Thomas Merck v. Walmart, Inc.

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 24a0187p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

┐

THOMAS MERCK, individually and as a representative

│

of the Class,

│

Plaintiff-Appellant, │

> No. 23-3698

│

v. │

│

WALMART, INC., │

Defendant-Appellee. │

┘

Appeal from the United States District Court for the Southern District of Ohio at Columbus.

No. 2:20-cv-02908—Sarah Daggett Morrison, District Judge.

Argued: July 18, 2024

Decided and Filed: August 20, 2024

Before: CLAY, McKEAGUE, and READLER, Circuit Judges.

_________________

COUNSEL

ARGUED: Thomas Scott-Railton, GUPTA WESSLER LLP, Washington, D.C., for Appellant.

James N. Boudreau, GREENBERG TRAURIG, LLP, Philadelphia, Pennsylvania, for Appellee.

ON BRIEF: Thomas Scott-Railton, Matthew W.H. Wessler, GUPTA WESSLER LLP,

Washington, D.C., E. Michelle Drake, Joseph C. Hashmall, BERGER MONTAGUE PC,

Minneapolis, Minnesota, for Appellant. James N. Boudreau, GREENBERG TRAURIG, LLP,

Philadelphia, Pennsylvania, Naomi G. Beer, GREENBERG TRAURIG, LLP, Denver, Colorado,

for Appellee. Brianne J. Gorod, CONSTITUTIONAL ACCOUNTABILITY CENTER,

Washington, D.C., for Amicus Curiae.

No. 23-3698 Merck v. Walmart, Inc. Page 2

_________________

OPINION

_________________

McKEAGUE, Circuit Judge. Before an employer can take any adverse action against a

prospective employee based on a negative consumer report, the Fair Credit Reporting Act

requires that the employer provide him with a copy of the report. When Thomas Merck applied

to work at Walmart, he forgot to disclose an old misdemeanor conviction. The conviction came

up on a consumer report. Walmart—through a third-party vendor—gave Merck an incomplete

version of the report that listed his misdemeanor and indicated he was “not competitive” for a job

at Walmart, even though it had already given him a conditional job offer. Then Walmart revoked

the offer.

The question is whether Merck has constitutional standing to sue Walmart under the Act

for the procedural injury he alleges he suffered when Walmart failed to give him the full

consumer report. Merck has failed to point to sufficient evidence of adverse effects to survive

summary judgment on his informational-injury theory of standing. And his other standing

theories fail as a matter of law. We AFFIRM the district court.

I.

A. Facts

In April 2016, Thomas Merck applied to work in an entry-level position at the Walmart

in Coshocton, Ohio. Walmart decided to interview Merck within a month after he applied. After

the interview, the interviewer told Merck that “everything looked really good.” Merck Dep.,

R.105-3 at PageID 2267. She saw no reason why he “would not be hired.” Id. Then she told him

that they “had to do a background check as a formality.” Id. “As soon as that came back,” Merck

testified that “[he] would be contacted with a schedule to start.” Id. At this point, Walmart had

extended Merck a job offer conditioned on the successful completion of a background check.

Walmart asked Merck to fill out a form authorizing the background check. It also asked

him to fill out another form indicating whether he had any prior criminal convictions. Merck

No. 23-3698 Merck v. Walmart, Inc. Page 3

affirmed that, no, he did not have any prior convictions. He later testified that he had forgotten

entirely about a misdemeanor that had occurred roughly fifteen years prior.

Using that authorization, Walmart ordered a background report on Merck from a third-

party vendor. The vendor’s investigation uncovered Merck’s misdemeanor conviction. Under

Walmart’s policy, the vendor scored Merck’s report as “Not Competitive”—meaning that Merck

would not be hired—because he had not disclosed the conviction.

The vendor sent Merck a version of the report that indicated—under the “County

Record” section of the criminal background check—that he was “Not Competitive” to be hired at

Walmart. The report said that the vendor had uncovered “public record information that is likely

to have an adverse effect on your ability to obtain employment” with Walmart. Merck Report,

R.101-10 at PageID 1841. Merck’s misdemeanor conviction appeared later in the document. The

vendor sent Merck an accompanying letter explaining his rights under the Fair Credit Reporting

Act. The communication further urged Merck to call the vendor’s compliance department if he

believed any of the information in the report was inaccurate or incomplete. Walmart received a

slightly different version of the report. On Walmart’s version, under Merck’s “County Record”

section, the report indicated that Merck was “Not Competitive.” But the report also listed a

code—“Grade Description: R3.” To Walmart, that code indicated that the vendor had found an

item that had not been disclosed by the job applicant. Just over a week after the vendor sent the

initial report, Walmart sent Merck a final notice explaining that it had revoked his conditional

job offer.

Before the final notice, Merck called either the vendor or Walmart to ask why he was

“Not Competitive” according to his background check. He doesn’t remember much about what

he was told, but he remembers thinking that he had not received an adequate answer. He testified

that if he had seen the “R3” code listed on the report that he received, he would have at least

asked Walmart what it meant. He says that, without additional context, he thought maybe he

hadn’t been hired because of the conviction.

But Merck didn’t know he hadn’t been hired because of his failure to disclose the

conviction. See Merck Dep., R.105-3 at PageID 2219; see also Magistrate Judge Order, R.70 at

No. 23-3698 Merck v. Walmart, Inc. Page 4

PageID 927–28 (explaining that “isolated testimony” suggesting that Merck thought his failure to

be hired might have been caused by a failure to disclose the conviction was “taken out of

context” and “stood in contrast” to his “more specific testimony” that he didn’t learn about the

real basis of the adverse action until later). Merck and his attorneys affirmed that they didn’t

know about the code indicating a self-disclosure issue until March 2019, when he began

discovery in separate litigation with the third-party vendor. Merck testified several times—and

his attorney clarified—that he thought his application had been rejected because of the

conviction itself, not his failure to disclose it. See Merck Dep., R. 105-3 at PageID 2219–22,

2237–38, 2306.

Walmart acknowledged that if Merck had initially disclosed the misdemeanor, he would

have been scored a “Competitive” applicant. But a Walmart employee also testified that, because

the background report contained accurate information about his conviction, his only option under

then-effective Walmart policy was to reapply—in other words, he could not have changed the

outcome by explaining the mistake. And although Merck argues that there is “uncertainty” about

Walmart’s exercise of its “final hiring authority,” see Reply Br. 22, he doesn’t point to any

specific evidence in the record suggesting Walmart would have acted contrary to its policy had

he been able to explain his mistake.

Later in 2016, Merck applied twice more for a job at Walmart. He never received another

interview, conditional offer, or formal opportunity to fill out a criminal-record history for

Walmart. He notes that he may have called Walmart several times to check on the status of his

later applications, though he doesn’t specifically remember doing so.

In 2016 he sued the third-party vendor for violating the Fair Credit Reporting Act by

disclosing adverse information about him that was more than seven years old. He settled his

claims with the vendor. In early 2017, he applied to another job with a different employer—this

time, disclosing his misdemeanor conviction when the employer asked him about his

background. He did so, he says, because he “found out” that the misdemeanor “held . . . up” his

job offer at Walmart, and he wanted to make sure potential future employers knew about it.

