Kenn v. Eascare, LLC

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22-P-1017 Appeals Court

NICOLE KENN vs. EASCARE, LLC.

No. 22-P-1017.

Norfolk. September 12, 2023. – January 8, 2024.

Present: Massing, Henry, & Brennan, JJ.

Employment. Jurisdiction. Practice, Civil, Standing, Motion to
dismiss.

Civil action commenced in the Superior Court Department on
December 5, 2019.

A motion to dismiss was heard by Sharon E. Donatelle, J.; a
motion for reconsideration was considered by her; and entry of
separate and final judgment was ordered by Paul D. Wilson, J.

Raven Moeslinger for the plaintiff.
Sarah C. Spatafore for the defendant.

MASSING, J. In this appeal we consider whether the

plaintiff job applicant, who authorized a potential employer to

conduct a background check under conditions that allegedly

violated the Fair Credit Reporting Act, 15 U.S.C. §§ 1681-1681w

(FCRA), has standing to sue where the plaintiff does not allege
2

that the employer's FCRA violations caused her any "concrete"

injury as that term has been construed in the context of

art. III of the United States Constitution (art. III). Based on

the provisions of FCRA that establish the employer's liability

for willfully violating FCRA's requirements and provide a cause

of action for plaintiffs who are subject to such violations, we

conclude that the plaintiff does have standing in the courts of

the Commonwealth. Accordingly, the defendant's motion to

dismiss two counts of the plaintiff's complaint for lack of

subject matter jurisdiction should have been denied. We

therefore vacate the separate and final judgment.

Background. The plaintiff, Nicole Kenn, filed a four-count

complaint in the Superior Court in December 2019 including, in

counts III and IV, putative class action claims alleging that

defendant, Eascare, LLC (Eascare), had violated certain

provisions of FCRA.1 The complaint and attached exhibits alleged

the following facts, which we are bound to accept as true for

the purposes of this appeal. See Curtis v. Herb Chambers I-95,

Inc., 458 Mass. 674, 676 (2011).

1 The first two counts of the complaint alleged a claim of
nonpayment of wages against Eascare and Mark E. Brewster and a
claim of sex discrimination against Eascare and Joseph Hughes.
By stipulation of the parties, these claims were ultimately
dismissed with prejudice.
3

Eascare is a Massachusetts limited liability company that

provides ambulance services. Eascare conducts background

checks, which are governed by FCRA, when it makes employment

decisions. In January 2018, the plaintiff applied for a

position as an emergency medical technician. Eascare provided

the plaintiff with a combined disclosure and authorization form

regarding the background check, entitled "Consumer

Report/Investigative Consumer Report Disclosure and Release of

Information Authorization." The front side of the form asked

the plaintiff to acknowledge her understanding that Eascare

would conduct a background check on her for employment purposes,

which might include obtaining a "consumer report" or an

"investigative consumer report" as defined under FCRA. The

disclosure form included explanations of what the background

investigation might entail, what would happen in the case of an

adverse employment decision, and what an applicant could do if

she disagreed with the accuracy of any information contained in

the consumer report. The bottom of the form sought the

plaintiff's authorization for Eascare to conduct the background

check. The back side of the form sought her authorization for

an entity named PT Research "to furnish the above information"

and for the plaintiff to "release[] and forever discharge[]" PT

Research, Eascare, "and any person/entity from which they

obtained information from any liability resulting from providing
4

such information." The plaintiff signed both sides of the form

and was subsequently hired, but resigned within a year.2

The complaint alleged that Eascare willfully provided a

disclosure and authorization form that violated FCRA, injuring

the plaintiff and those similarly situated, as follows:

"25. Without a clear notice that a consumer report is
going to be procured on them, applicants like [the
plaintiff] have no way to preserve their privacy or to
correct errors or other problems with the reports.

"26. When a disclosure and authorization contains an
exculpatory clause such as the release of liability in
Eascare's Disclosure Form, applicants like [the plaintiff]
are misinformed about their legal rights and whether or how
they may enforce them.

"27. As a result, Eascare's purported disclosure and
authorization was not clear, conspicuous or stand-alone,
nor did it validly authorize Eascare to procure [the
plaintiff's] consumer report for employment purposes.

