Joint Pretrial Stipulation Federal Court

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION
Plaintiff, RICHARD ALEXANDER WILLIAMS (“WILLIAMS”), and Defendant, FIRST ADVANTAGE LNS SCREENING SOLUTIONS, INC. (formerly known as LEXISNEXIS SCREENING SOLUTIONS, INC.) (“FIRST ADVANTAGE”), pursuant to the Court’s Amended Order for Pretrial Conference, file this, their Joint Pretrial Stipulation and state:

1331. The Basis for Federal Jurisdiction:  This Court has jurisdiction of this action pursuant to 15 U.S.C. § 1681p and 28 U.S.C. § 1331.
1332. A Concise Statement of the Nature of the Action: This is an action for damages alleging negligent and willful violations of the Fair Credit Reporting Act (“FCRA”) (15 U.S.C. § 1681 et seq.) and for costs and attorneys’ fees.  WILLIAMS has filed a four (4) count Second Amended Complaint.  Count I of the Second Amended Complaint alleges that FIRST ADVANTAGE negligently and willfully violated 15 U.S.C. § 1681e(b).  In Count II, Plaintiff alleges that FIRST ADVANTAGE negligently and willfully violated 15 U.S.C. § 1681i(a)(5)(B).  In Count III, WILLIAMS alleges that FIRST ADVANTAGE negligently and willfully violated 15 U.S.C. § 1681b(b)(3).  Finally, WILLIAMS asserts in Count IV that FIRST ADVANTAGE negligently and willfully violated 15 U.S.C. § 1681k(a).
1333. A Brief Statement of Each Party’s case:

