IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD ...

1 LEGAL\31584974\1 IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT NO. 17-1889 FRANK LONG, JOSEPH SHIPLEY, and MICHAEL WHITE, individually and on behalf of all others similarly situated, Plaintiffs/Appellants, v. SOUTHESTERN pennsylvania transportation authority , Defendant/Appellee. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF pennsylvania BRIEF OF DEFENDANT/APPELLEE southeastern pennsylvania transportation authority Elizabeth A. Malloy (Pa. No. 48297) Cozen O Connor One Liberty Place 1650 Market Street, Ste. 2800 Philadelphia, PA 19103 (215) 665-479 Attorneys for Defendant/Appellee southeastern pennsylvania transportation authority Candidus K. Dougherty (Pa. No. 206106) Michael A. Cognetti (Pa. No. 55819) Swartz Campbell LLC Two Liberty Place 50 S. 16th Street, 28th Floor Philadelphia, PA 19102 Attorneys for Defendant/Appellee southeastern pennsylvania transportation authority Case: 17-1889 Document: 003112672986 Page: 1 Date Filed: 07/12/2017 CORPORATE DISCLOSURE STATEMENT Pursuant to Federal Rule of Appellate Procedure and THIRD Circuit Local Appellate Rule , Defendant/Appellee southeastern pennsylvania transportation authority is a body corporate and politic [that exercises the] public powers of the Commonwealth of pennsylvania as an agency and instrumentality thereof.

2 74 1711(a). Therefore, no corporate disclosure statement is required. Dated: July 12, 2017 /s/ Elizabeth A. Malloy ELIZABETH A. MALLOY Case: 17-1889 Document: 003112672986 Page: 2 Date Filed: 07/12/2017 TABLE OF CONTENTS Page I. STATEMENT OF ISSUE PRESENTED FOR REVIEW .. 1 II. STATEMENT OF THE CASE .. 1 A. Relevant Procedural History .. 2 B. Facts Relevant to the Issue Submitted for Review .. 4 III. SUMMARY OF THE ARGUMENT .. 6 IV. ARGUMENT .. 8 A. Standard of Review .. 8 B. Plaintiffs Did Not Establish Injury In Fact ..10 1. Spokeo v. Robins is Dispositive ..12 2. Congress did not Intend Section 1681b(b)(3) to Protect Against Plaintiffs Purported Informational Injury ..16 3. Plaintiffs authority Does Not Support Standing ..21 C. Plaintiffs Claims Also Fail to Satisfy the Remaining Elements of Standing ..28 V. CONCLUSION.

3 31 Case: 17-1889 Document: 003112672986 Page: 3 Date Filed: 07/12/2017 ii LEGAL\31584974\1 TABLE OF AUTHORITIES Cases Page(s) Ballentine v. UNITED STATES , 486 806 (3d Cir. 2007)..9 Boergert v. Kelly Services, Inc., No. 2:15-cv-04185, 2016 WL 6693104 ( Mo. Nov. 14, 2016) ..12, 17, 19, 26 Campbell v. Adecco USA, Inc., No. 2:16-cv-04059, 2017 WL 1476152 ( Mo. Apr. 24, 2017) ..18 Cortez v. Trans Union, LLC, 617 688 (3d Cir. 2010)..16 DaimlerChrysler Corp. v. Cuno, 547 332 (2006) ..9 Dalton v. Capital Associated Indus., Inc., 257 409 (4th Cir. 2001) ..16 Dreher v. Experian Information Solutions, Inc., 856 337 (4th Cir. 2017) ..23, 25, 26, 27 Duquesne Light Co. v. UNITED STATES EPA, 166 609 (3d Cir.)

4 1999)..29 Federal Election Commission v. Akins, 524 11 (1998) ..22, 23 FOCUS v. Allegheny County COURT of Common Pleas, 75 834 (3d Cir. 1996)..9 FW/PBS, Inc. v. Dallas, 493 215, 231 (1990) ..10 Komlo v. UNITED STATES , 657 Fed. Appx. 85 (3d Cir. 2016) ..8 Lee v. Hertz Corp., No. 15-cv-04562, 2016 WL 7034060 ( Ca. Dec. 2, 2016) ..13 Llewellyn v. AZ Compassionate Care Inc., No. CV-16-04181, 2017 WL 1437632 (D. Ariz. April 24, 2017) ..12 Case: 17-1889 Document: 003112672986 Page: 4 Date Filed: 07/12/2017 iii LEGAL\31584974\1 Lujan v. Defenders of Wildlife, 504 555, 561 (1992 ..9 McCann v. Newman Irrevocable Trust, 458 281, 286 (3d Cir. 2006)..8, 9 Meyers v. Nicolet Restaurant of De Pere, LLC, 843 724 (7th Cir. 2016) ..11 In re: Michaels Stores, Inc., Fair Credit Reporting Act (FCRA) Litigation, No. 14-7563, 2017 WL 354023 ( Jan. 24, 2017).

