NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAR 20 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARIO RUIZ; RAUL GUERRERO; No. 18-56209 ROBERT TORRES, et al., D.C. No. Plaintiffs-Appellants, 2:17-cv-06017-SVW-AFM

v.

MEMORANDUM*

SHAMROCK FOODS COMPANY, an Arizona corporation,

Defendant-Appellee.

Appeal from the United States District Court for the Central District of California Stephen V. Wilson, District Judge, Presiding

Argued and Submitted December 9, 2019 Pasadena, California

Before: N.R. SMITH and WATFORD, Circuit Judges, and KORMAN,** District Judge.

Mario Ruiz, Raul Guerrero, and Robert Torres (Plaintiffs) brought a putative

class action lawsuit against their employer, Shamrock Foods Company

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation. Page 2 of 3

(Shamrock). Plaintiffs allege that Shamrock violated the Fair Credit Reporting Act

(FCRA) by inadequately disclosing Shamrock’s intent to obtain consumer reports

on them, and by failing to receive Plaintiffs’ meaningful authorization of such

action. See 15 U.S.C. § 1681b(b)(2)(A)(i)–(ii). The district court granted

Shamrock’s motion for summary judgment. Because Plaintiffs lack Article III

standing, we affirm.

Guerrero’s and Torres’ employment applications each included a FCRA

disclosure and authorization form that referenced state law entitlements. Ruiz’s

employment application included a FCRA disclosure and authorization form that

included a liability waiver. Plaintiffs argue that the forms’ references to state law,

inclusion of a liability waiver, and inclusion as part of a lengthy employment

application rendered the FCRA forms confusing. Plaintiffs contend that these

alleged FCRA violations concretely injured them for Article III standing purposes,

pursuant to our decision in Syed v. M-I-, LLC, 853 F.3d 492 (9th Cir. 2017).

Syed did not hold that a violation of FCRA’s disclosure requirement alone

results in a concrete injury. Instead, the court identified the concrete injury as

arising “when applicants are deprived of their ability to meaningfully authorize [a]

credit check.” Id. at 499. We held that the plaintiff in Syed had adequately alleged

such an injury because we inferred that he “was confused by the inclusion of [a]

liability waiver with the disclosure and would not have signed [the authorization Page 3 of 3

for the credit check] had it contained a sufficiently clear disclosure.” Id.1

Unlike Syed, this case arises at the summary judgment stage, after the parties

have engaged in discovery and conducted depositions. Cf. id. at 499 n.4. Plaintiffs

were therefore required to produce admissible evidence establishing that they

suffered a concrete injury as defined in Syed. They failed to do so. None of the

Plaintiffs have shown that (1) they were confused by the inclusion of the references

to state law and the liability waiver on the authorization form, and (2) “would not

have signed it had it contained a sufficiently clear disclosure.” Id. at 499.

Accordingly, Shamrock has not encroached upon Plaintiffs’ statutory rights to

information and privacy created by FCRA. Plaintiffs have suffered no concrete

injury and therefore lack Article III standing. See id. at 500; see generally Spokeo

v. Robins, 136 S. Ct. 1540, 1549–50 (2016).

Because we hold that Plaintiffs lack standing, we do not reach the district

court’s alternative holding that Plaintiffs’ claims are time-barred.

AFFIRMED.

1 Syed is consistent with a subsequent case, Robins v. Spokeo, Inc., 867 F.3d 1108 (9th Cir. 2017), which is sometimes called Spokeo III, and which held that “[i]n evaluating [a] claim of harm, we . . . ask: (1) whether the statutory provisions at issue were established to protect his concrete interests (as opposed to purely procedural rights), and if so, (2) whether the specific procedural violations alleged in this case actually harm, or present a material risk of harm to, such interests.” Id. at 1113.

FILED

Ruiz, et al. v. Shamrock Foods Co., No. 18-56209

MAR 20 2020

N.R. SMITH, Circuit Judge, dissenting in part: MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

The district court’s dismissal of Robert Torres’s Fair Credit Reporting Act

(“FCRA”) claim should be reversed. Let me explain.

1. When a job applicant is unaware that he is authorizing a prospective

employer to procure a consumer report due to the employer’s failure to provide the

applicant with a clear and conspicuous written disclosure, the applicant is deprived

of his substantive rights to information and privacy protected by the FCRA. Syed v.

M-I, LLC, 853 F.3d 492, 499 (9th Cir. 2017). Thus (on summary judgment), the

declarations of Raul Guerrero and Torres demonstrate that they have Article III

standing.1

Before a prospective employer procures a job applicant’s consumer report,

the FCRA requires the employer to: (1) provide the applicant with a clear and

conspicuous disclosure that a consumer report may be procured as part of the

employment process; and (2) obtain the applicant’s written authorization to

1 Mario Ruiz did not produce admissible evidence to support his allegation of a concrete injury, because Ruiz’s declaration (identical to those submitted by Guerrero and Torres) was incompatible with objective record evidence. Unlike Guerrero and Torres—who signed a FCRA disclosure and authorization form as part of their online employment application—Ruiz signed his FCRA form nearly a month after he completed his employment application. Because Ruiz points to no other evidence in the record to support his allegation of a concrete injury, he has failed to establish Article III standing. procure the report. 15 U.S.C. § 1681b(b)(2)(A)(i)–(ii). In Syed, we determined that

the disclosure and authorization requirements of § 1681b(b)(2)(A) protect a job

applicant’s rights to information and privacy. 853 F.3d at 499. Thus, we found that

an applicant suffers a concrete injury as a result of a prospective employer’s

violation of § 1681b(b)(2)(A) when the applicant is “deprived of [the] ability to

meaningfully authorize” the procurement of a consumer report. Id.

