Williams v. First Advantage LNS Screening Solutions, Inc.

Decision Date02 March 2017
Docket NumberCase No. 1:13cv222–MW/GRJ
Citation238 F.Supp.3d 1333
Parties Richard Alexander WILLIAMS, Plaintiff, v. FIRST ADVANTAGE LNS SCREENING SOLUTIONS, INC., f/k/a LexisNexis Screening Solutions, Inc., Defendant.
CourtU.S. District Court — Northern District of Florida

Barry Seth Balmuth, West Palm Beach, FL, Michael Owen Massey, Massey & Duffy PLLC, Gainesville FL, for Plaintiff.

Leonard J. Dietzen, Rumberger Kirk & Caldwell PA, Tallahassee, FL, Frederick Thomas Smith, Megan Hall Poonolly, Seyfarth Shaw LLP, Atlanta, GA, Jason Mathew Torres, Joseph S. Turner, Seyfarth Shaw LLP, Chicago, IL, Defendant.

ORDER DENYING MOTION FOR JUDGMENT AS A MATTER OF LAW OR NEW TRIAL

Mark E. Walker, United States District Judge

You're a college-educated, law-abiding citizen with no criminal record. Given the abysmal post-recession job market, you cast a broad job-search net. Many employers deny you, few interview you, and even fewer seriously consider you for a position. Finally, you hear the words that you have been waiting for: "Welcome aboard (pending a criminal-background check)!" But you have nothing to fear—you've never been arrested, let alone convicted of a crime. Nonetheless, you eventually receive a letter notifying you that, apparently, you were arrested and convicted for selling cocaine. Knowing that to be untrue, you successfully dispute the report. But it's too late—the employer already hired somebody else for the job.

Dejected, you continue your search and, after an even more strenuous search, you finally hear those magic words again. Yet this time, you receive a letter notifying you that you committed burglary and aggravated battery on a pregnant woman. You're disgusted to have been accused of such a heinous crime, and you, yet again, successfully dispute the report. Déjà vu ; it's too late, the employer has moved on, and it takes five months for you to convince them that you are not a criminal so that they are finally willing to bring you on board. What are you to do—give up and accept your fate, or file a Fair Credit Reporting Act lawsuit?

The Plaintiff in this case, Richard Williams,1 chose the latter option. He claims that Defendant First Advantage Background Services Corp. ("First Advantage")—a consumer reporting agency ("CRA") that runs background reports on potential employees for various employers—erroneously reported criminal records for a different person (career criminal "Ricky" Williams) on two different occasions. He filed suit against First Advantage,2 alleging that it violated the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681 et seq.

After this Court granted summary judgment in favor of First Advantage on two of Plaintiff's FCRA claims, ECF No. 123, the remaining claims were tried by a jury.

After Plaintiff's case-in-chief, First Advantage moved under Rule 50(a) for judgment as a matter of law and argued, in relevant part, that no reasonable jury could conclude (1) that it willfully or negligently violated the FCRA; (2) that Plaintiff was entitled to reputational damages; and (3) that Plaintiff properly mitigated his damages. Tr. at 399–426. This Court denied First Advantage's motion as to the negligence argument, the damages arguments, and took the willfulness argument under advisement. Tr. at 444–45. After First Advantage presented its case, the jury found in Plaintiff's favor and awarded him $250,000 in compensatory damages and $3,300,000 in punitive damages. First Advantage now renews its motion for judgment as a matter of law and, in the alternative, seeks a new trial. ECF No. 207 (motion); ECF No. 208 (memorandum). For the reasons set forth below, that motion is DENIED.

I
A. First Advantage's Business, Policies, and Procedures

First Advantage is a CRA that provides a variety of background-screening products and services. One of its primary services is running criminal-background checks on prospective employees for employers. The employers identify the background search's scope, their specific hiring criteria, and provide identifying information (typically first name, last name, and date of birth) for the prospective employee (or, in FCRA terms, the "consumer"). First Advantage then runs that search and applies the employer's hiring criteria to suggest whether the consumer is "eligible" or "ineligible" for employment.

