must be notified If this cannot that the adverse information is being reported and to whom at the time the report is made." Id. at 7 (emphasis added). The language and the alternative structure of § 1681k make clear that the ultimate harm that Congress sought to prevent was damage to consumers' employment prospects caused by reporting of incomplete or out-of-date public records. objective. Congress offered CRAs two options: (1) To further that they could either "maintain strict procedures" to minimize the reporting of incomplete consumer to or out-of-date the existence public of the records; report so or (2) that alert the the consumer himself could remedy any mistakes in the report before adverse employment action occurred. 17 Thus, § 1681k(a) § 1681k(a) public creates two substantive rights. conferred on consumers the right that, record adversely information affect their is disseminated employment must be complete and up-to-date. absolute; the requirement of that prospects, ''strict when adverse is the This right, First, likely information however, procedures" to is not serves as a limit on liability that might otherwise attach for incomplete or out-of-date Servs., reports. Inc., See, 199 F.3d 263, Credit Servs., 29 F.3d 280, e.g., 267 Washington (5th Cir. 284 v. CSC 2000); Henson v. (7th Cir. 1994). Second, statute creates a contingent right to information: fails to comply with § 1681k(a)(2), Credit then the CSC the the CRA consumer is statutorily entitled to receive notice of the furnishing of the report. Both the right to complete and up-to-date reports and the right to notice are substantive. nor technical. redress a Moreover, Congress permitted consumers to sue to breach of the foregoing subsection and, statutory, 1681n. In substantive doing, as rights if successful, and punitive damages, so Neither is merely procedural set set in in the to be awarded actual, as applicable. forth forth further 15 U.S.C. detail § below. Congress defined injuries and articulated chains of causation that give rise to a case or controversy. 18 iii. Count I: Plaintiff Witt a. Concreteness Having identified the interests that § 1681k seeks to protect and the mechanism by which it seeks to do so, it becomes clear that Witt has suffered a concrete informational injury: that is, Witt has alleged that she was deprived of a disclosure to which she was statutorily entitled. Court in Spokeo confirmed Election Common v. its Importantly, the Supreme previous holdings Akins^ and Public Citizen v. in Federal Department of Justice,^ both of which teach that Congress may create a legally cognizable right to specific information, which constitutes Article III. a 136 Supreme Court S. found concrete Ct. injury at sufficient 1549-50. standing where the deprivation of In to those satisfy cases, the plaintiffs sought the to obtain, and were denied, information that was subject to public disclosure under the Federal Election Campaign Act and the Federal Advisory Committee Act, respectively. Similarly, Court held that in Havens Realty Corp. the plaintiffs v. Coleman, (individuals ''who, the Supreme without an intent to rent or purchase a home or apartment, pose as renters or purchasers for the purpose of collecting evidence of unlawful steering practices,") had suffered a concrete injury under the ^ 524 U.S. 11, 20-25 (1998) . ® 491 U.S. 440, 449 (1989) . 19 Fair Housing Act information, information 363, 373 even for plaintiffs' they though any (1982). when received they purpose did other untruthful not than seek use the 455 litigation. The Supreme Court held that, motives, to housing U.S. regardless of the Congress had created ''an enforceable right to truthful information concerning the availability of housing," and that a ''tester who has been misrepresentation made unlawful under suffered injury in precisely the to guard against, the object of [the Fair Housing Act] form the statute was a has intended and therefore has standing to maintain a claim for damages under the Act's provisions." In the wake of Havens, Akins, Id. and Public Citizen, it is well-settled that Congress may create a legally cognizable right to information, injury. the deprivation of which constitutes a That is exactly the case here. concrete Witt has alleged that SafeRent did not furnish complete and up-to-date public records because social its records security lacked numbers." "identifying SAC SI 44. information, And, more such as specifically, Witt has alleged that the report furnished by SafeRent contained several criminal to Witt. sufficient SAC SISI to furnished in "complete and conviction public 29-30. support response At a this plausible to up-to-date." Witt's See, 20 records stage, that those e.g., belong allegations inference employer's did not that the inquiry Haley v. are report was not TalentWise, Inc. , V. 9 F. First (N.D. Supp. Advantage Ohio SafeRent Sept. did Id. 1194 Screening 25, and timeliness only exist, thereof and strict of 2012 Apr. Witt