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Wednesday, December 11, 2019

Federal judge dismisses class action filed against Target over background check disclosure

By Jessica Karmasek | May 26, 2016


ST. PAUL, Minn. (Legal Newsline) -- A Minnesota federal judge has dismissed a class action lawsuit filed against Target alleging the popular retail chain included “impermissible” and “extraneous” information in a background check disclosure.

Judge Donovan Frank of the U.S. District Court for the District of Minnesota sided with Target in granting the retailer’s motion to dismiss earlier this month.

Under the Fair Credit Reporting Act, or FCRA, if an employer intends to obtain a report about a job applicant, the employer must notify the applicant. Such notification must be in a separate document without any unrelated information.

The named plaintiff in the action, Minnesota resident Thomas J. Just, alleged Target included extraneous terms and conditions in its Consent & Disclosure document and in so doing, willfully violated the FCRA.

“Two non-binding advisory opinions by the FTC (Federal Trade Commission) suggest that limited information beyond the disclosure and authorization may be included in the disclosure document, including, for example, a brief description of the nature of the reports covered by the disclosure and authorization and a statement of the job applicant’s right to request information about the nature and scope of the reports,” Frank wrote in his May 12 opinion.

“Here, Target’s Consent & Disclosure plainly includes more than a statement that a consumer report may be obtained for employment purposes and an authorization permitting procurement of that report. It does not, however, contain a liability waiver or release. And, Target argues, the information challenged by Just is ‘part and parcel of providing a full disclosure and securing a meaningful authorization’; it is not extraneous information intended to benefit Target at the expense of job applicants.”

The judge said he need not decide whether Just plausibly states a claim that Target violated the stand-alone disclosure requirement under the FCRA because Just must also plausibly allege that any violation by Target was committed willfully.

Under the FCRA, statutory damages -- rather than actual damages -- are only available when a defendant’s conduct is willful. Any person who willfully fails to comply with “any requirement imposed” is liable for statutory damages of $100 to $1,000.

Because Just does not claim actual damages, he must allege willfulness in order to maintain his lawsuit, Frank said.

“Because the federal courts of appeal, the FTC and the statutory text provide insufficient guidance about the meaning of the FCRA’s stand-alone disclosure requirement, Target’s reading of the requirement is not objectively unreasonable,” the judge wrote in the 13-page opinion. “Accordingly, if Target violated the FCRA’s stand-alone disclosure requirement, such violation was not willful.”

Because the court concluded that Target did not act willfully, any proposed amendment of the complaint would be “futile,” Frank said, dismissing the case with prejudice, meaning the plaintiff is barred from filing another case on the same claim.

Just, who had applied for full-time work with Target multiple times, most recently in 2014 and 2015, filed his class action complaint against the Minneapolis-based retailer in the Minnesota federal court in November 2015.

He argued that Target’s Consent & Disclosure document -- which gives a company permission to procure a background report -- is not a stand-alone document that consists solely of the disclosure and authorization.

Just argued in his 10-page complaint that the document contains language that is “completely irrelevant” to the disclosure, and could confuse an applicant about the purpose of the document.

The plaintiff’s background check had revealed that he had convictions from 1993 and 1994.

Based on the information, Target withdrew a job offer it had extended to Just.

Minneapolis law firm Baillon Thome Jozwiak & Wanta LLP represented Just. Nilan Johnson Lewis PA, also in Minneapolis, represented Target.

From Legal Newsline: Reach Jessica Karmasek by email at

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Organizations in this Story

U.S. Federal Trade Commission Target Corporation