Most of First Advantage's criminal-background searches are run through its National Criminal File, a self-maintained database of criminal records. Tr. at 464. If an employer orders a National Criminal File search, First Advantage runs the consumer's identifying information through an automated search of that database and First Advantage's Records Adjudication Team "adjudicates" that application by reviewing any "hits" to determine whether they can be matched with the consumer. Pursuant to First Advantage's policies and procedures, it will only include a criminal record in a consumer's background report if that record contains two "identifiers"—for example, first-and-last3 name (which counts as one identifier), social security number, driver's license number, date of birth, address, etc.—that match those for the consumer, which are provided by the employer.

Difficulties arise, however, if the consumer has a common name. In that scenario, First Advantage will only include a criminal record in the criminal-background report if that record either contains three matching "identifiers" (as opposed to two) or if a supervisor approves the record and notes that additional attempts were made to identify a third matching identifier. Tr. at 314–15. That process may include, for example, running a credit-bureau report (for example, Experian or Equifax) to crosscheck addresses, middle initials, or social security numbers. Tr. at 314. Moreover, if a common-named consumer matches a criminal record for an individual with a different address, First Advantage is "supposed to go to use Experian and develop some address history information." Tr. at 318. First Advantage, however, approves only a limited number of its staff to run those reports. Tr. at 317–18.

Assuming that a criminal record is matched with a consumer, that consumer has the ability to dispute its accuracy. First Advantage will then review any information provided by the consumer and will order copies of the underlying record to determine whether the criminal record was erroneously matched with the consumer. If the match was erroneous, First Advantage will remove the record from the report and will apply a "case block" so that the same disputed record is not erroneously matched at a later date. Unlike many credit bureaus, however, First Advantage has not implemented "cross-blocking" or "flagging" procedures that block any and all erroneous records from one individual (the criminal) being matched with another (the consumer) again. Tr. at 358–60.

First Advantage—which charges approximately $11 to $12 for each background report—prepared 3,554,163 background reports between 2010 and 2013 containing public-record information on a nationwide basis. Tr. at 93–94. Of those approximately 3.5 million reports, 17,431 were disputed, 14,346 resulted in a revised background report,4 and 13,392 of those revised reports were based on disputes where the consumer complained that a public record in his or her report belonged to another individual.5 Tr. at 93–94. That amounts to a .38% inaccuracy rate6 nationwide.7 Tr. at 95.

B. Plaintiff's Missed Opportunities

After graduating with his bachelor's degree in criminology, Plaintiff applied in February 2012 for an Account Representative position at a Rent–A–Center store in Chiefland, Florida, where he had lived his entire life. Tr. at 26, 34. As part of that application process, Plaintiff agreed to undergo a drug test (which he passed) and a criminal-background check. Tr. at 116.

Rent–A–Center contracted with "Lexis Nexis"8 —which has since been acquired by First Advantage—to perform these types of background checks and "adjudicate" applicants. As a part of its background check, First Advantage searched the National Criminal File and conducted a public-record search in Levy County. Tr. at 260, 263. Although the Levy County public-record search came back clean, the National Criminal File search "matched" Plaintiff with a 2009 sale-of-cocaine record9 from Palm Beach County, Florida for "Ricky" Williams based on his name and date of birth. Tr. at 260. First Advantage verified that those records existed and that the information was "complete" by researching Palm Beach County court records online.

Tr. at 261. Despite the fact that Palm Beach County is approximately 300 miles from Chiefland, tr. at 378, Plaintiff was deemed ineligible for employment by Rent–A–Center pursuant to Rent–A–Center's hiring criteria, tr. at 125. Critically, although First Advantage acknowledged that "Richard Williams" is a common name, it did not obtain three identifiers for that record or obtain supervisor approval to include it in the report. In fact, First Advantage mistakenly placed Plaintiff's social security number in the background report even though that was not used in matching him to that record. Tr. at 287.

First Advantage then sent the report (and adjudication of ineligibility) to Rent–A–Center, tr. at 96, and notified Plaintiff that it was reporting the cocaine record to Rent–A–Center, tr. at 117–18. Appalled, Plaintiff disputed the cocaine record and, in support, provided his social security number and a copy of his driver's license. Tr. at 126. First Advantage then reopened the investigation and, pursuant to its policies and procedures, obtained hard copies of the underlying court records. Plaintiff's dispute was resolved in his favor based on the difference between the 6'2" height listed on "Ricky" Williams's court records and the 5'10" height listed on Plaintiff's driver's license. Tr. at 264–65. Evidence presented at trial also established that the reinvestigation revealed that "Ricky" Williams's listed address was in...

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