Merck Dep., R.105-3 at PageID 2213. He got the job.

No. 23-3698 Merck v. Walmart, Inc. Page 5

B. Procedural History

Merck began this lawsuit in June 2020. He asserts one claim on behalf of himself and a

putative class, contending that Walmart violated the Fair Credit Reporting Act by willfully

“failing to provide applicants and employees with a full copy of their consumer reports prior to

taking adverse action against them.” Am. Compl., R.16 at PageID 74; see 15 U.S.C.

§§ 1681b(b)(3)(A), 1681n. The district court denied Walmart’s first attempt to dismiss,

reasoning that Merck had standing because he adequately alleged he was deprived of a

procedural benefit under the Act.

Soon thereafter, the Supreme Court handed down TransUnion LLC v. Ramirez, 594 U.S.

413 (2021), which clarified how to assess a plaintiff’s constitutional standing under the Fair

Credit Reporting Act. This Court also decided Ward v. Nat’l Patient Acct. Servs. Sols., Inc., 9

F.4th 357 (6th Cir. 2021) [hereinafter Ward I], which applied the TransUnion framework to

assess constitutional standing in an action under the Fair Debt Collection Practices Act.

Specifically, Ward I clarified that a procedural violation, standing alone, does not create a

concrete injury in fact under TransUnion’s constitutional standing doctrine. Ward I, 9 F.4th at

361. And the Ward I panel further found the plaintiff had suffered no concrete harm that “flowed

from” the statutory violation. Id. at 363 (cleaned up). So he had failed to establish constitutional

standing.

With the benefit of new caselaw, Walmart renewed its standing argument in a motion for

summary judgment. This time, the district court granted the motion, finding that Merck’s alleged

statutory injury did not resemble a harm that has traditionally been recognized in American

courts, as is required under TransUnion. And the court determined that Merck had failed to show

any independent concrete injury that flowed from the statutory violation. Finally, the court held

that Walmart’s actions did not cause the adverse employment action because (1) the report was

not inaccurate, and (2) Walmart testified that it would not have hired Merck even if he had been

able to explain that he had mistakenly omitted the misdemeanor from his paperwork.

Merck timely appealed.

No. 23-3698 Merck v. Walmart, Inc. Page 6

II.

We review de novo the grant of summary judgment for lack of standing. See McKay v.

Federspiel, 823 F.3d 862, 866 (6th Cir. 2016). We must affirm where there is no genuine dispute

of any material fact and the moving party is entitled to judgment as a matter of law. See Fed. R.

Civ. P. 56(a). But if evidence suggests that a reasonable jury could find for the nonmoving party,

we must reverse. See McKay, 823 F.3d at 866. And if the district court erred by incorrectly

determining that the moving party was entitled to judgment under the law, we must also reverse.

We view evidence and draw reasonable factual inferences in the most favorable light for the

nonmoving party. Id. At summary judgment, a plaintiff may not rely on mere allegations to show

standing. Ward I, 9 F.4th at 361. Instead, he must set forth “specific facts” that demonstrate that

he has satisfied Article III’s requirements to bring his suit. Id.

III.

Congress passed the Fair Credit Reporting Act in 1970 to ensure “fair and accurate credit

reporting” and “protect consumer privacy.” 15 U.S.C. § 1681(a)(1); TransUnion, 594 U.S. at

418. As relevant here, the Act requires that any person who intends to use a “consumer report” as

the basis for taking “any adverse” employment action must, before doing so, provide certain

information to the consumer who is the subject of the report. 15 U.S.C. § 1681b(b)(3)(A).

Specifically, the employer must give the subject “(i) a copy of the report; and (ii) a description in

writing” of the consumer’s rights under the Act “as prescribed by” the Consumer Financial

Protection Bureau. Id.; TransUnion, 594 U.S. at 418–19.

The Act gives consumers a cause of action to recover statutory, actual, and punitive

damages from “[a]ny person who willfully fails to comply with any requirement imposed” under

the Act. 15 U.S.C. § 1681n(a). The Act also permits recovery of actual damages from “[a]ny

person who is negligent in failing to comply with any requirement imposed” under the Act. Id.

§ 1681o. Both provisions permit recovery of attorneys’ fees. Id. §§ 1681n(a)(3); 1681o(a)(2). In

short, the Fair Credit Reporting Act grants consumers expansive statutory standing to sue any

person who violates its procedural and substantive requirements.

No. 23-3698 Merck v. Walmart, Inc. Page 7

The key question in this case is whether plaintiffs like Thomas Merck, who lost a job

offer after Walmart failed to provide him with a full copy of the report that caused it to revoke

that offer, possess constitutional standing under Article III.

The Constitution limits the federal judicial power to “Cases” and “Controversies.” U.S.

Const. art. III, § 2. “The case or controversy requirement limits the role of the Federal Judiciary

in our system of separated powers.” FDA v. All. for Hippocratic Med., 602 U.S. 367, 378 (2024).

Federal courts are not open forums for citizens “to press general complaints about the way in

which government goes about its business.” Id. at 379 (quoting Allen v. Wright, 468 U.S. 737,

760 (1984)). Instead, plaintiffs must have a “personal stake” in the case or controversy—a stake

that helps “ensure that courts decide litigants’ legal rights in specific cases, as Article III

requires, and that courts do not opine on legal issues in response to citizens who might ‘roam the

country in search of governmental wrongdoing.’” Id. (first quoting TransUnion, 594 U.S. at 423,

and then quoting Valley Forge Christian Coll. v. Ams. United for Separation of Church & State,

Inc., 454 U.S. 464, 487 (1982)). To prosecute a lawsuit in federal court, a plaintiff must have this

sufficiently concrete stake in the outcome of the case or controversy—in other words,

constitutional standing.

A.

“The fundamentals of standing are well-known and firmly rooted in American

constitutional law.” Hippocratic Med., 602 U.S. at 380. Standing requires that a plaintiff have (1)

suffered an “injury in fact” that (2) was caused by the defendant and (3) likely would be

redressed by the judicial relief he requests. See id. The plaintiff—the party invoking federal

jurisdiction—bears the burden to establish the standing elements. Ward I, 9 F.4th at 360.

The central standing dispute in this case concerns whether any injury Merck alleges he

suffered qualifies as an injury in fact under the constitutional standing doctrine. That dispute, in

turn, hinges largely on whether the statutory injury that Merck asserts—being denied a full copy

of the consumer report that formed the basis of Walmart’s decision to revoke his job offer—is

sufficiently “concrete” to qualify as an injury in fact. In support of his claims, Merck relies on

precedent governing “informational” injuries. He also draws several analogies to traditional

No. 23-3698 Merck v. Walmart, Inc. Page 8

common-law and constitutional harms, including the procedural-due-process requirements that

govern public employment.

When considering a plaintiff’s standing arguments, we assume that the plaintiff’s theory

of the merits of the argument is correct. See Ward v. NPAS, Inc., 63 F.4th 576, 582 (6th Cir.

