In the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United States

CORY GROSHEK,Petitioner,

v.

TIME WARNER CABLE INC.;GREAT LAKES HIGHER EDUCATION CORPORATION,

Respondents.

On Petition for Writ of Certiorari to theUnited States Court of Appeals for the Seventh Circuit

PETITION FOR WRIT OF CERTIORARI

Michael J. ModlCounsel of Record

AXLEY BRYNELSON, LLPPost Office Box 1767Madison, Wisconsin 53701(608) 257-5661mmodl@axley.com

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

NO.

Robert J. GingrasHeath P. StrakaGINGRAS, CATES & WACHS, SC8150 Excelsior Dr.Madison, Wisconsin 53717(608) 833-2632gingras@gcwlawyers.comstraka@gcwlawyers.com

Counsel for Petitioner

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QUESTIONS PRESENTED FOR REVIEW

I. Whether Groshek alleged a concrete injury-in-fact,sufficient to confer Article III standing, where healleged a willful violation of the disclosurerequirements under § 1681b(b)(2)(A) of the FairCredit Reporting Act, including harm to privacy andinformational interests which were magnified byinclusion of a prospective release of federalstatutory rights in the disclosure documents.

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PARTIES TO THE PROCEEDINGS AND RULE29.6 DISCLOSURE STATEMENT

The parties to the proceedings are those listed onthe cover of the Petition. Petitioner Cory Groshek is anindividual. Respondent Great Lakes Higher EducationCorporation is a non-public corporation with no parentcorporation and no publicly held company owning morethan 10% of its stock. Respondent Time Warner CableInc. (“TWC”), during the district court proceedings, wasan independent publicly held corporation. TWCrecently became a subsidiary of CharterCommunications, Inc. TWC merged into SpectrumManagement Holding Company, LLC, a limitedliability company that is owned by CharterCommunications Holdings, LLC. CharterCommunications Holdings, LLC is a limited liabilitycompany owned by CCH II, LLC andAdvance/Newhouse Partnership. CCH III, LLC is alimited liability company owned by CharterCommunications, Inc., Coaxial Communications ofCentral Ohio LLC, Insight Communications CompanyLLC, NaviSite Newco LLC, and TWC Sports NewcoLLC. Coaxial Communications of Central Ohio LLC,Insight Communications Company LLC, NaviSiteNewco LLC, and TWC Sports Newco LLC are all director indirect wholly-owned subsidiaries of CharterCommunications, Inc. Charter Communications, Inc. isa publicly held company. Liberty BroadbandCorporation owns 10% or more of CharterCommunications, Inc.’s stock. Liberty BroadbandCorporation is also a publicly held company.

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TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW . . . . . . i

PARTIES TO THE PROCEEDING ANDRULE 29.6 DISCLOSURE STATEMENT . . . . . . . . ii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . v

PETITION FOR WRIT OF CERTIORARI . . . . . . . . 1

OPINIONS AND ORDERS BELOW . . . . . . . . . . . . 1

STATEMENT OF JURISDICTION . . . . . . . . . . . . . 1

FEDERAL STATUTORY PROVISIONS INVOLVED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . 6

I. Underlying Litigation . . . . . . . . . . . . . . . . . . 10

A. Great Lakes Higher EducationCorporation . . . . . . . . . . . . . . . . . . . . . . . 10

B. Time Warner Cable, Inc. . . . . . . . . . . . . . 11

C. The Seventh Circuit Court of Appeals . . 12

REASONS FOR GRANTING THE PETITION . . . 16

I. The Seventh Circuit Has Incorrectly Decidedan Important Question of Federal Law ThatShould be Settled by This Court . . . . . . . . . 16

II. The Seventh Circuit’s Decision ConflictsWith The Decision of The Ninth Circuit inSyed v. M-I, LLC . . . . . . . . . . . . . . . . . . . . . . 21

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III. The Seventh Circuit’s Decision ConflictsWith This Court’s Decisions . . . . . . . . . . . . . 26

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

APPENDIX

Appendix A Opinion in the United States Court ofAppeals for the Seventh Circuit (August 1, 2017) . . . . . . . . . . . . . . App. 1

Appendix B Opinion & Order and Judgment in theUnited States District Court for theWestern District of Wisconsin(October 4, 2016) . . . . . . . . . . . . App. 11

Appendix C Decision and Order and Judgment inthe United States District Court forthe Eastern District of Wisconsin(August 9, 2016) . . . . . . . . . . . . . App. 19

Appendix D Advisory Opinion to Hauxwell(June 12, 1998) . . . . . . . . . . . . . . App. 31

v

TABLE OF AUTHORITIES

CASES

Alexander v. Gardiner-Denver Co., 415 U.S. 36 (1974) . . . . . . . . . . . . . . . . . . . . . . . 29

Brooklyn Savings Bank v. O’Neill, 324 U.S. 697 (1945) . . . . . . . . . . . . . . . . . . . . 4, 29

Federal Election Commission v. Akins, 524 U.S. 11 (1998) . . . . . . . . . . . . . . . . . 23, 29, 30

Lujan v. Defs. of Wildlife, 504 U.S. 555, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992) . . . . . . . . . . . . . . . . . . 14

Public Citizen v. Department of Justice, 491 U.S. 440 (1989) . . . . . . . . . . . . . . . . 23, 29, 30

Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 194 L.Ed.2d 635 (2016) . . passim

Syed v. M-I, Ltd. Liab. Co., 853 F.3d 492 (9th Cir. 2017) . . . . . . . . . . . passim

STATUTES

15 U.S.C. § 1681b(b)(2) . . . . . . . . . . . . . . . . . . . . . . . 4

15 U.S.C. § 1681b(b)(2)(A) . . . . . . . . . . . . . . . passim

15 U.S.C. § 1681b(b)(2)(A)(i) . . . . . . . . . . . . . . . 13, 22

15 U.S.C. § 1681b(b)(2)(A)(ii) . . . . . . . . . . . . . . . . . 22

28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 1

RULE

Sup. Ct. R. 10 . . . . . . . . . . . . . . . . . . . . . . . . 16, 21, 26

vi

OTHER AUTHORITIES

Advisory Opinion to Coffey, FTC Informal StaffOpinion Letter, No. 02-11-98 (Feb. 11, 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Advisory Opinion to Steer, FTC Informal StaffOpinion Letter, No. 10-21-97 (October 21, 1997) . . . . . . . . . . . . . . . . . . . . . . . . 9

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PETITION FOR WRIT OF CERTIORARI

Petitioner, Cory Groshek, respectfully submits thisPetition for Writ of Certiorari to review the judgmentof the United States Court of Appeals for the SeventhCircuit.

OPINIONS AND ORDERS BELOW

The panel opinion of the United States Court ofAppeals for the Seventh Circuit, in a consolidatedappeal, affirmed the district court decisions. TheSeventh Circuit decision is reported at Groshek v. TimeWarner Cable, Inc., 865 F.3d 884 (7th Cir. 2017).

The memorandum and order of the district court inGroshek v. Great Lakes Higher Education Corporation(App., pages 11 through 18) is unreported and availableat Groshek v. Great Lakes Higher Educ. Corp., No. 15-cv-143-jdp, 2016 U.S. Dist. LEXIS 144867 (W.D. Wis.Oct. 4, 2016).

The memorandum and order of the district court inGroshek v. Time Warner Cable, Inc. (App., pages 19through 30) is unreported and available at Groshek v.Time Warner Cable, Inc., No. 15-C-157, 2016 U.S. Dist.LEXIS 104952 (E.D. Wis. Aug. 9, 2016).

STATEMENT OF JURISDICTION

Final judgment was entered by the United StatesCourt of Appeals for the Seventh Circuit on August 1,2017. The jurisdiction of this Court is invokedpursuant to 28 U.S.C. § 1254(1).

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FEDERAL STATUTORY PROVISIONSINVOLVED

The Fair Credit Reporting Act (“FCRA”) states:

Except as provided in subparagraph (B), aperson may not procure a consumer report, orcause a consumer report to be procured, foremployment purposes with respect to anyconsumer, unless –

(i) a clear and conspicuous disclosure hasbeen made in writing to the consumer atany time before the report is procured orcaused to be procured, in a document thatconsists solely of the disclosure, that aconsumer report may be obtained foremployment purposes; and

(ii) the consumer has authorized in writing(which authorization may be made on thedocument referred to in clause (i)) theprocurement of the report by that person.

15 U.S.C. § 1681b(b)(2)(A)

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INTRODUCTION

This case involves important questions of federallaw concerning the boundaries of two separatebranches of government; the Judiciary and theLegislative. As a result of Respondents’ willful violationof the Fair Credit Reporting Act (“FCRA”) Petitioneralleges that Respondents violated (1) a substantiveright to privacy, and (2) a substantive right toinformation; each of which are conferred uponconsumers by the FCRA. The violations and resultingharm were magnified by Respondents’ inclusion of aprospective release of FCRA rights in the verydisclosure which Congress required that employersprovide to prospective employees to alert suchemployees of their substantive rights under the FCRA. The court of appeals below found that, when employersviolate these rights, they do not create a harm that issufficiently ‘concrete’ so as to confer standing in thefederal court system. To reach this decision, the UnitedStates Court of Appeals for the Seventh Circuitmisinterpreted the scope of this Court’s decision inSpokeo, Inc. v. Robins, 136 S. Ct. 1540, 194 L.Ed.2d 635(2016).

After decades of inquiry, Congress, through theFCRA, implemented controls on the credit reportingindustry. In a variety of ways, the FCRA erectedlimitations on how Consumer Reporting Agencies(“CRAs”) may procure, synthesize, and disseminatecredit information for individual consumers. At issuehere is the mechanism created by the FCRA to protectconsumers when an employer seeks to procure aconsumer report for employment purposes.

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That mechanism, codified in 15 U.S.C.§ 1681b(b)(2), prohibits the procurement of consumerreports for employment purposes. However, it alsoaffords employers a narrow exception to that generalprohibition – obtaining consumer reports foremployment purposes remains permissible, if, inadvance of procuring a report, an employer provides adisclosure to the consumer in a “document that consistssolely of the disclosure,” alerting the consumer that thereport may be obtained for employment purposes andobtains written authorization from the consumer. Thisnarrow exception to the general prohibition onconsumer report procurement is the core statutorylanguage from which Petitioner’s claims arose.

Petitioner’s complaint alleges that Respondentswillfully violated the aforementioned FCRA provisionby procuring a consumer report on Petitioner withoutproviding Petitioner the specific disclosure/authorization document required under § 1681b(b)(2).Yet, this is not a case simply about extraneousinformation added to an otherwise proper authorizationand disclosure document. The authorization anddisclosure documents from each Respondent includeda prospective release of rights. Prospective releasesand waivers of federal statutory rights have beenprohibited by this Court since 1945 (Brooklyn SavingsBank v. O’Neill, 324 U.S. 697 (1945)), and, per theFederal Trade Commission, render such authorizationand disclosure forms invalid. App. 31-35. It followsthen that Petitioner never gave valid permission toeither Respondent to actually procure a consumerreport since both authorizations contained prospectivereleases of FCRA rights.

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Despite this, the Seventh Circuit held that such aviolation does not create a corresponding injury-in-factsufficient to confer Article III standing upon Petitioner.However, to reach this conclusion, the Court of Appealsdistorted a recent decision of this Court. Specifically,the Seventh Circuit Court of Appeals inflated the scopeof Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 194 L.Ed.2d635 (2016) beyond its original, narrow focus andignored relevant teachings of the Spokeo decision.