Plaintiff:  WILLIAMS lost two opportunities for employment, first with RENT-A-CENTER EAST, INC. (“RENT-A-CENTER”), and then with WINN-DIXIE STORES, INC. (“WINN-DIXIE”), after FIRST ADVANTAGE wrongfully, repeatedly, and in negligent and willful violation of the requirements of the FCRA, matched him with the criminal records for an individual named Ricky Williams.  Ricky Williams is a felon who had been convicted of criminal acts including being arrested for the sale of cocaine (having a bench warrant out against him), burglary, assault, and aggravated battery on a pregnant woman.  FIRST ADVANTAGE matched WILLIAMS with the records for Ricky Williams’ arrest for the sale of cocaine and corresponding bench warrant in a consumer/background report it prepared for RENT-A-CENTER on or about February 28, 2012 and then matched WILLIAMS with a record for Ricky Williams’ conviction for burglary/assault/battery on a pregnant woman in a consumer/background report it prepared for WINN-DIXIE on or about April 25, 2013.  In addition, based on these erroneous matches, FIRST ADVANTAGE “adjudicated” or “scored” WILLIAMS ineligible for employment with RENT-A-CENTER and WINN-DIXIE on the respective background reports.
In preparing these background reports, FIRST ADVANTAGE knew: (1) that “Williams” is a common name;  (2) that Defendant had no indication of a Social Security number match for the two individuals; (3) that Plaintiff lived in Chiefland in Levy County, Florida which is almost 300 miles away from Palm Beach County, Florida, where Ricky had a criminal record which included 6 criminal cases from 2001 through 2009, and Broward County, where the Ricky Williams case for burglary/assault/battery on a pregnant woman occurred; (4) there were no criminal records found for either WILLIAMS or anyone matched with WILLIAMS in Levy County; (5) that Richard and Ricky, although variations, were different first names; (6) that the only two “identifiers” for WILLIAMS and Ricky Williams that matched were the same last name and the same date of birth; and (7) that, as the number of identifiers used to match a consumer with a public record goes down, the risk of an erroneous match goes up.
Despite these discrepancies, at the time of preparing these background reports, FIRST ADVANTAGE refused to use a number of reasonable procedures available to it which would have helped determine whether WILLIAMS was Ricky Williams such as obtaining an “Accurint” or “Experian” report to determine social security number for Ricky Williams, obtaining an Accurint or Experian report for WILLIAMS containing his address history, obtaining a report on Ricky Williams from the Florida Department of Law Enforcement, and obtaining the actual physical criminal records which were being matched with WILLIAMS.  Instead it relied on its own internal “National Criminal [data] File” which had limited information and did not have address information or height information for Ricky Williams as to the record for the arrest for the sale of cocaine or the social security number as to the record for Ricky Williams conviction for burglary/assault/battery on a pregnant woman even though these were contained in the actual public records.  As to the consumer/background report for RENT-A-CENTER, FIRST ADVANTAGE “verified” the existence of the record in its National Criminal File with an electronic public records report from the Palm Beach County Circuit Court which included little, if any, more information than what was already in the National Criminal File.  As to the consumer/background report for WINN-DIXIE, FIRST ADVANTAGE “verified” existence of the record in its National Criminal File by reviewing a website of the Florida Department of Corrections.  However, though this website included the height of Ricky Williams, 6’2”, and though the match between WILLIAMS and Ricky Williams was removed because there was a discrepancy between the height listed on WILLIAMS driver’s license, 5’10” and the height listed for Ricky Williams, 6’2,” on the public record for Ricky Williams arrest for the sale of cocaine, FIRST ADVANTAGE again matched WILLIAMS with a criminal record for Ricky Williams.   FIRST ADVANTAGE did not obtain an Accurint report until WILLIAMS disputed the background report prepared for WINN-DIXIE and did not obtain an Experian report at all even though various “teams” or “groups” at FIRST ADVANTAGE subscribed to these services.
In addition, at the time of preparing the Background Report for WINN-DIXIE, FIRST ADVANTAGE knew there was a potential for matching WILLIAMS with a criminal named Ricky Williams with the same date of birth.  FIRST ADVANTAGE knew that there were these two individuals having a similar first name, the same last name, and the same date of birth after WILLIAMS successfully disputed the Background Report for RENT-A-CENTER in which FIRST ADVANTAGE erroneously matched WILLIAMS to the records of Ricky Williams for the sale of cocaine (with an associated bench warrant).  In order to follow reasonable procedures to assure maximum potential accuracy of the background reports it prepared at a time when it knew of the potential for erroneously matching WILLIAMS with criminal records, FIRST ADVANTAGE should have been put any potential match between WILLIAMS and a criminal record for Ricky Williams and with the same date of birth under great scrutiny before it included it in a background report.
FIRST ADVANTAGE only has the ability to block a background report containing a successfully disputed criminal record, but does not have the ability to block a match between a consumer and records that were not previously disputed or a match between a consumer and a person whose criminal records were previously erroneously matched to that consumer.  Under FIRST ADVANTAGE’s blocking procedure, the record of any crime which is not included in a background report, cannot be disputed and, therefore, a report containing that record cannot be blocked.  FIRST ADVANTAGE has no system set up to alert FIRST ADVANTAGE personnel preparing a background report that there has been a previous erroneous match between two people who have the same last name, similar first name, and the same date of birth where one of them has committed a criminal act.  It also does not keep a history of the investigation of a previous dispute for the member or members of the Records Adjudication Team preparing a second background report on a consumer.  If FIRST ADVANTAGE had such an alert system or history, even if it did not use any of the resources such as Accurint, Experian, FDLE, or actual public records mentioned above, it would not have matched WILLIAMS with the criminal records for Ricky Williams for burglary/assault/battery on a pregnant woman when it prepared the background report for WINN-DIXIE because it would know, based on at least the height discrepancy between the height listed on Ricky William’s driver’s license and the height listed on the Florida Department of Corrections website as it relates to Ricky Williams, that, again, WILLIAMS was not Ricky Williams.