2023). Merck need only show he “has a right to relief if the Court accepts his interpretation of

the constitutional or statutory laws on which the complaint relies.” Id. (cleaned up) (quoting

CHKRS, LLC v. City of Dublin, 984 F.3d 483, 488 (6th Cir. 2021)). In this case, that means we

assume that Walmart violated the Fair Credit Reporting Act by failing to provide Merck with the

identical report that it received from the third-party vendor before deciding to withdraw his job

offer.1

Merck has failed to identify specific facts in the record sufficient to support his

informational-injury theory at the summary-judgment stage. And he has not shown he has

standing under his theories comparing his claim to traditional common-law and constitutional

procedural-due-process claims. Accordingly, Merck does not have Article III standing to

continue his lawsuit.2

B.

Under constitutional standing doctrine, an “injury in fact” is an “invasion of a legally

protected interest which is (a) concrete and particularized and (b) “actual or imminent, not

conjectural or hypothetical.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (cleaned up).

To be “concrete,” the injury must be “real” and not “abstract.” Hippocratic Med., 602 U.S. at

381; see also TransUnion, 594 U.S. at 424. To determine whether an asserted injury is

sufficiently concrete, the Supreme Court has instructed federal courts to consider “history and

tradition” as a “guide to the types of cases that Article III empowers federal courts to consider.”

1

Merck argues that the Act’s use of the definite article “the” to require that the employer provide the

potential employee “a copy of the report,” 15 U.S.C. § 1681b(b)(3)(A)(i) (emphasis added), seems to suggest that a

regulated party must provide an exact copy of the report used to take the adverse action. We don’t decide that issue

here. To assess standing, all we must determine is whether Merck has suffered an injury in fact that Walmart caused,

crediting his interpretation of the statutory scheme.

2

Because we determine that Merck did not suffer a concrete injury in fact, we need not determine whether

he satisfied the remaining standing elements: causation and redressability.

No. 23-3698 Merck v. Walmart, Inc. Page 9

TransUnion, 594 U.S. at 424 (quoting Sprint Commc’ns Co. v. APCC Servs., Inc., 554 U.S. 269,

274 (2008)). Specifically, in cases addressing statutory schemes like the Fair Credit Reporting

Act, the Supreme Court’s caselaw teaches that courts should assess whether the asserted injury

has a “close relationship” to a harm “traditionally” recognized “as providing a basis for a lawsuit

in American courts.” Id.; Spokeo, Inc. v. Robins, 578 U.S. 330, 341 (2016). In short, the “inquiry

asks whether plaintiffs have identified a close historical or common-law analogue for their

asserted injury.” TransUnion, 594 U.S. at 424. Standing doctrine does not “require an exact

duplicate in American history and tradition.” Id. But federal courts may not simply “loosen

Article III based on contemporary, evolving beliefs about what kinds of suits should be heard in

federal courts.” Id. at 425.

Some asserted injuries are easy. “Traditional tangible harms,” like “physical” or

“monetary” harms, “readily qualify.” Id. (cleaned up). But certain intangible harms might also be

sufficiently concrete. For instance, plaintiffs have standing when they assert reputational harms,

when a defendant discloses their private information, and when a defendant intrudes on the

plaintiffs’ seclusion by, for example, sending irritating and unwanted text messages. Id.

(collecting cases) (citing Gadelhak v. AT&T Servs., Inc., 950 F.3d 458, 462 (7th Cir. 2020)).

Those cases concern modern analogues to traditional common law harms—analogues that

Congress incorporated into statutory schemes to allow plaintiffs to bring suit in federal court.

Traditional harms also include “harms specified by the Constitution itself.” Id. (collecting cases).

Such injuries might include infringements on free speech or exercise of religion. See Spokeo, 578

U.S. at 340 (citing Pleasant Grove City v. Summum, 555 U.S. 460 (2009) and Church of the

Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993)). They also might include certain kinds

of “discriminatory treatment” that, without congressional action, might previously have been

inadequate to establish any injury in fact. See TransUnion, 594 U.S. at 425–26 (citing Allen v.

Wright, 468 U.S. 737, 757 n.22 (1984)). And, finally, TransUnion suggests that “informational

injuries” continue to qualify categorically as viable traditional injuries under Article III. See id. at

441–42 (first citing FEC v. Akins, 524 U.S. 11 (1998), and then citing Pub. Citizen v. U.S. Dep’t

of Just., 491 U.S. 440 (1989)).

No. 23-3698 Merck v. Walmart, Inc. Page 10

Courts give Congress some deference in identifying intangible harms that “meet

minimum Article III requirements” and can provide plaintiffs standing to sue in federal court.

Spokeo, 578 U.S. at 341. Indeed, Congress can “elevate” certain de facto injuries to the “status of

legally cognizable,” thus granting plaintiffs “a cause of action to sue over the defendant’s

violation of that statutory prohibition or obligation.” TransUnion, 594 U.S. at 425 (quoting

Spokeo, 578 U.S. at 341).

But the Supreme Court’s recent caselaw has thrown cold water on the notion that

Congress may expand the constitutional boundaries that the Court has set out to govern standing.

The Constitution is said to set a floor that plaintiffs must clear to have their suits heard in federal

court. Congress may not grant a person a right to sue for an injury that falls outside the

categories of concrete harms contemplated by the Constitution. See Spokeo, 578 U.S. at 341. The

fact that Congress enacts a law that “grants a person a statutory right and purports to authorize

that person to sue to vindicate that right” does not mean that the person “automatically satisfies

the injury-in-fact requirement.” Id. “Article III standing requires a concrete injury even in the

context of a statutory violation.” Id.

So, when Congress has enacted a broad grant of authority to sue for the infringement of

statutory rights, courts maintain a “responsibility to independently decide whether a plaintiff has

suffered a concrete harm under Article III.” TransUnion, 594 U.S. at 426. Importantly, that

means that plaintiffs do not have standing to assert “bare procedural violation[s], divorced from

any concrete harm.” Spokeo, 578 U.S. at 341. A bare procedural violation, standing alone, is not

sufficiently concrete to confer constitutional standing. But the “violation of a procedural right

granted by statute can be sufficient in some circumstances to constitute injury in fact.” Id. at 342

(emphasis added). In those circumstances, Congress can identify a specific harm—outside of

merely failing to follow a specific procedure—that qualifies as a concrete injury in fact. “In other

words, a plaintiff in such a case need not allege any additional harm beyond the one Congress

has identified.” Id. (emphasis in original). The plaintiff must allege the harm that Congress did

identify, though. And, generally, that harm must bear a “close relationship to a harm traditionally

recognized as providing a basis for a lawsuit in American courts.” TransUnion, 594 U.S. at 440.

No. 23-3698 Merck v. Walmart, Inc. Page 11

1. Informational injury

Merck’s first theory of standing encompasses what courts often call an “informational

injury.” Such an injury is the “denial of information” to someone otherwise entitled to it. Grae v.