However, Syed also recognized that, if a job applicant is unaware that he is

authorizing the procurement of a consumer report due to a prospective employer’s

failure to provide a clear and conspicuous written disclosure, the applicant is

deprived of the rights to information and privacy guaranteed by § 1681b(b)(2)(A).

Id. (finding an allegation “sufficient to infer that [the plaintiff] was deprived of the

right to information and the right to privacy guaranteed by Section

1681b(b)(2)(A)([i])–(ii) because it indicate[d] that [the plaintiff] was not aware

that he was signing a waiver authorizing the credit check when he signed it”

(emphasis added)). Subsequent decisions clarified that the rights to information

and privacy protected by § 1681b(b)(2)(A) are substantive rights. See Bassett v.

ABM Parking Servs., Inc., 883 F.3d 776, 782 n.3 (9th Cir. 2018) (describing the

right to information recognized in Syed as a “substantive statutory right”); Nayab v.

Capital One Bank (USA), N.A., 942 F.3d 480, 490–91 (9th Cir. 2019) (discussing

2 Syed, and finding that “the right to privacy in one’s consumer credit

report”—which is protected by § 1681b(b)(2)(A)(ii)—is a “substantive privacy

interest”). These decisions explain that the “violation of a substantive right

invariably ‘offends the interests that the statute protects,’” thus causing a concrete

injury and “confer[ing] standing.” See Nayab, 942 F.3d at 490 (emphasis added)

(quoting Eichenberger v. ESPN, Inc., 876 F.3d 979, 983 (9th Cir. 2017)); see also

Bassett, 883 F.3d at 782 n.3 (“A line of cases recognizes that a violation of a

substantive statutory right to obtain truthful information is a sufficiently concrete

injury to confer standing.”); Patel v. Facebook, Inc., 932 F.3d 1264, 1274 (9th Cir.

2019) (“[In Eichenberger,] [w]e concluded that the plaintiff had Article III

standing because every unlawful disclosure of an individual’s personally

identifiable information and video-viewing history offended the individual’s

‘substantive privacy interest in his or her video-viewing history.’”

(quoting Eichenberger, 876 F.3d at 983)).

Therefore, because a plaintiff can demonstrate that he was deprived of the

substantive rights to information and privacy protected by § 1681b(b)(2)(A) by

showing that he was not aware that he was authorizing the procurement of a

consumer report, Syed, 853 F.3d at 499, such an allegation is sufficient to establish

that the plaintiff suffered a concrete injury, see Nayab, 942 F.3d at 490; Bassett,

3 883 F.3d at 782 n.3; Patel, 932 F.3d at 1274; Eichenberger, 876 F.3d at 983.

Guerrero and Torres both averred in declarations that, at the time they signed

the FCRA disclosure and authorization forms contained in their employment

applications, they were confused about and had not known what they were

authorizing in the form (“If I had known what I was authorizing . . . .”). This

evidence (when viewed in the light most favorable to Guerrero and Torres, as we

must), supports the justifiable inference that Guerrero and Torres were deprived of

their substantive rights to information and privacy protected by

§ 1681b(b)(2)(A)(ii). See Syed, 853 F.3d at 499. Therefore, because they have

produced admissible evidence creating a genuine issue of material fact as to

whether they suffered a concrete injury due to Shamrock’s alleged FCRA

violation, Guerrero and Torres have satisfied Article III’s standing requirements.

See Martin v. City of Boise, 920 F.3d 584, 609 (9th Cir. 2019) (“[P]laintiffs ‘need

not establish that they in fact have standing, but only that there is a genuine

question of material fact as to the standing elements.’” (quoting Cent. Delta Water

Agency v. United States, 306 F.3d 938, 947 (9th Cir. 2002))).

2. However, even with standing, only the dismissal of Torres’s claim should be

reversed, because only Torres filed his claim within the FCRA’s two-year statute

of limitations, see 15 U.S.C. § 1681p(1), which begins to run on the date the

4 plaintiff actually discovers or constructively discovers the violation that is the basis

of his claim, Drew v. Equifax Info. Servs., LLC, 690 F.3d 1100, 1109 (9th Cir.

2012).

Shamrock has the burden to demonstrate that Torres and Guerrero had

discovered the alleged violations, or “that a reasonably diligent plaintiff would

have discovered the facts constituting the violation.” Id. at 1110 (quoting Strategic

Diversity, Inc. v. Alchemix Corp., 666 F.3d 1197, 1206 (9th Cir. 2012)). Shamrock

has demonstrated that Guerrero constructively discovered its alleged FCRA

violation. Guerrero’s job offer states: “This offer is conditional and maybe [sic]

subject to the results of . . . a background check, which includes criminal history, a

consumer report, a physical demands evaluation, employment education

verification, and your eligibility to accept employment in the United States.”

Guerrero testified that he understood, at the time he received his job offer, that he

would be subject to a background check, which his job offer clarified would

include a “consumer report.” Consequently, through reasonable diligence,

Guerrero should have discovered that Shamrock had procured his consumer report.

On the other hand, Shamrock has failed to demonstrate that Torres knew or

should have known that Shamrock procured his consumer report. Torres’s job offer

states: “This offer is conditional and subject to the results of the pre-employment

5 drug screening, employment/education verification and/or background check and

ability to accept employment in the United States.” Unlike Guerrero’s job offer,

Torres’s job offer does not explain what would be included in this ambiguously

referenced “background check,” and Torres testified that Shamrock never

explained what this “background check” would entail. Accordingly, the district

court erred in dismissing Torres’s claim on statute-of-limitations grounds.

Therefore, the district court’s dismissal of Torres’s FCRA claim should be

reversed.

6