As summarized by Pam Devata of Seyfarth and Shaw October 6, 2015: “Judge Spero in the Northern District of California granted a motion to dismiss a putative disclosure and authorization class filed against Kohl’s. The plaintiffs argued that the Consent & Disclosure Form was not a stand-alone disclosure because it was presented with the Employment Application, and that was “one document as ‘part of the same employment packet.’” The court rejected this theory, finding on their face the two forms were separate documents, were signed by each plaintiff separately, the formatting (landscape vs. portrait) was distinct on each document, each had a separate title, and each form bore its own internal form code. The court pointed out that, importantly, each form served a different and distinct function. Additionally, the court found no support in the FCRA or case law that the documents could not be presented together. Indeed, the court distinguished as inapposite both Speer v. Whole Foods and Avila v. NOW Health because in those cases, unlike in Kohl’s, the disclosure and release of liability were in the same document.
The court further found that the Consent & Disclosure form (in fact, there were two: non-CA and CA-specific forms) passed muster under the FCRA despite containing other “relevant information such as the consumer reporting agency and the consumer’s right to review the report obtained.” Although the court did not go into this level of detail, as it turns out, the Consent & Disclosure form included a form for the consumer to fill out his/her: Applicant Name; Social Security Number; Date of Birth; Drivers License # or State Issued ID #; Present Address (including dates of residence); Previous Address (including dates of residence); and contained a certification by Kohl’s that the consumer report would be used only for employment purposes. The non-CA form also included a separate notice and check box for Minnesota and Oklahoma applicants. The CA-specific form included a check box to request a copy of the consumer report.”