Corr. Corp. of Am., 57 F.4th 567, 569–70 (6th Cir. 2023) (denying motion to intervene in appeal

for lack of standing). Before TransUnion, courts sometimes held that the mere denial of

information could qualify as a concrete injury sufficient to confer standing. See, e.g., Macy v. GC

Servs. Ltd. P’ship, 897 F.3d 747, 755–61 (6th Cir. 2018), abrogated by TransUnion, 594 U.S. at

442; Shays v. FEC, 528 F.3d 914, 923 (D.C. Cir. 2008); Strubel v. Comenity Bank, 842 F.3d 181,

189–90 (2d Cir. 2016). But TransUnion rejected any notion that the denial of information,

without more, can satisfy the concreteness element of the constitutional standing doctrine. “An

‘asserted informational injury that causes no adverse effects cannot satisfy Article III.’”

TransUnion, 594 U.S. at 442 (quoting Trichell v. Midland Credit Mgmt., Inc., 964 F.3d 990,

1004 (11th Cir. 2020)). After TransUnion, courts—including this one—agree that “a plaintiff

claiming an informational injury must have suffered adverse effects from the denial of access to

information.” Grae, 57 F.4th at 570 (collecting cases). And this Court said the same thing even

before TransUnion. See Huff v. Telecheck Servs., Inc., 923 F.3d 458, 464–69 (6th Cir. 2019)

(assessing a plaintiff’s claim for the denial of statutorily mandated disclosable information and

finding he had failed to show any individual harm). So, to have standing for an informational

injury, a plaintiff must allege those two elements: (1) adverse effects that (2) result from the

denial of information.

TransUnion lays out the contours of what a sufficiently concrete informational injury

might be. The case concerned a proposed class action of plaintiffs who found out that their credit

reports contained alerts stating their names were “potential” matches to names on a government

terrorist watchlist. See 594 U.S. at 419–20. The plaintiffs claimed the companies failed to (1) use

proper procedures under the Fair Credit Reporting Act to maintain accurate information about

them, (2) disclose all required information about them upon request, and (3) provide them with a

summary of their rights under the Act. Id. at 421. The Court compared the first set of claims to

traditional common-law analogues, finding that only the plaintiffs who had their information sent

to third parties had standing to pursue their claim. See id. at 432–33. And the Court held the

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plaintiffs had not shown any concrete harm on the remaining claims: the right to receive

information about the plaintiffs and about their rights under the Act. See id. at 439–42. The

plaintiffs could not demonstrate “any harm at all,” according to the Court, merely from receiving

mailings that did not comply with the formatting requirements in the Fair Credit Reporting Act.

Id. at 440. “The plaintiffs presented no evidence that, other than” the lead plaintiff, “a single

other class member so much as opened” the deficient mailings, “nor that they were confused,

distressed, or relied on the information in any way.” Id. (quoting Ramirez v. TransUnion LLC,

951 F.3d 1008, 1039 (9th Cir. 2020) (McKeown, J., concurring in part), vacated, 594 U.S. 413

(2021)). TransUnion suggested that, to allege an informational injury, plaintiffs needed to show

that they relied on the information (or lack thereof) that they received—and that the reliance led

to some kind of harm. “Without any evidence of harm caused by the format of the mailings,” the

alleged violations merely stated “bare procedural violations, divorced from any concrete harm.”

Id. (cleaned up).

The plaintiffs in TransUnion also claimed a risk of future harm from receiving

improperly formatted credit files—a risk that can, if sufficiently imminent and substantial,

qualify as concrete. Id. at 423, 441. But “the risk of future harm on its own does not support

Article III standing” in the informational injury context—largely because it’s difficult to show

that a future risk can materialize without there being some actual action taken that makes it more

likely that false or misleading credit information might lead to an adverse effect. Id. at 436–37,

441. And, the Court continued, “the plaintiffs made no effort here to explain how the formatting

error prevented them from contacting TransUnion to correct any errors before misleading credit

reports were disseminated to third-party businesses.” Id. at 441.

The Court distinguished earlier informational injury precedents—Akins, 524 U.S. 11, and

Public Citizen, 491 U.S. 440—by noting that the plaintiffs in TransUnion had not alleged “that

they failed to receive any required information,” unlike in Akins and Public Citizen. TransUnion,

594 U.S. at 441. They alleged only that they received information “in the wrong format.” Id. So

neither case governed the plaintiffs’ claims. Akins and Public Citizen, the Court also explained,

“involved denial of information subject to public-disclosure or sunshine laws that entitle all

members of the public to certain information.” Id. Such laws implicate the “public’s interest in

No. 23-3698 Merck v. Walmart, Inc. Page 13

evaluating matters of concern to the political community.” Casillas v. Madison Ave. Assocs.,

Inc., 926 F.3d 329, 338 (7th Cir. 2019). And, finally, the plaintiffs in TransUnion identified “no

‘downstream consequences’ from failing to receive the required information.” TransUnion, 594

U.S. at 442 (quoting Trichell, 964 F.3d at 1004).

All this boils down to a fine line between an injury involving merely the denial of

information subject to mandatory disclosure by statute—insufficient for standing—and a denial

of information that causes “downstream consequences”—sufficiently concrete to establish

standing. See id. at 441–42. The Supreme Court’s precedents have led the Sixth Circuit to

explain that certain “intangible harms—like the denial of information—may also qualify” as

sufficiently concrete. Grae, 57 F.4th at 569. And this Court has explained that TransUnion’s

“adverse-effects rule” applies as “part of the constitutional inquiry” across all cases. Id. at 571.

So the rule applies here.

Per Grae, “other courts have not found it difficult to define ‘adverse effects.’” Id. Our

caselaw requires that the denied information have “some relevance” to the plaintiff. Brintley v.

Aeroquip Credit Union, 936 F.3d 489, 493 (6th Cir. 2019). The plaintiff must have some

personal “interest in using the information.” Grae, 57 F.4th at 571 (cleaned up) (quoting Harty v.

W. Point Realty, 28 F.4th 435, 444 (2d Cir. 2022)). The denied information must specifically

relate to some negative outcome that the plaintiff suffered because he was unable to use that

information to his benefit. So, to show standing at summary judgment, Merck must point to

specific evidence tending to prove that he has an interest in using the withheld information—the

fact that he wasn’t hired because he failed to disclose his conviction—for some purpose beyond

his statutory right to receive it. See id. In other words, his interest in using the withheld

information must extend beyond simply suing to vindicate that interest. See id.; Harty, 28 F.4th

at 444; TransUnion, 594 U.S. at 440–42 (explaining that the plaintiffs must show that the

information deficit caused some discrete harm to an interest beyond the “bare” procedural

interest in receiving the correct information).

TransUnion provides some guideposts for what it means to suffer adverse effects from an

asserted informational injury. See TransUnion, 594 U.S. at 440–42. The Court offered certain

evidence that, in its view, showed that the plaintiffs had failed to prove such effects: none of the

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relevant plaintiffs opened the mailings, established that they were confused by the information

they received, or showed that they relied on the information. Id. at 440. The plaintiffs did not

show they attempted to correct the information in their credit files. Id. They “made no effort” to

explain how the erroneously formatted information prevented them from reaching out to the

credit reporting agency to correct the credit information. Id. at 441. They failed to argue they

never received required information—just that the information they received was incorrectly

formatted. Id. And finally, they failed to allege any downstream consequences of the incorrectly

formatted information—for instance, that the reporting agency’s statutory violation prevented

them from correcting erroneous information before it could be sent to third parties. Id. at 442.