FIRST ADVANTAGE’s procedures resulted in almost two thousand consumers in Florida and over 14,000 nationwide being the subject of inaccurate background reports during the period from 2009-2013 and potentially not being employed.  For these reasons, FIRST ADVANTAGE negligently and willfully violated 15 U.S.C. §1681e(b) by failing to follow reasonable procedures to assure maximum possible accuracy of the information about WILLIAMS contained in background reports it prepared relating to WILLIAMS.  In addition to negligently and willfully violating 15 U.S.C. §1681e(b) as discussed above, FIRST ADVANTAGE negligently and willfully violated 15 U.S.C. §1681i(a)(5)(B) when it reinserted deleted information matching WILLIAMS with Ricky Williams without following the procedures outlined in that section.  FIRST ADVANTAGE also negligently and willfully violated of 15 U.S.C. §1681b(b)(3) when it took the adverse action of adjudicating/scoring him to be ineligible for employment in the background reports before providing WILLIAMS with those background reports containing the match between WILLIAMS and Ricky Williams and with a written description of his rights under the FCRA thereby depriving WILLIAMS of an opportunity to dispute the erroneous match with Ricky Williams before the adverse action was taken.  Finally, FIRST ADVANTAGE negligently and willfully violated 15 U.S.C. §1681k(a) by failing to notify WILLIAMS that the matches between him and Ricky Williams’ criminal records were being reported to RENT-A-CENTER and WINN-DIXIE at the same time the information was reported to prospective employers and failed to maintain strict procedures to ensure that, whenever public record information which is likely to have an adverse effect on a consumer’s ability to obtain employment is reported, it is complete and up to date.  FIRST ADVANTAGE actually mailed this information to WILLIAMS days after it provided this information electronically to RENT-A-CENTER and WINN-DIXIE and, even if it mailed the information on the same date it electronically sent this information to RENT-A-CENTER and WINN-DIXIE, mailing information to WILLIAMS while sending it electronically to RENT-A-CENTER and WINN-DIXIE is not sending the information at the same time.
Plaintiff’s expert, the nationally recognized Evan Hendricks, has opined that FIRST ADVANTAGE has failed to follow reasonable procedures to assure maximum possible accuracy of its background reports and also has failed to maintain strict procedures to ensure that any public record information it reports is complete and up to date.  Mr. Hendricks will also opine, if that portion of Mr. Marquis’ opinion is not excluded that any comparison between the “not me” or “not mine” error rates for FIRST ADVANTAGE background reports and all types of errors for credit reports is wholly inappropriate.
FIRST ADVANTAGE’s violations of the FCRA are the result of its emphasis on speed and volume in the preparation of background reports.
Due to these violations of the FCRA and resulting inability to make a living, WILLIAMS suffered actual damages in the form of lost wages and emotional distress and, because these violations were willful, WILLIAMS is entitled to punitive damages.
Defendant:
With respect to Count I, First Advantage’s standard operating procedures are more than reasonable, are designed to assure maximum possible accuracy, and it followed them in preparing the consumer reports on Plaintiff for Rent-A-Center and Winn-Dixie.  Before matching any record to a consumer, First Advantage requires that at least two identifiers on the public record match those consumer identifiers provided by the customer.  Those identifiers include name, date of birth, address, Social Security number and driver’s license number.   After matching two personal identifiers to a consumer, First Advantage in most cases conducts an additional review of the criminal information returned to ensure that it does not contain discrepancies.  Moreover, when a consumer has a common name or if First Advantage does not have complete information, First Advantage applies additional procedures before matching a record to a consumer.  First Advantage attempts to develop additional information by, among other things, ordering a supplemental search of online court repositories, requesting documents or information directly from court or law enforcement personnel, or contracting with a third party to retrieve physical copies of documents from courthouses.
Based on these standard operating procedures, First Advantage’s expert witness, Oscar Marquis, has concluded that First Advantage “followed reasonable procedures” and “followed long standing industry practices.”
The reasonableness of First Advantage’s procedures is demonstrated by its statistical evidence.  From 2010 through 2013, First Advantage’s procedures resulted in an error rate of only 0.38%.  In other words, by following the above procedures, First Advantage prepared accurate background reports approximately 99.62% of the time.  In his expert report, Mr. Marquis compared First Advantage’s error rate to the industry as a whole and concluded that First Advantage’s accuracy rate was “16 times better than the industry standard.”  (emphasis added).  This statistical evidence further demonstrates that First Advantage not only follows “reasonable procedures designed to assure maximum possible accuracy” — it comes as close as any consumer reporting agency (“CRA”) can to actually ensuring complete accuracy.
In preparing Plaintiff’s reports, First Advantage complied with the standard operating procedures described above.  Specifically, on both the Rent-A-Center and Winn-Dixie reports, First Advantage matched Plaintiff’s first and last name and complete date of birth to the criminal records it initially reported.  In addition, First Advantage performed supplemental searches for both the Rent-A-Center and Winn-Dixie reports.  Those searches did not disclose information indicating that Plaintiff was not the individual whose records ultimately were reported.  Moreover, “Ricky” is a common variation of the name “Richard.”  It is not unreasonable for a CRA to report a record based on a first name variation where that record is matched to other identifiers (here, last name, full date of birth, and state of residence).
Plaintiff would require First Advantage and other CRAs to make use of every conceivable resource before reporting consumer information and holding them strictly liable for any mistakes of any nature.  That, however, is not what the FCRA requires.   Moreover, after Plaintiff disputed the information in the reports, First Advantage promptly reinvestigated the disputed information and issued revised reports to Plaintiff and his prospective employers in a timely manner as required under the FCRA.  First Advantage complied with its obligations under the process designed by Congress, and First Advantage cannot be found liable for Rent-A-Center’s and Winn-Dixie’s decisions to not hire Plaintiff, particularly when the information in the background reports did not cause Plaintiff’s alleged injuries and damages.
Count II fails as a matter of law because First Advantage did not reinsert previously-disputed information from a report on Plaintiff (in this case the Rent-A-Center report) into a second report it prepared on Plaintiff (the Winn-Dixie report).  The record evidence conclusively establishes that  First Advantage did not report the same record from the same source a second time, and thus never “reinserted” information that had previously been deleted in violation of Section 1681i(a)(5)(B) of the FCRA.
Count III fails as a matter of law because Section 1681b(b)(3) imposes obligations only upon users of consumer reports, and not on CRAs such as First Advantage.  The record  evidence conclusively establishes that First Advantage merely applied Plaintiff’s prospective employers’ hiring eligibility criteria, and that it was not responsible in any way for the ultimate employment decisions at issue in this action.
Count IV claim is brought under Section 1681k(a), which requires a consumer reporting agency to either provide notice to the consumer “at the time” it reports public record information, or to maintain “strict procedures” designed to ensure that public record information that is reported is “complete and up to date.”  The record evidence conclusively establishes that First Advantage complied with both of these alternative compliance options.  First, First Advantage sent Plaintiff notices on the same days it reported public record information about him to Rent-A-Center and Winn-Dixie.  Second, the records reported about Plaintiff were “complete and up to date” and resulted from First Advantage’s maintenance of strict procedures.
Finally, Plaintiff’s contention that First Advantage willfully violated the FCRA is without merit.  Even if First Advantage committed any technical violation of the FCRA, Plaintiff cannot show that the Company’s conduct was “objectively unreasonable” – the applicable test for willfulness.

