Abrogina v. Kentech Consulting, Inc.

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 VIRGINIA ABROGINA, as an Case No.: 16cv0662 DMS (WVG)

individual, and on behalf of the putative

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class, ORDER DENYING PLAINTIFF’S

13 MOTION FOR CLASS

Plaintiff,

CERTIFICATION AND APPROVAL

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v. OF CLASS COUNSEL

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KENTECH CONSULTING, INC., a

16 foreign corporation doing business in

California;

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BACKGROUNDCHECKS.COM, a

18 limited liability company doing business

in California; and DOES 1-10, inclusive,

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Defendants.

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This case comes before the Court on Plaintiff’s motion for class certification

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pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(3). Defendant Kentech

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Consulting, Inc., the sole remaining defendant in this case, filed an opposition to the

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motion,1 and Plaintiff filed a reply. For the reasons set out below, the motion is denied.

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1 Plaintiff notes that Defendant’s opposition was filed five days after the deadline, and

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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.)

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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

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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

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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

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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

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date.

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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

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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

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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

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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

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1 a non-police and [non] government entity for employment purposes, and

whose report contained any criminal record information, and whose report

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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”).

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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

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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”).

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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

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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

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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

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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

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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,

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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,

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(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).

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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

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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

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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.

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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

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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

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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

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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

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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.

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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

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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

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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

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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

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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

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