"28. Eascare's actions resulted in depriving [the
plaintiff] of a clear recitation of her rights and invaded
her privacy, including by disseminating [the plaintiff's]
private information without proper authorization."

The complaint further alleged that Eascare had obtained consumer

reports for job applicants, using forms either identical or

substantially similar to the disclosure form that the plaintiff

received, for at least five years.

After the plaintiff filed her complaint, Eascare removed

the case to the United States District Court for the District of

2 Her complaint alleged that she was constructively
discharged because of a hostile work environment.
5

Massachusetts pursuant to 28 U.S.C. § 1441(a) and there moved to

dismiss the plaintiff's FCRA claims under Fed. R. Civ. P.

12(b)(6) for failure to state a claim. A United States District

Court judge granted Eascare's motion to dismiss, concluding that

the plaintiff lacked standing under art. III because she failed

to allege a "concrete" injury. Kenn v. Eascare, LLC, 483

F. Supp. 3d 26, 32 (D. Mass. 2020). The judge initially ordered

that the FCRA claims be dismissed without prejudice, but acting

on the plaintiff's motion for reconsideration, vacated the

dismissal and instead remanded the claims to the Superior Court.3

Back in the Superior Court, Eascare moved to dismiss the

plaintiff's FCRA claims pursuant to Mass. R. Civ. P. 12 (b) (6),

365 Mass. 754 (1974), for lack of standing. A Superior Court

judge allowed the motion, largely adopting the reasoning of the

United States District Court judge.4 The plaintiff filed a

motion for reconsideration, which the motion judge denied. The

plaintiff subsequently filed a motion under Mass. R. Civ. P.

3 The judge agreed with the plaintiff that under 28 U.S.C.
§ 1447(c), when a case is removed from State court to Federal
court and the judge determines that the Federal court lacks
subject matter jurisdiction, the case is to be remanded to State
court rather than dismissed.

4 As the plaintiff's State law claims for nonpayment of
wages and sex discrimination were still pending at the time, the
plaintiff filed an application for interlocutory review of the
order dismissing the FCRA claims under G. L. c. 231, § 118,
first par., which a single justice of this court denied.
6

54 (b), 365 Mass. 820 (1974), for separate and final judgment on

the FCRA claims. A second judge allowed the motion, and final

judgment dismissing the plaintiff's FCRA claims was entered in

August 2022. The plaintiff timely filed a notice of appeal from

the separate and final judgment dismissing the FCRA claims.

Discussion. 1. FCRA. The plaintiff claimed that Eascare

willfully violated the provisions of FCRA in two ways. In count

III of her complaint, the plaintiff alleged that Eascare

obtained her consumer report without providing a stand-alone,

clear and conspicuous disclosure form, in violation of 15 U.S.C.

§ 1681b(b)(2)(A)(i). In count IV, the plaintiff alleged that

because she agreed to the background check based on documents

that did not comply with FCRA, Eascare obtained her consumer

report without valid authorization, in violation of 15 U.S.C.

§ 1681b(b)(2)(A)(ii).5

5 The full text of 15 U.S.C. § 1681b(b)(2)(A) is as follows:

"(2) Disclosure to consumer

"(A) In general. Except as provided in subparagraph
(B), a person may not procure a consumer report, or
cause a consumer report to be procured, for employment
purposes with respect to any consumer, unless --

"(i) a clear and conspicuous disclosure has been
made in writing to the consumer at any time before
the report is procured or caused to be procured, in
a document that consists solely of the disclosure,
that a consumer report may be obtained for
employment purposes; and
7

Because we are reviewing the allowance of a motion to

dismiss under Mass. R. Civ. P. 12 (b) (6),6 we accept the

complaint's factual allegations as true and draw all reasonable

inferences in the plaintiff's favor. See Curtis, 458 Mass. at

676. Thus, although the front side of the disclosure and

authorization form attached to the complaint is arguably in

compliance with FCRA, we must assume for the purposes of this

appeal that the releases of liability appeared on the back side

of the same form, such that the plaintiff was not provided with

"a document that consists solely of the disclosure." 15 U.S.C.

§ 1681b(b)(2)(A)(i).