1. A List of All Exhibits to be Offered at the Trial, Noting any Objections Thereto and the Grounds for Each Objection: Plaintiff’s Exhibit List, with Defendant’s objections thereto, is attached hereto as Exhibit 1-A, and Defendant’s Exhibit List, with Plaintiff’s objections thereto, is attached as Exhibit 1-B.
2. A List of All Witnesses, Including Rebuttal and Expert, Untended to be Called at the Trial of Each Party:  Plaintiff’s Witness List together with its designation of depositions is attached hereto as Exhibit 2-A, and Defendant’s Witness List together with its designation of depositions is attached hereto as Exhibit 2-B.
3. A Concise Statement of Those Facts Which Are Admitted and Will Require no Proof at Trial, Together with any Reservations Directed to Such Admissions:
4. First Advantage Corporation acquired LEXISNEXIS SCREENING SOLUTIONS, INC. through a stock purchase on February 28, 2013. As a result of this acquisition, LEXISNEXIS SCREENING SOLUTIONS, INC. subsequently changed its name to  FIRST ADVANTAGE LNS SCREENING SOLUTIONS, INC.  and it is the proper name for the entity that is liable for any valid claims WILLIAMS had against LEXISNEXIS SCREENING SOLUTIONS, INC. for violations of the FCRA.
5. WILLIAMS is a consumer within the meaning of 15 U.S.C. § 1681a(c) in that he was, at all material times, and is, an individual. FIRST ADVANTAGE is a consumer reporting agency (“CRA”) as defined in 15 U.S.C. § 1681a(f).  The background reports which are the subject of this action are consumer reports within the meaning of 15 U.S.C. § 1681a(d)(1)(B).
6. FIRST ADVANTAGE charged the customers which ordered the background reports referred to below approximately between $11 and $12 for each background report it prepared.
7. In 2012, FIRST ADVANTAGE prepared a total of 9 to 10 million background reports on a nationwide basis and, in 2013, it prepared a total of 10 to 12 million background reports on a nationwide basis.
8. Between 2009 and 2013, 17,341 consumers in the United States filed a dispute with First Advantage complaining that a public record contained in their background report belonged to another individual. Of these disputes, approximately 14,346 resulted in a revised background report.
9. Between 2009 and 2013, 2,038 consumers in Florida filed a dispute with First Advantage complaining that a public record contained in their background report belonged to another individual. Of these disputes, approximately 1,746 resulted in a revised background report.
10. Between 2010 and 2013, FIRST ADVANTAGE prepared 3,554,163 background reports containing public record information on a nationwide basis. During that time, FIRST ADVANTAGE made 13,392 corrections to reports based on consumer disputes where the consumer complained that a public record contained in his/her background report belonged to another individual.  Based on those figures, FIRST ADVANTAGE’s error rate for “not me” or “not mine” errors from 2010 to 2013 was 0.38%.
11. The error rates for only “not me” or “not mine” errors, where a consumer complained that a public record contained in his/her background report belonged to another individual, in Florida only was as follows: 2010 – 0.61%; 2011 – 0.50%; 2012 – 0.64%; 2013 – 0.28%.

