UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Ryan Landry, Plaintiff

v. Case No. 16-cv-507-SM Opinion No.

Thomson Reuters Corporation, Defendant

O R D E R

Plaintiff, Ryan Landry, filed this proposed class action

against his former employer, Time Warner Cable, as well as

Thomson Reuters Corporation. Landry alleged that Time Warner

violated various provisions of the federal Fair Credit Reporting

Act (“FCRA”), as well as New Hampshire’s statutory analogue. He

also claimed Time Warner wrongfully terminated his employment

and, in so doing, violated New Hampshire’s Whistleblower

Protection Act. But, in the wake of the Supreme Court’s

decision in Epic Systems Corp. v. Lewis,

(2018),

Landry voluntarily dismissed all of those claims from this case

and will pursue them in arbitration, as required by the terms of

his employment contract. See generally Stipulation of Voluntary

Dismissal (document no. 32).

What remain, then, are Landry’s claims against Thomson

Reuters Corporation (“TRC”). In his amended complaint, Landry advances four causes of action against TRC (on behalf of himself

and two proposed classes of similarly situated plaintiffs).

Generally speaking, Landry asserts that TRC is a “Consumer

Reporting Agency,” as defined in the FCRA, and that it prepared

and disseminated a report about him that contained inaccurate

and out-of-date adverse information, including false statements

that he had served time in a Texas prison - all in violation of

the FCRA. See Amended Complaint (document no. 40) at paras. 30-

34.

Pending before the court is TRC’s motion to stay these

proceedings pending resolution of the ongoing arbitration

between Landry and Time Warner. In TRC’s view, Landry’s claims

against it are entirely derivative of those against his former

employer. Specifically, TRC says Landry lacks standing to

pursue his claims against it unless he can establish a causal

connection between his injury (i.e., loss of his job) and Time

Warner’s reliance upon the allegedly inaccurate and/or outdated

information contained in the report TRC prepared and

disseminated. That is to say, Landry must demonstrate some

particularized and concrete harm flowing from TRC’s alleged

violations of the FCRA. And, because Time Warner denies that it

discharged Landry for any reason related to that report (an

issue that will be resolved in arbitration), TRC asserts that

2 principles of judicial economy counsel in favor of staying these

proceedings. If, says TRC, the arbitrator determines that

Landry was fired for reasons unrelated to TRC’s report, then

Landry cannot show any injury flowing from TRC’s alleged

statutory violations. Under those circumstances, he would lack

standing to pursue any FCRA claim against TRC.

Landry, on the other hand, does not directly address the

issue of standing. Rather, he asserts that because he seeks

both actual and statutory damages for TRC’s alleged violations

of the FCRA, there is no reason to delay this proceeding while

he pursues his claims against Time Warner in arbitration.

According to Landry, the reason Time Warner fired him, and

whether it relied upon TRC’s allegedly improper report, are

immaterial to this litigation; he need not establish a causal

connection between TRC’s statutory violations and his harm.

Instead, says Landry, he can still recover statutory damages

from TRC without a showing of any actual injury; to recover

statutory damages, he merely needs to show that TRC willfully

violated one or more provisions of the FCRA. See Plaintiff’s

Objection (document no. 41) at 6. See generally 15 U.S.C.

§ 1681n (authorizing the recovery of statutory damages).

While the parties’ briefs are not entirely helpful (since

they seem to be arguing different points), the court concludes

3 that even if Landry’s discharge was not directly linked to TRC’s

alleged violations of the FCRA, his amended complaint adequately

alleges particularized, concrete harms stemming from those

violations sufficient to vest him with standing to pursue his

claims. Nevertheless, establishing that Landry has standing to

pursue his claims against TRC does not resolve the question of

whether a stay is appropriate.

Because Landry is seeking actual damages from TRC - that

is, damages stemming from the loss of his job with Time Warner -

a stay of these proceedings would seem entirely appropriate,

pending resolution of the arbitration proceedings between Landry

and Time Warner.

Background

Accepting the factual allegations of Landry’s amended

complaint as true - as the court must at this juncture - the

relevant facts are as follows. In July of 2015, Landry applied

for a job with Time Warner. As part of that application

process, Landry authorized Time Warner to conduct a pre-hiring

background check. That background check revealed - correctly,

it would seem - that Landry had no criminal history. On August

7, 2015, Time Warner hired Landry as a “retail specialist” in

its Gorham call center.

