UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
CORY GROSHEK,
and all others similarly situated,
Plaintiff,

Case No. 15-cv-157-RTR

v.
TIME WARNER CABLE INC.,
Defendant.
______________________________________________________________________________
PLAINTIFF’S BRIEF IN OPPOSITION TO DEFENDANT’S
MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION
______________________________________________________________________________
Plaintiff, Cory Groshek, on behalf of himself and others similarly situated, by his
attorneys Gingras, Cates & Luebke and Axley Brynelson, LLP, herby submits the following as
his Brief in Opposition to Defendant’s Motion to Dismiss for Lack of Subject Matter
Jurisdiction.
INTRODUCTION
Cory Groshek (“Groshek”) commenced the present action on February 16, 2015 on his
own behalf and on behalf of those similarly situated, alleging that Time Warner Cable, Inc.’s
(“Time Warner’s”) disclosure/authorization forms violated the Fair Credit Reporting Act
(“FCRA”) 15 U.S.C. § 1681b(b)(2)(A). Time Warner moved to dismiss this action in May 2015,
but never asserted that Groshek lacked standing. (Dkt. 13) This Court denied Time Warner’s
Motion to Dismiss in its entirety, finding that Groshek had properly alleged a willful violation of
the FCRA. (Dkt. 28) A year later, on May 27, 2016, Time Warner filed a second motion to
dismiss, ostensibly because of the decision from the United States Supreme Court, Spokeo v.

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 Robins, 570 U.S. __, 2016 WL 2842447 (May 16, 2016).

Despite Time Warner’s claim, the

reality is that Spokeo broke no new ground. The Court’s consensus opinion simply reiterated
that, to have standing, a plaintiff must show an injury that is both particularized and concrete. In
doing so, the Court reaffirmed well-established Article III-standing principles—that “intangible
injuries can nevertheless be concrete,” and that “[i]n determining whether an intangible harm
constitutes injury in fact, both history and the judgment of Congress play important roles.”
Spokeo, slip op. at 9.
Applying those principles here makes clear that Groshek has Article III standing. By
obtaining Groshek’s (and tens of thousands of other class members’) consumer report without
first providing him with a lawful disclosure and authorization as required by § 1681b(b)(2), Time
Warner not only caused Groshek informational injury but also invaded his privacy—the very
harms that specifically motivated Congress’s enactment of the FCRA and that have long been
recognized by the common law. Because Groshek was the object of a violation of the FCRA’s
disclosure requirements, Groshek “suffered injury in precisely the form the statute was intended
to guard against, and therefore has standing.” Havens Realty Corp. v. Coleman, 455 U.S. 363
(1982).
STATEMENT OF THE CASE AND RELEVANT FACTS
Congress enacted the Fair Credit Reporting Act in 1970 to protect the “consumer’s right
to privacy” by ensuring “the confidentiality, accuracy, relevancy, and proper utilization” of
consumer credit information. 15 U.S.C. § 1681(b). And, recognizing the “vital role” that
consumer reports play in the modern economy, Congress sought to encourage those who handle
the sensitive information in those reports to “exercise their grave responsibilities” in a way that
“ensure[s] fair and accurate credit reporting.” 15 U.S.C. § 1681(a); Robinson v. Equifax Info.

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 Servs., LLC, 560 F.3d 235, 239 (4th Cir. 2009). The FCRA fosters these purposes through a set
of interlocking requirements—including strict restrictions on the use of reports for various
purposes and detailed requirements about how consumers must be informed of their rights.
A prime motivation for the FCRA was the impact of third-party data collection on the
employment market and particularly on individual job seekers. When it passed the FCRA,
Congress voiced a strong “concern[]” that “permit[ting] employers to obtain consumer reports
pertaining to current and prospective employees . . . may create an improper invasion of
privacy.” S. Rep. No. 104-185, at 35 (1995). As one legislator explained, the FCRA’s protections
represented “new safeguards to protect the privacy of employees and job applicants”; the Act as
a whole, he continued, was “an important step to restore employee privacy rights.” 140 Cong.
Rec. H9797-05 (1994) (Statement of Congressman Vento); see also 138 Cong. Rec. H9370-03
(1992) (Statement of Congressman Wylie) (stating that the FCRA “would limit the use of credit
reports for employment purposes, while providing current and prospective employees additional
rights and privacy protections”).
In addition to the risk of privacy-related harm, Congress also “found that in too many
instances agencies were reporting inaccurate information that was adversely affecting the ability
of individuals to obtain employment”—often without consumers’ knowledge. Id.; see S. Rep.
No. 91-157, at 3–4 (1969) (describing the “inability” of consumers to discover errors). And even
if consumers learned of an error, they usually had “difficulty in correcting inaccurate
information” because of skewed market incentives: “a credit reporting agency earns its income
from creditors or its other business customers,” and “time spent with consumers going over
individual reports reduces . . . profits.” 115 Cong. Rec. 2412 (1969).

