United States District Court, N.D. Illinois, Eastern Division
Johnny Vera, individually and as a representative of the class, Plaintiff,
Mondelez Global LLC, Defendant.
MEMORANDUM OPINION AND ORDER
Honorable Thomas M. Durkin United States District Judge
Thomas M. Durkin Memorandum Opinion and Order Johnny Vera
alleges that his former employer, Mondelez Global LLC, used
an improper disclosure format to inform him that they planned
to run a background check on his personal history before
hiring him, in violation of the Fair Credit Reporting Act
("FCRA"), 15 U.S.C. § 1681b(b)(2)(A)(i).
See R. 1-1. Mondelez has moved to dismiss for lack
of subject-matter jurisdiction pursuant to Federal Rule of
Civil Procedure 12(b)(1). R. 8. For the following reasons,
that motion is granted.
purposes of a motion to dismiss under Rule 12(b)(1) the court
accepts all well-pleaded factual allegations as true and
construes all reasonable inferences in the plaintiffs favor.
See Scanlan v. Eisenberg, 669 F.3d 838, 841 (7th
Cir. 2012). "Where jurisdiction is in question, the
party asserting a right to a federal forum has the burden of
proof, regardless of who raise[d] the jurisdictional
challenge . . . ." Craig v. Ontario Corp., 543
F.3d 872, 876 (7th Cir. 2008).
applied online for a job with Mondelez. R. 1-1 ¶ 20. As
part of the application process, the website displayed
"a statement related to the general topic of background
checks" (the "Statement"). Id.
¶21. Vera was required to scroll down the webpage in
order to read the Statement in its entirety. Id. The
Statement provided that Vera gave Mondelez "the right to
request . . . any and all information about [Vera's]
background." Id. ¶ 32. In addition to
information about requesting a background check, the
Statement included "privacy and liability waivers,
" such as an authorization for "all companies,
credit agencies, educational institutions, persons,
government agencies, criminal and civil courts, and former
employers to release information they have about me and
release them for any liability for doing so."
Id. ¶ 33. Vera also alleges that the Statement
misstated his rights under the FCRA, id.
¶¶ 42-44, and included various other information
about his and Mondelez's obligations should he be hired.
Id. ¶¶ 47-50. Mondelez then proceded to
obtain a background check of Vera. Id. ¶ 28.
alleges that Mondelez's Statement violated FCRA's
"stand-alone disclosure requirement." The statute
provides the following in relevant part:
a person may not procure a consumer report, or cause a
consumer report to be procured, for employment purposes with
respect to any consumer, unless ... a clear and conspicuous
disclosure has been made in writing to the consumer at any
time before the report is procured or caused to be procured,
in a document that consists solely of the
disclosure, that a consumer may be obtained for employment
15 U.S.C. § 1681b(b)(2)(A)(i) (emphasis added). Vera
alleges that the Statement Mondelez gave him as part of his
employment application violates this provision of the FCRA
because it contained more information than just the
disclosure that Mondelez intended to "procure a consumer
report" about him. R. 1-1 ¶¶ 31, 60, 68.
argues that the Court does not have subject matter
jurisdiction over Vera's claim because Vera has failed to
allege an injury-in-fact. Mondelez argues that even if Vera
has alleged that Mondelez failed to comply with the
"standalone disclosure requirement" in §
1681b, Vera has failed to allege that he was harmed by that
Spokeo, Inc. v. Robins the Supreme Court addressed
the circumstances under which violation of statutory
rights-like the "stand-alone disclosure
requirement" of § 1681b-are sufficient to establish
harm that forms that basis of a "case or
controversy" under Article III of the Constitution. 136
S.Ct. 1540 (2016). The Supreme Court acknowledged that
"Congress has the power to define injuries and
articulate chains of causation that will give rise to a case
or controversy where none existed before." Id.
at 1549. Nevertheless, "Congress'[s] role in
identifying and elevating intangible harms does not mean that
a plaintiff automatically satisfies the injury-in-fact
requirement whenever a statute grants a person a statutory
right and purports to authorize that person to sue to
vindicate that right." Id. For instance,
"a bare procedural violation, divorced from any concrete
harm, [cannot] satisfy the injury-in-fact requirement."
Vera's claim, Spokeo concerned a provision of
the FCRA. The FCRA provision at issue in Spokeo imposed
obligations on reporting agencies to follow certain
procedures when collecting and reporting background and
credit information about individuals. The Supreme Court
acknowledged that by imposing these requirements on reporting
agencies, "Congress plainly sought to curb the
dissemination of false information by adopting procedures
designed to decrease that risk." Id. at 1550.
Despite that intent, however, "[a] violation of the
FCRA's procedural requirements may result in no harm. For
example, even if a consumer reporting agency fails to provide
the required notice to a user of the agency's consumer
information [in violation of § 1681e(d)], that
information regardless may be entirely accurate."
contrast, "the violation of a procedural right granted
by statute can be sufficient in some circumstances
to constitute injury in fact, " such that a plaintiff
"need not allege any additional harm beyond the one
Congress has identified." Id. at 1549 (emphasis
added). As an example of such an actionable procedural right,
the Court cited the deprivations of information allegedly in
violation of rights granted by federal statutes at issue in
Federal Election Comm'n v. Akins,524 U.S. 11
(1998), and Public Citizen v. Department of Justice,491 U.S. 440 (1989). Id. at 1549-50; see also
Id. at 1553 (Thomas, ...