Capital One (Fair Credit Reporting Act)

Kevin Smith v. Capital One, N.A.

Staff: Jean Guthrie, Travis Kowitz
Attorneys: Rebekah L. Bailey, E. Michelle Drake

On December 06, 2011, we filed a lawsuit in the United States District Court for the District of Maryland, alleging that Capital One illegally obtains background checks in violation of the Fair Credit Reporting Act.  We seek to represent a class of all Capital One employees and job applicants for the past three years.

The lawsuit accuses Capital One of violating the Fair Credit Reporting Act in a two ways.  First, the lawsuit alleges that Capital One’s background check authorization form is flawed. The law imposes strict formatting requirements on companies who do background checks.  The lawsuit alleges that by burying its background check authorization in a job application including all sorts of extraneous information, Capital One violated the law. On this claim, Capital One may be liable to all employees and prospective employees who signed Capital One’s standard job application.

The lawsuit also alleges that Capital One failed to provide copies of the reports when it used them to take adverse employment actions, such as refusing to hire an applicant, refusing to promote an employee or terminating an employee.  This practice also violates the Act, which requires companies to provide employees with copies of their background checks. 

Employees and prospective employees may be entitled to statutory damages of between $100 and $1,000 for each violation.  The lawsuit seeks statutory damages, punitive damages, costs and attorneys’ fees, and equitable relief.

Nichols Kaster also represents Domino’s Pizza employees and prospective employees in a similar case which alleges Domino’s Pizza, LLC violates the Fair Credit Reporting Act (“FCRA”). This case is entitled Adrian Singleton v. Domino’s Pizza, LLC, Case No. 8:11-cv-01823-DKC (D. MD.) (filed Nov. 9, 2011).

What Is A Class Action?

In a class action lawsuit, one or more people, called the “class representative” (in this case Kevin Smith), sue on behalf of themselves and other people who have similar claims.  Together, this group of people is called a “class” or “class members.”  The class representative and the class members together are called the “Plaintiffs.”  The company they sue (Capital One), is called the “Defendant.”  The judge or jury resolves the claims for everyone in the class—except those who ask to be excluded from the lawsuit.

Is This Case Certified As A Class Action?

Not at this time. Rule 23 of the Federal Rules of Civil Procedure governs class actions in federal courts. The Court has not yet decided whether to allow this lawsuit to proceed as a class action under this rule. At an appropriate time, we intend to file a motion with the Court asking it to certify the lawsuit as a class action. The Complaint alleges that treatment of the lawsuit as a class action is appropriate for the following reasons:

• There are numerous individuals in the proposed class.
• There are factual and legal issues that are common to each member of the proposed class.
• The common factual and legal issues predominate over any individual issues that may be unique to particular employees.
• The named plaintiff’s claims are typical of the claims of the members of the proposed class.
• The named plaintiff and the lawyers will adequately represent the proposed class.
• The employer acted or refused to act on grounds that apply generally to the proposed class.
• Prosecution of separate actions by or against individual members of the proposed class would create a risk of inconsistent outcomes.
• A class action will be superior to many individual lawsuits, and will provide members of the proposed class a chance of redress.

Who Is Included?

This lawsuit is being brought on behalf of two proposed classes. The first includes all employees or job applications of Capital One in the United States who were the subject of a background check that was procured by Capital One on or after December 6, 2009. 

The second proposed class includes all Capital One employees and job applicants in the United States who received notice on or after December 6, 2009 that Capital One was taking adverse employment action against them based, in whole or in part, on information contained in a consumer report, and who were not provided a copy of such report in advance. 

What Time Frame Is Covered?

If you applied for a job with Capital One or worked for Capital One any time after December 6, 2009, we would be interested in hearing from you.

How Long Will This Case Take?

Class actions can often take many years.  Please check this page periodically for updates on the case’s status.

Is There Money Available Now?

No. The Court has not yet decided whether the plaintiff’s claims are valid or whether the case may proceed as a class action.

How Can I Help?

As part of our investigatory efforts, we are interested in speaking with other Capital One employees and job applicants. If you applied for a job with Capital One or worked for Capital One any time after December 6, 2009, we would be interested in hearing from you.

You may contact us toll free at 1-877-448-0492, write to us at Nichols Kaster, PLLP, 4600 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402, or email our clerk, Travis Kowitz, at tkowitz@nka.com. You may also check this site for periodic updates.

How Do I Learn More?

You may contact us toll free at 1-877-448-0492, write to us at Nichols Kaster, PLLP, 4600 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402, or email our clerk, Travis Kowitz, at tkowitz@nka.com. You may also check this site for periodic updates.

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