Accordingly, we accept the allegations that Eascare

willfully violated the provisions of FCRA in inducing the

plaintiff's authorization for Eascare to obtain her consumer

report. In cases of willful violations, FCRA provides the

following remedy:

"Any person who willfully fails to comply with any
requirement imposed under this subchapter with respect to
any consumer is liable to that consumer in an amount equal
to the sum of . . . any actual damages sustained by the

"(ii) the consumer has authorized in writing (which
authorization may be made on the document referred
to in clause [i]) the procurement of the report by
that person."

A motion to dismiss for lack of standing can be brought
6

under either rule 12 (b) (1) or 12 (b) (6). See Doe v.
Governor, 381 Mass. 702, 705 (1980).
8

consumer as a result of the failure or damages of not less
than $100 and not more than $1,000."

15 U.S.C. § 1681n(a)(1)(A). The term "person" includes

corporations, and the term "consumer" is defined as "an

individual." 15 U.S.C. § 1681a(b), (c). The remedy provision

also authorizes punitive damages, costs, and reasonable

attorney's fees for a successful action. See 15 U.S.C.

§ 1681n(a)(2)-(3).7 The statute further provides that "[a]n

action to enforce any liability created [by FCRA] may be brought

in any appropriate United States district court, without regard

to the amount in controversy, or in any other court of competent

jurisdiction." 15 U.S.C. § 1681p. Thus, FCRA clearly creates a

cause of action for an individual, such as the plaintiff,

against any person, such as Eascare, who willfully fails to

comply with "any requirement" of FCRA.

2. Art. III standing. Despite having a cause of action,

not every individual whose FCRA protections have been violated

has standing to sue in Federal court. Under art. III, Federal

judicial power is limited to the resolution of "Cases" and

"Controversies." TransUnion LLC v. Ramirez, 141 S. Ct. 2190,

2203 (2021) (TransUnion). To have standing under art. III, a

7 A person who negligently, as opposed to willfully, fails
to comply with FCRA is liable for only "any actual damages
sustained by the consumer as a result of the failure," costs,
and attorney's fees. 15 U.S.C. § 1681o.
9

plaintiff must allege a "concrete" injury, that is, one that is

"real" and not "abstract." Spokeo, Inc. v. Robins, 578 U.S.

330, 340 (2016) (Spokeo). "For [art. III] standing purposes,

therefore, an important difference exists between (i) a

plaintiff's statutory cause of action to sue a defendant over

the defendant's violation of federal law, and (ii) a plaintiff's

suffering concrete harm because of the defendant's violation of

federal law." TransUnion, supra at 2205. While "Congress may

enact legal prohibitions and obligations" and create causes of

action to enforce them, "under Article III, an injury in law is

not an injury in fact." Id. That is, to the extent Congress

passes laws that authorize "unharmed plaintiffs" to sue for

violations of Federal law, such laws are unconstitutional

because they violate the doctrine of separation of powers. Id.

at 2207.

The Spokeo and Transunion decisions clarified how art. III

standing applies to violations of FCRA. In Spokeo, 578 U.S. at

336, an individual learned that a consumer reporting agency had

generated a "profile" of the individual that contained

inaccurate information. Reversing the decision of the United

States Court of Appeals for the Ninth Circuit, which held that

"the violation of a statutory right is usually a sufficient

injury in fact to confer standing," id. at 337, the Supreme

Court remanded the case for consideration of "whether the
10

particular procedural violations [of FCRA] alleged in this case

entail a degree of risk [of harm to the plaintiff] sufficient to

meet the concreteness requirement," id. at 342-343.

In TransUnion, a class of 8,185 individuals alleged that

the defendant, one of the "Big Three" credit reporting agencies,

had created credit reports that violated FCRA by falsely listed

the plaintiffs as being on a government watchlist for

terrorists, drug traffickers, and other serious criminals. See

TransUnion, 141 S. Ct. at 2201. TransUnion had communicated to

third parties the misleading credit report of 1,853 plaintiffs,

but did not disseminate the misleading information maintained

with respect to the rest. Id. at 2197. The Court held that

only those plaintiffs whose information had been disclosed to

third parties had suffered sufficiently concrete injuries to

qualify for art. III standing. Id. at 2214.