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 As a result, under the FCRA, an employer must disclose to a job seeker that “a consumer
report may be obtained for employment purposes” and must obtain authorization from a
consumer before procuring his or his consumer report. See 15 U.S.C. § 1681b(b)(2). And, to
ensure that prospective employees are adequately informed about their rights concerning these
consumer reports, the FCRA requires that this information be provided “in a document that
consists solely of the disclosure.” Id. § 1681b(b)(2)(A). Absent the job seeker’s informed consent
or strict compliance with the statute’s disclosure requirements, it is flatly illegal for a company to
obtain a job applicant’s consumer report for employment purposes—a point Congress hammered
home by criminalizing the acquisition of a consumer report under false pretenses. 15 U.S.C.
§ 1681q.
Groshek applied for work at Time Warner in September, 2014. As part of the hiring
process, he was required to complete thirty plus pages of online paperwork. This included
authorizations for background checks by a third party. Groshek was required to sign no fewer
than three authorizations relating, in some way, to Time Warner’s use of GIS (a CRA) to provide
a consumer report on Groshek. All three disclosures/authorizations included release of liability
language. These disclosure/authorization forms violated the FCRA in that they were not clear
and conspicuous and did not consist solely of the disclosure and authorization but, in fact,
included extraneous information including the following liability waiver:
“I hereby release from liability all persons and organizations furnishing references
or other information.”
Time Warner, in fact, procured a consumer report on Groshek. Groshek brought the present
action alleging that Time Warner violated 15 U.S.C. § 1681b(b)(2)(A) by procuring a consumer
report on Groshek and other similarly situated applicants and employees through use of an
unlawful disclosure/authorization form.
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 On May 8, 2015, Time Warner filed a motion to dismiss the complaint. On July 31,
2015, this Court denied that motion. The Court stayed this action pending a decision in the
Spokeo case. The Supreme Court decided Spokeo on May 16, 2016. On May 27, 2016, Time
Warner filed a renewed motion to dismiss, claiming that the holding in Spokeo compelled a
conclusion that Groshek lacked standing to sue because he had no “injury-in-fact” and because
he (allegedly) acted in a way to generate his own claim. For the reasons that follow, this motion
should be denied.
I.

STANDARD FOR ADJUCATING A 12(b)(6) MOTION TO DISMISS CLAIMING
THE PLAINTIFF LACKS STANDING.
When considering a motion that launches a factual attack against jurisdiction, the district

court may properly look beyond the jurisdictional allegations of the complaint and view
whatever evidence has been submitted on the issue to determine whether in fact subject matter
jurisdiction exists. Ash v. Colvin, 2016 U.S. Dist. LEXIS 40420, *27 (E.D. Wis. Mar. 28, 2016).
Furthermore, the plaintiff bears the burden of establishing standing. Ash v. Colvin, 2016 U.S.
Dist. LEXIS 40420, *27 (E.D. Wis. Mar. 28, 2016). Insofar as Time Warner alleges Groshek’s
pleadings are fatally deficient, the following standard applies. The purpose of a motion to
dismiss is to test the sufficiency of the complaint, not to decide the merits. Midwest Gas Serv. v.
Indiana Gas Co., 317 F.3d 703, 714 (7th Cir. 2003). In reviewing a motion to dismiss, a court
construes all allegations in the complaint in the light most favorable to the plaintiff, taking all
well-pleaded facts and allegations within the complaint as true. Albany Bank & Trust Co. v.
Exxon Mobil Corp., 310 F.3d 969, 971 (7th Cir. 2002). Federal notice pleadings are to be
governed liberally. Gutierrez v. Peters, 111 F.3d 1364, 1369 (7th Cir. 1997). The moving party
bears the burden of showing "beyond doubt that the plaintiff can prove no set of facts in support
of his claim" that would entitle him to relief. Chillmark Partners, LLC, v. MTS, Inc., 2003 U.S.
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 Dist. LEXIS 7077, 02 C 5339, 2003 WL 1964408, at *2 (N.D. Ill April 25, 2003)(citing Conley
v. Gibson, 355 U.S. 41, 45, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)). Dismissal is appropriate only
when "it is clear that no relief could be granted under any set of facts that could be proved
consistent with the allegations." Henderson v. Sheahan, 196 F.3d 839, 846 (7th Cir. 1999).
Federal notice pleading, as opposed to fact pleading, requires only that the plaintiff "set out in
[the] complaint a short and plain statement of the claim that will provide the defendant with fair
notice of the claim." Scott v. City of Chicago, 195 F.3d 950, 951 (7th Cir. 1999). See also Ibscher
v. Snyder, 2003 U.S. Dist. LEXIS 12507, *6-8 (N.D. Ill. July 18, 2003).
As proven below, the facts compel a finding that Groshek has standing to pursue his
claims, and therefore this Court has jurisdiction to proceed.
II.

GROSHEK SUFFERED AN INJURY IN FACT, COMPELLING THE DENIAL
OF TIME WARNER’S MOTION TO DISMISS.
A.

Applicable Legal Authority and Principles.