Spokeo provided guidance to lower courts on how toappropriately consider the “concreteness” of intangible,procedural injuries. The decision teaches that bareprocedural violations do not confer Article III standingupon individuals. Yet, that which is absent from theSpokeo decision is supremely relevant here. That is, atno point does Spokeo address substantive injuries suchas the one alleged by Petitioner. Correspondingly, theSeventh Circuit Court of Appeals’ misapplied Spokeo indismissing Petitioner’s claims for want of standing. Theimplication of the lower court’s ruling is significant forseveral reasons. The decision (1) split appellate circuitson the application of the standing doctrine, (2) limitedaccess to justice in the federal court system, and(3) invaded Congressional dominion over consumerprotection issues. For these reasons, this Court shouldgrant this Petition for Writ of Certiorari and reversethe decision of the Seventh Circuit Court of Appeals.

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STATEMENT OF THE CASE

Petitioner Cory Groshek applied for employmentwith Great Lakes Higher Education Corporation in2014 and with Time Warner Cable, Inc. in 2015. In theapplication process for both entities, Petitioner wasrequired to authorize Respondents to obtain aconsumer report on Petitioner in order for Petitioner tobe considered for an employment position. On bothoccasions, each Respondent obtained Petitioner’sconsumer report without first providing a compliantdisclosure document to Petitioner as is required under§1681b(b)(2)(A). Class Action Complaint at ¶ 15, Ex. B,Groshek v. Time Warner Cable, Inc., (E.D. Wis. Aug. 9,2016) (No. 15-cv-157); Class Action Complaint at ¶ 14,Ex. A, Groshek v. Great Lakes Higher Educ. Corp.,(W.D. Wis. Oct. 4, 2016) (No. 15-cv-143). Instead,Respondents provided deficient disclosure documentsto Petitioner that clearly violated the FCRA. Id. Specifically, the disclosures included extraneousinformation, contrary to the FCRA’s “consisting solelyof a disclosure” language – and each disclosureincluded a prospective release of Petitioner’s rightsunder the FCRA. Id. At the time that these disclosureswere used, 70 years of precedent from this Court madeclear that such prospective releases and waivers offederal statutory rights were unlawful. Additionally,nearly half-a-century of Congressional action focusedon preventing precisely the type of conduct perpetratedby Respondents.

Codified in the 1970s, the FCRA is the instrumentthrough which Congress addressed two longstandingconcerns: widespread inaccuracies in consumer reportsand invasions of privacy through the dissemination of

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highly personal and confidential consumer information.Congress addressed these dual concerns by mandatingvarious disclosures and notices to consumers. In sodoing, these mandatory disclosures became theprimary vehicle for protecting consumers’ substantiveright to privacy and addressing inaccuracies in theirconsumer reports. These are not trivial concerns.Indeed, the interests Congress protected by regulatingthe consumer reporting industry through the FCRAcorrelate with profound moments in American life:access to consumer lending, homeownership,employment, and insurance.

To ensure continued protection of these concerns,Congress expanded the FCRA’s scope, decades after itsoriginal enactment, to strengthen protections forprospective employees. Employers, under the originalFCRA, routinely acquired consumer reports on jobapplicants as part of background checks, withoutnotifying the job applicant. The original FCRA onlyrequired employers to notify applicants if they used aconsumer report in taking adverse employment action.Yet, Congress and the FTC found employers regularlyskirted this requirement. So, Congress responded. In1996 Congress amended the FCRA to add§ 1681b(b)(2)(A). This provision now requiredemployers using CRAs to obtain consumer reports toprovide to all job applicants a very simple disclosure,on a stand-alone document, noting that an employermay obtain a consumer report on the applicant and useit for employment purposes. Applicants also must signan authorization to allow an employer to obtain aconsumer report.

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This new disclosure requirement furtheredCongress’s two primary purposes for the FCRA and thesubstantive protections the law was enacted to protect.First, by informing job applicants and employees thatthe employer intended to obtain a consumer report, theconsumer was on notice of the existence of a consumerreport and could request to see a copy of the report. Inthis way, any errors in the report could be identifiedand the consumer could request a correction of anyerroneous information. At the time the law wasamended, approximately 50 percent of all consumerreports contained inaccuracies. Second, the consumercould deny the employer’s request to obtain andpossibly disseminate the consumer’s private credit andreputational information, thereby protecting theconsumer’s privacy.

Congress routinely employs disclosures to protectconsumer privacy. This is exactly what Congress didwith the FCRA generally and with the disclosurerequirement in § 1681b(b)(2)(A) specifically. Congressrecognized the significant harm and risk of harm toconsumers resulting from widespread inaccuracies inconsumer reports as well as the invasion of consumerprivacy by dissemination of confidential information inconsumer reports. These concerns have only increasedas organizations use massive databases to retainhighly-personal consumer information. As thesedatabases regularly are breached by hackers, theimportance of the FCRA’s protections for Americanconsumers has become even more apparent. Critically,to guarantee these protections, Congress providedconsumers with a private right of action to enforcetheir rights under the FCRA, including a right to

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recover statutory and punitive damages for willfulviolations of the FCRA.

Respondents’ violation of § 1681b(b)(2)(A) of theFCRA created just the sort of harm Congress sought toprotect against. Indeed, the Federal Trade Commissionexplained that the reason for requiring disclosurewithin a document that “consists solely of thedisclosure,” “was so that consumers will not bedistracted by additional information at the time thedisclosure is given.” Advisory Opinion to Steer, FTCInformal Staff Opinion Letter, No. 10-21-97 (October21, 1997); see Advisory Opinion to Coffey, FTCInformal Staff Opinion Letter, No. 02-11-98 (Feb. 11,1998) (explaining that “Congress intended that thedisclosure not be encumbered with extraneousinformation” that would “confuse the consumer ordetract from the mandated disclosure”).

When Respondents included extraneous informationin their disclosure documents, and then informed thosesame applicants that they prospectively released theirrights, those applicants were left no reason toinvestigate potential inaccuracies in their consumerreports and ameliorate them. After all, why investigatewhat you are powerless to correct? In the same vein,consumers, after being told they have released theirrights, have no reason to pursue any action in redressof violations of their privacy. The misinformation andconfusion spread by Respondents through theirdeficient disclosure documents directly impacts theinterests that Congress intended to protect by passingand later amending the FCRA. That these interestswere of such explicit concern, and were subsequentlythe target of legislative action by Congress

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demonstrates that a corresponding corruption of thoseinterests would result in what Congress ostensiblydeemed a significant injury. So, having experiencedprecisely such injury, Petitioner filed a lawsuit againsteach Respondent.

I. Underlying Litigation

A. Great Lakes Higher EducationCorporation

Great Lakes, after obtaining Groshek’s consumerreport, decided not to hire him based upon informationin the consumer report. Additionally, Great Lakes,following Groshek’s advising them that its disclosureviolates the FCRA, refused to hire him. At this point,it is unclear whether the reason for the refusal to hirewas information in his consumer report or Great Lakes’retaliation for Groshek’s exercise of his FCRA rights, ora combination of the two. Petitioner filed a class actioncomplaint against Respondent Great Lakes in theWestern District of Wisconsin on March 4, 2014. ClassAction Complaint Groshek v. Great Lakes Higher Educ.Corp., (W.D. Wis. Oct. 4, 2016) (No. 15-cv-143).Respondent Great Lakes filed a motion to dismiss onApril 13, 2015. Great Lakes Higher EducationCorporation’s Motion to Dismiss and Memorandum inSupport Thereof Groshek v. Great Lakes Higher Educ.Corp., (W.D. Wis. Oct. 4, 2016) (No. 15-cv-143) ECF No.10. Great Lakes did not allege deficient standing as aground for support of this motion. Id. The district courtdenied this motion to dismiss on November 16, 2015.Order Groshek v. Great Lakes Higher Educ. Corp.,(W.D. Wis. Oct. 4, 2016) (No. 15-cv-143) ECF No. 37.After successful settlement negotiations, Petitioner andRespondent Great Lakes filed jointly for preliminary

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approval of a class action settlement. Joint Motion forPreliminary Approval of Class Action Settlement andJoint Stipulation for Class Certification Groshek v.Great Lakes Higher Educ. Corp., (W.D. Wis. Oct. 4,2016) (No. 15-cv-143) ECF No. 43. On April 13, 2016the district court granted the parties’ motion forpreliminary approval of the class action settlement.Order Groshek v. Great Lakes Higher Educ. Corp.,(W.D. Wis. Oct. 4, 2016) (No. 15-cv-143) ECF No. 46.Subsequently, notice of the class action settlement wasmailed to all potential class members. On May 16,2016, this Court rendered its decision in Spokeo.Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 194 L.Ed.2d 635(2016). On September 9, 2016, Great Lakes moved thedistrict court to dismiss, relying chiefly upon Spokeo.Defendants Motion to Dismiss for Lack of SubjectMatter Jurisdiction Groshek v. Great Lakes HigherEduc. Corp., (W.D. Wis. Oct. 4, 2016) (No. 15-cv-143)ECF No. 53. The district court granted Great Lakes’motion on October 4, 2016. Groshek v. Great LakesHigher Educ. Corp., No. 15-cv-143-jdp, 2016 U.S. Dist.LEXIS 144867 (W.D. Wis. Oct. 4, 2016). Petitioner gavenotice of its appeal to the district court’s grant of GreatLakes’ motion to dismiss on October 19, 2016.Plaintiff’s Notice of Appeal Groshek v. Great LakesHigher Educ. Corp., (W.D. Wis. Oct. 4, 2016) (No. 15-cv-143) ECF No. 67.

B. Time Warner Cable, Inc.

Petitioner filed a class action complaint againstRespondent Time Warner Cable, Inc. on February 6,2015, alleging willful violations of the FCRA. ClassAction Complaint Groshek v. Time Warner Cable, Inc.,(E.D. Wis. Aug. 9, 2016) (No. 15-cv-157). Time Warner

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filed a motion to dismiss on May 8, 2015. Defendant’sMotion to Dismiss Groshek v. Time Warner Cable, Inc.,(E.D. Wis. Aug. 9, 2016) (No. 15-cv-157) ECF No. 13.Time Warner did not allege deficient standing insupport of this motion. Defendant’s Brief in Support ofIts Motion to Dismiss Plaintiff’s Complaint Groshek v.Time Warner Cable, Inc., (E.D. Wis. Aug. 9, 2016) (No.15-cv-157) ECF No. 14. The district court denied thismotion to dismiss on July 31, 2015. Decision and OrderGroshek v. Time Warner Cable, Inc., (E.D. Wis. Aug. 9,2016) (No. 15-cv-157) ECF No. 28. This Court renderedits decision in Spokeo on May 16, 2016. On May 27,2016 Time Warner filed a motion to dismiss for lack ofsubject matter jurisdiction in reliance upon this Court’sdecision in Spokeo. Defendant’s Motion to Dismiss forLack of Subject Matter Jurisdiction Groshek v. TimeWarner Cable, Inc., (E.D. Wis. Aug. 9, 2016) (No. 15-cv-157) ECF No. 55. The district court grantedRespondent’s motion on August 9, 2016. Groshek v.Time Warner Cable, Inc., No. 15-C-157, 2016 U.S. Dist.LEXIS 104952 (E.D. Wis. Aug. 9, 2016). Petitioner gavenotice of its appeal to the district court’s granting ofRespondent’s motion to dismiss on September 6, 2016.Plaintiff’s Notice of Appeal Groshek v. Time WarnerCable, Inc., (E.D. Wis. Aug. 9, 2016) (No. 15-cv-157)ECF No. 76.