4 Landry claims he performed his job duties in a satisfactory

manner and soon became one of the highest performing sales

people in the call center. But, on December 3, 2015, he was

called into a meeting with two members of Time Warner’s

corporate security division. Landry says that during the course

of that meeting, one of Time Warner’s representatives accused

him of having been convicted of a crime (and having served a

prison sentence) in Texas, and he began asking Landry questions

about that alleged conviction. Landry denied having ever been

convicted of a crime in Texas or having served a criminal

sentence there. He claims the Time Warner representative

responded by saying, “Funny, you have the same date of birth and

Social Security Number as the Ryan Landry who served time in

Harris County, Texas.” Amended Complaint at para. 24. At the

close of that meeting, Landry says he was suspended without pay

“because the Corporate Security Division had received

information through a report that made them believe that Mr.

Landry had been convicted of a crime in Texas.” Id. at para.

27.

Based upon that interaction, Landry inferred that Time

Warner must have conducted another background check on him - one

he says he never authorized and of which he was unaware.

5 Indeed, he specifically alleges that Time Warner “utilized an

unauthorized consumer report to run a background check on Mr.

Landry which it obtained through [TRC’s] CLEAR (Consolidated

Lead Evaluation and Reporting) service.” Id. at para. 29.

Landry further alleges that the report provided by TRC “included

adverse information that was more than seven years old,

including, but not limited to, arrests and/or dismissals of

criminal counts from 2000” - much of which he says is wholly

inaccurate. Id. at 32. Finally, he claims that TRC “knew or

should have known that [Time Warner] would use the information

in the [report], in whole or part, for the purposes of

establishing Mr. Landry’s eligibility for employment.” Id. at

33.

In the days following his suspension, Landry contacted

officials at the Harris County prison and confirmed that a

person who shares his name did indeed serve time there.

However, neither that individual’s birth date nor his social

security number is the same as Landry’s. Landry then contacted

Time Warner and explained what he had learned. He says Time

Warner acknowledged that there had been a mistake and admitted

that Landry had not lied on his job application. “Despite this,

[Time Warner] informed Mr. Landry that the Company had

nonetheless decided to terminate his employment.” Id. at para.

6 38. Time Warner explained that Landry was being fired for a

reason entirely unrelated to the confusion concerning his

background - that is, for having violated workplace conduct

rules. Landry says he was provided with few details about the

alleged incident that formed the basis of his termination and

asserts that it is a pretext for some sort of unlawful conduct.

As noted above, those FCRA and employment-related claims against

Time Warner - including Landry’s claim that Time Warner

terminated his employment based upon inaccuracies in the TRC

report - are no longer before the court and will be resolved in

arbitration.

After he dismissed his claims against Time Warner in this

proceeding, Landry filed an amended complaint against TRC. In

it, Landry alleges that TRC violated the Fair Credit Reporting

Act in four ways: (1) it provided Time Warner with a consumer

credit report without certifying that Time Warner had disclosed

to Landry that the report was being procured for employment

purposes and without providing a summary of Landry’s rights with

respect to that report, see 15 U.S.C. § 1681b(b); (2) it failed

to notify Landry of the fact that it was reporting public record

information and failed to maintain strict procedures to insure

that such public record information was complete and up-to-date,

see 15 U.S.C. § 1681k(a); (3) it failed to follow reasonable

7 procedures to assure the maximum possible accuracy of the

information provided in the reports it prepared, see 15 U.S.C.

§ 1681e(b); and (4) it provided outdated, adverse information

that antedated the report by more than seven years, see 15

U.S.C. § 1681c(a). Landry seeks actual damages for injuries

proximately caused by TRC’s violations of the FCRA or, in the

alternative, statutory damages. He also moves the court to

appoint him to represent the classes identified in his amended

complaint, and to certify those classes pursuant to Rule

23(b)(3) and/or (b)(2).

As mentioned earlier, TRC moves the court to stay these

proceedings, pending the resolution of Landry’s claims against

Time Warner, which are currently the subject of arbitration.