procedures" its public indexes, of or summaries thereto 2, 2014); Moore WL 4461505, the SAC alleges the purveying indices Wash. Moreover, "summaries, Reasonably construed, records Corp., ""maintain sells (W.D. 2012). not completeness SafeRent 3d 1188, at alleged to records partial that, a that ensure the because records." when complete and partial manifests *2-*3 lack versions of strict procedures to assure that the purveyed public record information is complete and up-to-date. That is sufficient to allege a violation of the strict procedures clause of § 1681k; (a). Based on the SafeRent did not foregoing comply allegations, with 15 furnished her consumer report, notice under § 1681k(a) (1) . not receive that notice. U.S.C. Witt § has alleged 1681k(a){2) SAC 1 when it right thereby triggering the And, that to Witt has alleged that she did 41. Where, as here, a consumer alleges'a deprivation of information or notice to which she was statutorily entitled, the consumer has alleged a concrete informational injury. b. P a r t i c u l a r i z a t i o n Defendants do not seriously contest that Witt's allegations are sufficiently particularized to they, because Witt has confer standing. specifically alleged 21 that Nor could SafeRent and NBD furnished an incomplete and misleading consumer report about her that was contained incomplete criminal materially Defendants' adverse to arguments her record information that employment concerning prospects. Rather, particularization exclusively addressed to the Newly Named Plaintiffs. are Therefore, those arguments are addressed in the following section, iv. Count I: Edwards, Plaintiffs Robertson, Allen, Gonzalez, Hackett, White, Roberts, Stanley, and Holmes Defendants argue that Plaintiffs have not alleged '"concrete" injuries in Count I because "the Complaint fails to allege any allegedly all facts supplied plaintiffs about except inaccurate[.]" do demonstrating by prospects in analysis Defendants' any way." [in Spokeo], even a related create particularized, Second, have failed because Witt] Plaintiffs was Spokeo Named information Plaintiffs," incomplete, NBD i.e., outdated, or Nor, according to Defendants, allege [sic] "how any incomplete data affected Defendants also I . . . indicated that a inaccuracy—is their employment contend that "th[e] not technical violation— necessarily enough to Newly Plaintiffs concrete harm." Defendants to the which is directly on point with this case and the claim in Count and "Newly (Def. Mem. at 8). the Newly Named returned [the that plead prevents argue a that the "particularized" Plaintiffs 22 from Named injury pleading in Count I allegations that are common to all plaintiffs in a single allegation. Mem. at 11) . Specifically, allegations as to SafeRent's records Plaintiffs were exception of Witt) Defendants contend that Plaintiffs' ''incompleteness" particularized because (Def. are merely incomplete, not sufficiently allege and do that not all (with of the specifically allege what records Defendants returned as to them were incomplete, out-of-date, or inaccurate. Plaintiffs constitutional Plaintiffs respond that requirements argue that concrete injuries. Spokeo for every First, did not standing. Named alter In Plaintiff any has the event. pled two Plaintiffs allege that "defendants' failure to comply with section 1681k(a) posed a ^material risk of harm' to consumers that expressly motivated Congress to enact the FCRA—namely, that the affect defendants consumers' Memorandum in Reconsideration Second, the the risk that reported inaccuracies to employment Opposition ("PI. Mem. notice to in pursuant users EOF Defendants' to § Motion No. 69) the explicit 1681k(a)(1) warnings at for 15). failure to provide "caused plaintiffs to suffer a separate, informational injury." Notwithstanding adversely (Plaintiffs' Defendants' 0pp.," information would prospects." Plaintiffs assert that required other in the in the the Id. Memorandum Order granting Defendants' first motion to dismiss (EOF No. 49), Plaintiffs Allen, Edwards, Hackett, White, Roberts, and Stanley 23 (''the Newly Named Plaintiffs") have failed to demonstrate that their claims in Count I satisfy either the injury-in-fact or traceability elements of standing. More specifically, because the Newly Named Plaintiffs have failed to plead specific facts from which the Court could infer incomplete reports about them, that SafeRent furnished they have failed to plausibly allege that (1) they suffered any particularized injury, and (2) any damage to their employment prospects was traceable to a statutory violation by SafeRent. As SafeRent points out, the Newly Named Plaintiffs do not '"identify the substance of NBD's^ reporting and/or the type of record(s) that were allegedly returned," nor do they "allege any facts demonstrating that the information NBD allegedly supplied about the Newly Named Plaintiffs was incomplete, outdated, inaccurate." Newly Named Plaintiffs {Def. Mem. rely at on general 8). Rather, allegations that: the (1) or they were denied employment because of information believed to have been furnished by Defendants; and (2) ''Defendant SafeRent never furnishes the complete and up-to-date public record," because it furnishes only "summaries, indexes, or partial records[.]" Although Count I is pled only against SafeRent, Defendants often refer to NBD's actions when making their arguments pertaining to Count I. However, because it appears that NBD simply acts as a conduit between SafeRent and the reseller CRAs, the Court treats Defendants' references to NBD as applying equally to SafeRent unless specifically indicated otherwise. 