Background Report for RENT-A-CENTER

9. RENT-A-CENTER EAST, INC. (“RENT-A-CENTER”) contracted with FIRST ADVANTAGE to perform background services for employment purposes. At the request of RENT-A-CENTER, FIRST ADVANTAGE prepared a background report for RENT-A-CENTER related to WILLIAMS.  The background report was requested by RENT-A-CENTER because WILLIAMS had applied to RENT-A-CENTER for a position as a customer account representative in a RENT-A-CENTER store in Chiefland, Florida.  It was WILLIAMS’ understanding that this position would entail approximately 30 hours of work per week.  The background report is dated February 28, 2012.
10. On or about February 28, 2012, FIRST ADVANTAGE provided the background report to RENT-A-CENTER by electronic means. The background report for RENT-A-CENTER listed the residence address for WILLIAMS as 718 SW 5th Street, Chiefland, Florida 32626-0132.
11. FIRST ADVANTAGE notified WILLIAMS that it was reporting public records information allegedly concerning WILLIAMS to RENT-A-CENTER. This notification was dated February 28, 2012.   This notification was mailed to WILLIAMS.
12. FIRST ADVANTAGE included a match made by FIRST ADVANTAGE between WILLIAMS and a criminal record relating to Ricky Williams for an arrest for the sale of cocaine and related bench warrant occurring in Palm Beach County (the “Palm Beach County Record”) in the background report it prepared for RENT-A-CENTER. This match between WILLIAMS and the Palm Beach County Record was based on the last name and date of birth being the same for WILLIAMS and Ricky Williams and Ricky being similar to WILLIAMS’ first name, Richard, as well as the fact that WILLIAMS lived in Florida where the crime occurred.
13. WILLIAMS is not the same person as the person who is the subject of the Palm Beach County Record and the background report FIRST ADVANTAGE prepared for RENT-A-CENTER was, therefore, inaccurate.
14. “Richard Williams” is a common name.
15. On March 1, 2012, WILLIAMS disputed the content of the background report FIRST ADVANTAGE prepared for RENT-A-CENTER.
16. On or about March 12, 2012, FIRST ADVANTAGE issued a revised background report on WILLIAMS to RENT-A-CENTER in which the disputed Palm Beach County Record was removed.
17. FIRST ADVANTAGE sent the revised background report to WILLIAMS on March 14, 2012.

Background Report for WINN-DIXIE

18. WINN-DIXIE contracted with FIRST ADVANTAGE to perform background services for employment purposes. At the request of WINN-DIXIE, FIRST ADVANTAGE prepared a background report relating to WILLIAMS.    The background report was requested by WINN-DIXIE because WILLIAMS had applied to WINN-DIXIE for a position as a part-time liquor store team member at a Winn Dixie store.    This background report was dated April 25, 2013.
19. On or about April 25, 2013, FIRST ADVANTAGE provided the background report regarding WILLIAMS to WINN-DIXIE by electronic means.
20. The background report FIRST ADVANTAGE prepared for WINN-DIXIE indicated that WILLIAMS’ address was a P.O. Box 123, Chiefland, Florida 32626.
21. FIRST ADVANTAGE included a match made by FIRST ADVANTAGE between WILLIAMS and a criminal record for Ricky Williams’ conviction for burglary, assault, battery on a pregnant woman from Broward County (the “Broward County Record”) in the background report it prepared for WINN-DIXIE. This match between WILLIAMS and the Broward County  Record was based on the last name and date of birth being the same for WILLIAMS and Ricky Williams and Ricky being similar to WILLIAMS’ first name, Richard, as well as the fact that WILLIAMS lived in Florida where the crime occurred.
22. WILLIAMS is not the same person as the person who is the subject of the Broward County Record and the background report FIRST ADVANTAGE prepared for WINN-DIXIE was, therefore, inaccurate.
23. FIRST ADVANTAGE’s notice to WILLIAMS that it was reporting public records information concerning him to WINN-DIXIE was dated April 25, 2013.
24. On May 2, 2013, WILLIAMS disputed the content of the background report for WINN-DIXIE.
25. On or about May 24, 2013, FIRST ADVANTAGE prepared a revised background report on WILLIAMS to WINN-DIXIE in which the Broward County Record was removed.
26. The revised background report on WILLIAMS was sent to WILLIAMS on May 28, 2013.
27. WILLIAMS was told that he was hired by WINN-DIXIE subject to him passing a drug test and background check. Though he passed a pre-employment drug test, WILLIAMS was not hired by WINN-DIXIE until November 2013.
28. A Concise Statement of Those Issues of Law Upon Which There is Agreement:
29. Pursuant to 15 U.S.C. § 1681e(b), in preparing a background report, FIRST ADVANTAGE was required to follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.
30. Pursuant to 15 U.S.C. § 1681i(a)(5)(B)(i), if any information was deleted from a WILLIAMS’ file at FIRST ADVANTAGE pursuant to 15 U.S.C. §1681i(a)(5)(A), the information may not be reinserted in the file by FIRST ADVANTAGE unless the person who furnishes the information certifies that the information is complete and accurate. Additionally, pursuant to 15 U.S.C. § 1681i(a)(5)(B)(ii), if any information that has been deleted from WILLIAMS’ file pursuant to 15 U.S.C. §1681i(a)(5)(A) was reinserted in the file, FIRST ADVANTAGE was required to notify WILLIAMS of the reinsertion in writing not later than 5 business days after the reinsertion or, if authorized by the WILLIAMS for that purpose, by any other means available to FIRST ADVANTAGE.  Under 15 U.S.C. §1681i(a)(5)(B)(iii) as part of, or in addition to, the notice under 15 U.S.C. §1681i(a)(5)(B)(ii), FIRST ADVANTAGE was required to provide to WILLIAMS in writing not later than 5 business days after the date of the reinsertion– (I) a statement that the disputed information has been reinserted; (II) the business name and address of any furnisher of information contacted and the telephone number of such furnisher, if reasonably available, or of any furnisher of information that contacted the consumer reporting agency, in connection with the reinsertion of such information; and (III) a notice that the consumer has the right to add a statement to the consumer’s file disputing the accuracy or completeness of the disputed information.
31. Under 15 U.S.C. § 1681b(b)(3)(A), any persons using the subject background reports on WILLIAMS for employment purposes, before taking any adverse action based in whole or in part on the report, was required to provide to WILLIAMS– (i) a copy of the report; and (ii) a description in writing of the rights of the consumer under this subchapter, as prescribed by the Bureau under 15 U.S.C. § 1681g(c)(3) of this title. Pursuant to 15 U.S.C. § 1681a(k)(1)(B)(ii),  an adverse action under 15 U.S.C. § 1681b(b)(3)(A) includes “a denial of employment or any other decision for employment purposes that adversely affects any current or prospective employee.”
32. Pursuant to 15 U.S.C. § 1681k(a), FIRST ADVANTAGE was required to: (1) at the time it provided public record information to a user of a background report prepared by FIRST ADVANTAGE that is likely to have an adverse effect upon WILLIAMS’ ability to obtain employment, notify WILLIAMS of the fact that public record information is being reported by FIRST ADVANTAGE, together with the name and address of the person to whom such information is being reported; or (2) maintain strict procedures designed to insure that whenever public record information which is likely to have an adverse effect on a consumer’s ability to obtain employment is reported, it is complete and up to date. For purposes of this paragraph, items of public record relating to arrests, indictments, convictions, suits, tax liens, and outstanding judgments shall be considered up to date if the current public record status of the item at the time of the report is reported.
33. A Concise Statement of Those Issues of Fact Which Remain to be Litigated:
34. Whether FIRST ADVANTAGE followed reasonable procedures to assure maximum possible accuracy of the information concerning Plaintiff in the consumer reports FIRST ADVANTAGE prepared for Rent-A-Center and Winn-Dixie.