C. The Seventh Circuit Court of Appeals

The cases were combined for the purposes of appeal.Order, Groshek v. Time Warner Cable, Inc., 865 F.3d884 (7th Cir. 2017) (No. 16-3355) ECF No. 11. OnNovember 30, 2016, Petitioner filed his joint brief inthe consolidated appeal of both underlying districtcourt decisions. Brief of Plaintiff-Appellant, Groshek v.

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Time Warner Cable, Inc., 865 F.3d 884 (7th Cir. 2017)(No. 16-3355) ECF No 16-1. While Petitioner’s appealwas pending before the Seventh Circuit Court ofAppeals, the Ninth Circuit Court of Appeals, in Syed v.M-I, Ltd. Liab. Co., 853 F.3d 492 (9th Cir. 2017) heldthat violations of §1681b(b)(2)(A) result in an injurysufficient to confer Article III standing.

The Seventh Circuit Court of Appeals affirmed thedecisions of its district courts, holding that, as a resultof a lack of standing, the district courts did not havesubject matter jurisdiction to consider Petitioner’scomplaints. Groshek v. Time Warner Cable, Inc., 865F.3d 884 (7th Cir. 2017). The Seventh Circuit held that,because Petitioner’s complaints did not allege amisunderstanding, some confusion, or an otherwiseunexpected consumer report, Petitioner only allegedstatutory violations devoid of concrete harm orappreciable risk of harm. Id. at 887. Absent such harm,the court held, Petitioner did not satisfy therequirements for Article III standing. Id.

However, the decision relied heavily on amisapplication of the Spokeo decision; indeed, itconsidered Petitioner’s alleged injuries in the context ofthe violation of a “procedural right,” whereas violationsof §1681b(b)(2)(A)(i) concern substantive rights.Groshek v. Time Warner Cable, Inc., 865 F.3d 884, 887(7th Cir. 2017). Unlike the underlying court of appealsdecision, the Ninth Circuit recognized thesesubstantive rights, which Petitioner alleges in hiscomplaint were violated. That court explained:

A plaintiff who alleges a “bare proceduralviolation” of the FCRA, “divorced from anyconcrete harm,” fails to satisfy Article III’s

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injury-in-fact requirement. Spokeo, Inc. v.Robins, U.S., 136 S. Ct. 1540, 1549, 194 L. Ed.2d 635 (2016). However, [Plaintiff here] allegesmore than a “bare procedural violation.” Thedisclosure requirement at issue, 15 U.S.C.§ 1681b(b)(2)(A)(i), creates a right to informationby requiring prospective employers to inform jobapplicants that they intend to procure theirconsumer reports as part of the employmentapplication process. The disclosure requirementat issue, 15 U.S.C. § 1681b(b)(2)(A)(i), creates aright to information by requiring prospectiveemployers to inform job applicants that theyintend to procure their consumer reports as partof the employment application process. Theauthorization requirement, § 1681b(b)(2)(A)(ii),creates a right to privacy by enabling applicantsto withhold permission to obtain the report fromthe prospective employer, and a concrete injurywhen applicants are deprived of their ability tomeaningfully authorize the credit check. Byproviding a private cause of action for violationsof Section 1681b(b)(2)(A), Congress hasrecognized the harm such violations cause,thereby articulating a chain of causation thatwill give rise to a case or controversy.

Syed v. M-I, Ltd. Liab. Co., 853 F.3d 492, 499 (9th Cir.2017) (internal quotations and citations omitted)(quoting Spokeo, 136 S. Ct. at 1549 (quoting Lujan v.Defs. of Wildlife, 504 U.S. 555, 580, 112 S. Ct. 2130,119 L. Ed. 2d 351 (1992) (Kennedy, J., concurring)).This distinction – between substantive and proceduralrights – was ignored by the various lower courts in theSeventh Circuit. As a result, the Seventh and Ninth

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Circuits now disagree on how to assess Article IIIstanding in the context of informational or privacyinjuries that flow from a violation of a federal statutorydisclosure provision.

Furthermore, the remaining guidance from Spokeosupports Petitioner’s standing to assert his FCRAclaims, even if the rights involved were procedural. Asdiscussed supra, Congress elevated this injury to alevel which it considers justiciable – going so far as toexplicitly grant individuals a private cause of action. Inaddition, historical causes of action for invasion ofprivacy and informational injuries have beenentertained in the American court system. Given thesefactors, and particularly in light of the conflict with theNinth Circuit’s decision in Syed, the Seventh Circuit’sdecision that Petitioner lacked standing to assert hisFCRA claims should be reversed.

The Seventh Circuit Court of Appeals entered itsdecision on August 1, 2017, to which Petitioner nowseeks a Writ of Certiorari.

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REASONS FOR GRANTING THE PETITION

I. The Seventh Circuit Has IncorrectlyDecided an Important Question of FederalLaw That Should be Settled by This Court.

Supreme Court Rule 10 provides, in relevant part:

A petition for a writ of certiorari will be grantedonly for compelling reasons. The following,although neither controlling nor fully measuringthe Court’s discretion, indicate the character ofthe reasons the Court considers:

(c) A state court or a United States Court ofAppeals has decided an important question offederal law that has not been, but should be,settled by this Court …

Sup Ct. R. 10

The present Petition involves issues of publicimportance. Congress, over the years, has mandateddisclosures and notices as the primary vehicle forprotecting consumer rights and privacy rights. Congress has concluded that such notices anddisclosures are the most effective tools foraccomplishing its consumer and privacy protectiongoals.

The Seventh Circuit, in the present case, hasnegated Congress’s legislative decisions on how best toprotect consumers and their privacy from specificharms related to credit reporting. In the late 1960’sand early 1970’s, Congress identified significant harmsbefalling consumers as a result of practices in thecredit reporting industry. The consumer reports for

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approximately half of all consumers containedinaccuracies. The consequences of such inaccuraciesincluded the loss of employment, credit, housing, andinsurance coverage, key areas in every American’s life. Moreover, the information that was collected on nearlyhalf of the nation’s population was highly confidential,and protections of the privacy of such information wereminimal.

In the 1990’s, Congress recognized that the FCRAneeded to be amended to address changing technologieswhich included the growth of massive databasescontaining many billions of pieces of confidentialinformation on over a hundred million Americans.Congress also amended the FCRA in the mid-1990’s toaddress particular consumer reporting problems in theemployment context. The 1996 amendments to theFCRA added the disclosure provision which is at thecenter of the present case. Prior to 1996, employerswere obtaining consumer reports on job applicantswithout their knowledge or consent and were makinghiring decisions based upon information in the reports,which often was inaccurate, without the applicantbeing told that the hiring decision was based, in wholeor in part, on information in the consumer report. Thissituation created two serious problems. First, becausean applicant was not aware a consumer report hadbeen obtained and used by the employer in the hiringdecision, the applicant had no way of educating him orherself as to their FCRA rights involving consumerreports, including how to correct errors in the report. Second, a job applicant had no way to protect his or herhighly confidential information from a prospectiveemployer, where such information may have nothing todo with a particular employment position. Congress

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addressed these two problems with the § 1681b(b)(2)(A)disclosure requirement.

There can be no serious question that Great Lakesand TWC’s disclosure documents violated§ 1681b(b)(2)(A). The statutory provision requires thatthe disclosure document consist solely of a disclosurethat an employer may obtain a consumer report foremployment purposes. Both disclosures here containadditional extraneous information. More importantly,both disclosures included a prospective release of FCRArights. In order for applicants to even be considered foran employment position, they had to agree to releasetheir federal statutory claims, a requirement that thisCourt had prohibited for more than 70 years. Theactual or substantial risk of harm is obvious and is theprecise type of harm that Congress sought to preventwith the FCRA disclosure requirement.

For several reasons, the harm, or risk of harm,involved in the present case is not the “bare proceduralviolation” which this Court, in Spokeo, questioned asadequate to support standing. First, thedisclosure/authorization mandate in § 1681b(b)(2)(A)confers a substantive rather than a procedural right. The disclosure requirement is the key provision inenabling job applicants to exercise their rights underthe FCRA. It is the sole statutory vehicle for alertingconsumers that their highly personal information willbe disclosed to a prospective employer, regardless ofwhether the information has any relevance to theparticular job. For example, if an individual haddifficulty paying hospital bills for a medical proceduresuch as cancer treatment, this information would verylikely be included in the individual’s consumer report.

19

The disclosure requirement alerts job applicants thatan employer may obtain a consumer report and theconsumer can protect substantive privacy interests bydeclining to sign the authorization document.

Second, this Court confirmed, in Spokeo, that asubstantial risk of harm can be adequate to conferArticle III standing. In the present case, Great Lakesand TWC included, in a statutorily mandateddisclosure, a prospective release of FCRA claims. Themessage to job applicants is, regardless of whether theemployer violated the FCRA, including futureviolations of the law, the applicant had forfeited anyclaim. This would permit an employer to violatefederal law with impunity. In order to be consideredfor a job, an applicant is required to release FCRAclaims. Such a prospective release would clearly beimpermissible under other federal employmentstatutes. For example, an employer could not requirefemale job applicants to release gender discriminationclaims under Title VII as a condition of beingconsidered for a job. The risk of injury (forgoingenforcement of important federal rights) is apparentfrom such prospective releases. Whether an employer’sinclusion of a prospective release in a mandatorystatutory disclosure results in a harm or a substantialrisk of harm supporting Article III standing, is animportant question of federal law that this Courtshould settle.

Third, this Court has recognized that somestatutory violations, by themselves, are adequate toestablish a concrete injury-in-fact. Spokeo, Inc. v.Robins, 136 S. Ct. 1540, 1549, 194 L.Ed.2d 635, 646(2016). Here, the § 1681b(b)(2)(A) disclosure plays a

20

key role in protecting consumer privacy and is the jobapplicant’s entry into the substantive protections of theFCRA. Congress made clear that the § 1681b(b)(2)(A)disclosure must be clear and conspicuous and mustconsist solely of a simple statement: the employer mayobtain a consumer report for employment purposes. Congress permitted a single exception to the “consistssolely of” requirement, i.e., the authorization could beon the disclosure form. The disclosure must becontained on a stand-alone document. Congressrecognized the importance of the disclosure andmandated specific requirements to insure thedisclosure would serve its intended purpose.

In the present case, and in hundreds of similarFCRA § 1681b(b)(2)(A) cases, employers violated theclear disclosure mandate by including extraneousinformation, including prospective releases of claims,in the required disclosures. Such violations areprecisely the type which, by themselves, are adequateto establish concreteness for injury-in-fact purposes. The Supreme Court should grant review to settle theimportant standing question, whether inclusion of aprospective release of federal statutory rights in amandatory statutory disclosure document is the type ofstatutory violation which, by itself, is adequate toconfer constitutional standing.

21

II. The Seventh Circuit’s Decision ConflictsWith The Decision of The Ninth Circuit inSyed v. M-I, LLC.

United States Supreme Court Rule 10 identifies, asa consideration governing granting of a Petition forWrit of Certiorari:

(a) a United States court of appeals has entereda decision in conflict with the decision of anotherUnited States court of appeals on the sameimportant matter; and

Sup. Ct. R. 10(a)

The decision in the underlying consolidated appealdirectly conflicts with the Ninth Circuit’s decision inSyed v. M-I, Ltd. Liab. Co., 853 F.3d 492 (9th Cir.2017).