Arguably, Merck has made some of those hypothetical showings here. He alleges he

never received required information in the report. He argues that he relied on Walmart’s failure

to disclose the complete background report, including the self-disclosure code: he testified that

he would have asked either Walmart or the vendor what the “R3” code meant, rather than simply

asking why he hadn’t been hired. He relied on the report that he received—which omitted the

self-disclosure code—to call to ask why he had been scored “Not Competitive.” He further

testified that, had he seen the code, it would have given him “something to focus on.” Merck

Dep., R.105-3 at PageID 2325. And he also said that, without the ability to “refer to” the code to

determine the reason he wasn’t hired, he was left under the mistaken assumption that Walmart

had withdrawn his offer because he had the conviction, not because he’d failed to disclose the

conviction. Id. Merck testified that he was “never given the chance to clarify” why he “did not

disclose” the conviction—i.e., that it was an innocent mistake that he wasn’t “trying to hide.” Id.

at PageID 2306, 2309. So he certainly made an “effort” to determine why he hadn’t been hired

by contacting Walmart or its background report vendor. See TransUnion, 594 U.S. at 441. And

the information he didn’t receive—the “R3” code reflecting the true basis for rejecting his job

application—certainly had some “relevance” to him. See Brintley, 936 F.3d at 493. After all, it

could have assisted him in determining the actual reason why Walmart decided not to hire him.

But Merck fails to point to any evidence that he would have been able to use the

information about the self-disclosure code to his benefit. First, and perhaps most importantly,

Walmart argues that its policy meant that it would not have reconsidered its initial decision not to

No. 23-3698 Merck v. Walmart, Inc. Page 15

hire him based on his failure to disclose the misdemeanor. And Walmart’s argument is supported

by the record. See Bartlett Dep., R.104-3 at PageID 2084 (“If he said [that the failure to disclose

the conviction] was accurate, then [the human resources representative] would let him know he

could reapply.”). More to the point, Merck fails to carry his burden to identify any evidence in

the record suggesting otherwise. On appeal, he argues there’s “uncertainty” about whether his

first application could have “gone differently” had he known about the true basis for his

rejection. Reply Br. 22. But that’s not enough. He needed to identify specific evidence that he

could have used the denied information to create some material benefit (or avoid some adverse

consequence) to himself—and, given the record, he could not have used the information about

the self-disclosure code to change anything about the result of his first application. See Grae, 57

F.4th at 571. So he fails to show he suffered any downstream consequences from Walmart

withholding the “R3” code during his first application and rejection.

Similarly, Merck points to nothing in the record indicating that he would have used the

withheld information to do anything differently during his second and third applications to work

at Walmart. Very helpful to Merck’s case would have been evidence that Walmart in some way

relied on Merck’s lack of an explanation to reject his later applications outright before allowing

him to fill out a new criminal history addendum. Indeed, if there were some evidence to that

effect, Merck likely would have a forceful argument that the withheld information materially

affected the outcome of those applications. After all, in any later calls to Walmart, he could have

attempted to correct that misimpression.

But during discovery, Merck apparently couldn’t uncover any evidence that Walmart

rejected his later applications because of his failure to disclose the misdemeanor. And the

evidence that we do have suggests that Merck’s first application had no bearing on the later ones.

A Walmart employee testified that Walmart retained employment application information for

only sixty days. Walmart also points to a policy indicating that the self-disclosure code was

“used by” human resources “only and is not relevant to the hiring manager” at the store “or the

candidate.” Ex. to Bartlett Decl., R.105-1 at PageID 2154. Walmart argues that store employees

would not have known what these codes meant. And Merck points to no record evidence refuting

that. So it seems that even if Merck had known about the true basis of his first rejection, the

No. 23-3698 Merck v. Walmart, Inc. Page 16

record before us suggests he couldn’t have used that information to improve his chances for his

second and third applications at Walmart. If his first application had no bearing on his later ones,

we simply can’t say why he didn’t get interviewed the second and third time around. Merck’s

burden was to show the reason related to the withheld information. He has not met that burden.

Finally, Merck argues that he has a general interest in understanding “why his job

application had gone wrong at Walmart” because he was searching for other employment at the

time. Oral Arg. at 01:59–02:01. Abstractly, this interest is compelling. But again, Merck fails to

point to any evidence in the record that he could have used the denied information to do anything

differently. He might be in a different position if he introduced proof that he declined to apply to

other positions because he worried that his misdemeanor might bar him from being hired or

spent more time unemployed than he otherwise would have if he had known that the true issue

was merely his failure to disclose. But he cannot point to any supporting evidence in the record.

Other than a passing reference to feeling like a “failure” after his rejection from Walmart, Merck

Dep., R.105-3 at PageID 2228, he identifies nothing to suggest any material harm that resulted

from the denial of information. Indeed, he applied for one other job after being rejected. He

disclosed to the employer that he had a misdemeanor conviction. He got the job. And he timed

the start of his job so that he had no gap in employment.

Merck makes no mention of anything that he could—or would—have done differently to

find employment had he known the true basis of his Walmart rejections. Logically, it seems that

he did exactly what he should have done, had he known about the self-disclosure code—disclose

the conviction to the new employer before being hired. And he got hired. As above, Merck fails

to identify any evidence in the record that he could have used the withheld information to do

anything differently during his job search. See Grae, 57 F.4th at 571. So he has not suffered any

downstream consequences to his broader job search, either.

* * *

With more specific evidence in the record, Merck might have prevailed on his

informational-injury theory of standing. And, certainly, this case might have had a different

outcome if Merck could rest solely on his allegations—say, at the motion-to-dismiss stage. But at

No. 23-3698 Merck v. Walmart, Inc. Page 17

summary judgment, the plaintiff bears the burden to identify specific facts supporting each

element of standing. Merck failed to point to any evidence showing that he could have used the

withheld information to his benefit. He failed to identify record evidence that he could have been

hired after his first application, that Walmart rejected his second and third applications because

of the self-disclosure issue, that he lacked any opportunity to explain his conviction during the

second and third job applications, and that his lack of information in any way affected his later

job search—during which he applied for one job, disclosed the conviction, and got hired. All he

manages to show is that he was denied information. He hasn’t satisfied the second element of the

informational-injury test: that he suffered adverse effects from the denial of that information.

Given the record before us, Merck could not have used that information to act any differently

than he did, under the circumstances. So, because of the standard we apply to his claims at

summary judgment, Merck does not have standing to sue for an informational injury.

2. Comparison to deprivation of constitutional procedural due process

Merck’s next standing theory seeks to compare failing to receive a complete copy of a

consumer report to the traditional constitutional harm of the denial of procedural due process.

Specifically, Merck and amicus argue that Walmart’s actions bear “a close relationship to the

traditionally recognized harm of the denial of pre-deprivation notice and an opportunity to be

heard.” Appellant’s Br. 39. But Merck fails to account for the key characteristic of a procedural-

due-process claim: that the substantive interest protected in such cases exists only because of its

relationship to the authority of a public entity.