            Defendant’s Additional Issues of Fact

2. Whether the information in FIRST ADVANTAGE’s consumer reports caused Rent-A-Center and Winn-Dixie to deny part-time employment to Plaintiff.
3. Whether Plaintiff suffered any damages as a result of the information in FIRST ADVANTAGE’s consumer reports, and if so, the amount of such damages.

Plaintiff’s Additional Issues of Fact

4. Whether, at the time the subject background reports were prepared, each member of the FIRST ADVANTAGE’s Records Adjudication Team had a goal of 30 “touches” or tasks per hour.
5. Whether, at the time the subject background reports were prepared, each member of the FIRST ADVANTAGE’s Court Records Retrieval Group had a goal of 23 research projects per hour.
6. Whether, at the time the subject background reports were prepared, each member of the FIRST ADVANTAGE’s Consumer Dispute Reinvestigation Team had a goal of 24 to 25 units per day or a little more than 3 units per hour. A unit involves the handling of a consumer dispute of a background report or reviewing a report that has been blocked because a record referenced in the report has been previously successfully disputed and, if appropriate, unblocking that report.
7. Whether, at the time of preparing the background report for RENT-A-CENTER dated February 28, 2012, FIRST ADVANTAGE knew that this background report was being prepared because WILLIAMS had applied to RENT-A-CENTER for a position as a customer account representative in a RENT-A-CENTER store in Chiefland, Florida.
8. Whether RENT-A-CENTER should have received the Background Report within minutes or, at most, hours, of the time FIRST ADVANTAGE sent it the Background Report for RENT-A-CENTER.
9. Whether, although on RENT-A-CENTER letterhead, the cover letter/notification forwarding the Background Report on WILLIAMS prepared for RENT-A-CENTER, along with this Background report, was sent to WILLIAMS by FIRST ADVANTAGE on behalf of RENT-A-CENTER by U.S. Mail.
10. Whether the envelope in which the Background Report on WILLIAMS to RENT-A-CENTER was mailed to WILLIAMS was postmarked March 1, 2012, 2 days, and 2 business days, later.
11. Whether, in the background report prepared for RENT-A-CENTER, FIRST ADVANTAGE adjudicated WILLIAMS “ineligible” for employment based on the application of criteria provided to FIRST ADVANTAGE by RENT-A-CENTER to the information contained in its National Criminal File, a database at FIRST ADVANTAGE.
12. Whether, in making this adjudication, FIRST ADVANTAGE also considered 6 criminal records it obtained in a Public Record Report relating to a search of felony and misdemeanor records of the Palm Beach Circuit and County Courts-Criminal Division.
13. Whether, information contained in its National Criminal File causing FIRST ADVANTAGE to adjudicate WILLIAMS as “ineligible” consisted of two of these Palm Beach County cases, case number 502009CF001220AXXXMB and case number 502009CF001221AXXXMB and whether these related to a charge for the felony sale of cocaine and bench warrant, both against a Ricky Williams (case date 01/28/2009; (apparent) disposition date 03/24/2009) (referred to herein as “Ricky Williams Criminal Record-Cocaine”).
14. Whether, the results of a search of the records of Levy County for criminal records matching WILLIAMS conducted at the time of the preparation of the Background Report for RENT-A-CENTER was negative. Whether the public record information reported to Rent-A-Center was information that was likely to have an adverse effect upon a WILLIAMS ability to obtain employment.
15. Whether the envelope in which FIRST ADVANTAGE’S notification to WILLIAMS that it was mailing public record information was postmarked March 1, 2012, 2 days, and 2 business days, after the date on the notification and the date it was sent electronically to Rent-A-Center.
16. Whether WILLIAMS was matched with the public records relating to Ricky Williams in the background report FIRST ADVANTAGE prepared for RENT-A-CNETER based on the use of middle names or middle initials, name prefix, name suffix, social security number, driver’s license number, driver’s license state, business name, tax ID number or the use of address.
17. Whether the 6 criminal cases associated with a Ricky Williams having the date of birth of 08/09/1981 in Palm Beach County, Florida courts referred to above, occurred between May 9, 2001 and January 28, 2009 and whether the crimes reported and the date of the case filing relating to them in the Public Records Report are: possession of cocaine with intent to sell or deliver, case date: 5/9/2001, disposition date: 10/9/2002; driving while license suspended, cancelled, or revoked, case date case date: 5/14/2001, disposition date: 01/29/2003; resist[ing] officer with violence, case dated: 10/4/2002, disposition date: 03/10/2003; trespass in occupied structure/conveyance (2 counts), case dated: 02/26/2004; disposition date: 5/18/2004; sale of cocaine, case date: 01/28/2009, disposition: bench warrant, disposition date: 3/24/2009 (2 cases – 502009CF001220AXXXMB and 502009CF001221AXXXMB). Also, whether the last items, relating to the Ricky Williams arrest for the sale of cocaine and associated bench warrant, were included in the background report on WILLIAMS prepared for RENT-A-CENTER.
18. Whether it is at least 260 miles from 718 SW 5th Street, Chiefland, Florida 32626-0132 to the closest point in Palm Beach County, Florida and whether, despite the indication that the place where WILLIAMS lived was at least 260 miles away from the place where Ricky Williams had 6 criminal cases from 2001 through 2009, FIRST ADVANTAGE included the match to the Palm Beach County Records in the background report it sent to RENT-A-CENTER.
19. Whether, FIRST ADVANTAGE has the use of a computer data service run by Experian to develop additional identifiers, predominately social security numbers for a person and whether FIRST ADVANTAGE uses this system to determine if there are different Social Security numbers for persons having the same or similar names and the same date of birth so that FIRST ADVANTAGE can determine if there is one person or more than one person with the same last name, similar first names, and the same date of birth. Whether FIRST ADVANTAGE failed to use Experian to develop social security identifiers or in any other way, such as an address history, in preparing the background report FIRST ADVANTAGE prepared for RENT-A-CENTER so that FIRST ADVANTAGE can determine if there is one person or more than one person with the same last name, similar first names, and the same date of birth living in different parts of the state.  Also, whether the Records Adjudication Team of FIRST ADVANTAGE does not have the use of a similar computer data service known as Accurint for preparing background reports and whether FIRST ADVANTAGE’s Consumer Dispute Reinvestigation Team uses Accurint when investigating consumer disputes of background reports.
20. Whether, in the background report FIRST ADVANTAGE prepared for RENT-A-CENTER, right under “name on file: Ricky Williams” FIRST ADVANTAGE inserted the first five digits of WILLIAMS’ social security number.
21. Whether, under FIRST ADVANTAGE’s standard operating procedures, if there is “a common name involved, the record needs to go for manual review and an additional search at the court level online system, to determine whether or not there’s additional identifying information to distinguish the individuals from each other” needs to be performed. Whether, a SSN, a driver’s license number, or a middle initial were examples of what Defendant would require before matching a consumer with a common name like “Williams.”  Whether, however, FIRST ADVANTAGE only does this if those additional identifiers are included on the initial, limited, data Defendant’s retrieves, or Defendant could find it in the “court-level online system.”  Whether, under this procedure, “[i]f a 3rd identifier cannot be located, appropriate notes should be included in F8 as to attempts made, and the record reported with supervisor approval.”  Whether FIRST ADVANTAGE will therefore sell background reports, as they did here, where only two identifiers (last name and date of birth) of the consumer exactly matching the information in the criminal records.
22. Whether, in determining to remove the match between WILLIAMS and the Palm Beach County Records relating to Ricky Williams arrest for the sale of cocaine and related bench warrant, FIRST ADVANTAGE compared the height listed on the driver’s license of WILLIAMS, which was 5’10,” and on court record for Ricky Williams’ arrest for the sale of cocaine (and bench warrant), which was 6’2” and removed this match based on the height discrepancy.
23. Whether, WILLIAMS’ dispute of the background report for RENT-A-CENTER was initiated on March 1, 2012, and whether the revised background report for RENT-A-CENTER was not sent to WILLIAMS or RENT-A-CENTER until March 14, 2012.
24. Whether, on February 28, 2012, the date of the background report prepared by FIRST ADVANTAGE for RENT-A-CENTER, RENT-A-CENTER changed the status of WILLIAMS’ application for employment as a customer account representative at Store number 4187 to “rejected” with the notation “BKGD in Step Background Check.” Whether a status of a job application relating to store 4187 to RENT-A-CENTER states “candidate Richard failed BG-advised DM to continue his search.”  Whether WILLIAMS was to be hired by RENT-A-CENTER subject to a background report and a drug test but, though he passed the drug test, he was never hired by RENT-A-CENTER.
25. Whether, at the time of preparing the Background Report for WINN-DIXIE, FIRST ADVANTAGE knew that the Background Report for WINN-DIXIE was being prepared because WILLIAMS had applied to WINN-DIXIE for a position as a part-time liquor store team member at a WINN-DIXIE store.