24 a. Particularization The Newly Named Plaintiffs have failed to allege that they have suffered a particularized protected interests injury to because they have their failed statutorily to describe with any specificity how any of their reports were incomplete or out- of-date, or how all reports, incomplete or out-of-date. reports were Plaintiffs pursuant incomplete cannot to § their own, were Without any allegation that their or show including out-of-date, that they 1681k{a){l). were the Newly entitled Therefore, the Named to notice Newly Named Plaintiffs have not demonstrated a particularized informational injury. by Nor have they adequately pled that any illegal conduct SafeRent affected led them to in their such a denial way statutory violation "affected personal and individual of as employment to charge or that otherwise SafeRent's [the Newly Named Plaintiffs] way." Spokeo, (citing Lujan, 504 U.S. at 560 n.l). 136 S. Ct. in a at 1548 Simply put, in the absence of any specific allegations concerning the incompleteness of the Newly Named Plaintiffs' reports, the Newly Named Plaintiffs have not alleged that SafeRent violated the statute as to them. That is the very definition of particularization. Taken Plaintiffs' to its theory, logical any conclusion, under consumer who was the the Newly subject Named of any report sold by SafeRent could bring a claim under § 1681k(a)(1) 25 without alleging any specific deficiencies in his or her report.® That is particularly apparent in light of the stark contrast between the Newly Named Plaintiffs' threadbare allegations that they were denied employment ''because of the information that NBD supplied about factual [them]," ^ allegations SAC If 23-21, and Witt's specific concerning the circumstances of her application for employment and the errors in her report further demonstrates that the Newly Named Plaintiffs lack any information about the contents of their own reports.^ Allowing circumstances the would action to undermine proceed the under purpose the of the foregoing standing The Court does not mean to imply that a plaintiff must allege what amounts to actual damages in order to survive a motion to dismiss a claim under § 1681k{a). Nor does it mean to imply that an FCRA plaintiff could not satisfy the particularization requirement could infer outdated in would still by alleging specific facts from which the Court that all of SafeRent's reports were incomplete or the same way. The point here is that the plaintiffs have to allege that their reports suffered from that defect. Plaintiffs' allegations that SafeRent ''is not the type of entity that can avail itself of the compliance option set forth at 15 U.S.C. § 1681k (a) (2" that "[a] § 1681k{a){2) option is not available to SafeRent," and that "SafeRent never furnishes the complete and up-to-date public record" are merely legal conclusions that (1) may not be credited by the Court, and (2) do not provide the necessary demonstrate particularized injury. individualization to ^ In fact, given the hasty addition of the Newly Named Plaintiffs to this action and the lack of any allegation in either Complaint in which they appear that any of the Newly Named Plaintiffs' reports contained any errors or any explanation of how the reports sold by SafeRent led to the denial of the Newly Named Plaintiffs' employment, it appears that these plaintiffs in particular were added merely because they reside in the Richmond Division of the Eastern District of Virginia. 26 requirement, which ''assures an actual factual setting in which the litigant asserts a claim of injury in fact, [so that] a court may decide the case with some confidence that its decision will not pave the way for lawsuits which have some, but not all, of the facts actually decided by the court." Valley Forge Christian Coll. V. Ams. United for Separation of Church & State, In^^, 454 U.S. 464, 472 (1982). Thus, the Newly Named Plaintiffs have failed to satisfy the ''particularization" aspect of injury-in-fact. When Plaintiffs' pressed at failure incompleteness. oral to argument provide about the particularized Newly Named allegations of Plaintiffs argued that it is only possible to plead generalized allegations of incompleteness against SafeRent because SafeRent purposely conceals its role in the background check process by causing the data that it sells to pass through multiple resellers before reaching its ultimate destination, and therefore consumers never have an opportunity to view or receive the reports that SafeRent provides. impossible for particularity, them and to so allege any such Plaintiffs claim that it is incompleteness requirement with would any allow Defendants to escape their obligations under the FCRA. It relaxed is to true that allow a sometimes pleading plaintiff to requirements must discover exclusively within the defendant's control. 