Four justices dissented. An opinion joined by all four

dissenters stated that the majority's analysis upended

"centuries" of decisions holding "that injury in law to a

private right was enough to create a case or controversy."

TransUnion, 141 S. Ct. at 2218 (Thomas, J., dissenting). See

Leardi v. Brown, 394 Mass. 151, 160 (1985), abrogated in part by

Tyler v. Michaels Stores, Inc., 464 Mass. 492, 503 (2013)

(discussing Supreme Court cases holding that violations of legal

rights create art. III standing absent any other injury).
11

Presaging the case before us, the dissent in TransUnion noted

that the majority's analysis of art. III standing did not

prevent State courts from adjudicating FCRA claims that could

not be brought in Federal court:

"The Court does not prohibit Congress from creating
statutory rights for consumers; it simply holds that
federal courts lack jurisdiction to hear some of these
cases. That combination may leave state courts -- which
'are not bound by the limitations . . . of justiciability
even when they address issues of federal law,' ASARCO Inc.
v. Kadish, 490 U.S. 605, 617 (1989) -- as the sole forum
for such cases, with defendants unable to seek removal to
federal court. . . . By declaring that federal courts lack
jurisdiction, the Court has thus ensured that state courts
will exercise exclusive jurisdiction over these sorts of
class actions."

TransUnion, supra at 2224 n.9.

The United States District Court judge remanded the instant

case to the Superior Court in a decision that relied on Spokeo

and correctly anticipated the result in TransUnion, which had

not yet been decided. The judge reasoned that the plaintiff had

not alleged a concrete injury for art. III purposes because

Eascare's alleged FCRA violations were merely technical,

procedural, and formal; they did not cause the plaintiff any

concrete injury. See Kenn, 483 F. Supp. 3d at 34-35.

3. Standing in Massachusetts courts. The plaintiff's lack

of standing in Federal court is not dispositive of the question

of her standing in State court. Because they are not bound by

art. III, "State courts remain free to define their own
12

jurisdictional limits even when adjudicating Federal claims."

LaChance v. Commissioner of Correction, 475 Mass. 757, 771 n.14

(2016). See Weld v. Glaxo Wellcome Inc., 434 Mass. 81, 88

(2001) (State courts "may determine, particularly when class

actions are involved, that concerns other than standing, in its

most technical sense, may take precedence").

Under general principles of standing in the courts of the

Commonwealth, an allegation of injury is required. See Sullivan

v. Chief Justice for Admin. & Mgt. of the Trial Court, 448 Mass.

15, 21 (2006) ("To have standing in any capacity, a litigant

must show that the challenged action has caused the litigant

injury" [citation omitted]). If the plaintiff is suing a

defendant for violation of a law or regulation, the alleged

injury must fall "within the area of concern" of the relevant

statute or regulatory scheme. Massachusetts Ass'n of Indep.

Ins. Agents & Brokers, Inc. v. Commissioner of Ins., 373 Mass.

290, 293 (1977). Only plaintiffs who have themselves suffered

or are in danger of suffering injury have standing to sue, see

Burlington v. Bedford, 417 Mass. 161, 164 (1994), and the injury

alleged must be more than merely "speculative, remote, and

indirect." Sullivan, supra.

In determining whether a plaintiff has alleged sufficient

injury to have standing to sue under a statute, we are guided by

the directives of the legislative branch. "To determine whether
13

[the plaintiff] has standing, we look to the statute itself."

Phone Recovery Servs., LLC v. Verizon of New England, Inc., 480

Mass. 224, 227 (2018). See Local 1445, United Food & Commercial

Workers Union v. Police Chief of Natick, 29 Mass. App. Ct. 554,

558 (1990) ("When a statute confers standing in relation to

particular subject matter, that statute, rather than more

general ideas about standing, governs who may initiate legal

action in relation to the subject matter"). Thus, the

determination whether a plaintiff has standing to commence a

"qui tam," or "whistle blower," action is based on the

definition of "relator" under G. L. c. 12, § 5A. See Phone

Recovery Servs., LLC, supra at 228. Whether a plaintiff has

standing to bring a G. L. c. 93A action for an unfair and

deceptive trade practice is guided by the definition of

"injured" within the meaning of G. L. c. 93A, § 9 (1). See

Tyler, 464 Mass. at 502-503. Standing to challenge a decision

under the Zoning Act, G. L. c. 40A, is governed by the

definition of "person aggrieved" in G. L. c. 40A, § 17. See 81

Spooner Road, LLC v. Zoning Board of Appeals of Brookline, 461

Mass. 692, 700 (2012).