In Syed, Mr. Syed applied for a job with M-I. Hewas provided an FCRA disclosure document to allowthe prospective employer to obtain a consumer report. The disclosure form, like the disclosure in the presentcase, included a prospective release of FCRA claims. Syed’s signature on the authorization, simultaneouslyallowed M-I to obtain a consumer report and served asa release of FCRA claims. Syed filed a putative classaction alleging a willful violation of § 1681b(b)(2)(A) ofthe FCRA. Syed claimed that the disclosure with theprospective release of FCRA claims constituted awillful violation of the FCRA. The district courtdismissed Syed’s FCRA claim, finding that he hadfailed to plead a willful violation of the FCRA.

Syed appealed the dismissal of his claims and, onappeal, the parties addressed the threshold issue of

22

subject matter jurisdiction – whether, in light of theSupreme Court’s decision in Spokeo, Inc. v. Robins, 136S. Ct. 1540 (2016), Syed had Article III standing. TheNinth Circuit Court of Appeals issued its decision,ruling that Syed had Article III standing and that hehad alleged a willful violation of the FCRA.

The Ninth Circuit subsequently issued an amendedopinion and order, again concluding that Syed hadArticle III standing. Citing the Spokeo decision, theSyed court observed that, if a plaintiff alleges only a“bare procedural violation” of the FCRA, suchallegations will not satisfy Article III’s injury-in-factrequirement. The Syed court concluded that§ 1681b(b)(2)(A) created both the right to informationand the right to privacy. Additionally, the Syed courtfound that, by providing a cause of action for violationof § 1681b(b)(2)(A), Congress recognized the harmcaused by such violations. The Syed court held thatSyed had alleged harm, including reasonable inferencesthat he was confused by the prospective releaselanguage in the disclosure and that he satisfied ArticleIII standing requirements.

Groshek commenced putative class actions againstGreat Lakes in the Western District of Wisconsin andTWC in the Eastern District of Wisconsin. In bothcases, he alleged a willful violation of the FCRA. Inboth cases, he alleged he was not given a disclosurewhich complied with § 1681b(b)(2)(A)(i) and (ii),thereby constituting harm to informational and privacyinterests. Both disclosures contained prospectivereleases of FCRA rights, in violation of well-establishedUnited States Supreme Court law and FTC opinionsand regulations. The complaints, in both cases,

23

prominently included allegations about the unlawfulprospective releases of claims. As the Syed courtconcluded, there are reasonable inferences, at thepleading stage, that Groshek was confused by the scopeand meaning of the prospective release of his FCRArights.

In the Great Lakes case, the parties reached a fullsettlement of all claims and the district court grantedpreliminary approval to a class settlement. However,shortly before the final approval hearing, Great Lakesswitched attorneys and the new attorneys moved todismiss based on this Court’s decision in Spokeo. Thedistrict court granted Great Lakes’ motion to dismissand Groshek appealed the dismissal of his action. Inthe TWC case, shortly after this Court’s decision inSpokeo, TWC moved to dismiss based upon lack ofArticle III standing. The district court granted TWC’smotion and Groshek appealed.

The United States Court of Appeals for the SeventhCircuit consolidated the two cases for appeal andaffirmed the district courts’ dismissal of Groshek’scases on standing grounds. The Seventh Circuitrejected informational injury by unjustifiablyconstruing the Supreme Court decisions in FederalElection Commission v. Akins, 524 U.S. 11 (1998) andPublic Citizen v. Department of Justice, 491 U.S. 440(1989) too narrowly. The Seventh Circuit, as related toinjury to Groshek’s privacy rights, simply concludedthat his pleadings were conclusory. Although Groshekdisputes that his pleadings were inadequate, inresponse to the motions to dismiss in both the GreatLakes and TWC cases, he requested the opportunity tofile an amended pleading. Neither the two district

24

courts nor the Seventh Circuit ever addressedGroshek’s request to re-plead his claims. However,regardless of the re-pleading issue, Groshek pleadedthat his privacy interests were harmed by thedisclosure that not only violated the FCRA’s disclosurerequirements, but also required him to release hisFCRA claims in order to even be considered for aposition with either company.

The Seventh Circuit Court of Appeals largelyignored the fact that Great Lakes and TWC’s disclosuredocuments required a prospective release of FCRArights. Only in its brief discussion of the Syed decisiondid the appellate court mention the prospective release. The Seventh Circuit Court of Appeals stated that theplaintiff in Syed alleged facts from which the courtcould infer the prospective release confused Syed. TheSeventh Circuit, in an unsupported passage in itsopinion, stated that Groshek had not alleged facts fromwhich one could infer he was confused. There isnothing in Groshek’s complaint to suggest that he istrained in the law or would have any specialappreciation for the importance of a prospective waiverof rights. There is no basis to conclude that Groshekwould not be confused by legal release language. Infact, had he been given the opportunity to file anamended pleading, he would have included suchallegations.

The Syed and Groshek cases are identical. Bothinvolve willful violations of the FCRA. Both involvedisclosure/authorization forms that violate§ 1681b(b)(2)(A). Both involve prospective releases ofFCRA claims that were included in the mandatorydisclosure document. In both cases, the disclosure

25

document is the entry point into the substantiveprotections of the FCRA, including correctinginaccurate information in the consumer report whichmay preclude an individual from obtainingemployment. The unlawful disclosure, particularlywhere a consumer is being told that he is prospectivelyreleasing any FCRA claims, creates informationalinjury. In both cases, authorizing a prospectiveemployer to obtain a consumer report with an unlawfuldisclosure violates a right to privacy, i.e. to preventprospective employers from obtaining highlyconfidential personal information.

Hundreds of cases filed in the last three years,many of which are class actions, allege employerviolations of the § 1681b(b)(2)(A) disclosurerequirement through use of prospective waivers. Thisis an issue of immense public concern. The message tojob applicants is to not bother learning about orenforcing your FCRA rights because you have alreadyreleased them. The message to employers is that it isfine to disregard Congress’s laws by telling individualscovered by the law that, if they would like to beconsidered for a job, they must prospectively releaseany FCRA claim they may have. Injury to consumerinterests and to the public is readily apparent. ThisCourt should grant the Petition for Writ of Certiorarito address and resolve the split in the circuitsregarding a consumer’s standing to pursue a violationof § 1681b(b)(2)(A) of the FCRA.

26

III. The Seventh Circuit’s Decision ConflictsWith This Court’s Decisions.

Supreme Court Rule 10 provides, in relevant part,that, among the appropriate considerations forgranting a writ of certiorari, is “a United States Courtof Appeals has decided an important federal questionin a way that conflicts with relevant decisions of thisCourt”. Sup. Ct. R. 10(c). The Seventh Circuit’sdecision in the Groshek consolidated appeal conflictswith this Court’s decision in Spokeo, Inc. v. Robins, 136S. Ct. 1540, 194 L.Ed.2d 635 (2016). In Spokeo, theCourt ruled that the Ninth Circuit Court of Appealshad not analyzed the concreteness prong of the injury-in-fact element of Article III standing and remandedthe case to the Ninth Circuit to perform this analysis. This Court provided guidance to the Ninth Circuit as toappropriate considerations to employ in its analysis. The Ninth Circuit, following remand, applied thisCourt’s guidance and concluded that Plaintiff Robinshad Article III standing to proceed on his FCRA claim.

Significantly, the Court in Spokeo, addressedintangible harm resulting from procedural violations. As noted above, the present case involves a substantivestatutory provision; accordingly, the Spokeo decisionwould not be applicable. However, even assumingSpokeo is applicable, the Court specifically recognizedthat there would be circumstances in which a statutoryviolation, by itself, would be adequate to establishconstitutional standing. The present situation isprecisely such a circumstance. There is no questionthat Congress enacted the FCRA with two primaryinterests in mind: to protect individual’s privacyinterests and to provide individuals with information,

27

through disclosures, to allow such individuals to learnabout their rights and to enforce such rights, such asthe right to correct inaccurate information in aconsumer report.

Consumer reports are used to make employment,credit, housing, and insurance decisions, areas thattouch on every American’s life. Disclosures that violate§ 1681b(b)(2)(A) create actual, or a risk of, significantharm. In addition to the obvious harm resulting fromnon-compliant disclosures that contain extraneousinformation, the harm is multiplied when informationin the disclosure includes a prospective release ofclaims, thereby discouraging consumers from pursuingviolations of the very rights Congress attempted toprotect. This Court’s decision in Spokeo recognizedthat there would be cases, like the present case, wherea violation, by itself, is adequate to confer Article IIIstanding. The Seventh Circuit’s decision disregardedthis important teaching of Spokeo.

The Spokeo decision, in providing guidance to lowercourts, observed that, with intangible injuries, onlywhere the injury can be said to be a “bare proceduralviolation”, such as a wrong zip code, should a lowercourt ignore Congress’s legislative decisions to protectwhat it has concluded to be important interests. Underno circumstances can an unlawful disclosure thatrequires a prospective release of federal statutoryrights be a “bare procedural violation”. As discussedabove, the disclosure/authorization document allows ajob applicant to refuse to permit a prospective employerfrom obtaining highly confidential personal informationabout the applicant which may be wholly unrelated toa particular job. The applicant can simply refuse to

28

sign the authorization, thereby protecting his or herprivacy. Additionally, a compliant disclosure willinform the applicant that the employer may obtain acopy of the applicant’s consumer report, therebyalerting the applicant to look into his or her rightsunder the FCRA, including how to correct erroneousinformation in a consumer report. With a prospectiverelease of claims, the risk of injury is magnified. Unlawful disclosure forms cannot be reasonablycharacterized as “bare procedural violations,” the typeof violation that the Spokeo case questioned would beadequate to confer constitutional standing. TheSeventh Circuit’s decision conflicts with Spokeo in thisregard.

The Spokeo case also recognized that the risk ofinjury may suffice to establish Article III standing. Here the risk of harm is substantial. In the presentcase, Great Lakes denied Groshek employment basedin whole or in part on information contained in theconsumer report they unlawfully obtained on him foremployment purposes. Information in Groshek’sconsumer report was inaccurate in that itmisrepresented a non-criminal civil ordinance violationas a criminal misdemeanor, a fact which would have,had Groshek chosen to pursue a slightly different legalpath, enabled Groshek to file a complaint over not onlyRespondent’s deficient and unlawful disclosure, but theerroneous consumer report they relied upon in denyinghim employment as well. Had Groshek known, at thetime he was required to authorize Respondent’sunlawful consumer report on him, that Respondentwould use inaccurate information in the report to denyhim employment, he would not have authorized theprocurement of the report.

29

This Court in the O’Neill and Alexander cases madecrystal clear that prospective releases or waivers offederal statutory claims or rights under the FLSA andTitle VII respectively, are prohibited. O’Neill, 324 U.S.697 (1945); Alexander, 415 U.S. 36 (1974). The reasonfor this legal rule is the substantial risk that employerscould violate congressional mandates to the detrimentof employees and job applicants and the employees orapplicants would do nothing to enforce their rights,having believed that they had no rights to enforce. There is substantial risks attendant to such prospectivereleases and waivers of federal statutory rights. TheSeventh Circuit’s decision is contrary to this Court’sdecisions, including Spokeo, where the Court expresslyrecognized a substantial risk of harm as beingadequate to confer Article III standing. Additionally,the Seventh Circuit’s decision is contrary to the O’Neilland Alexander decisions, where this Court specificallyprohibited the prospective release or waiver of federalstatutory claims and rights.