To have standing to bring a claim in federal court, the plaintiff must first have suffered an
injury in fact. This requirement has two components: the injury must be both (1) particularized
and (2) concrete. Time Warner argues that, under the Supreme Court’s recent decision in Spokeo,
Groshek has not suffered a “concrete” or “particularized” injury resulting from Time Warner’s
undisputed FCRA violations. Despite Time Warner’s mischaracterization of the Spokeo decision,
however, Spokeo did not change the legal framework for analyzing standing nor overrule any of
the relevant precedent, including controlling Seventh Circuit precedent. Instead, the Court in
Spokeo simply reiterated that the Article III standing inquiry asks not only whether an injury is
particularized, but also whether it is concrete—“that is, it must actually exist.” Slip op. at 8.
Elaborating on the meaning of concreteness, the Court in Spokeo distilled several
“general principles” from its prior cases, without going beyond those cases. Id. at 10. First, it
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 acknowledged that, although tangible injuries (like physical or economic harm) are “perhaps
easier to recognize” as concrete injuries, “intangible injuries can nevertheless be concrete,” as
can injuries based on a “risk of harm.” Id. at 9–10. Second, “[i]n determining whether an
intangible harm constitutes injury in fact, both history and the judgment of Congress play
important roles.” Id. at 9. So if the “alleged intangible harm has a close relationship to a harm
that has traditionally been regarded as providing a basis for a lawsuit in English or American
courts”—or, put in fewer words, if “the common law permitted suit” in analogous
circumstances—the plaintiff will have suffered a concrete injury that can be redressed by a
federal court. Id. at 9–10; see also Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102
(1998) (explaining that Article III encompasses “cases and controversies of the sort traditionally
amenable to, and resolved by, the judicial process”).
But the plaintiff need not dig up a common-law analogue to establish a concrete injury,
because Congress has the power (and is in fact “well positioned”) “to identify intangible harms
that meet minimum Article III requirements,” even if those harms “were previously inadequate
in law.” Spokeo, slip op. at 9. Accordingly, the third principle emphasized in Spokeo is that
Congress can elevate even procedural rights to a concrete injury if they protect against an
identified harm. Of course, “a bare procedural violation, divorced from any concrete harm”
identified by Congress, will not give rise to an Article III injury. Id. at 9–10. But a “person who
has been accorded a procedural right to protect his concrete interests” has standing to assert that
right, and may do so “without meeting all the normal standards for redressability and
immediacy.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 572 n.7 (1992).
Critically, none of these principles are new. See, e.g., Amy Howe, Opinion analysis:
Case on standing and concrete harm returns to the Ninth Circuit, at least for now, SCOTUSblog

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 (May 16, 2016), http://bit.ly/1TB3vd1 (describing Spokeo as a “narrow” decision); Daniel J.
Solove, Spokeo, Inc. v. Robins: When Is a Person Harmed by a Privacy Violation?, Geo. Wash.
L. Rev. On the Docket (May 19, 2016), http://bit.ly/20fyAmS. And the Court in Spokeo did not
even apply these principles to the facts before it, choosing instead to remand the case to the
Ninth Circuit, whose previous analysis was “incomplete” because it had “overlooked”
concreteness. Slip op. at 2. The Court, in other words, offered no assessment of the Ninth
Circuit’s analysis below, aside from its determination that the Ninth Circuit had failed to analyze
concreteness as a separate step in the injury-in-fact inquiry.
Time Warner nonetheless claims that Spokeo broke new ground by holding that statutory
violations do not cause concrete harm.

The Court did nothing of the sort. That a “bare

procedural violation, divorced from any concrete harm” is not enough to confer standing has
long been the rule for Article III standing. Spokeo, slip op. at 9–10 (quoting Summers v. Earth
Island Institute, 555 U.S. 488, 496 (2009)). And, although it is true that, after Spokeo, “Article III
standing requires a concrete injury even in the context of a statutory violation,” that was just as
true before Spokeo. See, e.g., Summers, 555 U.S. at 497 (“[T]he requirement of injury in fact is a
hard floor of Article III jurisdiction that cannot be removed by statute.”).
The fact that Spokeo broke no new ground is fatal to Time Warner’s motion. This Court
has already acknowledged in Gunther v. DSW, Inc., Case No. 2:15-cv-01461-LA, (E.D.
Wisconsin) that binding Seventh Circuit precedent allowed the plaintiff’s claim in Gunther to go
forward, citing Sterk v. Redbox Automated Retail, LLC, 770 F.3d 618 (7th Cir. 2014). Time
Warner did not discuss this binding precedent in its Motion to Dismiss nor argue in any way that
Spokeo overruled it. It is clear, however, that Spokeo, left the Seventh Circuit’s prior decisions
intact. The existing Seventh Circuit rule, that “Congress does have the power to enact statutes

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 creating legal rights, the invasion of which creates standing, even though no injury would exist
without the statute” Sterk, 770 F.3d at 623 (quotation omitted), is simply a restatement of the
Supreme Court’s longstanding holding that the “injury required by Art. III may exist solely by
virtue of statutes creating legal rights, the invasion of which creates standing.”

Lujan v.

Defenders of Wildlife, 504 U.S. 555, 572 n. 7 at 578(1992) (quotation omitted). Spokeo did
nothing to overrule Lujan, and in fact, it quotes that opinion with approval. Spokeo, slip op. at 9.
Because Sterk remains good law, Time Warner’s Motion to Dismiss must be denied.
Thus, despite Time Warner’s efforts to exaggerate the decision’s importance, Spokeo has
done very little to change (or even clarify) the law; it simply summarizes the doctrine and
provides examples of injuries that might (or might not) constitute sufficiently concrete harm.
Spokeo therefore should not alter this Court’s earlier conclusion that the plaintiffs have standing
here.
B.

Groshek Suffered a Concrete and Particularized Injury to His Privacy
Rights.