The Supreme Court in TransUnion explained that the Constitution can provide certain

“traditional harms” as analogues for Congress to use in creating statutory causes of action. See

594 U.S. at 425. Specifically, the Court pointed to two “harms specified by the Constitution

itself”: abridgment of free speech and infringement of free exercise. Id. As amicus points out,

Congress has “frequently elevated” certain harms that have close relationships to constitutional

harms. Amicus Br. 10. For instance, Congress has prohibited racial discrimination by private

housing providers. See Tex. Dep’t of Hous. & Cmty. Affs. v. Inclusive Cmtys. Project, Inc., 576

U.S. 519, 529–30 (2015) (describing the scope of liability under the Fair Housing Act). Plaintiffs

under the Fair Housing Act have standing under Article III because Congress identified and

No. 23-3698 Merck v. Walmart, Inc. Page 18

elevated an individual harm—private discrimination in the housing market on the basis of race.

That harm is comparable to a harm found in the Constitution—racial discrimination by the

government. See U.S. Const. amend. XIV; Inclusive Cmtys., 576 U.S. at 528–30. Congress has

also protected against private religious discrimination. See EEOC v. Abercrombie & Fitch

Stores, Inc., 575 U.S. 768, 770 (2015). And, under the Religious Freedom Restoration Act,

Congress has expanded free-exercise protections against state actors beyond what the

Constitution protects. Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 694–96 (2014). In

those cases, plaintiffs suffer a discriminatory harm—on the basis of race or religion—that closely

resembles the discrimination prohibited by the Constitution, so they have Article III standing to

sue in federal court.

Merck seeks to derive constitutional standing from an analogy to the right that

individuals possess to adequate procedure prior to the deprivation of life, liberty, or property. See

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985). Merck points to the text of the

Fair Credit Reporting Act for his argument that the Act bears a “close relationship” to “the denial

of notice and an opportunity to be heard” before being subject to adverse action. Appellant’s Br.

41. In response, Walmart disputes that anything in the Act creates a consumer right to have an

opportunity to respond to a pending adverse action before the employer can take that action.

Walmart relies on caselaw in our sibling circuits holding that nothing in the text of the Act

establishes a right to dispute an inaccurate report. See Schumacher v. SC Data Ctr., Inc., 33 F.4th

504, 511–12 (8th Cir. 2022); Walker v. Fred Meyer, Inc., 953 F.3d 1082, 1092–93 (9th Cir.

2020).

But we need not decide the exact scope of the rights a consumer enjoys under the Act.

Merck’s comparison fails for a more fundamental reason. TransUnion warns courts to look out

for “essential” elements of liability that may appear in a traditional cause of action but that the

modern claim lacks. 594 U.S. at 434. Here, there’s a clear difference between Merck’s statutory

claim and a procedural-due-process claim: Walmart is not a state actor.

Now, we can’t simply distinguish these analogues merely on the basis of the state-action

doctrine. After all, the Court has made clear that Congress has the power to elevate certain

harms—caused by private actors—that bear strong resemblances to constitutional claims. See id.

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at 425. If the state-action doctrine served as a bar to Congress providing statutory causes of

action to claims that resemble constitutional harms, then Congress would be unable to protect

against, for example, private racial or religious discrimination. And it can clearly do those things.

See, e.g., id.; Inclusive Cmtys., 576 U.S. at 528–30; Abercrombie & Fitch, 575 U.S. at 770.

But the protected property and liberty interests under a due-process claim are different.

The essential nature of a property or liberty interest depends on the existence of the government.

“Property interests, of course, are not created by the Constitution.” Bd. of Regents of State Colls.

v. Roth, 408 U.S. 564, 577 (1972). But “they are created and their dimensions are defined by

existing rules or understandings that stem from an independent source such as state law.” Id. The

state has unique power to confer a “legitimate claim of entitlement” to a liberty or property

interest. Id.; see also Golden v. City of Columbus, 404 F.3d 950, 955 (6th Cir. 2005) (noting that

the Supreme Court “has identified two bases” for “non-unilateral legitimate claims of

entitlement: state statutes and contracts” between a citizen and a state or its agencies). That’s

why procedural protections against the deprivation of those interests by the state—without due

process—are so important. “It is a purpose of the ancient institution of property to protect those

claims upon which people rely in their daily lives, reliance that must not be arbitrarily

undermined.” Roth, 408 U.S. at 577. “It is a purpose of the constitutional right” to due process

“to provide an opportunity for a person to vindicate those claims.” Id.

Indeed, property “is the creation of law.” Charles A. Reich, The New Property, 73 Yale

L.J. 733, 739 (1964). And before due-process precedent enshrined protections for individuals

against the arbitrary deprivation of certain intangible property interests by state actors, the

government could typically “withhold, grant, or revoke” its “largess”—or its wealth and

benefits—“at its pleasure.” Id. at 740; see also Lynch v. United States, 292 U.S. 571, 577 (1934),

abrogated by Goldberg v. Kelly, 397 U.S. 254, 261–63 (1970). Today, individuals enjoy

protections against such deprivations precisely because those interests are conferred by the

government. See Goldberg, 397 U.S. at 262–63. Indeed, the very nature of sovereign government

in this country distinguishes between the authority of a “private person,” who is merely “directly

responsible for his acts,” and a public entity, “who acts pursuant to the command of a legal

No. 23-3698 Merck v. Walmart, Inc. Page 20

precept.” Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 283

(1855).

A private employer—even in a contract with one of its employees—cannot alone create

the kind of “legitimate claim of entitlement” to a property interest that the state has the power to

confer. See Roth, 408 U.S. at 577. Each party enjoys certain contractual rights with respect to the

other, to be sure. And, of course, the parties are obligated to respect any other duties they have

under other private-law doctrines. But a property or liberty interest owes its existence to the

regime of state laws or rules that define the dimensions of that interest. See id.; Goss v. Lopez,

419 U.S. 565, 572–73 (1975). The state’s endorsement of the validity of a particular interest

generates, in essence, an imprimatur of legitimacy that gives the holder of that interest certain

rights against the rest of the world. Those rights are strong; that’s why it’s important to ensure

the government provides due process before depriving someone of those rights. See Goldberg,

397 U.S. at 261–63. Private actors cannot generate that same legitimacy.

The essential nature of the core interest at the heart of a procedural-due-process claim

underscores why Merck’s theory does not succeed in the private context. Of course, much of the

analogy that Merck presses does compare almost directly to the rules that govern in the due-

process context. The Fair Credit Reporting Act requires, at a minimum, that an employer taking

an adverse action against a prospective employee provide that person certain information about

why they’re taking the adverse action—before the action is taken. 15 U.S.C. § 1681b(b)(3)(A).

That certainly feels like due process. For public employment, a similar right exists: any

employee “who has a constitutionally protected property interest in his employment” must

receive “some kind of hearing” prior to being fired. Loudermill, 470 U.S. at 542 (quotation

omitted). In general, any deprivation of “life, liberty, or property” must “‘be preceded by notice

and an opportunity for hearing appropriate to the nature of the case.’” Id. (quoting Mullane v.

Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950)). The Act contains such a pre-

adverse action notice requirement.

But any interest an employee has in continued employment for a private actor differs in

kind from the property interest that results from public employment. The state has unique

authority to create certain property interests. Private employers do not have that same authority.

No. 23-3698 Merck v. Walmart, Inc. Page 21

So courts hold the state to a higher standard when it seeks to deprive someone of those interests;

but, correspondingly, we do not hold private actors to that standard. The nature of the interest in

a property right endorsed by the state is different in kind than the nature of a contractual right

possessed by one private party against another. And Merck has shown only that he has an

individual interest in private employment with Walmart, not that he possesses an interest that any

member of the citizenry would possess with respect to any publicly conferred property or liberty

interest. Indeed, the limited protections available under the law to at-will employees—as Merck

applied to be here—underscore that any interest Merck possesses cannot compare to the strength

of a property interest grounded in state law. See Engquist v. Or. Dep’t of Agric., 553 U.S. 591,

606 (2008) (“The basic principle of at-will employment is that an employee may be terminated

for a good reason, bad reason, or no reason at all.” (quotation omitted)).

Merck cannot show that the interest protected by the Fair Credit Reporting Act is

sufficiently analogous to the constitutional property interests protected by the Due Process

Clause. See TransUnion, 594 U.S. at 433. So he has failed to establish that he suffered a concrete

injury in fact under the theory that his suit is analogous to the denial of a right to procedural due

process.

3. Comparison to harms from traditional tort and contract claims

Merck’s final theory of injury also rests on the Spokeo and TransUnion test identifying

certain traditional harms under the constitutional standing doctrine. “Chief among” the various

intangible harms are “injuries with a close relationship to harms traditionally recognized as

providing a basis for lawsuits in American courts.” TransUnion, 594 U.S. at 425. In addition to

relying on traditional harms specified in the Constitution, Merck also proposes several traditional

common-law actions as comparisons. He argues these common-law claims “all rest upon the

same principle: That it is harmful to be denied material information in the course of a business

transaction or similar circumstances.” Appellant’s Br. 46.

To determine whether a statutory claim bears a close relationship to a traditional harm,

we “analogize” to common-law causes of action. Dickson v. Direct Energy, LP, 69 F.4th 338,

344 (6th Cir. 2023) (quoting Gadelhak, 950 F.3d at 462). Broadly, it’s helpful to compare the

No. 23-3698 Merck v. Walmart, Inc. Page 22

elements of the statutory violation and the common-law claim, though TransUnion cautions

against requiring too close a match before finding that a plaintiff possesses standing. 594 U.S. at

433 (“[W]e do not require an exact duplicate.”). Indeed, we look for a close relationship “in kind,

not degree.” Dickson, 69 F.4th at 344 (quoting Gadelhak, 950 F.3d at 462). That means that we

should limit our focus on the magnitude of any imposition and turn instead to the fundamental

resemblances—or differences—between the asserted statutory and common-law claims. See

Gadelhak, 950 F.3d at 462–63. As an illustrative example, consider then-Judge Barrett’s

approach in Gadelhak. She found that the sending of unwanted text messages (in violation of the

Telephone Consumer Protection Act) was sufficiently analogous to the common-law tort claim

of intrusion upon seclusion. Common law might not permit recovery for the unwanted receipt of,

say, five text messages, because the traditional tort claim generally requires a “much more

substantial imposition.” Id. at 462. But by focusing on the kind of harm, rather than the

magnitude, she found it clear that Congress could elevate that harm—receipt of a small number

of text messages—to a concrete injury in fact. Id. at 463.

Spokeo identified a few concrete common-law harms for which recovery is available

“even if their harms may be difficult to prove or measure”: for instance, libel and slander. See

578 U.S. at 341–42 (citing Restatement (First) of Torts §§ 569, 570). TransUnion identified a

few more examples: reputational harms, disclosure of private information, and intrusion upon

seclusion. See 594 U.S. at 425 (first citing Meese v. Keene, 481 U.S. 465, 473 (1987)

(reputational harms); then Davis v. FEC, 554 U.S. 724, 733 (2008) (disclosure of private

information); and then Gadelhak, 950 F.3d at 462 (intrusion upon seclusion)). Comparing

historical claims—specifically, defamation—to the modern analogue in TransUnion meant that

some plaintiffs whose misleading information had been disclosed to a third party had standing

under the Fair Credit Reporting Act to sue the credit agency for failing to follow reasonable

procedures to maintain accurate credit files. Id. at 431–33. Those plaintiffs did not need to show

an exact, element-by-element match to the common-law claim—after all, the TransUnion

defendant did not maintain false information about the group of plaintiffs, merely misleading

information. Id. at 433. In the Court’s view, that harm was close in kind to the traditional harm of

a defamatory statement, meaning those plaintiffs had standing under the Act. Id.

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The next group of plaintiffs, though, did not have standing. Those plaintiffs failed to

show an “essential” element of liability for defamation: publication. Id. at 434 (quoting

Restatement (First) of Torts § 577, cmt. a). In the Court’s eyes, “there is ‘no historical or

common-law analog where the mere existence of inaccurate information, absent dissemination,

amounts to concrete injury.’” Id. (quoting Owner-Operator Ind. Drivers Ass’n v. U.S. Dep’t of

Transp., 879 F.3d 339, 344–45 (D.C. Cir. 2018)). So the Court drew a line in the sand: an “‘exact

duplicate’ of a traditionally recognized harm is not required,” but “the new allegations cannot be

missing an element ‘essential to liability’ under the comparator tort.” Hunstein v. Preferred

Collection & Mgmt. Servs., Inc., 48 F.4th 1236, 1242 (11th Cir. 2022) (en banc) (quoting

TransUnion, 594 U.S. at 433–34). On one side of the line falls the set of plaintiffs subject to the

publication of misleading—but not literally false—information. TransUnion, 594 U.S. at 433.

They have suffered a concrete injury in fact. On the other side lie plaintiffs with the exact same

misleading information in their credit report—but who never suffered any harm from the

dissemination of that information. Id. at 434.

That dividing line helps frame the analysis in Merck’s case. He points to several

common-law tort and contractual claims as asserted analogues for his procedural claim under the

Fair Credit Reporting Act. They include: nondisclosure and fraudulent misrepresentation, see

Restatement (Second) of Torts §§ 529, 538, 551(1); invasion of privacy, see Restatement

(Second) of Torts § 652A; Long v. Se. Pa. Transp. Auth., 903 F.3d 312, 324 (3d Cir. 2018); and

contractual misrepresentation, see Restatement (Second) of Contracts § 164. Merck argues that

this web of common-law claims generates a general principle that “it is harmful to be denied

material information in the course of a business transaction or similar circumstances.”

Appellant’s Br. 46.