The Spokeo case also recognized that injury toinformational interests is adequate to conferconstitutional standing. The Court cited the continuedvitality of its decisions in Federal Election Comm’n v.Akins, 524 U.S. 11, 20-25 and Public Citizen v.Department of Justice, 491 U.S. 440, 449 (1989). TheSeventh Circuit did not give these cases a reasonableinterpretation. Instead, the Seventh Circuit gave bothdecisions an unreasonably narrow reading. The Akinsand Department of Justice decisions recognize theimportance of information and the harm that can resultfrom a failure to provide such information. Congress,in the FCRA, mandated that certain specificinformation be provided to job applicants in a specific

30

form. There is no question that Great Lakes and TWCviolated this mandate with their unlawful FCRAdisclosures. Disclosures are a primary way in whichCongress provides protections to consumers and assiststhem in enforcing their rights. Great Lakes and TWC’sviolation of the disclosure requirements results in thevery harm Congress attempted to protect against andconfers the standing recognized by this Court in theAkins and Department of Justice decisions. TheSeventh Circuit’s decision failed to appreciate theimportance of the Akins and Department of Justicedecisions on the standing issue.

Because the Seventh Circuit’s decision conflicts withrelevant decisions of this Court, the Court should grantthe Petition.

CONCLUSION

This Court should grant the Petition for Writ ofCertiorari.

Respectfully submitted: October 30, 2017

Robert J. Gingras Heath P. Straka GINGRAS, CATES & WACHS, SC8150 Excelsior Dr.Madison, Wisconsin 53717(608) 833-2632gingras@gcwlawyers.comstraka@gcwlawyers.com

Michael J. ModlCounsel of Record

AXLEY BRYNELSON, LLPPost Office Box 1767Madison, Wisconsin 53701(608) 257-5661mmodl@axley.com

Counsel for Petitioner

APPENDIX

i

APPENDIX

TABLE OF CONTENTS

Appendix A Opinion in the United States Court ofAppeals for the Seventh Circuit (August 1, 2017) . . . . . . . . . . . . . . App. 1

Appendix B Opinion & Order and Judgment in theUnited States District Court for theWestern District of Wisconsin(October 4, 2016) . . . . . . . . . . . . App. 11

Appendix C Decision and Order and Judgment inthe United States District Court forthe Eastern District of Wisconsin(August 9, 2016) . . . . . . . . . . . . . App. 19

Appendix D Advisory Opinion to Hauxwell(June 12, 1998) . . . . . . . . . . . . . . App. 31

App. 1

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

No. 16-3355

[Filed August 1, 2017]________________________________CORY GROSHEK, )

)Plaintiff-Appellant, )

)v. )

)TIME WARNER CABLE, INC., )

)Defendant-Appellee. )

________________________________ )

Appeal from the United States District Court for the Eastern District of Wisconsin.

No. 2:15-cv-00157-pp — Pamela Pepper, Judge.

App. 2

No. 16-3711________________________________CORY GROSHEK, and all others )similarly situated, )

)Plaintiff-Appellant, )

)v. )

)GREAT LAKES HIGHER )EDUCATION CORPORATION, )

)Defendant-Appellee. )

________________________________ )

Appeal from the United States District Court for the Western District of Wisconsin.

No. 3:15-cv-00143-jdp — James D. Peterson, Chief Judge.

ARGUED FEBRUARY 22, 2017 — DECIDED AUGUST 1,2017

Before BAUER and WILLIAMS, Circuit Judges, andDEGUILIO,* District Judge.

BAUER, Circuit Judge. Over the course of a year anda half, Appellant Cory Groshek submitted 562 jobapplications to various employers, including AppelleesTime Warner Cable, Inc. and Great Lakes Higher

* Of the United States District Court for the Northern District ofIndiana, sitting by designation.

App. 3

Education Corporation (collectively, “Appellees”).1 Thejob application, which Appellees provided to Groshek,included a disclosure and authorization form informinghim that a consumer report may be procured in makingthe employment decision; the form also contained otherinformation, such as a liability release. After Grosheksubmitted the job application, along with the signeddisclosure and authorization form, Appellees requestedand obtained a consumer report on him from a thirdparty.

Shortly thereafter, Groshek filed a class-action suitagainst Appellees under the Fair Credit Reporting Act,15 U.S.C. § 1681 et seq., seeking statutory and punitivedamages for alleged violations of 15 U.S.C.§ 1681b(b)(2)(A).2 This section prohibits a prospectiveemployer from procuring a consumer report foremployment purposes unless certain procedures arefollowed: (i) a clear and conspicuous disclosure hasbeen made in writing to the job applicant at any timebefore the report is procured, in a document thatconsists solely of the disclosure, that a consumer report

1 We consolidated Groshek’s appeals; and we need not discuss thespecifics for each individual case because the underlying facts areconsistent, except where noted.

2 We will note the timing of the events leading up to the filing ofthe complaint: Groshek applied to Time Warner on September 22,2014, worked his first day as an employee on October 24, 2014,resigned voluntarily on January 28, 2015, requested settlementnegotiations on January 30, 2015, and filed a class-actioncomplaint on February 6, 2015. As for Great Lakes, Groshek hadan in-person interview on February 6, 2014, submitted the jobapplication before February 11, 2014, and filed a class-actioncomplaint on March 5, 2014.

App. 4

may be obtained for employment purposes (commonlyknown as the “stand-alone disclosure requirement”);and, (ii) the job applicant has authorized in writing theprocurement of the report. See id. § 1681b(b)(2)(A)(i)-(ii).

In his complaint, Groshek alleged that Appelleesviolated § 1681b(b)(2)(A)(i). As the predicate for hisclaimed statutory and punitive damages, he allegedthat this violation was willful. See id. § 1681n.Additionally, he alleged that, as a result of theviolation of § 1681b(b)(2)(A)(i), Appellees failed toobtain a valid authorization from him before procuringa consumer report, in violation of § 1681b(b)(2)(A)(ii).

Appellees moved to dismiss for lack of subjectmatter jurisdiction, arguing that Groshek lackedArticle III standing because he did not suffer a concreteinjury; Groshek responded that he suffered concreteinformational and privacy injuries. The district courtgranted Appellees’ motion. This appeal followed.

Article III of the Constitution limits our review toactual “Cases” and “Controversies” brought by litigantswho demonstrate standing. The “irreducibleconstitutional minimum of standing” consists of threeelements: injury in fact, causation, and redressability.Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61(1992). The plaintiff bears the burden of establishingeach element. Id. at 561. In order to survive a challengeto standing, a plaintiff must plead sufficient factualallegations, that “plausibly suggest” each of theseelements. Silha v. ACT, Inc., 807 F.3d 169, 174 (7thCir. 2015).

To establish injury in fact, Groshek must show thathe “suffered ‘an invasion of a legally protected interest’

App. 5

that is ‘concrete and particularized’ and ‘actual orimminent, not conjectural or hypothetical.’” Spokeo,Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016) (quoting Lujan, 504 U.S. at 560). To be “concrete,” an injury“must actually exist;” it must be “real,” not “abstract,”but not necessarily tangible. Id. at 1548–49. Indetermining whether an alleged intangible harmconstitutes a concrete injury in fact, both history andCongress’ judgment are important. Id. at 1549.

First, we consider whether the common lawpermitted suit in analogous circumstances. Id. We alsorecognize that Congress is well positioned to identifyintangible harms that will give rise to concrete injuries,which were previously inadequate in law. Id.Nevertheless, “Congress’ judgment that there should bea legal remedy for the violation of a statute does notmean each statutory violation creates an Article IIIinjury.” Meyers v. Nicolet Rest. of De Pere, LLC, 843F.3d 724, 727 (7th Cir. 2016). For instance, a plaintiffcannot satisfy the injury-in-fact element by alleging a“bare procedural violation” that is “divorced from anyconcrete harm.” Spokeo, 136 S. Ct. at 1549. Instead, theplaintiff must show that the statutory violationpresented an “appreciable risk of harm” to theunderlying concrete interest that Congress sought toprotect by enacting the statute. Meyers, 843 F.3d at727; see also Spokeo, 136 S. Ct. at 1549–50.

In enacting the FCRA, Congress identified the needto “ensure fair and accurate credit reporting,” and“protect consumer privacy.” Safeco Ins. Co. v. Burr, 551U.S. 47, 52 (2007). “Congress plainly sought to curb thedissemination of false information by adoptingprocedures designed to decrease that risk.” Spokeo, 136

App. 6

S. Ct. at 1550. The stand-alone disclosure andauthorization requirements are procedures closely tiedto FCRA’s overarching goals. Congress was concernedthat employers’ authority to obtain consumer reportson job applicants “may create an improper invasion ofprivacy.” S. Rep. No. 104-185 at 35 (1995). Section1681b(b)(2)(A)(i), the stand-alone disclosurerequirement, is clearly designed to decrease the risk ofa job applicant unknowingly providing consent to thedissemination of his or her private information. Section1681b(b)(2)(A)(ii), the authorization requirement,further protects consumer privacy by providing the jobapplicant the ability to prevent a prospective employerfrom procuring a consumer report, i.e., by withholdingconsent. S. Rep. No. 104-185 at 35 (1995).

Here, Groshek did not allege that Appellees failedto provide him with a disclosure that informed himthat a consumer report may be obtained foremployment purposes. His complaint contained noallegation that any of the additional informationcaused him to not understand the consent he wasgiving; no allegation that he would not have providedconsent but for the extraneous information on the form;no allegation that additional information caused him tobe confused; and, no allegation that he was unawarethat a consumer report would be procured. Instead, hesimply alleged that Appellees’ disclosure formcontained extraneous information. We conclude thatGroshek has alleged a statutory violation completelyremoved from any concrete harm or appreciable risk ofharm.

First, Groshek argues that he suffered a concreteinformational injury as a result of Appellees’ failure to

App. 7

provide a disclosure compliant with § 1681b(b)(2)(A)(i).As support, he relies on the general rule arising out ofFederal Election Commission v. Akins, 524 U.S. 11(1998) and Public Citizen v. Department of Justice, 491U.S. 440 (1989), two cases that Spokeo referenced asinstances where a violation of a procedural right wassufficient to constitute an injury in fact. See Spokeo,136 S. Ct. at 1549.

In both Akins and Public Citizen, the SupremeCourt held generally that “a plaintiff suffers an ‘injuryin fact’ when the plaintiff fails to obtain informationwhich must be publicly disclosed pursuant to astatute.” Akins, 524 U.S. at 22 (citing Pub. Citizen, 491U.S. at 449). In Public Citizen, the plaintiff specificallyrequested, and had been refused, information. 491 U.S.at 449. The plaintiff filed suit against the defendantunder the Federal Advisory Committee Act, in anattempt to compel the defendant to publicly discloseinformation as required by FACA. Id. The SupremeCourt held that the inability to scrutinize the withheldinformation to the extent FACA allowed constituted aninjury in fact. Id. The Supreme Court reasoned that theplaintiff’s injury was akin to when “an agency deniesrequests for information under the Freedom ofInformation Act … .” Id. As the Supreme Court noted,the plaintiff’s injury was not simply the inability toobtain information, but also the inability to monitorand participate effectively in the judicial selectionprocess without such information. See id.

Similarly, the plaintiffs in Akins, after a failedrequest for information, filed suit to compel thedefendant to provide information that was required tobe disclosed under the Federal Election Campaign Act

App. 8

of 1971. 524 U.S. at 19–20. The Supreme Court heldthat the plaintiffs’ inability to procure informationunder FECA qualified as a concrete injury. Id. TheSupreme Court noted that the plaintiffs’ harm was notsimply the inability to obtain information, but alsomentioned their inability to evaluate candidates forpublic office without such information—aninformational injury “directly related to voting, themost basic of political rights … .” Id. at 24–25. TheSupreme Court determined that FECA sought toprotect the plaintiffs “from the kind of harm they saythey have suffered … .” Id. at 22.