26. Whether, WINN-DIXIE should have received the Background Report for WINN-DIXIE within minutes or, at most, hours of the time FIRST ADVANTAGE sent the Background Report for WINN-DIXIE
27. Whether, although on WINN DIXIE letterhead, the cover notification forwarding the Background Report on WILLIAMS prepared for WINN-DIXIE, along with this background report, was sent to WILLIAMS by FIRST ADVANTAGE on behalf of WINN-DIXIE by U.S. Mail and whether the envelope in which the background report on WILLIAMS prepared by FRIST ADVANTAGE for WINN-DIXIE was mailed is postmarked April 29, 2013, 4 days, and 2 business days, after the date it was dated and sent electronically to Winn-Dixie.
28. Whether, in the background report for WINN-DIXIE, FIRST ADVANTAGE adjudicated or scored WILLIAMS “ineligible” for employment based on information contained in its National Criminal File when compared with the criteria provided to FIRST ADVANTAGE by WINN-DIXIE. Whether, the information contained in its National Criminal File which caused FIRST ADVANTAGE to adjudicate WILLIAMS as “ineligible” as referenced in the preceding paragraph consisted of a public record relating to a conviction of Ricky Williams occurring on or about April 28, 2004 in Broward County, Florida case number 02014530CF10B for “burglary assault any person” and “aggravated battery” on a “pregnant” woman (case date: 11/26/2002’ disposition date: 04/28/2004).    Whether, the results of a search of the records of Levy County for criminal records matching for WILLIAMS conducted at the time of the preparation of the Background Report for WINN-DIXIE was negative.
29. Whether, it is at least 300 miles from Chiefland, Florida to the closest point in Broward County, Florida.
30. Whether, the Background Report on WILLIAMS prepared by FIRST ADVANTAGE for WINN-DIXIE lists Ricky Williams’ address as 2533 Angler Drive, Delray Beach, Florida. 2533 Angler Drive, Delray Beach, Florida is in Palm Beach County, Florida, and whether it is approximately 300 miles from Chiefland, Florida to 2533 Angler Drive, Delray Beach, Florida.
31. Whether, the match made by FIRST ADVANTAGE between WILLIAMS and the Broward County Records was based on the use of middle names or middle initials, name prefix, name suffix, social security number, driver’s license number, driver’s license state, business name, address, or tax ID number.
32. Whether prior to the preparation of the Background Report on WILLIAMS for WINN-DIXIE, FIRST ADVANTAGE had developed a standard operating procedure (dated March 1, 2012) allowing the use of Experian to search for addresses of a consumer to confirm a match where the consumer has a common name and there is a matching date of birth but there is an address “returned” which is not supplied by the consumer. Whether an address history is useful “as an additional step to perform that confirmation or validation” in determining whether an arrest record that occurs in a certain place is actually the applicant’s or not.”   Whether, however, as with the Background Report for RENT-A-CENTER, in preparing the background report for WINN-DIXIE FIRST ADVANTAGE did not use Experian to search for addresses (to determine if there were one or more than one individuals with the same last name and same date of both living in Florida) or develop social security identifiers though it had the use of that service.  Whether FIRST ADVANTAGE’s Records Adjudication Team did not have the use of Accurint for the purpose of developing identifiers.  Whether, in fact, no address history of WILLIAMS was prepared by FIRST ADVANTAGE until WILLIAMS disputed the Background Report for WINN-DIXIE.
33. Whether, although, in preparing the report for RENT-A-CENTER, FIRST ADVANTAGE verified information with the Palm Beach County Clerk of Court, no such research was done in relation to the Background Report to WINN-DIXIE and Mr. O’Connor, whose team would have done the research if any had been done, has no explanation for why such research was not done. Whether FIRST DVANTAGE did review a page of the website of the Florida Department of Corrections relating to Ricky Williams when preparing the Background Report for WINN-DIXIE and whether this website indicated that Ricky Williams’ height was 6’2.”
34. Whether WINN-DIXIE provided a social security number for WILLIAMS to FIRST ADVANTAGE. Whether the social security number WINN-DIXIE provided to FIRST ADVANTAGE for WILLIAMS did not match the social security number for Ricky Williams found on the page of the Broward Offense Report marked FIRST ADVANTAGE-WILLIAMS.
35. Whether the page marked FIRST ADVANTAGE-WILLIAMS-40 also indicates that Ricky Williams used the suffice “Jr.” Whether anyone ever indicated to FIRST ADVANTAGE that WILLIAMS used the suffice “Jr.”
36. Whether the public record information concerning WILLIAMS FIRST ADVANTGAE reported to WINN-DIXIE was likely to have an adverse effect upon a WILLIAMS’ ability to obtain employment., Whether the envelope in which the notification of the reporting or public record information concerning WILLIAMS was mailed was postmarked April 29, 2013, 4 days, and 2 business days after the date of the notification and the date the public records information was reported to WINN-DIXIE electronically.
37. Whether, WILLIAMS received this mailing on May 2, 2013.
38. Whether, in removing the match between WILLIAMS and the Broward County Records relating to Ricky Williams’ conviction, FIRST ADVANTAGE “pulled” the records and realized that the social security number found in this report was not WILLIAMS’ social security number. Whether, at the time of WILLIAMS’ dispute of the Background Report for WINN-DIXIE, FIRST ADVANTAGE reviewed the address history report obtained from Accurint, which showed an address history for WILLIAMS (for several years) in which none of the addresses matched the address in the Broward County Records.
39. Whether it took FIRST ADVANTAGE 26 days after WILLIAMS initiated his dispute to revise the background report on him prepared for WINN-DIXIE.
40. Whether, at the time that WINN-DIXIE requested FIRST ADVANTAGE to prepare a background report as to WILLIAMS, FIRST ADVANTAGE knew that there was an individual named Ricky Williams who had the same date of birth as WILLIAMS, who was not WILLIAMS and who had been arrested for selling cocaine and whose public records for the sale of cocaine and a bench warrant had been erroneously matched by FIRST ADVANTAGE with WILLIAMS. Whether, FIRST ADVANTAGE maintains and reviews a history of its production of past background reports when producing a new background report.
41. Whether, FIRST ADVANTAGE only has the ability to block a background report containing a successfully disputed criminal record, but does not have the ability to block a match between a consumer and records that were not previously disputed or a match between a consumer and a person whose criminal records were previously erroneously matched to that consumer. Whether, under FIRST ADVANTAGE’s blocking procedure, the record of any crime which is not included in a background report, cannot be disputed and, therefore, whether a report containing that record cannot be blocked.  Whether FIRST ADVANTAGE had a system set up to alert FIRST ADVANTAGE personnel preparing a background report that there has been a previous erroneous match between two people who have the same last name, similar first name, and the same date of birth where one of them has committed a criminal act.
42. Whether WILLIAMS received a notification that FIRST ADVANTAGE was reinserting information indicating that he was the criminal Ricky Williams in his consumer file, or certification that the information was complete and accurate.
43. Whether, WILLIAMS was considered by WINN-DIXIE ineligible for hiring based on the Background Report to WINN-DIXIE and only became eligible for hiring after the Revised Background Report to WINN-DIXIE was prepared. Whether, the correspondence WILLIAMS received from Winn-Dixie along with a copy of the Background Report related to him indicated that WILLIAMS should address any disputes of the background report to LexisNexis Screening Solutions, Inc. (n/k/a First Advantage LNS Screening Solutions, Inc.).  Whether, WILLIAMS contacted the manager of the department (liquor store) for the position he was applying for at WINN-DIXIE to advise him that the records in the background report for Ricky Williams, relating to an assault, burglary, and aggravated battery on a pregnant woman, were not his.
44. Whether WILLIAMS has fulfilled all conditions precedent to the bringing of the action.
45. Whether the information in FIRST ADVANTAGE’s consumer reports was a substantial factor in the decision of Rent-A-Center and Winn-Dixie to deny employment to Plaintiff.
46. Whether the information in the consumer reports prepared by FIRST ADVANTAGE and/or the adjudications therein was a substantial factor in causing damages to WILLIAMS, and if so, the amount of such damages.
47. A Concise Statement of Those Issues of Law Which Remain for Determination of by the Court:
48. Whether FIRST ADVANTAGE notified Plaintiff of the fact that it was reporting public information about him at the time it reported such public information to Rent-A-Center and Winn-Dixie.
49. Whether FIRST ADVANTAGE maintained strict procedures designed to insure that when it reported public information that was likely to have an adverse effect on Plaintiff’s ability to obtain employment, such information was complete and up to date.
50. Whether FIRST ADVANTAGE’s reading of its obligations under the FCRA is objectively unreasonable.