5 25 Mix v. Asurion Ins. Servs., Inc., No. CV-14-02357, 2016 WL 7229140 (D. Ariz. Dec. 14, 2016) ..19, 20 Mortenson v. First Fed. Sav. & Loan Ass n, 549 884, 891 (3d Cir. 1977)..9 In re: Nickelodeon Consumer Privacy Litig., 827 262 (3d Cir. 2016)..24 Nokchan v. Lyft, Inc., No. 15-cv-03008, 2016 WL 5815287 ..25 Public Citizen v. UNITED STATES Department of Justice, 491 440 (1989) ..22, 23 Ramos v. Genesis Healthcare, LLC, 141 F. Supp. 3d 341, 347 ( Pa. 2015) ..29 Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) .. passim Summers v. Earth Island Institute, 555 488, 496 (2009) ..11 Thomas v. FTS USA, LLC 193 F. Supp. 3d 623 ( Va. 2016) ..25, 26, 27 Tyus v. UNITED STATES Postal Serv., No. 15-cv-1467, 2016 WL 6108942, at *7 ( Wis. Oct. 19, 2016) ..18 Statutes 18 Pa. 9125 ..1, 2 15 1681 ..1 15 1681b(b)(2) ..4, 16 Case: 17-1889 Document: 003112672986 Page: 5 Date Filed: 07/12/2017 iv LEGAL\31584974\1 15 1681b(b)(3).

6 Passim Other Authorities Fed. R. Civ. P. 12(b)(1)..9 S. Rep. No. 517, 91st Cong., 1st Sess. 2 (1969) ..16 Case: 17-1889 Document: 003112672986 Page: 6 Date Filed: 07/12/2017 I. STATEMENT OF ISSUE PRESENTED FOR REVIEW Whether the District COURT properly concluded that Plaintiffs/Appellants, Frank Long, Michael White, and Joseph Shipley, lack standing to sue Defendant/Appellee, southeastern pennsylvania transportation authority , for violations of Section 1681b(b)(3) of the Fair Credit Reporting Act ( FCRA ), 15 1681, et seq. II. STATEMENT OF THE CASE This is a putative class action by Plaintiffs/Appellants, Frank Long, Joseph Shipley, and Michael White, individually and on behalf of all others similarly situated ( Plaintiffs ), against Defendant southeastern pennsylvania transportation authority ( SEPTA ), alleging SEPTA violated the FCRA and the Criminal History Records Information Act, 18 Pa.

7 9125 ( CHRIA ). The First Amended Complaint ( Amended Complaint ) alleged that SEPTA did not provide statutorily compliant disclosures, adverse action letters, and summaries of rights to job applicants during the pre-employment period. Plaintiffs CHRIA claims in the Amended Complaint were based on the contention SEPTA disqualified Plaintiffs from job positions based on drug convictions that did not relate to suitability for employment. Plaintiffs demanded statutory damages, injunctive relief and punitive damages. This appeal concerns only whether Case: 17-1889 Document: 003112672986 Page: 7 Date Filed: 07/12/2017 2 LEGAL\31584974\1 Plaintiffs have standing to pursue their claims brought under Section 1681b(b)(3) of the FCRA. A. Relevant Procedural History Plaintiffs filed the Amended Complaint on May 26, 2016 on behalf of themselves and all others similarly situated.

8 JA21. The Amended Complaint asserted four claims, namely: Plaintiffs alleged that SEPTA willfully violated the FCRA because it failed to make a disclosure to Plaintiffs purportedly required by the FCRA before it obtained consumer reports about Plaintiffs (Count I), JA41-43; Plaintiffs alleged SETPA willfully violated the FCRA because it failed to provide Plaintiffs with a pre-adverse action letter and a copy of the consumer report before revoking their conditional offers of employment (Count II), JA43-44; Plaintiffs alleged that SEPTA willfully violated the FCRA because it failed to provide Plaintiffs with a written description of their rights under the FCRA before revoking their conditional offers of employment (Count III), JA44-46; and Plaintiffs alleged that SEPTA willfully violated pennsylvania s Criminal History Record Information Act, 18 Pa.

9 Cons. Stat. Ann. 9125 et seq. (the CHRIA ) because it declined to employ Plaintiffs as Bus Operators and a Railroad Supervision Manager because of their criminal drug convictions (Count IV), JA46. SEPTA moved to dismiss Plaintiffs FCRA claims (Counts I, II, and III) for lack of standing, alleging, inter alia, that Plaintiffs failed to plead facts that demonstrated they suffered a concrete and particularized injury as a consequence of SEPTA s purported FCRA violations. JA58, 62. SEPTA further moved to Case: 17-1889 Document: 003112672986 Page: 8 Date Filed: 07/12/2017 3 LEGAL\31584974\1 dismiss the Amended Complaint on the grounds that Plaintiffs failed to state a claim for relief. On April 5, 2017, the District COURT granted SEPTA s Motion to Dismiss the Amended Complaint, finding that Plaintiffs lacked standing because they failed to meet their burden of establishing that any one of them has suffered an injury in fact that would enable them to assert their FCRA claims.

10 JA13. The District COURT rejected Plaintiffs claims that SEPTA s alleged failure to provide Plaintiffs with copies of their consumer reports or a summary of their rights caused them harm because they could not evaluate information contained in the consumer reports to ensure accuracy, challenge and correct information, or learn of their FCRA rights. JA12 (quotation marks omitted). The District COURT found that Plaintiffs have failed to allege any specific, identifiable trifle of injury or allege that they were harmed in any non-abstract way as a consequence of SEPTA s purported FCRA violations. JA12 (emphasis in original). The District COURT decided it need not consider the other elements [of standing] or whether Plaintiffs can establish a claim on which relief can be granted for their FCRA and state law claims. JA13. Plaintiffs subsequently appealed the District COURT s ruling.