Discussion

I. Authority to Stay Proceedings.

It has long been recognized that, as part of its inherent

authority to manage its docket, a federal district court has

“the power to stay proceedings when, in the court’s exercise of

its discretion, it deems such a stay appropriate.” Emseal Joint

Sys., Ltd. v. Schul Int’l Co.,

,

at

*1, (D.N.H. March 27, 2015). See also Baggesen v. Am. Skandia

Life Assur. Corp.,

(D. Mass. 2002)

8 (“Where a case involves both arbitrable and non-arbitrable

claims, whether the non-arbitrable claims should be stayed

pending resolution of the arbitrable claims is generally

discretionary with the court.”). In determining whether it is

appropriate to stay litigation pending the outcome of related

arbitration proceedings, courts consider several factors,

including: (1) whether a stay will unduly prejudice or

tactically disadvantage the nonmoving party; (2) whether a stay

could serve to clarify and/or simplify the remaining issues to

be litigated; and (3) whether the case is at an early stage

(e.g., whether discovery has been completed, whether a trial

date has been set, etc.). See, e.g., Sevinor v. Merrill Lynch,

Pierce, Fenner & Smith, Inc.,

(1st Cir. 1986).

See also Emseal,

at *2 (considering similar

factors in the context of resolving a motion to stay patent

litigation pending patent reexamination).

Here, TRC asserts that all relevant factors counsel in

favor of granting its requested stay. But, its focus is

primarily on the second of those factors: whether staying this

proceeding while Landry arbitrates his claims against Time

Warner would clarify and/or simplify the issues to be litigated

in this case.

9 II. Standing and the Nature of Landry’s Claims.

The parties disagree on a legal issue that is potentially

dispositive of TRC’s motion to stay: whether Landry’s claims

against TRC are “derivative” of those he is pursuing against

Time Warner in arbitration - that is, whether Landry must first

demonstrate that Time Warner relied upon TRC’s report in order

to prevail on his claims against TRC. TRC asserts that Landry

lacks standing to pursue FCRA claims against it unless he can

show some actual, concrete harm - such as his discharge from

Time Warner - that was proximately caused by either the alleged

flaws in the report TRC provided to Time Warner or TRC’s other

alleged violations of the FCRA. Landry does not directly

address the issue of standing. Instead, he simply asserts that

his claims against TRC are not in any way linked to, or

derivative of, those against his former employer. That is,

Landry says that regardless of whether or not Time Warner

terminated his employment based upon the contents of the TRC

report, he can still pursue claims against TRC and recover

statutory damages from it for its (alleged) willful violations

of the procedural requirements of the FCRA. See generally 15

U.S.C. § 1681n (authorizing the recovery of statutory damages).

The United States Supreme Court recently addressed the

issue of standing in the context of FCRA claims and began by

noting that Article III standing consists of three elements:

10 “The plaintiff must have (1) suffered an injury in fact,

(2) that is fairly traceable to the challenged conduct of the

defendant, and (3) that is likely to be redressed by a favorable

decision.” Spokeo, Inc. v. Robins,

(2016)

(citing Lujan v. Defenders of Wildlife,

(1992)). The Court then observed that, “To establish injury in

fact, a plaintiff must show that he or she suffered ‘an invasion

of a legally protected’ interest that is ‘concrete and

particularized’ and ‘actual or imminent, not conjectural or

hypothetical.’” Spokeo,

(quoting Lujan,

).

In the context of an FCRA claim, the Court concluded that,

to have standing, a plaintiff must have suffered some actual

harm - that is, an “injury in fact.” A claim alleging a “bare

procedural violation” of the FCRA, “divorced from any concrete

harm,” is insufficient. Consequently, the Court noted, a

plaintiff does not necessarily have standing simply because he

or she can identify some procedural statutory violation in a

setting in which Congress has made statutory damages available

to those who are unable (or for whom it would be difficult) to

prove actual damages.

Congress’ role in identifying and elevating intangible harms does not mean that a plaintiff automatically satisfies the injury-in-fact requirement whenever a

11 statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right. Article III standing requires a concrete injury even in the context of a statutory violation. For that reason, [plaintiff] could not, for example, allege a bare procedural violation, divorced from any concrete harm, and satisfy the injury-in-fact requirement of Article III. See Summers v. Earth Island Institute,

(2009) (“[D]eprivation of a procedural right without some concrete interest that is affected by the deprivation . . . is insufficient to create Article III standing”); see also

.