            Defendant’s Additional Issues of Law

4. Whether FIRST ADVANTAGE reinserted previously deleted information pursuant to its reinvestigation of Plaintiff’s dispute of information contained in the consumer report prepared for Rent-A-Center, namely a record for the sale of cocaine from Palm Beach County, in the consumer report it prepared for Winn-Dixie.
5. Whether FIRST ADVANTAGE took any adverse action against Plaintiff.

Plaintiff’s Additional Issues of Law

1. What is meant by “reinsertion of information” under 15 U.S.C. §1681i(a)(5)(B)(i)?
2. WILLIAMS agrees that whether FIRST ADVANTAGE reinserted previously deleted information pursuant to its reinvestigation of Plaintiff’s dispute of information contained in the consumer report it prepared for RENT-A-CENTER is an issue of law for determination for the Court but believes that FIRST ADVANTAGE reinserted information when it stated in the background report it prepared for WINN-DIXIE that WILLIAMS was Ricky Williams.
3. Can FIRST ADVANTAGE be a “person” “using” a consumer reports as well as be a CRA under 15 U.S.C. § 1681b(b)(3)(A)?
4. Whether, under 15 U.S.C. §1681a(k)(B)(iv), an adverse action for the purposes of 15 U.S.C. § 1681b(b)(3)(A) is an action taken or determination is made in connection with an employment application made by consumer and adverse to the interest of the consumer.
5. Whether FIRST ADVANTAGE took any adverse action against Plaintiff within the meaning of 15 U.S.C. § 1681b(b)(3)(A)/(15 U.S.C. §1681a(k)(B)(ii)) and also within the meaning of 15 U.S.C. §1681a(k)(B)(iv).
6. Is mailing a notice of providing public record information to a consumer “at the time” it is provided to a user if that public record information is provided electronically to the user of such public record information as the term “at the time” is used in 15 U.S.C. § 1681k(a)(1).[1]
7. Does “at the time,” within the meaning of 15 U.S.C. § 1681k(a)(1), mean at the same time.
8. What is meant by “strict procedures designed to insure that whenever public record information which is likely to have an adverse effect on a consumer’s ability to obtain employment is reported it is complete” as found in 15 U.S.C. § 1681k(a)(2). Specifically, if a consumer reporting agency fails to follow reasonable procedures to assure maximum possible accuracy of the information concerning a consumer about whom it prepares a report, does it necessarily follow that it has failed to maintain such strict procedures.
9. Whether, under 15 U.S.C. §1681e(b), if WILLIAMS proves that a background report was inaccurate (which is stipulated to by the parties), the burden shifts to FIRST ADVANTAGE to prove that, in preparing that background report, it followed reasonable procedures to assure maximum possible accuracy of the information concerning Richard Williams contained in the background report or reports.
10. Whether, under 15 U.S.C. §1681k(a), if WILLIAMS proves that FIRST ADVANTAGE reported inaccurate public record information (which is stipulated to by the parties) that was likely to have an adverse effect upon his ability to obtain employment to a user of that background report, and also proves that FIRST ADVANTAGE failed to, at the time the public record information is reported, notify him of the fact that public record information is being reported and provide him with the name and address of the person to whom such information was being reported, the burden shifts to FIRST ADVANTAGE to prove that, in preparing the background report or reports, it maintained strict procedures designed to insure that, whenever public record information which is likely to have an adverse effect on a consumer’s ability to obtain employment is reported, it is complete and up to date.
11. [Post-trial] Whether WILLIAMS is entitled to have attorney’s fees and costs taxed against FIRST ADVANTAGE and if so, the amount of such attorney’s fees and costs.
12. A Concise Statement of any Disagreement as to the Applications of Rules of Evidence or of the Federal Rules of Civil Procedure: See Plaintiff’s Third and Fourth Motions in Limine and Defendant’s Motion in Limine.
13. A list of all Motions or Other Matters Which Require Action by the Court: Plaintiff’s Third and Fourth Motions in Limine and Defendant’s Motion in Limine.
14. A Statement Whether this is now a Jury or a Non-Jury Case: Jury.
15. Counsels Respective Estimated of the Length of the Trial: Plaintiff’s counsel-6 days; Defendant’s counsel-4 days.
16. Additional Stipulations: The parties stipulate that the Excel spreadsheet of financial information provided by counsel for FIRST ADVANTAGE to counsel for WILLIAMS with the identifying information BCK/398 is an accurate statement of the balance sheet and income statement for FIRST ADVANTAGE for the time frames indicated thereon and that counsel for Plaintiff may represent this to the jury.  The parties further stipulate that this document may be printed out and is admissible in evidence.