Under the FCRA, “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” it
complies with the statutory requirements (i.e., disclosure and authorization) set forth in the
following subsections. 15 U.S.C. § 1681b(b)(2) (emphasis added). As one court put it, “[t]he
FCRA makes it unlawful to ‘procure’ a report without first providing the proper disclosure and
receiving the consumer’s written authorization.” Harris v. Home Depot U.S.A., Inc., 114 F.
Supp. 3d 868, 869 (N.D. Cal. 2015).
By explicitly failing to abide by the clear mandate of the FCRA, Time Warner’s
acquisition of Groshek’s consumer report—which contained highly private information,
including his credit and criminal history—was “unlawful.” Harris, 114 F. Supp. 3d at 869. Time
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 Warner claims that Groshek was not harmed by its illegal intrusion into his personal life. That is
inaccurate. Put simply, Time Warner unlawfully invaded Groshek’s privacy—a clear form of
concrete harm that Time Warner simply ignores in its motion.
Indeed, the invasion of privacy is a quintessential “harm that has traditionally been
regarded as providing a basis for a lawsuit in English or American courts,” and thus is a legally
cognizable injury for standing purposes. Spokeo, slip op. at 9. For more than a century, American
courts have recognized that “[o]ne who invades the right of privacy of another is subject to
liability for the resulting harm to the interests of the other.” Restatement (Second) of Torts
§ 652A (1977); see id. cmt. a (noting that “the existence of a right of privacy is now recognized
in the great majority of the American jurisdictions”). In his seminal 1890 article on the right to
privacy, Justice Brandeis explained even then that “what is ordinarily termed the common-law
right to intellectual and artistic property are . . . but instances and applications of a general right
to privacy.” Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193,
198 (1890). And American courts at the turn of the century identified the right of privacy as
“derived from natural law,” and traced the concept back to Roman and early English legal
traditions. Pavesich v. New England Life Ins. Co., 50 S.E. 68, 70 (Ga. 1905). Because there can
be no doubt that harms to an individuals’ privacy have traditionally been regarded as a
cognizable basis for suit, this Court should hold that Groshek’s privacy injury here is sufficiently
concrete “to constitute injury in fact.” Spokeo, slip op. at 10.
What’s more, Congress specifically enacted the FCRA to safeguard the privacy of job
seekers like Groshek. Congress was openly “concerned” that “permit[ting] employers to obtain
consumer reports pertaining to current and prospective employees . . . may create an improper
invasion of privacy.” S. Rep. No. 104-185, at 35 (1995). The FCRA thus “sought to protect the

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 privacy interests of employees and potential employees by narrowly defining the proper usage of
these reports and placing strict disclosure requirements on employers.” Kelchner v. Sycamore
Manor Health Ctr., 305 F. Supp. 2d 429, 435 (M.D. Pa. 2004), aff’d, 135 F. App’x 499 (3d Cir.
2005); see also id. at 436 (“the Act provides strong protections against misuse of employees’
personal information”). In enacting the FCRA, Congress identified individual interests that the
increased use of credit reporting agencies stood to jeopardize, namely, interests in privacy and
economic self-determination.
The FCRA’s employment-specific provisions go beyond the general privacy protections
of the Act—requiring employers to demonstrate a permissible purpose, provide a stand-alone
disclosure form, and gain authorization from the consumer. These provisions demonstrate that
Congress intended to allow consumers to make an informed choice over whether employers
could view their report. By burying the stand-alone disclosure and authorization, Time Warner
obtained a report without Groshek’s freely given consent, invading his privacy in the process.
The Supreme Court explained in Spokeo that “Congress may ‘elevat[e] to the status of legally
cognizable injuries concrete, de facto injuries that were previously inadequate in law.’” Spokeo,
slip op. at 9 (quoting Lujan, 504 U.S., at 578). Here, however, Congress recognized that
employers’ procurement of consumer reports without adequate disclosure and authorization
harmed individuals’ privacy interests—a concrete injury that had been considered adequate long
before Congress enacted the FCRA. Thus, there is no doubt that, on the basis of his privacyrelated injuries alone, Groshek has standing to bring his § 1681b(b)(2) claims. See also Torres v.
Nat'l Enter. Sys., 2012 U.S. Dist. LEXIS 110514, *6-8 (N.D. Ill. Aug. 7, 2012) and Schumacher
v. Credit Prot. Ass'n, 2015 U.S. Dist. LEXIS 132752, *12-14 (S.D. Ind. Sept. 30, 2015) (Via the

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 TCPA, Congress had the authority to create redress for the protection of the invasion of privacy
caused by unwanted telemarketer calls).
Time Warner’s failure to comply with § 1681b(b)(2)’s requirements invaded Groshek’s
privacy interests. Accessing private information without a legal basis to do so is a classic
example of a modern-day analogue to well-recognized common law torts. See Intrusion Upon
Seclusion, Restatement (Second) of Torts § 652B (1977) (“One who intentionally intrudes,
physically or otherwise, upon the solitude or seclusion of another or his private affairs or
concerns, is subject to liability to the other for invasion of his privacy…”); Zinda v. Louisiana
Pacific Corp., 149 Wis. 2d 913, 440 N.W. 2d 548, 928-930 (1989); Snakenberg v. Hartford Cas.
Ins. Co., 383 S.E.2d 2, 5 (S.C. Ct. App. 1989) (“The law recognizes that each person has an
interest in keeping certain facets of personal life from exposure to others. This interest in
“privacy” is a distinct aspect of human dignity and moral autonomy.”)
Groshek can also satisfy the particularity test with respect to the violation of his privacy
rights. For an injury to be particularized, it “must affect the plaintiff in a personal and individual
way.” Spokeo, at *6. In the case of In re Google, Google stood accused of placing “cookies” on