Groshek’s reliance on Akins and Public Citizen ismisplaced for two reasons. First, unlike the plaintiffsin Akins and Public Citizen, Groshek is not seeking tocompel Appellees to provide him with information.Groshek has not alleged that, after realizing he wasprovided with a non-compliant disclosure, he requestedthat Appellees provide him with a compliant disclosureand was denied. Because Groshek has not “fail[ed]” toobtain information, he has not suffered aninformational injury as illustrated in Akins and PublicCitizen.

The second reason is that, unlike the statutes atissue in Akins and Public Citizen, the statute heredoes not seek to protect Groshek from the kind of harmhe claims he has suffered, i.e., receipt of anon-compliant disclosure. See Akins, 524 U.S. at21–25.3 Congress did not enact § 1681b(b)(2)(A)(i) to

3 For this same reason, Groshek’s reliance stemming from HavensRealty Corp. v. Coleman, 455 U.S. 363 (1982), a case that was citedin Spokeo’s concurring and dissenting opinions, is also misplaced.

App. 9

protect job applicants from disclosures that do notsatisfy the requirements of that section; it did so todecrease the risk that a job applicant wouldunknowingly consent to allowing a prospectiveemployer to procure a consumer report. Under thecircumstances here, Akins and Public Citizen areinapposite. Groshek has failed to demonstrate that hehas suffered a concrete informational injury.

Next, Groshek contends that he suffered a privacyinjury as a result of the violation of § 1681b(b)(2)(A).Section 1681b(b)(2)(A)(ii)’s authorization requirementdoes implicate privacy interests. S. Rep. No. 104-185 at35 (1995). It is also well established that “[v]iolationsof rights of privacy are actionable … .” Gubala v. TimeWarner Cable, Inc., 846 F.3d 909, 912 (7th Cir. 2017).

As mentioned above, Groshek alleged that, as aresult of Appellees’ failure to provide him with acompliant disclosure, Appellees failed to obtain a validauthorization from him to procure a consumer report,in violation of § 1681b(b)(2)(A)(ii). But, this is aconclusory allegation which we discard whenconsidering well-pleaded factual allegations. SeeDiedrich v. Ocwen Loan Servicing, LLC, 839 F.3d 583,589 (7th Cir. 2016). Because Groshek admits that hesigned the disclosure and authorization form, he cannotmaintain that he suffered a concrete privacy injury.

See Spokeo, 136 S. Ct. at 1553 (Thomas, J. concurring); id. at 1555(Ginsburg, J. dissenting). Havens Realty also demonstrates that,in order to have an informational-based injury, the injury must be“precisely the form the statute was intended to guard against … .”455 U.S. at 373.

App. 10

Lastly, we briefly highlight the Ninth Circuit’sopinion in Syed v. M-I, LLC, 853 F.3d 492 (9th Cir.2017), which was decided after briefing but was a topicof discussion at oral argument and in supplementalbriefing. There, the plaintiff alleged in his complaintthat he discovered, within the previous two years, thatthe defendant obtained a consumer report foremployment purposes based on an illegal disclosureand authorization form. Id. at 499. The court held thatthis allegation was sufficient to confer standingbecause it inferred that the plaintiff was “deprived ofthe right to information and the right to privacy” under15 U.S.C. §1681b(b)(2)(A)(i)-(ii). Id. The court, drawingall reasonable inferences in plaintiff’s favor determinedthat the plaintiff was “confused by the inclusion of theliability waiver with the disclosure and would not havesigned it had it contained a sufficiently cleardisclosure, as required by the statute.” Id. at 499–500.

Syed is inapposite. The Ninth Circuit had factualallegations from which it could infer harm, whereasGroshek alleges none. Unlike the plaintiff in Syed,Groshek presents no factual allegations plausiblysuggesting that he was confused by the disclosure formor the form’s inclusion of a liability release, or that hewould not have signed it had the disclosure compliedwith 15 U.S.C. § 1681b(b)(2)(A)(i).

We conclude that Groshek has not alleged factsdemonstrating a real, concrete appreciable risk ofharm. Because he has failed to demonstrate that hesuffered a concrete injury, he lacks Article III standing.Accordingly, the judgments of the district courts areAFFIRMED.

App. 11

APPENDIX B

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF

WISCONSIN

15-cv-143-jdp

[Filed October 14, 2016]______________________________________CORY GROSHEK, )And all others, similarly situated, )

)Plaintiff, )

)v. )

)GREAT LAKES HIGHER EDUCATION )CORPORATION, )

)Defendant. )

______________________________________ )

OPINION & ORDER

Plaintiff Cory Groshek brings this class actionlawsuit against defendant Great Lakes HigherEducation Corporation alleging violations of the FairCredit Reporting Act (FCRA). In March, 2016, theparties reached a settlement agreement, Dkt. 43, whichthe court preliminarily approved in April, Dkt. 46. Butin May, the Supreme Court decided Spokeo, Inc. v.Robins, 136 S. Ct. 1540, 1548 (2016), which held that abare statutory violation of the FCRA may not be

App. 12

sufficient in itself to establish a “concrete” injury,which is one of the requirements of Article III standing,without which this court would not have jurisdiction todecide this case.

Great Lakes now moves to dismiss the complaint forlack of standing, contending that Groshek has notalleged a concrete injury. Dkt. 53. Groshek opposesGreat Lake’s motion and he moves for final approval ofclass action settlement and final certification. Dkt. 61.Great Lakes’ motion comes awfully late in the case, butbecause it goes to the court’s jurisdiction, the courtmust decide it on the merits. For reasons given below,the court concludes that Groshek has not alleged aconcrete injury. The court will grant Great Lakes’motion and dismiss the case for lack of subject matterjurisdiction.

ALLEGATIONS OF FACT

According to Groshek’s complaint, Dkt. 1, Groshekapplied for a job with Great Lakes in 2014. During aninterview for the position, Great Lakes asked him tosign a two-sided document: one side was titled“Disclosure and Release of Information Authorization,”and the other side was titled “Great Lakes HigherEducation Corporation and Affiliates (Great Lakes)Applicant Disclosure of Criminal Conviction History.”Great Lakes then acquired a consumer report onGroshek from Verifications, Inc., a consumer reportingagency.

Groshek filed suit against Great Lakes, contendingthat it willfully violated the FCRA by procuring aconsumer report on Groshek without providingGroshek a clear and conspicuous written disclosure

App. 13

that a consumer report may be obtained foremployment purposes in a document consisting solelyof the disclosure, as required by 15 U.S.C.§ 1681b(b)(2)(A)(i). Specifically, the disclosure “includeda liability release/waiver and other extraneousinformation.” Dkt. 1, ¶ 28. It was also “included . . .with a plethora of other information and documentsprovided at the same time.” Id. ¶ 46. Because of thisprocedural violation, Groshek argues that he is entitledto statutory and punitive damages.

In March 2016, Groshek and Great Lakes jointlymoved for preliminary approval of a class actionsettlement and conditional class certification, Dkt. 43,which the court granted, Dkt. 46. The final fairnesshearing concerning the settlement is scheduled forOctober 14.

ANALYSIS

On Great Lakes’ motion to dismiss, the courtaccepts Groshek’s well-pleaded factual allegations astrue and draws all reasonable inferences from thosefacts in his favor. Lee v. City of Chicago, 330 F.3d 456,468 (7th Cir. 2003). But Groshek “bears the burden ofestablishing” the three elements of Article III standing:injury in fact, causation, and redressability. Id. At thepleading stage, “the plaintiff must ‘clearly . . . allegefacts demonstrating’ each element.” Spokeo, 136 S. Ct.at 1547 (quoting Warth v. Seldin, 422 U.S. 490, 518(1975)).

The only standing element at issue is injury in fact.“To establish injury in fact, [Groshek] must show thathe . . . suffered ‘an invasion of a legally protectedinterest’ that is ‘concrete and particularized’ and

App. 14

‘actual or imminent, not conjectural or hypothetical.’”Id. at 1548 (quoting Lujan v. Defenders of Wildlife, 504U.S. 555, 560 (1992)). The Spokeo decision focused mostparticularly on the “concreteness” requirement, whichthe Court distinguished from the requirement of“particularization.” A concrete injury is one that is real.And a concrete injury does not automatically flow fromevery statutory violation, because sometimes theremight be some procedural violation which causes noreal harm to the plaintiff. Id. at 1549. However, insome circumstances, when a risk of specific harm flowsmore or less directly from the statutory violation, thenthe plaintiff need not show any harm beyond theviolation of the statute.

The statute at issue in Spokeo was the FCRA, thesame statute at issue here. The Spokeo court remandedthe case because the lower courts had not adequatelyconsidered whether the plaintiff in that case hadsuffered a concrete harm when Spokeo, as a consumerreporting agency under the FCRA, disclosed certainfalse information about the plaintiff. The Spokeodecision thus rules out the idea that the FCRA is astatute so directly tied to a risk of real harm that aplaintiff need only show the statutory violation withoutpleading any other concrete injury. So the question forthis court is whether Groshek has pleaded concreteinjury beyond the bare statutory violation. Based onthe court’s review of the complaint, the court concludesthat he has not.

Groshek alleges that Great Lakes failed to providethe statutorily prescribed notice about its intent toobtain a consumer report under the FCRA. That is all.Groshek contends that Great Lakes’ acquisition of his

App. 15

consumer report implicates his privacy interest. ButGroshek does not allege that he did not know thatGreat Lakes was seeking to acquire a consumer report.He does not allege that would not have grantedpermission for Great Lakes to acquire a consumerreport. He does not allege that Great Lakes disclosedthe report to anyone else. See also Groshek v. TimeWarner Cable, Inc., No. 15-cv-157, 2016 WL 4203506,at *2-3 (E.D. Wis. Aug. 9, 2016) (rejecting Groshek’sprivacy-interest argument in a nearly identical lawsuitand noting that “[h]e has not alleged that thedefendant released the information in the report toother people, causing him embarrassment or damaginghis credit [or] that the defendant used the consumerreport against him in any way”). The deficiencies in thenotice did not cause any injury to Groshek’s privacyinterests.

Groshek also argues that he suffered an“informational injury.” In its prototypical form, aninformational injury is caused by the violation of astatute that requires the disclosure of information,such as the Freedom of Information Act. See, e.g., Pub.Citizen v. U.S. Dep’t of Justice, 491 U.S. 440, 449 (1989)(“Our decisions interpreting the Freedom ofInformation Act have never suggested that thoserequesting information under it need show more thanthat they sought and were denied specific agencyrecords.”). Groshek cites cases in which theinformational injury concept has been applied to claimsunder the FCRA, see, e.g., Manuel v. Wells Fargo Bank,Nat’l Ass’n, 123 F. Supp. 3d 810, 817 (E.D. Va. 2015),but those cases pre-date Spokeo. Such an expansiveview of “informational injury” is hard to square withSpokeo’s reasoning. If the statutorily defective notice

App. 16

given to Groshek counts as a concrete informationalinjury, then it is hard to imagine a statutory violationthat would not cause some form of informationalinjury. The court concludes that receiving a statutorilydefective notice is not, in itself, a concrete injury. AndGroshek has alleged no other harm.

Groshek suggests that the court is bound to followSterk v. Redbox Automated Retail, LLC, 770 F.3d 618(7th Cir. 2014), which requires the court to deny GreatLakes’ motion. Sterk’s personal information had beendisclosed by the defendant to a third party, and theSeventh Circuit concluded that that disclosureconstituted an injury in fact sufficient to conferstanding. Id. at 623. The Sterk court recognized thatCongress could not lower the threshold for standingbelow that required by the Constitution, even thoughCongress has the power to enact statutes that createlegal rights, without which standing could not exist. Id.In other words, some legal violation is a necessaryprerequisite to standing, but it is not alone sufficient.There is nothing in Sterk that requires the court toconclude that Groshek has suffered concrete injurysufficient to confer standing.