Spokeo,

.

Critically, however, the Court also held that, under

certain circumstances, violations of the FRCA’s procedural

requirements can be sufficiently severe to constitute an “injury

in fact” for standing purposes. See Spokeo,

(“[T]he violation of a procedural right granted by statute can

be sufficient in some circumstances to constitute injury in

fact. . . . [A] plaintiff in such a case need not allege any

additional harm beyond the one Congress has identified.”)

(emphasis in original) (citing Federal Election Comm’n v. Akins,

, 20–25 (1998); Public Citizen v. Dep’t of Justice,

(1989)).

In other words, some violations of the FCRA may be so

trivial that they cause no quantifiable injury. The Supreme

Court gave two examples of such inconsequential violations of

the FCRA: the inclusion in a credit report of an inaccurate zip

12 code; and, despite violations of FCRA procedural requirements,

the dissemination of an entirely accurate credit report.

Spokeo,

. Other violations of the FCRA,

however, may be sufficiently severe that those statutory

violations alone constitute a concrete and particularized

injury. See generally Macy v. GC Servs. L.P.,

(6th Cir. 2018) (“In sum, Spokeo categorized statutory

violations as falling into two broad categories: (1) where the

violation of a procedural right granted by statute is sufficient

in and of itself to constitute concrete injury in fact because

Congress conferred the procedural right to protect a plaintiff’s

concrete interests and the procedural violation presents a

material risk of real harm to that concrete interest; and (2)

where there is a ‘bare’ procedural violation that does not meet

this standard, in which case a plaintiff must allege ‘additional

harm beyond the one Congress has identified.’”) (quoting Spokeo,

) (emphasis in original). Although Landry’s

argument on this point is largely undeveloped, the court

nonetheless concludes that his amended complaint alleges a

particularized and concrete injury - at least as to some counts

- sufficient to vest him with standing to pursue his claims

against TRC.

13 Following the Supreme Court’s decision in Spokeo, courts

have attempted to distinguish between procedural violations of

the FCRA that are “trivial” or “meaningless,” and those that are

sufficiently severe to cause (or present a significant risk of

causing) concrete harm. See Robins v. Spokeo, Inc.,

(9th Cir. 2017) (“Spokeo II”) (“[t]he Court suggested

that even if Congress determined that inaccurate credit

reporting generally causes real harm to consumers, it cannot be

the case that every trivial or meaningless inaccuracy does

so.”). So, for example, on remand from the Supreme Court, the

Court of Appeals for the Ninth Circuit in Spokeo II adopted the

following analytical framework:

In evaluating [a plaintiff’s] claim of harm [under the FCRA], we thus 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.

. See also Strubel v. Comenity Bank,

(2d Cir. 2016) (“Thus, we understand Spokeo, and the cases

cited therein, to instruct that an alleged procedural violation

can by itself manifest concrete injury where Congress conferred

the procedural right to protect a plaintiff’s concrete interests

and where the procedural violation presents a ‘risk of real

harm’ to that concrete interest.”); Lyshe v. Levy,

,

14 859 (6th Cir. 2017) (“Spokeo allows for a bare procedural

violation to create a concrete harm . . . [when it constitutes]

the failure to comply with a statutory procedure that was

designed to protect against the harm the statute was enacted to

prevent.”).

Here, Landry’s amended complaint adequately alleges that

TRC’s violations of the FCRA “actually harm, or present a

material risk of harm to,” the concrete interests Congress

enacted the FCRA to protect. Spokeo II,

.

Specifically, he alleges that TRC’s various violations of the

FCRA resulted in the dissemination of a consumer credit report

without his knowledge or permission that contained outdated and

materially false information - including the false statement

that he was convicted of a crime, and served a prison sentence,

in Texas. Plainly, those are the types of reputational harms

flowing from the publication of false and damaging information

that Congress sought to prevent when it enacted the FCRA. See,

e.g., Spokeo,

(“Congress plainly sought to

curb the dissemination of false information by adopting

procedures designed to decrease that risk.”). See also Pittman

v. Experian Info. Solutions, Inc., No. 17-1677,

,

at *4 (6th Cir. Aug. 23, 2018); Syed v. M-I, LLC,

,

496–97 (9th Cir. 2017); In re Horizon Healthcare Servs. Data

15 Breach Litig.,

(3d Cir. 2017); Sullivan v.