unsuspecting users of its program. Google challenged standing, claiming there was no injury-infact. The Google Court held:
For purposes of injury in fact, the defendants' emphasis on economic loss is misplaced.
In assessing injury in fact, we look for an "invasion . . . which is (a) concrete and
particularized; and (b) actual or imminent, not conjectural or hypothetical." Though the
"injury must affect the plaintiff in a personal and individual way," this standard does not
demand that a plaintiff suffer any particular type of harm to have standing. Consequently,
and contrary to the contentions of the defendants, a plaintiff need not show actual
monetary loss for purposes of injury in fact. Rather, "the actual or threatened injury
required by Art. III may exist solely by virtue of statutes creating legal rights, the
invasion of which creates standing." Sure enough, the Supreme Court itself has permitted
a plaintiff to bring suit for violations of federal privacy law absent any indication of
pecuniary harm.

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 The plaintiffs here base their claims on highly specific allegations that the defendants, in
the course of serving advertisements to their personal web browsers, implanted tracking
cookies on their personal computers. Irrespective of whether these allegations state a
claim, the events that the complaint describes are concrete, particularized, and actual as to
the plaintiffs. To the extent that the defendants believe that the alleged conduct implicates
interests that are not legally protected, this is an issue of the merits rather than of
standing.
The plaintiffs show injury in fact, and we have jurisdiction to address the merits of their
claims.
In re Google Inc., 806 F.3d 125, 134-135 (3d Cir. Del. 2015). In Groshek’s case, he alleges that
Time Warner unlawfully sought to obtain his private information, and then it obtained his
personal information as a result of the unlawful permission it received. He has therefore stated a
particularized injury.
C.

Groshek Suffered a Concrete and Particularized Injury to His Informational
Rights.

Because Groshek suffered a concrete privacy injury, he has standing even if he didn’t
suffer an informational injury. But, as explained below, Time Warner’s contentions fail even as
to informational injury, as this Court itself has recognized on numerous occasions. Under the
FCRA, individuals like Groshek “have the right to specific information at specific times”—and
where that consumer “receive[s] a type of information, [but] not the type of information that he
was entitled to under the FCRA,” he has suffered an “informational injury.” Manuel v. Wells
Fargo Bank, Nat. Ass’n, 123 F. Supp. 3d 810, 818 (E.D. Va. 2015). That is what happened here.
Time Warner failed to provide Groshek with the “kind of disclosure” that the FCRA
“guarantees” before “procur[ing] a consumer report containing [his] information.” Id. at 817; see
also Ryals v. Strategic Screening Solutions, Inc., 117 F. Supp. 3d. 746, 753 (E.D. Va. 2015)
(finding standing where, like here, the plaintiff alleged “that he did not receive the required
information at the required time, as required by the FCRA”). In other words, Time Warner did

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 not merely flout a “process”; it denied Groshek information to which he was specifically entitled
under the FCRA.
That Groshek may have “understood that Time Warner would” obtain and use his
consumer report for employment purposes, id. at 9, is “irrelevant” for standing purposes, Dkt.
200 at 11. In Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982), the Supreme Court held that
a housing-discrimination “tester” had standing based on a violation of “[his] statutorily created
right to truthful housing information.” Id. at 374. Although the tester had no “intention of buying
or renting a home” and “fully expect[ed] that he would receive false information,” id. at 373–
374, the Court held that “[a] tester who has been the object of a misrepresentation made unlawful
under [the statute] has suffered injury in precisely the form the statute was intended to guard
against, and therefore has standing.” Id.
So too here. Whether Groshek knew Time Warner would obtain his report is irrelevant
for standing purposes so long as he suffered the type of injury the FCRA “was intended to guard
against,” Havens, 455 U.S. at 373; see also Spokeo, slip op. at 10 (noting that “a plaintiff in
[certain] case[s] need not allege any additional harm beyond the one Congress has identified” in
the statute). And there is no question that he did here. To ensure that prospective employees are
adequately informed about their rights concerning these consumer reports, the FCRA requires
that the key disclosures be provided “in a document that consists solely of the disclosure.” Id. §
1681b(b)(2)(A). By failing to comply with the requirements, Time Warner caused exactly the
risk of harm “Congress has identified” in the statute.
And Time Warner’s disclosure violations also correspond with longstanding claims at
common law. For instance, the common law often recognizes heightened disclosure
requirements in the cases of transactions between parties in a confidential or fiduciary