As relevant here, Congress provided a cause of action to

sue, in State (or Federal) court, "to enforce any liability

created" under FCRA (emphasis added). 15 U.S.C. § 1681p. Under

FCRA, "[a]ny person who willfully fails to comply with any
14

requirement imposed under this title with respect to any

consumer is liable to that consumer" for actual or nominal

damages (emphasis added). 15 U.S.C. § 1681n(a)(1). Eascare's

willful failure to provide the plaintiff with the disclosure

required by 15 U.S.C. § 1681a, thereby obtaining her

authorization to conduct the consumer report, if proven, would

establish "liability." Under the plain language of FCRA, the

plaintiff alleged a legal injury for which Eascare is liable.

Although the plaintiff may not be able to articulate

concrete, actual damages arising from Eascare obtaining her

consumer report by using a noncompliant disclosure form and

requiring her to agree to a release of liability in addition to

a background check, the FCRA liability provision recognizes that

the injury to the consumer may not be measurable. Thus, in an

action for a willful violation, the statute provides for the

option of the plaintiff recovering actual damages caused by the

FCRA violation or, if the plaintiff cannot prove actual damages,

nominal damages between $100 and $1,000. See 15 U.S.C.

§ 1681n(a)(1)(A). In this regard, the plaintiff's allegation of

Eascare's willfulness is critical, as the cause of action for a
15

negligent violation, by contrast, does require a showing of

actual damages. See 15 U.S.C. § 1681o(a)(1).8

The injuries alleged are plainly within FCRA's area of

concern. The plaintiff alleged violations of "procedures

closely tied to FCRA's overarching goals." Groshek v. Time

Warner Cable, Inc., 865 F.3d 884, 887 (7th Cir. 2017), cert.

denied, 583 U.S. 1098 (2018). "[T]he stand-alone disclosure

requirement . . . is clearly designed to decrease the risk of a

job applicant unknowingly providing consent to the dissemination

of his or her private information," and "the authorization

requirement . . . further protects consumer privacy by providing

the job applicant the ability to prevent a prospective employer

from procuring a consumer report, i.e., by withholding consent."

Id.9

The plaintiff alleged the violation of her legal rights

under FCRA, which, if proved, entitles her to damages under

FCRA. Although her injury may not be "concrete" as that term is

The plaintiff's allegation that Eascare actually
8

"procure[d] a consumer report, or cause[d] a consumer report to
be procured," 15 U.S.C. § 1681b(b)(2)(A) -- not just that
Eascare obtained her authorization -- is also critical to her
claim of legal injury and her standing.

The United States Court of Appeals for the Seventh Circuit
9

nonetheless held that the plaintiff in Groshek, 865 F.3d at 887,
lacked art. III standing because he "alleged a statutory
violation completely removed from any concrete harm or
appreciable risk of harm."
16

understood in art. III jurisprudence, it is not "speculative,

remote, and indirect" as a matter of State law. Sullivan, 448

Mass. at 21. Our cases holding that plaintiffs' injuries are

too speculative or remote to bestow standing under common law

concern hypothetical future injuries premised on a certain set

of facts occurring, that is, "allegation[s] that an injury might

have occurred if a series of events transpired in a certain

way." Pugsley v. Police Dep't of Boston, 472 Mass. 367, 371

(2015). See, e.g., Barbara F. v. Bristol Div. of the Juvenile

Court Dept., 432 Mass. 1024, 1025 (2000) (plaintiff had no

standing to challenge orders entered against another person

based on hypothesized series of events that might befall

plaintiff); Burlington, 417 Mass. at 164-165 (municipality

lacked standing to challenge another municipality's act of

eminent domain where alleged injury based on hypothetical course

of future property development); Slama v. Attorney Gen., 384

Mass. 620, 625 (1981) (injury based on hypothetical result of

vote on ballot initiative too speculative to support standing);

Professional Fire Fighters of Mass. v. Commonwealth, 72 Mass.

