### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 17

‐ 3196

S HAMECA S. R OBERTSON

, on behalf of herself and all others

similarly situated,

Plaintiff

‐ Appellant

,

v.

A LLIED S OLUTIONS

, LLC,

Defendant

‐ Appellee

.

____________________

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 1:15

‐ cv

‐ 1364

‐ WTL

‐ DML

— William T. Lawrence

, Judge

.

____________________

A RGUED F EBRUARY 20, 2018

— D ECIDED A UGUST 29, 2018

____________________

Before W OOD

, Chief Judge

, and E ASTERBROOK and

B ARRETT

, Circuit Judges

.

W OOD

, Chief Judge

. Employers rarely extend job offers

without first checking the applicant’s background and refer

‐

ences. They are free to conduct such checks, but they must

follow certain rules. Many of those rules come from the Fair

Credit Reporting Act (FCRA or Act), 15 U.S.C. §§ 1681–

1681x. Shameca Robertson alleges that Allied Solutions, LLC2 No. 17

‐ 3196

(“Allied”) disregarded several of the Act’s requirements

when she applied for a position with the company. This ac

‐

tion, filed on behalf of herself and two proposed classes,

seeks to hold Allied accountable for those missteps. The par

‐

ties tentatively had agreed to settle Robertson’s two class

claims when the district court on its own initiative raised

some concerns about her standing to sue under Article III. It

asked for briefing on that issue and then dismissed the entire

action for want of jurisdiction.

At this juncture we accept Robertson’s allegations, but we

still must examine whether Allied’s alleged violations of the

Act caused her any concrete injury. Because the answer is in

part “yes,” we reverse the dismissal for lack of jurisdiction of

one of Robertson’s claims and remand for further proceed

‐ ings. The district court’s dismissal of the other claim was

proper, because its authority to adjudicate must exist before

it can resolve the case, even if that resolution is nothing more

than a fairness hearing under Federal Rule of Civil Proce

‐

dure 23(e), followed by approval of a settlement.

I

Robertson applied for a position with Allied. It offered

her the job, but it ran a background check before she report

‐

ed to work. Ordinary background checks qualify as consum

‐

er reports under the FCRA. See 15 U.S.C. § 1681a(d)(1). Al

‐

lied thus was required to alert Robertson “clear[ly] and con

‐ spicuous[ly]” of its intent to obtain the report and to secure

her consent. Id. § 1681b(b)(2)(A). Those disclosures needed to

be in writing and unadorned by any additional information.

Id. Robertson complains that they were not. Instead, the

forms she received were neither clear nor conspicuous, and

they included extraneous information. She did not allege,No. 17

‐ 3196 3

however, that the added information affected her consent to

the check.

Certain “non

‐ conviction information” (the nature of

which is immaterial for present purposes) turned up in the

course of Robertson’s background check. This information

prompted Allied to revoke the job offer. A representative

from its human resources department passed that word

along to Robertson. She alleges that the representative told

her only that the offer was being rescinded “because of in

‐

formation in her ‘criminal background check’ report.” An

employer that relies in any measure on a background check

for an adverse employment decision (including rescinding a

job offer, see id. § 1681a(k)) must provide the applicant with

a copy of the report and a written description of her rights

under the FCRA before acting. Id. § 1681b(b)(3)(A). Allied

provided neither to Robertson.

She responded with this lawsuit. Her complaint includes

two claims, each on behalf of a distinct subclass. First, she

sued Allied for failing to furnish clear and conspicuous dis

‐

closure forms. We call this the notice claim. Second, she sued

Allied for taking an adverse employment action based on

her background check without first supplying a copy of the

report or a written summary of her FCRA rights. This is her

adverse

‐ action claim.

After mediation in April 2016, the parties reached a tenta

‐

tive settlement agreement. A month later, the Supreme Court

decided Spokeo, Inc. v. Robins

, 136 S. Ct. 1540 (2016), in which

it emphasized that federal jurisdiction exists (as relevant

here) only if the plaintiff has alleged an injury that is both

concrete and particular to herself. Neither Allied nor the

court responded immediately to Spokeo

. Several months lat

‐4 No. 17

‐ 3196

er, Robertson filed an unopposed motion under Federal Rule

of Civil Procedure 23(e) for preliminary approval of the set

‐

tlement agreement and for certification of two settlement

classes. Instead of acting on the motion, however, the district

court raised Spokeo on its own and asked the parties first to

brief the question whether Robertson had Article III stand

‐ ing. The court then learned that related issues were pending

before this court in Groshek v. Time Warner Cable, Inc.