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 relationship; transactions concerning the acquisition of insurance, surety, or a release from
liability; transactions in which the parties have unequal access to information; and transactions
concerning the transfer of real property, among others. See Kathryn Zeiler & Kimberly D.
Krawiec, Common-law Disclosure Duties and the Sin of Omission: Testing Meta-Theories 91
Va. L. Rev. 1795–1882 (2005). Congress’s decision to relax the proof requirements, or to
presume harm for the failure to disclose critical information or warnings, does not negate the fact
that courts have historically recognized disclosure violations as distinct, cognizable injuries. For
violations of statutory rights to notices and specific disclosures in consumer transactions,
Congress may have replaced the remedy with statutory damages, but that does not break the
“close relationship” that many statutory claims have with traditional common law duties
requiring disclosure of information.
Time Warner also ignores an entirely separate and distinct form of informational injury
that Groshek suffered as a result of its § 1681b(b)(2) violation. Even if Groshek knew that Time
Warner would obtain his background reports, Time Warner makes no effort to show that
Groshek was aware of the other information—for instance, the liability releases—that it
unlawfully included in its standard disclosure form. As courts and the FTC (which enforces the
FCRA) have observed, the “inclusion of a liability release in a disclosure form violates the
FCRA.” Singleton v. Domino’s Pizza, LLC, 2012 WL 245965, at *8 (D. Md. Jan. 25, 2012)
(citing Letter from William Haynes, Attorney, Div. of Credit Practices, Fed. Trade Comm’n, to
Richard W. Hauxwell, CEO, Accufax Div. (June 12, 1998)). See also those cases cited by
Groshek in opposition to Time Warner’s first Motion to Dismiss. That is so, the FTC explained,
because one of the purposes of the FCRA is “‘to prevent consumers from being distracted by

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 other information side-by-side with the disclosure.’” Id. (quoting Letter from Clarke W.
Brinckerhoff, Fed. Trade Comm’n, to H. Roman Leathers, Manier & Herod (Sept. 9, 1998)).
Here, Time Warner’s unlawful disclosure which included a prospective release of
liability harmed Groshek by preventing him from adequately understanding the import of the
disclosure. Forms that include both disclosures and an authorization on the same page may lead
consumers to unwittingly authorize the employer to obtain private and potentially invasive
personal information and waive important legal rights. Moreover, presenting these two pieces
together leaves consumers unable to make independent decisions about whether to allow a
consumer report and whether to sign a liability release. For this reason as well, Groshek suffered
concrete harm.
In Spokeo, the Supreme Court discussed several forms of injuries that satisfy
concreteness. In particular, the Court cited Public Citizen v. U.S. Department of Justice, which
held that the plaintiff had standing to challenge the Justice Department’s failure to provide access
to information, the disclosure of which was required by the Federal Advisory Committee Act,
because the inability to obtain such information “constitutes a sufficiently distinct injury to
provide standing to sue.” 491 U.S. 440, 449 (1989). It also cited Federal Election Commission v.
Akins for a similar point, “confirming that a group of voters’ ‘inability to obtain information’ that
Congress had decided to make public is a sufficient injury in fact to satisfy Article III.” Spokeo,
slip op. at 10 (citing Akins, 524 U.S. 11, 20–25 (1998)). These cases, which are consistent with
precedent elsewhere, illustrate that an informational injury (i.e., being denied access to
information to which an individual is entitled by statute) is a concrete injury under Article III.
See Salt Inst. v. Leavitt, 440 F.3d 156, 159 (4th Cir. 2006); Project Vote/Voting For Am., Inc. v.
Long, 752 F. Supp. 2d 697, 703 (E.D. Va. 2010); see also Cass R. Sunstein, Informational

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 Regulation and Informational Standing: Akins and Beyond, 147 U. Penn. L. Rev. 613 (1999).
Courts have little difficulty applying this principle to the FCRA. As one court recently held,
“[u]nder the FCRA, Plaintiff and other consumers have the right to specific information at specific
times,” and an “allegation that Defendants failed to provide that information is sufficient to show ‘an
invasion of a legally protected interest.’” Panzer v. Swiftships, LLC, CIV.A. 15-2257, 2015 WL
6442565, at *5 (E.D. La. Oct. 23, 2015) (quoting Lujan, 504 U.S. at 560).