Greenwood Credit Union,

(1st Cir. 2008). See

generally

(Congressional findings and statement

of purpose).

Consequently, even if Landry cannot demonstrate that his

discharge was related to TRC’s credit report, his amended

complaint adequately alleges concrete and particularized harms,

proximately caused by TRC’s violations of the FCRA, sufficient

to vest him with standing.

III. A Stay is Appropriate.

Having determined that Landry has standing to pursue his

claims against TRC, the court must next consider whether it is,

nonetheless, appropriate to stay these proceedings pending

completion of Landry’s arbitration with Time Warner. It is.

In his amended complaint, Landry alleges that, as a result

of TRC’s willful violations of the FCRA, he (and other members

of the proposed classes) “have suffered and continue to suffer

damages.” Amended Complaint at paras. 71, 76, 80, and 85. But,

the amended complaint does not allege that any of the inaccurate

or outdated factual statements about Landry as contained in the

TRC report were disseminated to anyone outside of the two

16 members Time Warner’s Corporate Security Division with whom he

met. He does not, for example, claim he lost employment

opportunities with other entities as a result of the TRC report,

or that he was denied credit, or that he suffered reputation

injury in the community. Accordingly, his efforts to recover

“actual damages” from TRC would appear to be linked directly to

his ability to establish that Time Warner relied upon TRC’s

report when it decided to terminate his employment.

And, as the court has noted earlier, that very issue -

whether Time Warner relied upon the TRC report in reaching the

decision to terminate Landry’s employment - will be resolved in

the ongoing arbitration. Once the arbitrator resolves that

disputed factual issue, it will likely be binding on the parties

in this proceeding. See generally FleetBoston Financial Corp.

v. Alt,

(1st Cir. 2011). So, it seems

appropriate for this court to stay this action pending

resolution of that material factual question, rather than move

forward at the risk of inconsistent determinations.

On balance, then, the factors relevant to the court’s

determination regarding appropriateness of a stay counsel in

favor of such a stay. First, the pending arbitration

proceedings will likely clarify and/or simplify material issues

17 to be litigated in this action. Moreover, Landry has not

suggested that a stay would cause him to suffer undue prejudice

or tactically disadvantage him. And, finally, this proceeding

is at a relatively early stage: Landry filed his amended

complaint against TRC less than two months ago, a scheduling

order has yet to issue, and the parties have yet to engage in

discovery.

Conclusion

There are two means by which Landry might demonstrate that

he has standing to bring his FCRA claims against TRC: first, he

could show that he suffered actual (not speculative or

conjectural) “concrete harm” as a consequence of TRC’s alleged

violations of the statute (e.g., the loss of his job). See

Lujan, 504 U.S. at 560–61; Spokeo,

.

Alternatively, he could demonstrate that the procedural

violations about which he complains are, themselves,

sufficiently severe to constitute an injury in fact. The former

issue will be resolved in the ongoing arbitration between Landry

and Time Warner. But, because the court concludes that Landry’s

amended complaint adequately alleges the latter, he has standing

to pursue his claims against TRC - regardless of the outcome of

the pending arbitration proceedings.

18 Nevertheless, the outcome of those arbitration proceedings

is important for another reason: it will likely determine

whether Landry has the ability to recover actual damages from

TRC, or whether he will be limited simply to statutory damages.

For the foregoing reasons, Thomson Reuters Corporation’s

Motion to Stay Proceedings (document no. 33) is granted. The

parties shall notify the court when arbitration proceedings

between Landry and Time Warner have been resolved.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

September 24, 2018

cc: Amy E. Tabor, Esq. Michael A. Caddell, Esq. Benjamin J. Wyatt, Esq. Michael Varraso, Esq. Abigail S. Romero, Esq. Joseph W. Ozmer, II, Esq. Michael D. Kabat, Esq. Michele E. Kenney, Esq. Eric Bosset, Esq. Geoffrey J. Vitt, Esq. Neil K. Roman, Esq.

19