27 facts that be are See, e.g., Moore, 2012 WL 4461505, at *3 (noting that a defendant's intent "may not be capable of any more definite factual assertion prior to discovery," and therefore finding generalized allegations of willfulness sufficient). case. copy However, here, that is simply not the Witt's allegations clearly reveal that she has obtained a of the report that Defendants furnished about her. Similarly, Tyrone Henderson and James Hines, who are currently pursuing a § 1681k claim in a related action against NBD and were originally named as plaintiffs in this case, but were dismissed on statute of limitations grounds, were able to allege specific errors in their reports that gave rise to an inference of incompleteness. Moreover, Plaintiffs are not without a remedy; the FCRA provides that a consumer reporting agency must ''clearly and accurately" consumer's file" upon a disclose "[a] 11 consumer's request, limitations.15 U.S.C. § 1681g(a)(l). or NBD were Plaintiffs' to refuse request. information to provide Plaintiffs the have even if SafeRent reports in option Defendants for a separate violation of the FCRA; the same Defendants' information from the reseller the subject to certain Thus, the in CRAs response to or that (1) (2) to sue obtain relied on reports in creating the consumer reports that were In any event, even though it may be difficult—though clearly not impossible—for Plaintiffs to obtain their consumer reports under the circumstances presented here, that fact does not excuse them from the pleading requirements of the Federal Rules and the requirements of Spokeo. 28 ultimately furnished to the Newly Named Plaintiffs' employers. putative The Newly Named Plaintiffs do not appear to have pursued any of those options, instead choosing to proceed based on guesswork alone with the hopes of securing venue in the Richmond Division and unearthing the basic facts of their case in discovery. the Supreme approach. Neither the Federal Rules of Civil Procedure nor Court's standing jurisprudence such an Accordingly, Plaintiffs' argument is not persuasive. For the foregoing reasons, failed permits to allege the Newly Named Plaintiffs have particularized injury-in-fact sufficient to confer standing. b. Traceability The Newly Named Plaintiffs' failure to plead particularized injury is closely and inextricably related to their failure to plead that they have suffered an injury traceable to wrongdoing by SafeRent. easily The explained nexus through between the those shortcomings following is hypothetical. most If SafeRent sold a complete and up-to-date report showing that a person had a conviction for a violent felony, that person could be disqualified from consideration for employment on the basis of SafeRent's report. In that scenario, entitled to notice under § 1681k(a) (1) complete and up-to-date; therefore, the person is not because the report was the consumer has not suffered the harm that the statute was designed to prevent, and 29 there is no informational injury. Thus, the damage to that consumer's employment prospects was not caused by any improper conduct on the part of SafeRent. Because the Newly Named Plaintiffs have failed to provide facts regarding whether, or how, their reports were complete or up-to-date, example or it is impossible to tell whether they fit whether what Saferent did caused them informational and notice injury on which they rely. the the Indeed, it appears that even the Newly Named Plaintiffs themselves do not know. More precisely, without allegations of incompleteness, not plausibly pled that some reasonably specific the Newly Named Plaintiffs have they were entitled to notice under § 1681k(a)(1), and thus have not plausibly pled that they suffered informational injury. And, concerning whether or how the because no detail is provided criminal record information that caused the Newly Named Plaintiffs to be denied employment was incomplete or out-of-date, the Court cannot infer that the damage to the Newly Named Plaintiffs' employment prospects was causally related to any statutory violation by SafeRent. Therefore, the Newly Named Plaintiffs have not alleged that they suffered any harm that actually resulted from a violation of § 1681k(a). For the foregoing reasons, the Newly Named Plaintiffs have failed to demonstrate that they have standing to ' pursue their 30 claims in Count I. Accordingly, the