The Seventh Circuit has also found informational injuries like the one Groshek suffered
in this case to be sufficiently particularized. Bensman v. United States Forest Serv., 408 F.3d
945, 955-956 (7th Cir. Wis. 2005). The Bensman Court held:
Most notably, in Federal Election Commission v. Akins, 524 U.S. 11, 141 L. Ed. 2d 10,
118 S. Ct. 1777 (1998), the Supreme Court recognized that an informational injury can be
sufficiently concrete and particularized to support both Article III and prudential
standing. In Akins, the Court held that a group of voters had standing to challenge the
FEC's refusal to bring an enforcement action against a political committee, AIPAC. In
that case, the voters had asserted that AIPAC failed to disclose information that the
FECA required be made public. With respect to the voters' Article III standing, the Court
noted that their injury in fact stemmed from their failure to receive information that the
statute specifically required be produced. Akins, 524 U.S. at 21. Moreover, noted the
Court, FECA purported "to protect individuals such as respondents from the kind of harm
they say they have suffered, i.e., failing to receive particular information about campaignrelated activities." Id. at 22. The Court found it significant that FECA protected citizens
from an "informational injury . . . directly related to voting, the most basic of political
rights." Id. at 24-25. Given FECA's requirements and purposes, the Court held that the
plaintiffs' lack of access to information constituted a sufficiently concrete and
particularized injury to establish standing.
Informational deprivations also have been found sufficient to constitute Article III
injuries in fact in causes of action brought under the Freedom of Information
Act [956] ("FOIA"), and the Federal Advisory Committee Act ("FACA"), see, e.g., Pub.
Citizen, 491 U.S. at 449; Cummock v. Gore, 336 U.S. App. D.C. 347, 180 F.3d 282, 29093 (D.C. Cir. 1999).
Bensman v. United States Forest Serv., 408 F.3d 945, 955-956 (7th Cir. Wis. 2005). In this case,
Groshek was deprived of information relevant to his consent for Time Warner to obtain
otherwise protected personal information about Groshek. Accordingly, his informational injury
claims is sufficiently particularized to support standing.
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 Indeed, adopting any conclusion other than that the plaintiffs have standing would have
far-reaching implications, not only for the FCRA, but for numerous other statutes that seek to
protect consumers by requiring disclosures and allow the recovery of statutory damages for
failure to comply. The Truth in Lending Act, 15 U.S.C. § 1601, et seq., (TILA) and the Real
Estate Settlement Procedures Act, 12 U.S.C. § 2601, et seq., (RESPA) are only two consumerprotection statutes that would be gutted if Spokeo were misinterpreted as undermining standing
based on informational injury. See, e.g., 15 U.S.C. § 1638 (requiring disclosures under TILA); 15
U.S.C. § 1640(a)(2)(B) (allowing for statutory damages for failure to comply with TILA); 12
U.S.C. § 2605(c) (requiring disclosures under RESPA in certain circumstances); 12 U.S.C.
§ 2605(f)(1)(B) (allowing recovery of statutory damages for noncompliance with RESPA). If
consumers are no longer permitted to seek redress when defendants fail to comply with
statutorily mandated disclosure requirements, the failure to comply with those requirements, and
the attendant abuses, will not be far behind.
Recognizing that the law mandates the conclusion that Groshek suffered an injury-in-fact,
Time Warner attempts to obscure Groshek’s testimony into an admission that he suffered no
injury. Indeed, a significant portion of Time Warner’s brief is devoted to arguing that Groshek
admitted that he lacked any injury that flowed from Time Warner’s FCRA violations. An
examination of the portions of Groshek’s deposition put forward by Time Warner demonstrates
that the record does not support its contention.
The only portions of Groshek’s deposition to which Time Warner cited that actually
pertain to injury are pages 113 through 115. The following exchange is documented on those
pages:
Q

Do you have any understanding of what actual damage under the FCRA is?

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 A
I can only speak as to what I believe it is. I can’t say for certain what it actually is.
My believe is that actual damage, for example, would be in Time Warner Cable had not hired
me as a result of something that came up in a background check and as a result of something
say that was in the background check, that could be damage – actual damage.
Q
Okay. And based on that understanding that you just gave me, do you believe that
you suffered any actual damage, in your understanding of what you just said, based on any of
the alleged violations that you identified in Exhibit 7?
A
In terms of losing a job as a result of a background check, I did not suffer any of
that type of, as you put it, damage, no.
...
Q
Are you aware of any way – in any way that you were actually harmed by any of
the alleged violations you identify on Exhibit 7?
MR. MODL:

Object to the form. Calls for a legal conclusion.

THE WITNESS:
To the extent that I have an understanding of what the
damages and harm means, I do believe that I was damaged in terms of what my
statutory rights are under the law. I understand that I have certain rights with
regards to how the disclosure has to be made to me, and my belief is that it was
not made properly to me; and so in that regard I do believe that I did suffer,
potentially, damages that could be remedied that’s granted in a court of law.
...
Q
Are you aware of anything in this case, the Time Warner Cable case, that might
entitle you to remedies for actual damages as opposed to remedies for statutory violation and
transgressing on your statutory rights?
A
I do not know of any actual damages that I am claiming nor do I believe I’ve ever
actually claimed actual damages against Time Warner Cable nor do I intend to.
Dckt. 59-2.
The only fair reading of this testimony leads to the conclusion that Groshek was
testifying about what his personal understanding of “damages,” and he was clear in his
explanation about the scope of his definition. His definition was a refusal by Time Warner to
hire him. His definition did not include informational damages, nor did it include injury to his
privacy rights. Counsel made a timely foundation objection, as well. Simply put, Groshek’s

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 deposition testimony does not lead to a conclusion that he admitted that he suffered no
informational injury or injury to his privacy rights.
In fact, the Complaint read as a whole under the notice pleading standard, proves that
Groshek did allege more than a procedural violation.

For example, in his Complaint, at

paragraphs 28 and 29, he clearly stated that Time Warner “violated the fundamental protections
offered” to Groshek by the FCRA. Dckt 1., paras. 28-29. Also, the Complaint, at paragraph 7,
explicitly makes reference to what the FCRA is designed to protect, and one of the items
explicitly mentioned there is confidentiality, i.e., privacy. Via the Complaint, Groshek has
undoubtedly provided Time Warner with fair notice of the claim.1
D.

Groshek Should Not be Foreclosed From Proceeding For Allegedly
Manufacturing a Claim.

Time Warner argues that Groshek should be precluded from going forward with his claim
because he manufactured the circumstances for his claim. That argument should be rejected: for
the same reason a tester under Title VII or VIII has standing to sue, so should Groshek have
standing under the FCRA.
The case of Kyles v. J.K. Guardian Sec. Servs., 222 F.3d 289 (7th Cir., 2000), provides
ample support for Groshek’s standing claim. In Kyles, two employees of a legal aid office
worked as employment testers. Kyles, 222 F.3d at 291. They were both African American.
Kyles, 222 F.3d at 292. They applied with Guardian to be receptionists, and both were denied,
while white employees advanced through the employment process. Kyles, 222 F.3d at 292. The
district court dismissed their claims because they had no true interest in working for Guardian, so

1

Should the Court conclude that Groshek’s pleadings do not provide Time Warner with fair notice of his claim,
prior to dismissal of the Complaint, the Court should grant Groshek time to amend his pleadings. Groshek notes that
technically, the stay is still in force in this case, depriving Groshek of the opportunity to seek leave to amend his
pleadings in light of the Spokeo decision. In his motion to lift the stay in the case, Groshek requested a new
scheduling order, a part of which would have included for time to amend the pleadings. Dckt. 54.