The court understands Groshek’s frustration, buthis timing-related arguments are futile. A motion tochallenge subject-matter jurisdiction under Rule12(h)(3) may be made at any time and requires thecourt to dismiss the action if it finds it lacksjurisdiction. Arbaugh v. Y & H Corp., 546 U.S. 500, 506(2006). “[W]hen [jurisdiction] ceases to exist, the onlyfunction remaining to the court is that of announcingthe fact and dismissing the cause.” Ex Parte McCardle,

App. 17

74 U.S. 506, 514 (1868). This court lacks jurisdictionand thus “cannot proceed at all.” Id.

ORDER

IT IS ORDERED that:

1. Defendant Great Lakes Higher EducationCorporation’s motion to dismiss for lack of subjectmatter jurisdiction, Dkt. 53, is GRANTED.

2. Plaintiff Cory Groshek’s motion for final approval ofclass action settlement and final certification ofRule 23 settlement class, Dkt. 61, is DENIED.

3. The clerk of court is directed to close this case.

Entered October 4, 2016.

BY THE COURT:

/s/________________________________________ JAMES D. PETERSON District Judge

App. 18

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF

WISCONSIN

15-cv-143-jdp

[Filed October 14, 2016]______________________________________CORY GROSHEK, )And all others, similarly situated, )

)Plaintiff, )

)v. )

)GREAT LAKES HIGHER EDUCATION )CORPORATION, )

)Defendant. )

______________________________________ )

JUDGMENT IN A CIVIL CASE

This action came before the court for considerationwith District Judge James D. Peterson presiding. Theissues have been considered and a decision has beenrendered.

IT IS ORDERED AND ADJUDGED that judgmentis entered in favor of defendant Great Lakes HigherEducation Corporation against plaintiff Cory Groshekand all others similarly situated dismissing this casefor lack of subject matter jurisdiction.

s/ J. Smith, Deputy Clerk_______ 10/04/2016 Peter Oppeneer, Clerk of Court Date

App. 19

APPENDIX C

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

Case No. 15-C-157

[Filed August 9, 2016]________________________________CORY GROSHEK, and all others )similarly situated, )

)Plaintiff, )

)-vs- )

)TIME WARNER CABLE, Inc. )

)Defendant. )

________________________________ )

DECISION AND ORDER GRANTING MOTIONTO LIFT THE STAY, NUNC PRO TUNC TO MAY

25 (DKT. NO. 54); GRANTING DEFENDANT’SMOTION TO DISMISS (DKT. NO. 55); DENYINGPLAINTIFF’S MOTION TO SEAL (DKT. NO. 61);AND DENYING DEFENDANT’S MOTION FORLEAVE TO FILE SUR-REPLY AS MOOT (DKT.

NO. 66)

On March 29, 2016, the Honorable Rudolph T.Randa stayed the proceedings in this case pending aruling from the Supreme Court in Spokeo, Inc. v.Robins (Dkt. No. 53); the Supreme Court issued its

App. 20

decision just short of two months later, on May 16.Spokeo, Inc. v. Robins, 134 S. Ct. 1540 (2016). Dayslater, the plaintiffs moved to lift the stay. Dkt. No. 54.At around the same time, the defendant moved todismiss the complaint for lack of standing in light ofSpokeo. Dkt. No. 55.

The named plaintiff also has asked the court to sealcertain documents. Dkt. No. 61. The defendant opposedthat motion, Dkt. No. 62, the plaintiff filed a reply, Dkt.No. 65, and on July 19, 2016, the defendant filed amotion requesting leave to file a sur-reply, Dkt. No. 66.

On August 2, the case was reassigned to this court.

A. Plaintiff’s Motion to Lift Stay (Dkt. No. 54)

The plaintiffs’ May 24, 2016 motion to lift the staysimply noted that the Supreme Court had decidedSpokeo, and thus that there was no longer any reasonto delay moving forward. Dkt. No. 54. The defendantobjected, arguing that the court ought to keep the stayin place until it could decide the defendant’s May 27,2016 motion to dismiss. Dkt. No. 58. The defendantargued that the motion to dismiss was based on theargument that the court does not have subject matterjurisdiction; if that turned out to be true, the courtwould not have jurisdiction to allow the parties toproceed with discovery or anything else. Id. at 58.

The court notes with interest that, despite the factthere was—and arguably until this order, continued tobe—a stay in place, the defendant filed a motion todismiss; the plaintiff filed a motion to seal; thedefendant filed a motion to file a sur-reply; and theparties briefed all of these motions. A “stay” generallymeans that the parties should file nothing further in

App. 21

the litigation as long as the stay is in effect. The factthat a stay was in place does not appear to haveprevented the parties from filing numerous documentswhile the stay was in place.

Bowing to the inevitable, the court will grant themotion to lift the stay, nunc pro tunc to May 25, 2016.Dkt. No. 54.

B. Defendant’s Motion to Dismiss (Dkt. No. 55)

Federal Rule of Civil Procedure 12(b)(1) provides fora party to bring a motion to dismiss for lack ofstanding. In considering such a motion, the court must“accept as true all material allegations of thecomplaint, drawing all reasonable inferences therefromin the plaintiff’s favor.” Lee v. City of Chi., 330 F.3d456, 468 (7th Cir. 2003). The plaintiff, however, “as theparty invoking federal jurisdiction, bears the burden ofestablishing the required elements of standing,”including (i) injury in fact, (ii) causation, and(iii) redressability. Id. On a factual challenge to subjectmatter jurisdiction, district courts “may properly lookbeyond the jurisdictional allegations of the complaintand view whatever evidence has been submitted on theissue to determine whether in fact subject matterjurisdiction exists.” Evers v. Astrue, 536 F.3d 651,656-57 (7th Cir. 2008).

To establish injury in fact, a plaintiff must showthat he or she suffered an “invasion of a legallyprotected interest” that is “concrete and particularized”and “actual or imminent, not conjectural orhypothetical.” Lujan v. Defenders of Wildlife, 504 U.S.555, 560 (1992). In Spokeo, the Court emphasized thedistinction between concreteness and particularization.

App. 22

The latter is “necessary to establish injury in fact, butit is not sufficient. . . . We have made it clear time andagain that an injury in fact must be both concrete andparticularized.” Spokeo, 136 S. Ct. at 1548 (emphasisin original). A concrete injury must be “‘de facto’; thatis, it must actually exist. When we have used theadjective ‘concrete,’ we have meant to convey the usualmeaning of the term – ‘real,’ and not ‘abstract.’Concreteness, therefore, is quite different fromparticularization.” Id.

The Spokeo Court went on to clarify that concrete isnot “necessarily synonymous with ‘tangible.’ Althoughtangible injuries are perhaps easier to recognize, wehave confirmed in many of our previous cases thatintangible injuries can nevertheless be concrete.” Id. at1549. In this context, the judgment of Congress is“important,” but “Congress’ role in identifying andelevating intangible harms does not mean that aplaintiff automatically satisfies the injury-in-factrequirement whenever a statute grants a person astatutory right and purports to authorize that personto sue to vindicate that right.” Id. A “bare proceduralviolation, divorced from any concrete harm, [cannot]satisfy the injury-in-fact requirement of Article III.” Id.

The named plaintiff alleges that he applied foremployment with the defendant, and that in the courseof considering his application, the defendant obtaineda consumer report on him “without first providing[him] a clear and conspicuous written disclosure, in adocument consisting solely of the disclosure, that aconsumer report may be obtained for employmentpurposes.” Dkt. No. 1 at 4. He alleges that this failureto disclose violated §1681(b)(2)(A)(i) of the Fair Credit

App. 23

Reporting Act. Id. While the complaint alleges, inseveral places, that the defendant’s action violated theFair Credit Reporting Act, it makes no mention of anyconcrete harm the plaintiff (or any putative classmembers) suffered as a result of the alleged violation.

In his response to the defendant’s motion to dismiss,the plaintiff argues that the defendant’s allegedviolation of the FDCPA—obtaining consumerinformation about him without giving him a separatedocument warning him that it was going to doso—“invaded [the plaintiff’s] privacy—a clear form ofconcrete harm that [the defendant] simply ignores inits motion.” Dkt. No. 60 at 10. He also argued that thedefendant unlawfully “sought to obtain his privateinformation, and then it obtained his personalinformation as a result of the unlawful permission itreceived.” Id. at 13. The named plaintiff argues thatthese two assertions constitute the kind of concrete,particularized injury Spokeo mandated as necessary toconfer standing. Id.

This court, and others, have rejected this argument.In Gubala v. Time Warner Cable, Inc., Case No.15-cv-1078, 2016 WL 3390415 at *4 (E.D. Wis. June 17,2016), this court held that while alleging a statutoryviolation satisfies the particularized injury prong of theinjury-in-fact requirement discussed in Spokeo andother cases, it did not, in and of itself, demonstrate aconcrete harm. In Gubala, the plaintiff alleged that thedefendant had failed to abide by the CableCommunications Policy Act’s requirement that cablecompanies destroy personally identifiable informationafter a customer has terminated service. Id. at *1. Thecourt found that the fact that the defendant had failed

App. 24

to destroy the information did not constitute concreteharm.

[The plaintiff] does not allege that the defendanthas disclosed his information to a third party.Even if he had alleged such a disclosure, he doesnot allege that the disclosure caused him anyharm. He does not allege that he has beencontacted by marketers who obtained hisinformation from the defendant, or that he hasbeen the victim of fraud or identity theft. Healleges only that the CCPA requires cableproviders to destroy personal information at acertain point, and that the defendant hasn’tdestroyed his.

Id. at 4.

The same is true in this case. The plaintiff has notalleged that he did not get the job he applied for as aresult of the consumer report the defendant obtained.He has not alleged that the defendant released the information in the report to other people, causing himembarrassment or damaging his credit. He has notalleged that the defendant used the consumer reportagainst him in any way. In fact, in his October 7, 2015 deposition, when defense counsel asked him if he wasaware of anything in that might entitle him to actualdamages, the plaintiff responded, “I do not know ofany actual damages that I am claiming nor do I believeI’ve ever actually claimed actual damages against [thedefendant] nor do I intend to.” Dkt. No. 59-2 at 18(deposition page 115), lines 9-11. In short, he has not alleged a concrete harm. See also, Smith v. The OhioState Univ., Case No. 15-cv-3030, 2016 WL 3182675(S.D. Ohio June 8, 2016) (no concrete injury based on

App. 25

allegation that defendant violated the FCRA byincluding extraneous information, such as a liabilityrelease, in the disclosure and authorization).

Because the plaintiff has not alleged a concreteharm resulting from the defendant’s alleged violationof the FDCPA, the plaintiff does not have standing, andthe court must dismiss the case.

C. Plaintiff’s Motion to Seal (Dkt. No. 61)

The court has established that it does not havesubject matter jurisdiction in this case. The court notes,however, that prior to the court reaching this decision,the plaintiff filed a motion asking the court to sealvarious portions of his deposition transcripts,supplemental answers to discovery, and any otherdocument that might make mention of any settlementagreement between him and “another party.” Dkt. No.61.