App. Ct. 66, 76-77 (2008) (association of fire fighters lacked

standing to challenge regulations for emergency medical services

based on indefinite and hypothetical predicted harms). Here,

the plaintiff's allegations plausibly suggest that a

particularized, nonspeculative violation of FCRA.
17

Nor is the injury to the plaintiff "indirect." She

received a noncompliant disclosure form and authorized Eascare

to obtain her consumer report without having been advised about

her rights in the manner Congress mandated.10 Having herself

received the noncompliant disclosure and acted upon it, the

plaintiff is not acting as a self-constituted private attorney

general pursuing a purely vicarious claim. See Roberts v.

Enterprise Rent-A-Car Co. of Boston, 445 Mass. 811, 814 (2006).

Although at least two Massachusetts cases appear to have

imported art. III's concrete injury requirement, those decisions

were concerned with claims in the nature of mandamus, which

directly implicate the principle of separation of powers under

art. 30 of our Declaration of Rights because they entail

"telling a coequal branch of government how to conduct its

business." Alliance, AFSCME/SEIU, AFL-CIO v. Commonwealth, 427

Mass. 546, 548 (1998). See Perella v. Massachusetts Turnpike

Auth., 55 Mass. App. Ct. 537, 540 (2002). For this reason, the

"requirement of a concrete and particularized harm must be

enforced with particular rigor in administering the writ of

10We do not read the plaintiff's references to "applicants
like [her]" in paragraphs 25 and 26 of the complaint as alleging
that only the other applicants, but not the plaintiff herself,
were unable to preserve their privacy, correct errors, or were
misinformed about their legal rights and remedies. Because we
are acting on a rule 12 motion, we read the complaint in the
light most favorable to the plaintiff.
18

mandamus." Alliance, AFSCME/SEIU, AFL-CIO, supra at 549. The

plaintiff's claims here do not implicate art. 30 concerns.

Finally, because standing in this case is not governed by

the definition of "injured" in G. L. c. 93A, § 9, the plaintiff

is not required to allege that the violation of her legal rights

under FCRA caused her "some kind of separate, identifiable harm

arising from the violation itself." Tyler, 464 Mass. at 503.

The interpretation of the "injury" requirement of c. 93A is

based on the language and history of the statute. See id. at

502-503. In Leardi, 394 Mass. at 160, the court concluded that

"in amending G. L. c. 93A, § 9, the Legislature exercised its

prerogative to create a legal right, the invasion of which,

without more, constitutes an injury." Although the court

subsequently declined to follow the Leardi decision's

interpretation of c. 93A,11 nothing in the line of cases

construing c. 93A's injury requirement suggests that our

Legislature would not be permitted to create a statutory scheme

providing compensation for plaintiffs whose legal rights are

infringed, but who are not identifiably injured thereby, in

order to deter such practices -- as Congress has done in FCRA.

11See Tyler, 464 Mass. at 503 ("To the extent . . . Leardi
can be read to signify that 'invasion' of a consumer plaintiff's
established legal right in a manner that qualifies as an unfair
or deceptive act under G. L. c. 93A, § 2, automatically entitles
the plaintiff to at least nominal damages [and attorney's fees],
we do not follow the Leardi decision").
19

Cf. TransUnion, 141 S. Ct. at 2226 (Kagan, J., dissenting)

(courts should defer to judgment of legislative branch as to

what causes harm or risk of harm and its reasonable

determination that creating cause of action "will contribute to

compensating or preventing the harm at issue").

"What is required at the pleading stage are factual

'allegations plausibly suggesting (not merely consistent with)'

an entitlement to relief." Iannacchino v. Ford Motor Co., 451

Mass. 623, 636 (2008), quoting Bell Atl. Corp. v. Twombly, 550

U.S. 544, 557 (2007). Here, the plaintiff has plausibly alleged

liability of Eascare for FCRA violations and an entitlement to

damages if she prevails. The judgment dismissing the

plaintiff's FCRA claims for lack of standing is vacated, and the

plaintiff may proceed on her claims in the Superior Court.

So ordered.