Merck’s theoretical principle overstates the simplicity of the common-law analogues on

which he relies. Framed so generally, his theory might indeed be a strong match for the statutory

scheme that establishes the duties employers have under the Fair Credit Reporting Act. The

provisions at issue here are fairly simple: “before taking any adverse action based in whole or in

part on the report, the person intending to take such adverse action shall provide to the consumer

to whom the report relates” (1) “a copy of the report;” and (2) a “description” of the consumer’s

No. 23-3698 Merck v. Walmart, Inc. Page 24

“rights” under the Act. 15 U.S.C. § 1681b(b)(3)(A). And, arguably, such information—the report

and a description of a consumer’s rights—might always be material in the context of an adverse

employment action.

But a closer look at the common-law claims underscores why the statutory scheme is

different in kind than the traditional harms Merck identifies. An essential element of intrusion

upon seclusion, one of his proposed comparisons, is that the intrusion be unwanted. Consent

eliminates that element entirely. See, e.g., Lunsford v. Sterilite of Ohio, L.L.C., 165 N.E.3d 245,

254 (Ohio 2020); Restatement (Second) of Torts § 652B (establishing liability for an intrusion

only if the intrusion is “highly offensive to a reasonable person”). Use of personal information—

like a name or likeness—has a similar requirement. See Zacchini v. Scripps-Howard Broad. Co.,

433 U.S. 562, 574–75 (1977) (explaining that “right of publicity” includes actions against media

organizations for publication of an act without consent). Merck’s proposed comparison fails to

account for that essential element. The key difference here is that he consented to Walmart’s use

of his private information in performing its background check. And the statutory scheme

indicates nowhere that it covers only scenarios where the plaintiff has not consented to the use of

his consumer information. See 15 U.S.C. § 1681b(b)(3)(A). Merck didn’t seek to avoid receipt of

information from Walmart—he wanted to receive accurate information. So these first two

privacy torts don’t qualify.

The other two fare no better. Unreasonable publicity of someone’s private life, see

Restatement (Second) of Torts § 652D, and false light liability, see Restatement of Torts § 652E,

both have a publication requirement. Like in TransUnion, that dooms Merck’s claim. Even

assuming the information that he didn’t receive can be characterized as private—given his

consent to conduct the background check—or misleading enough to qualify as “false light,”

Merck cannot show that anyone beyond Walmart, acting through the vendor, received the

information. And the relevant provision of the Act concerns only the disclosure of information to

the consumer who is the subject of the report, not anyone else. So like in TransUnion, the lack of

a publication means that the harm from these torts does not qualify as close enough in kind to

generate Article III standing. See TransUnion, 594 U.S. at 434.

No. 23-3698 Merck v. Walmart, Inc. Page 25

Somewhat more complicated are Merck’s analogies to various misrepresentation and

nondisclosure tort and contract claims. The district court determined that the harm from these

common-law claims did not compare to the harm from failure to disclose information under the

Fair Credit Reporting Act because “Merck has not shown that Walmart owed” Merck “a duty to

exercise reasonable care in making disclosures” to the consumer. Order, R.114 at PageID 2603.

The district court is correct that the common-law claims do typically require a showing that the

defendant owes the plaintiff some contractual or tort-based duty of reasonable care. See, e.g.,

Restatement (Second) of Torts § 551(2). But as Merck argues on appeal, it’s not clear that this

can be the sole basis for Walmart to avoid liability, as the Act does impose a duty on Walmart to

provide the consumer with full and accurate information contained in a consumer report being

used for an adverse employment action. See 15 U.S.C. § 1681b(b)(3)(A)(i). Arguably, that duty

is different only in degree from the traditional duty under tort and contract liability to exercise

reasonable care in disclosing material information to another. So it might qualify under

TransUnion.

But Merck’s argument misses the forest for the trees. Each of the nondisclosure common-

law analogues he identifies serves to advance the interests that a party and a counterparty to a

“business transaction” or a contract have against each other. See Restatement (Second) of Torts

§§ 529 cmts. a, b, c, illus., 551; Restatement (Second) of Contracts § 164. In essence, these

claims are concerned with reliance and materiality, see Restatement (Second) of Torts § 538,

because one party might induce the other to agree to something—i.e., to enter into the contract or

business transaction—on the basis of false or misleading information. But the Act here imposes

an absolute duty on an employer to disclose information used in an adverse employment

decision. 15 U.S.C. § 1681b(b)(3)(A)(i). The duty exists independently of whether Merck might

rely on the information to enter into a transaction or contract. In that sense, the common-law

analogues are narrower than the comparable provisions under the Act. The Act provides for

potential liability regardless of whether one party intends to induce the other “to act or to refrain

from action in reliance” upon the misrepresentation of fact. Restatement (Second) of Torts § 525;

see also Restatement (Second) of Contracts § 164 (requiring that a misrepresentation induce a

“manifestation of assent” to enter a contract).

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Merck argues that he might have justifiably relied on the failure to provide the true

reason why his job offer was revoked because he “refrain[ed] from trying to explain that he had

failed to report the misdemeanor conviction because he had forgotten it.” Appellant’s Br. 45. But

he fails to recognize that the element “essential to” Walmart’s “liability,” TransUnion, 594 U.S.

at 434, is that he in some way manifested his assent or sought some benefit from a transaction

that he was entering. See Restatement (Second) of Contracts § 164; Restatement (Second) of

Torts § 525. There was no such transaction here. Walmart did not provide information—be it

true or misleading—because it sought to take advantage of a position of trust it possessed over

Merck or because it wanted to induce his agreement to a contractual exchange between the two

parties. It provided the information pursuant to a wholly one-sided statutory duty that exists

independently of whether the employer and the employee transact in any way with each other.

See 15 U.S.C. § 1681b(b)(3)(A). Indeed, under the plain text of the Act, that’s the only duty

Walmart possesses. It has no statutory duty to correct false or misleading information. And it has

no duty to refrain from taking an adverse action if the consumer seeks to correct false or

misleading information. All of this makes sense, because the provision isn’t concerned with

regulating contractual or business exchanges between parties. It’s instead concerned with

providing consumers tools to ensure that other entities don’t rely on false and unfairly

aggregated information about the consumers. See id. § 1681(a).

Because Walmart’s duties under the Act extend outside those elements essential for

liability under traditional tort and contractual nondisclosure claims, Merck has failed to show he

has standing under his traditional-harm theory. Indeed, the final two words of Merck’s proposed

harm principle give away the game: he says it’s harmful to be denied material information in a

business transaction or “similar circumstances.” Appellant’s Br. 46. But the existence of a

transaction—one in which one party seeks to gain some benefit from another party based on

false or misleading information—is necessary to that party’s liability. Merck had no rights or

obligations under the theoretical “transaction” meant to provide an analogue for the statutory

framework here. So it’s clear that Walmart never entered any transaction or agreement by

disclosing—or failing to disclose—information under the Fair Credit Reporting Act. This theory

of standing fails.

No. 23-3698 Merck v. Walmart, Inc. Page 27

C.

Because we affirm the district court’s finding that Merck does not have constitutional

standing to sue, we decline to address Walmart’s three alternative arguments in support of

summary judgment.

IV.

We AFFIRM the district court’s grant of summary judgment in Walmart’s favor.