claims of Plaintiffs Allen, Edwards, Hackett, White, Roberts and Stanley in Count I will be dismissed. c. Count II In Count II of the SAC, brought against both Defendants and pled in the alternative to Count I, Plaintiffs allege that, if Defendants' background reports were not sold for employment purposes" (as NBD has previously represented to be the case in Henderson v. Defendants Nat'l furnished ''permissible purpose" Background Data, Plaintiffs' LLC, consumer in violation of 3:12-cv-97), reports 15 U.S.C. then without a § 1681b{a). Defendants assert that Plaintiffs lack standing to pursue Count II under Spokeo because "Plaintiffs do not allege any concrete or particularized harm stemming from the fact that NBD/SafeRent were supposedly involved in a return of data to a background screening company that itself indisputably had an purpose' to obtain that data."^^ {Def. Mem. ^employment at 13). As noted above. Count II is pled in the alternative to Count I, which alleges that Defendants furnished Plaintiffs' consumer reports for "employment purposes." Interestingly, so eager are Defendants to minimize the injury alleged in Count II that they have all but admitted outright that the reports were furnished for employment purposes. See, e.g., Def. Mem. at 12 (noting that '^the alleged return of records for each Plaintiff.. .was done in connection with an employment background screening, which is allowed under the FCRA. See 15 U.S.C. § 1681b,"). However, Defendants declined to concede that point at oral argument. And, important to the because future the resolution course of this 31 of that issue is case and because the Additionally, according to Defendants, "one steps or two removed from their transactions were the potential transfer of information to any employer, which would be the only time that Plaintiffs' interests could even possibly be affected or that any concrete injury could occur." Id. Plaintiffs respond that "defendants' section 1681b results invasion of privacy. in a classic alleged violation of form of cognizable harm: It is common sense that a party's sale of deeply personal information about an individual to a user for a statutorily interests." impermissible (PI. Mem. use harms in 0pp. at 24). the confidentiality of consumers' of Congress' that individual's privacy Plaintiffs argue that personal information was one core concerns when it enacted the FCRA, and one of the ways that Congress sought to achieve that objective was by limiting the circumstances under which consumer reports could be disseminated. Id. Moreover, Plaintiffs point out, invasion of question whether the reports were for "employment purposes" is ultimately a factual issue, the Court has directed the parties to propose a plan for expedited discovery to resolve the questions of whether Defendants provided reports for "employment purposes" and, relatedly, claims may proceed. which of Plaintiffs' alternative The Court recognizes the right to plead alternative legal theories, but is aware of no authority that allows the pleading of alternative facts where one set of which is entirely opposite the other. Thus, the Court apprehends that Defendants' divergent views {"for employment purposes" or "not for employment purposes") is a violation of the rule that one may not approbate and reprobate at the same time. The expedited discovery will flush out the truth. 32 privacy, though often unaccompanied by actual damages, has long been cognizable at common law, at 24-25. Plaintiffs have the better of that argument. One of the problems that Congress recognized and sought to remedy when person's it enacted credit confidential." Accordingly, the FCRA the file S. FCRA [was] Rep. to protect that not No. 91-517, one of Congress' was was "information always kept 91st Cong., in a strictly 1st Sess. 4. enumerated purposes in enacting the confidentiality of consumers' personal information, thereby protecting the consumers' right to privacy. 15 U.S.C. § 1681; see also Trans Union Corp. v. FTC, 81 F.3d 228, 234 (D.D.C. 1996) (^^Along with the accuracy of collected information, a major purpose of the Act is the privacy of a consumer's credit-related data."). which Congress effectuated this "One of the means by purpose was prohibiting the release of consumer...reports unless the release occurs for one of the permissible purposes set forth in 15 U.S.C. Cole V. United States Capital, 389 F.3d 719, § 1681b(a)." 