On May 27, 2016, the defendant filed a “Notice ofFiling.” Dkt. No. 59. The notice indicated that thedefendant was provisionally filing, under seal, Exhibits1 and 2 to the declaration of Anthony E. Giardino. Id.at 1. Exhibit 1 was the plaintiff’s entire depositiontranscript. Exhibit 2 was the plaintiff’s supplementalanswers to the defendant’s first interrogatories. Dkt.Nos. 59-2 and 59-3. The defendant explained that it didnot believe that the documents contained confidentialinformation. It was filing the documents under seal, itexplained, because the plaintiff had attempted,unilaterally and in the absence of an agreed protectiveorder, to deem the documents “confidential” and“attorneys’ eyes only (by means of an e-mail, citingCivil Local Rule 26(e) of the Eastern District. Dkt. No.

App. 26

59 at 1; Dkt. No. 59-1 at 3. In the notice, the defendantpointed out that pursuant to Civil Local Rule 79(d)(7),the plaintiff had twenty-one days from the date thenotice was filed to file a motion to seal, if he wanted tokeep the documents under seal. Dkt. No. 59 at 1.

The plaintiff filed the instant motion to seal on June17, 2016. Dkt. No. 61. The motion identifies specificpages in the deposition and the supplemental answerswhich the plaintiff wishes to keep under seal. Id. at 1.The plaintiff also attached to the motion a draftprotective order.1

As grounds for sealing, the plaintiff states that thepages he seeks to keep sealed “concern confidentialsettlement agreements reached between [the plaintiff]and various third-parties.” Id. at 2. He indicates that ifthe confidentiality of these documents were violated,the result would be a “serious financial burden” on theplaintiff. Id. He states that “[o]f principal concern,these agreements require that [the plaintiff] keepconfidential the terms of the settlement, the fact ofsettlement, negotiations related to settlement, anddocuments related to those settlement negotiations.”Id. at 1-2. He indicates that “the disclosure” of thedocuments would subject the plaintiff to legal action for

1 Attaching a protective order to a motion to seal is putting the cart before the horse, pursuant to this court’s local rules. Civil LocalRule 26(e) does not allow a party to “deem” a documentconfidential by saying so in an e-mail to opposing counsel. Rather,it explains the process for obtaining a protective order—the propermethod, in this district, for protecting confidential documents inthe discovery process. Rule 26(f) provides for filing documentsunder seal, including “the filing of information covered by a protective order.”

App. 27

breach of contract. Id. at 3. He also argues that thedocuments relate to private agreements between theplaintiff and other parties, outside of the context thiscase. Id.

As an initial matter, the court looked at some of thepages that the plaintiff alleges made reference tosettlement negotiations and settlement agreements.The court was hard-pressed, on some pages, to findreference to anything related to settlements—theplaintiff’s or anyone else’s. Other pages do refer to theplaintiff making settlement demands on somecompanies, and to settling with some companies.

The plaintiff’s argument in support of maintainingany of these documents under seal, however, is notpersuasive. First, assuming that the plaintiff hasentered into settlement agreements that prohibit himfrom disclosing the existence or terms of thoseagreements, it is not clear how the plaintiff hasviolated those agreements. It is the defendant who filedthe documents, not the plaintiff. The plaintiff told thedefendant in the e-mail at Dkt. No. 59-1 that heintended anything he said in his deposition orsupplemental responses to be confidential, and he’sfiled the instant motion with this court. He has notpublicly disclosed the information; he has opposed thedisclosure of the information. So it is not clear howsomeone else’s disclosure of information that he soughtto keep private would constitute a violation of anyagreements to which the plaintiff may be a party withentities not involved in this suit.

Further, the plaintiff’s argument ignores the factthat he came to the court—a public forum—andinstituted this lawsuit. He sued the defendant on a

App. 28

cause of action for which he has sued a number of othercompanies, and yet he argues that those other suits areirrelevant to this one. In essence, he indicates thatwhile he wants to be able to file suit against thedefendant in federal court, he wants to prevent thedefendant from enquiring into similar suits that he hasfiled against other companies for the same allegedconduct. That is not an appropriate basis for the courtto seal documents from public view.

The court will deny the plaintiff’s motion to seal.

D. Defendant’s Motion for Leave to FileSur-Reply (Dkt. No. 66)

Finally, after the parties had fully briefed themotion plaintiff’s motion to seal, the defendant filed amotion asking the court for leave to file a sur-reply.Dkt. No. 66. This court grants such leave only rarely;the local rules provide for a motion, a response and areply, and in the vast majority of cases, this issufficient.

Given the court’s decision on the motion to dismiss,and on the motion to seal, the court will deny themotion for leave to file a sur-reply as moot.

E. Conclusion

The court GRANTS the plaintiff’s motion to lift thestay, nunc pro tunc to May 25, 2016. Dkt. No. 54.

The court GRANTS the defendant’s motion todismiss. Dkt. No. 55. The court ORDERS that thecomplaint is dismissed for lack of subject matterjurisdiction, effective immediately. The clerk will enterjudgment accordingly.

App. 29

The court DENIES the plaintiff’s motion to seal.Dkt. No. 61.

The court DENIES AS MOOT the defendant’smotion for leave to file a sur-reply. Dkt. No. 66.

Dated in Milwaukee, Wisconsin this 9th day ofAugust, 2016.

BY THE COURT:

s/________________________________HON. PAMELA PEPPER

United States District Judge

App. 30

UNITED STATES DISTRICT COURT FOR THEEASTERN DISTRICT OF WISCONSIN

Civil Action No. 15-cv-157-PP

[Filed August 9, 2016]________________________________Cory Groshek, )

Plaintiff ))

v. ) )

Time Warner Cable, Inc. )Defendant )

________________________________ )

JUDGMENT IN A CIVIL ACTION

The court has ordered that (check one):

* * *

X other: the complaint is dismissed for lack of subjectmatter jurisdiction, effective immediately.

This action was (check one):

* * *

X decided by Judge Pamela Pepper on the defendant’smotion to dismiss filed on May 27, 2016.

Date: August 9, 2016 CLERK OF COURT

/s/ Kristine G. Wrobel__________

Signature of Clerk or Deputy Clerk

App. 31

APPENDIX D

Advisory Opinion to Hauxwell (06-12-98)

June 12, 1998

Richard W. Hauxwell, CEOAccufax Div., SouthwestP.O. Box 35563Tulsa, OK 74153-0563

Dear Mr. Hauxwell:

Re: Sections 604 and 606 of the Fair CreditReporting Act

This is in response to your letter asking for clarificationof sections 604 and 606 of the Fair Credit Reporting Act(“FCRA”). You note that your company is a consumerreporting agency and that you are asking thesequestions on behalf of your clients. Your questions areaddressed below in the order in which you presentedthem.

1. Is it safe for us to assume, based on youropinion letter to Mr. Richard Steer, that we cancombine the disclosure and release form, whichincludes applicant identifiers, in one form suchas the enclosed sample?

Section 604(b) of the FCRA requires any employer whointends to obtain a consumer report for employmentpurposes to disclose this to the applicant or employee(in a document that consists solely of the disclosure)and to obtain the applicant or employee’s written

App. 32

permission. As noted in the letter you cited (Steer,10/21/97), it is our position that the disclosure noticeand the authorization may be combined. If they arecombined, identifying information (such as date ofbirth, Social Security number, driver’s license number,and current and former addresses) may be included inthe form. However, the form should not contain anyextraneous information.

While we believe that you may combine the disclosureand authorization (and include identifying information)as you have in the draft form that you included withyour letter, we note that your draft disclosure includesa waiver by the consumer of his or her rights under theFCRA. The inclusion of such a waiver in a disclosureform will violate Section 604(b)(2)(A) of the FCRA,which requires that a disclosure consist “solely” of thedisclosure that a consumer report may be obtained foremployment purposes. Moreover, it is a generalprinciple of law that benefits provided to citizens byfederal statute generally may not be waived by privateagreement unless Congress intended such a result.Brooklyn Savings Bank v. O’Neill, 324 U.S. 697 (1945).We note that no authorization for a waiver is containedin the FCRA; nor does the legislative history show thatCongress intended that consumers should be able tosign away their legal rights under the Act. (1)Accordingly, employers and other users of informationcovered by the FCRA may not require consumers towaive their rights under the law.

App. 33

2. Our members would also like furtherclarification with regard to Section 606 as towhen a Summary of Rights should be provided tothe applicant. The language of the law isconfusing.

Section 606 of the FCRA mandates that specificprocedures be followed when an investigative consumerreport is requested by an employer or other user whohas a permissible purpose to obtain the report. First,Section 606(a)(1)(A) requires any person procuring aninvestigative consumer report to disclose this fact tothe affected consumer not later than three days afterthe date on which the report was first requested.Second, Section 606(a)(1)(B) requires that thedisclosure include a statement of the consumer’s rightto obtain additional information and a copy of thesummary of consumer rights prescribed by theCommission. Finally, Section 606(b) sets out theinformation that must be disclosed when the consumerrequests a disclosure pursuant to Section 606(a)(1)(B).

The issue that you raise concerns exactly at whatpoint the Commission’s summary of rights must besent. The language of Section 606(a)(1)(B) is notentirely clear in mandating that the disclosure“includes a statement informing the consumer of hisright to request the additional disclosures provided forunder subsection (b) of this section [the nature andscope of the investigation] and the written summary ofthe rights of the consumer prepared pursuant tosection 609(c).” As you can see, the reference to thesummary of rights comes after a reference to subpart606(b), but in a general discussion of the content of thesub-part 606(a)(1)(A) notice.

App. 34

There are two possible interpretations of thisambiguous language: (1) that Congress intended for thesummary to be sent with the initial Section606(a)(1)(A) notice (that an investigative consumerreport has been or may be procured); or (2) thatCongress intended that the summary be provided withthe subsequent Section 606(b) disclosure of the “natureand scope” of the investigation. The Commission’s“Notice to Users of Consumer Reports: Obligations ofUsers Under the FCRA,” (2) states that the summaryof rights should be provided with the Section 606(a)notice that an investigative consumer report has beenor may be obtained. However, because the statutorylanguage may be interpreted to require that thesummary be sent with the subsequent Section 606(b)disclosure, it is unlikely that the Commission’s staffwould recommend any enforcement action if the noticeis sent with the Section 606(b) notice instead of theSection 606(a) notice.

3. We would like your opinion regarding end-userorganizations which procure criminal and otherpublic record information for employmentpurposes directly from a federal, state, or countyrecord repository. Would the governmentrepository (agency) providing the informationdirectly to the end-user organization ...requesting the information be considered aconsumer reporting agency and subject to thesame laws as a privately held consumer reportingagency?

In general, information that is obtained by an employerdirectly from a federal, state or county recordrepository is not a “consumer report” because the

App. 35

repository (such as a courthouse or a state lawenforcement agency) is not normally a “consumerreporting agency” and is itself not covered by theFCRA. The attached staff letters (Copple, 6/10/98;Goeke, 6/9/98) discuss this issue in more detail.Therefore, an employer who obtains informationdirectly from a public record source is not subject to theFCRA as to that information. However, because of thefact that information in public record sources may beinaccurate or incomplete, we believe that employerswho use this type of information should voluntarilydisclose to consumers the nature and substance of anypublic record information that they rely upon in takingany adverse action. If the information is, in fact,inaccurate or incomplete, the consumer may then takesteps to correct the problem.

I hope that this information is helpful to you. The viewsthat are expressed above are those of the Commission’sstaff and not the views of the Commission itself.

Sincerely,

William Haynes Attorney Division of Credit Practices

1. The FCRA is part of the Consumer Credit ProtectionAct, 15 U.S.C. § 1601. We note that the Truth InLending Act, which is Subchapter I of the ConsumerCredit Protection Act, does permit consumers to waivecertain rights.

2. The Commission’s notice may be found at 16 C.F.R.§ 601, Appendix C (1997).