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Walker v. Fred Meyer, Inc.

United States District Court, D. Oregon

June 21, 2018

DANIEL WALKER, individually and on behalf of all others similarly situated, Plaintiff,
v.
FRED MEYER, INC., Defendant.

          ORDER

          MICHAEL H. SIMON UNITED STATES DISTRICT JUDGE

         United States Magistrate Judge Youlee Yim You issued Findings and Recommendation (“F&R”) in this case on May 7, 2018. ECF 38. Judge You recommended that the Court grant Defendant's motion to dismiss.

         Under the Federal Magistrates Act (“Act”), the Court may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1). If a party files objections to a magistrate's findings and recommendations, “the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” Id.; Fed.R.Civ.P. 72(b)(3).

         For those portions of a magistrate judge's findings and recommendations to which neither party has objected, the Act does not prescribe any standard of review. See Thomas v. Arn, 474 U.S. 140, 152 (1985) (“There is no indication that Congress, in enacting [the Act], intended to require a district judge to review a magistrate's report to which no objections are filed.”); United States. v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (holding that the court must review de novo magistrate's findings and recommendations if objection is made, “but not otherwise”). Although in the absence of objections no review is required, the Act “does not preclude further review by the district judge[] sua sponte . . . under a de novo or any other standard.” Thomas, 474 U.S. at 154. Indeed, the Advisory Committee Notes to Fed.R.Civ.P. 72(b) recommend that “[w]hen no timely objection is filed, ” the Court review the magistrate judge's recommendations for “clear error on the face of the record.”

         BACKGROUND

         Plaintiff Daniel Walker brings a purported class action claim against Fred Meyer, Inc., alleging violations of the Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq. (“FCRA”). Plaintiff alleges that Defendant's consumer report disclosure and pre-adverse action notice violate FCRA Sections 1681b(b)(2)(A)(i) and 1681b(b)(3), respectively. Section 1681b(b)(2)(A)(i) requires an employer who procures a consumer report on an individual for employment purposes provide “a clear and conspicuous disclosure . . . in writing . . . in a document that consists solely of the disclosure, that a consumer report may be obtained for employment purposes.” Plaintiff argues that Defendant's disclosure is not “clear and conspicuous” and fails to “consist solely of” that disclosure because it contains other extraneous information. Section 1681b(b)(3) provides that, before using a consumer report to take adverse employment action, “the person intending to take such adverse action shall provide to the consumer to whom the report relates” both a copy of the report and “a description in writing of the rights of the consumer under this subchapter . . .” Plaintiff argues that Defendant's pre-adverse action notice failed to comply with this provision because it only directed him to contact General Information Services, Inc. (“GIS”), an agent of Fred Meyer that procured the consumer report in Plaintiff's case. Plaintiff argues that this notice should have informed Plaintiff that he could discuss any issues directly with Defendant.

         Defendant moves to dismiss Plaintiff's claims. Defendant argues that Plaintiff fails to state a claim because the conduct described in Plaintiff's Complaint does not violate the FCRA. Defendant further argues that Plaintiff lacks standing to assert his Section 1681b(b)(3) claim.[1]Judge You recommended that Defendant's motion to dismiss be granted. Plaintiff timely filed an objection (ECF 40), to which Defendant responded. ECF 43. Plaintiff objects to the entirety of the F&R.

         DISCUSSION

         A. Count I: Disclosure Requirement

         Plaintiff objects to the F&R's findings with respect to the disclosure requirement for several reasons. First, Plaintiff argues that Judge You mischaracterized the applicable legal standards and ignored extraneous information in Defendant's disclosure. Second, Plaintiff argues that Judge You overlooked the inclusion of information about investigative consumer reports. Third, Plaintiff argues that the F&R did not address the “interplay” of Defendant's authorization form with its disclosure form. Finally, Plaintiff argues that Judge You should have found that the disclosure and authorization forms presented to Plaintiff were improperly presented together and as part of a job application or employee manual.

         1. Characterizing Law

         Plaintiff argues first that Judge You mischaracterized the applicable law on the FCRA's disclosure requirement. The Court disagrees. Judge You properly characterized the requirements of the FCRA, including by case law for examples of FCRA's application. Plaintiff also argues that Defendant's disclosure is “replete” with extraneous statements, which Judge You simply ignored. Again, the Court disagrees. Judge You reproduced the text of Defendant's disclosure, discussed case law analyzing what information may be appropriately included in such disclosures, and then concluded that Defendant's disclosure did not contain improper or extraneous information.

         2. Including Investigative Report Information

         Plaintiff also objects to the F&R's conclusion that information in Defendant's disclosure about investigative consumer reports, which are different from general consumer reports, did not “overshadow” the consumer report disclosure. Specifically, Plaintiff argues that Judge You ignores an FTC advisory opinion, Willner. Advisory Opinion to Willner, Federal Trade Commission (March 25, 1999), available at https://www.ftc.gov/policy/advisory-opinions/advisory-opinion-willner-03-25-99. Defendant's disclosure does differ from that recommended by the FTC in Willner, in that it mentions both reports in the same, initial, disclosure, and then does not distinguish between regular and investigative consumer reports or state whether the information subsequently provided applies to only one or the other. Nonetheless, as Judge You concluded, Defendant's disclosure in this case is consistent with the Willner opinion's guidance. The first sentence sets out a consumer report disclosure, and there is no further mention of the nature or scope of a potential investigative report. Rather, the next mention of an investigative report comes in the final paragraph, which states: “If GIS obtains any information by interview, you have the right ...


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