725 (7th Cir. 2004); see also Harris v. Database Mqmt. & Marketing, Inc., 609 F. Supp. 2d 509, 513 {D. Md. 2009) ("The FCRA achieves this design [of preserving consumer privacy] by imposing restrictions on access § 1681b (a) to individuals' creates a legally limiting dissemination of credit information."). protected consumers' 33 privacy reports Thus, interest in to circumstances falling within the ''permissible purposes'' enumerated in that records were section. Therefore, not sold for statutorily violation by alleging an employment permissible of their confidentiality that, purpose. their Defendants' purpose, statutorily of if Defendants Plaintiffs created personal lacked have right to any alleged a privacy and The FCRA information. provides that an employer may not obtain an applicant's consumer report, unless thereby invading his or her statutory right of privacy, the voluntary required employer written by § first obtains consent to the secure 1681b (b) (2) (A) . The recognized a right to personal privacy, and the literal individual's person." Freedom of understandings control of information United States Dept. Press, 489 of U.S. consumer's 763 as common law has long and ''both the common law privacy encompass concerning of Justice v. 749, and information, that knowing his the or her Reporters Comm. (1989) (defining for "private" as "intended for or restricted to the use of a particular person or group or public"). right to class of Moreover, privacy particularly in powerful persons: as the not Supreme compilations because the of freely Court available has personal "power of to the observed, the information is compilations to affect personal privacy that outstrips the combined power of the bits of information contained 34 within." Id. at 7 65. Accordingly, it dissemination has of long one's been personal showing of actual damages, constitutes a sue. See Similarly, it or is bring suit e.g., 18 to to under U.S.C. Warren 193 privacy § unauthorized even without a & Louis statute that Brandeis, Congress certain law, privacy to D. The (18 90) . common the 2707(c) to confer standing to in informational the an information, well-settled replaces right D. 4 Harv. L. Rev. right statutory that concrete injury sufficient Right to Privacy, strengthens case is an invasion of one's privacy that generally Samuel statutory the create information and has vindicate (authorizing may citizens been that that whose invaded right. statutory a may See, damages for violations of the Electronic Communications Privacy Act of 1985 ("ECPA")); 12 the to Right 2710(c)(1) Video § 3417 Financial (establishing Privacy defendant U.S.C. (statutory damages Privacy a private Protection Act fails to Act right with protecting the plaintiff's privacy, been unlawfully regardless of invaded actual June plaintiffs 27, 2016) with the he damages. Consumer Privacy Litiq., Cir. and has See, right that to action U.S.C. under Furthermore, statutory suffered e.g.. § the where a prerequisites concrete In re redress has for injury, Nickelodeon 2016 WL 3513782, "Congress seek 35 of 18 under the plaintiff's privacy has -- F.3d —, (noting (^^RFPA") ) ; C'VPPA")). comply available long at *7 (3d provided unauthorized disclosures of information that, in Congress's judgment, ought to remain private") Automated Retail. (footnote LLC, 770 omitted); F.3d 618, Sterk 623 v. Redbox (7th Cir. 2014) (holding that the plaintiffs suffered a concrete injury-in-fact when defendant sold plaintiffs' information to third parties in violation of the VPPA); Coelter v. Hearst Commc'ns, Inc.. -- F. Supp. 3d , 2016 WL 3369541, at *3 (S.D.N.Y. June 17, 2016) (same); Johnson v. Navient Sols., Inc., — F. Supp. 3d —, 2015 WL 8784150, at *2 (S.D. Ind. Dec. 15, 2015) (finding standing based on a violation of the plaintiff's statutory right to privacy created by the Telephone Consumer C'TCPA")); United States v. Koranki, (W.D. Okla. July 16, 2015) Protection Act 2015 WL 4394947, at *1 (finding that the government's failure to follow necessary procedures before procuring bank customer's financial records invaded the customer's statutory right to privacy under the RFPA, which conferred standing); Cousineau v. Microsoft Corp., 992 F. Supp. 2d 1116, 1122-23 (W.D. Wash. 2012) (finding an invasion of privacy sufficient to constitute injury-in-fact where defendant collected smartphone user's location data without her consent). Here, every plaintiff, including each of the Newly Named Plaintiffs, has background check plainly about alleged him or application for employment. SAC 36 that her in Defendants connection 21, 23-27, 29-30. sold with a an And, the plaintiffs have alleged that, reports were not for should the Court find that those ''employment purposes," then Defendants lacked a permissible purpose for either the sale or use of the reports. were Id. ^ 46. procured in Although the fact that Plaintiffs' reports connection with applications for employment might appear fatal to their claim that Defendants' reports were furnished without a permissible purpose (because "employment purposes" are a "permissible purpose" as defined in 15 U.S.C. 1681b), Count assertions, Henderson reports that, II has arisen because of Defendants' § strenuous both in this litigation and in the related case of v. CoreLoqic Nat'l Background that they sell are not because Defendants are for Data LLC, that the "employment purposes," and "data wholesalers," they do not need to show any "permissible purpose" to furnish information to other CRAs. 