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 they had no injury-in-fact. Kyles, 222 F.3d at 292. The Seventh Circuit Court of Appeals
reversed. Kyles, 222 F.3d at 292.
The Kyles Court began its analysis by noting that where federal statutory rights are at
issue, Congress has considerable authority to shape the assessment of standing: it can extend
standing to the outermost limits of Article III. Kyles, 222 F.3d at 294. When Congress confers a
broad right to sue, the judiciary may not close the doors to the courthouse by invoking prudential
considerations. Kyles, 222 F.3d at 294. Congress has the power to enact statutes creating legal
rights, the invasion of which creates standing, even though no injury would exist without the
statute. Kyles, 222 F.3d at 294.
The Kyles Court went on to examine precedent that conveyed standing on testers in
housing cases. Kyles, 222 F.3d at 295-296. It noted that under the Fair Housing Act, Congress
conferred upon any person a right to truthful information about the availability of housing.
Kyles, 222 F.3d at 296. The Court held, “Thus, any person given false information about the
availability of housing has standing to sue, irrespective of her intent in inquiring about the
housing in question.” Kyles, 222 F.3d at 296. Even in cases in which a tester was not given false
information, but instead was steered toward segregated housing, the Court held that the testers
had standing “even if [the tester] incurs no other injury” but encountering discrimination. Kyles,
222 F.3d at 297.
The Kyles Court was faced with the question of whether a tester in an employment case
had standing to sue. The Court held that the tester did have standing. Kyles, 222 F.3d at 298.
“[The plaintiff] has standing to sue, even if she has not been harmed apart from the statutory
violation – even if, for example, she was not genuinely interested in the job she applied for and
in that sense was not harmed by the employer’s refusal to hire her.” Kyles, 222 F.3d at 298.

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 Like Groshek, the testers discussed in Kyles did not have a desire to work for the
companies or live in the apartments for which they applied. The testers, often guided by legal
counsel, applied for jobs and housing because of a right conferred upon them by statute. The
testers did nothing different from what Groshek has done in the exercise of his rights under the
FRCA. For that reason, his complaint should not be dismissed.
Time Warner also argues that Groshek is a “professional plaintiff,” which somehow
impacts the standing analysis. Groshek disputes this allegation but, even if remotely accurate
(Groshek has commenced a total of three lawsuits alleging violations of the FCRA), such
allegation has no relevance whatsoever to the standing inquiry. Moreover, the Seventh Circuit
has specifically discussed the advantages to a class of a “professional plaintiff”. [Quote and
citation]
Time Warner uses its standing motion as a vehicle to once again attack and vilify
Groshek. Time Warner does so, not because its disparaging comments have anything to do with
standing, but rather to avoid discussing the real issue – its violation of the law. During the
relevant five year period of limitations, Time Warner has violated the FCRA by use of an
unlawful disclosure document approximately 70,000 times. Time Warner is involved in tens of
millions of FCRA-covered transaction annually as a furnisher of information and is involved in
millions of FCRA-covered transaction as a user of consumer reports for prospective and actual
cable customers.
Time Warner also states, in multiple places in its briefing, that its violation of the FCRA
was simply a “technical” violation. Congress specifically amended the FCRA in 1996, to require
employers to provide a simple disclosure form and to obtain a prospective employees knowing
authorization prior to obtaining a consumer report for employment purposes. This was not a

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 technical requirement, but a critical provision, given that employers were increasingly obtaining
highly personal information about an individual that had nothing to do with the potential job.
Moreover, the information in the consumer report was often inaccurate.

The mandatory

disclosure requirement was the job applicant’s entry into the consumer reporting system to allow
him to protect his privacy and to correct inaccurate information which was being used to make
critical life decisions including employment, insurance eligibility, housing, and credit. Time
Warner’s contention that there is no standing because the injury supposedly flowed from a
“technical” violation of the FCRA should be rejected.
CONCLUSION
For the reasons stated above, the Court should deny Time Warner’s Motion to Dismiss on
standing grounds. Given Time Warner’s contention that the Spokeo decision changed the law on
standing, Groshek respectfully requests leave to file an amended complaint, should the Court
conclude that Groshek’s Complaint does not adequately allege injury-in-fact under constitutional
standing doctrine.

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 Dated: June 17, 2016

Respectfully submitted,
s/ Michael J. Modl
Michael J. Modl
AXLEY BRYNELSON, LLP
2 E. Mifflin Street, Suite 200
Madison, WI 53703
Tel: (608) 257-5661
Fax: (608) 257-5444
mmodl@axley.com
s/ Robert J. Gingras
Robert J. Gingras
Heath P. Straka
GINGRAS, CATES & LUEBKE
8150 Excelsior Drive
Madison, WI 53717
Tel: (608) 833-2632
Fax: (608) 833- 2874
gingras@gcllawyers.com
straka@gcllawyers.com
Attorney for Plaintiff Cory Groshek

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