97) . See SAC SI 47 (citing Henderson, Case No. 3:12-cv- Defendants insist that that is true for all of the reports that they sold regarding the Named Plaintiffs. Therefore, at this stage, every named Plaintiff has alleged the same concrete and particularized harm that wrongful conduct. That is a direct allegedly result of Defendants' impermissible disclosure constitutes an invasion of the statutory right to privacy and a concrete injury sufficient to confer Article III standing. Defendants cite four cases from district courts outside this Circuit for the proposition that an invasion of privacy is 37 not necessarily a 13) . To the legally cognizable extent privacy caused by information is that those unlawful not a harm. cases hold dissemination concrete (Def. that of Mem. an one's at invasion 12of confidential and particularized injury, the Court declines to follow that holding for the reasons set forth above and in Thomas v. June 30, FTS USA LLC, 2016 WL 3653878 (E.D. Va. 2016). Defendants next argue that Plaintiffs have failed to allege an invasion of privacy in Count II because ''that alleged harm is not pled. The Complaint." point. (Def. of privacy was because with consumer." Offices, to invaded. 238 at does 13). not show that enacting the 15 U.S.C. § willful 1681h(e); F.3d 1068, 1074 plead their in the misses the claim for a statutory right to so would have been futile FCRA, of privacy "except or appear argument explicitly to do malice even That not Indeed, in invasion furnished need privacy" Congress, for 'privacy' Reply Plaintiffs "invasion suits word as explicitly to intent false to 2001) information injure see also Myers v. {9th Cir. preempted [the] Bennett Law ("When a consumer brings an action for violation of the disclosure provisions of the FCRA, the Act's purpose confidentiality is implicated. of protecting In that respect, consumer such cases are akin to invasion of privacy cases under state law—cases where the plaintiff alleges that the defendant unlawfully invaded the 38 plaintiff s privacy confidential.") inherent by obtaining (collecting cases). in Plaintiffs' claim information deemed An invasion of privacy is that their confidential information was improperly disseminated. Defendants also appear to argue that Plaintiffs did not adequately allege an injury in Count II because FTC regulations and guidance permit the transfer reporting agencies, and therefore. unlawful. argument That of data between Defendants' concerns the consumer conduct was not legal merits of Plaintiffs' claim, not the constitutional adequacy of the injury that has been alleged, and has no connection to the Supreme Court's decision in Spokeo. proper ground for Accordingly, that argument is not a reconsideration, and the Court declines to consider i t further. Finally, Defendants claim that ''Plaintiffs' privacy could not have been ^invaded' when they consented to the background screening process." (Def. Reply at 13). Defendants also made much of this point at oral argument, arguing that, because the FCRA requires procuring employers their to consumer obtain reports consumers' for consent employment before purposes. Plaintiffs must have given such consent and therefore had no expectation of privacy furnished about them. reach far beyond in the information that Defendants Here, again. Defendants ask the Court to the record. 39 Contrary to Defendants' implication, the fact that employers are required by statute to obtain current or potential employees' consent before procuring their consumer reports by no means gives rise to the inference that such consent was actually obtained, as evidenced by the plethora of lawsuits arising out of employers' failure to comply with that particular statutory requirement. — — C a s e No. 3:13-cv-825. whether such consent was obtained and, what extent determined it at absolves this Defendants stage of of See, e.g., Thomas Thus, the questions if so, whether and to liability cannot litigation. Therefore, be that argument is similarly not a proper ground for reconsideration. Thus, for the reasons set forth above, the motion to reconsider the Memorandum Opinion denying Defendants' motion to dismiss Count II will be denied. CONCLUSION For the foregoing reasons, DEFENDANTS' MOTION FOR RECONSIDERATION (ECF No. 60} will be granted in part and denied in part. Defendants' motion will be granted as to the claims of Plaintiffs Allen, Edwards, Hackett, White, Roberts, and Stanley in Count I, and those claims will be dismissed with prejudice. Defendants' motion will be denied as to Witt's claim in Count I. Defendants' motion will be denied as to Count II. Count III has been dismissed with prejudice upon Plaintiffs' oral motion made 40 in open court, and therefore Defendants' motion will be denied as moot as to Count III. It is so ORDERED. /s/ n, Robert E. Payne Senior United States District Judge Richmond, Virgin^ Date: August JXr 2016 41
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