, 865

F.3d 884 (7th Cir. 2017), and so it delayed ruling. After we

ruled in Groshek that an injury functionally indistinguishable

from the one underpinning Robertson’s notice claim was not

concrete and did not confer standing, id. at 887, the district

court ordered Robertson to show cause why her case should

not be dismissed for the same reason. In its order, the court

rejected as “simply wrong” Robertson’s assertion that it

could approve the settlement agreement without jurisdiction

over the underlying case.

Eventually the district court dismissed the entire case for

lack of standing. It held that Groshek compelled that result

for Robertson’s notice claim. With respect to the adverse

‐

action claim, the court ruled that because Robertson had not

pleaded facts connecting the lost offer with Allied’s failure to

turn over a copy of the background report, it too had to be

dismissed. Had Robertson pleaded, for example, that the re

‐

port was inaccurate or that she favorably could explain the

report’s content, the court indicated that it might have ruled

that she sustained an Article III injury. It refused to permit

her to amend her complaint because she never indicated

what facts she could allege that would support jurisdiction.

She now appeals.No. 17

‐ 3196 5

II

The Constitution confines “the judicial Power” of the

federal courts to “Cases” and “Controversies.” U.S. C ONST

.

art. III, § 2. Courts police this limit through the standing doc

‐

trine, among others. Standing to bring a suit in federal court

depends on the plaintiff’s having suffered an injury in fact,

which she can trace to the defendant’s challenged conduct,

and which can be redressed by a favorable judicial decision.

Spokeo

, 136 S. Ct. at 1547. The injury requirement is the criti

‐

cal one in the present case. A qualifying injury must be both

concrete and particular to the plaintiff. Id

. at 1548. The only

issue here is whether Robertson suffered a concrete injury;

she has said enough to support the other requirements for

standing at this time.

An Article III injury may exist solely because a defendant

infringes a congressionally created right. Lujan v. Defenders of

Wildlife

, 504 U.S. 555, 578 (1992). Even though not all statuto

‐

ry violations inflict concrete personal harm, Spokeo

, 136 S. Ct.

at 1549, withholding information when a statute requires its

publication—sometimes called an “informational injury”—

may do so. See Fed. Election Comm’n v. Akins

, 524 U.S. 11, 24–

25 (1998). An informational injury is concrete if the plaintiff

establishes that concealing information impaired her ability

to use it for a substantive purpose that the statute envi

‐

sioned. Bensman v. U.S. Forest Serv.

, 408 F.3d 945, 952–53 (7th

Cir. 2005); see also Akins

, 524 U.S. at 21–22 (plaintiffs suf

‐

fered a concrete injury because they wanted to use withheld

information to evaluate candidates for public office, which is

a substantive reason the Federal Election Campaign Act re

‐ quires publication); Pub. Citizen v. U.S. Dep’t of Justice

, 491

U.S. 440, 449 (1989) (plaintiffs suffered a concrete injury be

‐6 No. 17

‐ 3196

cause they wanted to use withheld information to monitor

judicial nominees, which is a substantive reason behind the

Federal Advisory Committee Act’s publication requirement).

The concreteness of an injury is also informed by the pedi

‐

gree of the alleged harm in English and American courts.

Spokeo

, 136 S. Ct. at 1549; Groshek

, 865 F.3d at 887.

On appeal, Robertson challenges the district court’s

standing decision only with respect to her adverse

‐ action

claim, which arises under section 1681b(b)(3)(A). (We ex

‐

press no opinion on the question whether Robertson would

have suffered a concrete injury if she had alleged only that

Allied did not tender written notice of her rights before tak

‐ ing adverse action. The problem with that argument is that it

describes only a procedural injury. Robertson did not indi

‐

cate how, if the procedures had properly been followed, she

might have persuaded Allied to hire her. With or without

written notice of her rights, Robertson would not have be

‐

come an Allied employee.) She characterizes her adverse

‐

action injury as one fitting the informational

‐ injury model.

By withholding her background report, she says, Allied lim

‐

ited her ability to review the basis of the adverse employ

‐

ment decision and impeded her opportunity to respond. The

ability to respond, she contends, is the substantive purpose

for which the Act compels employee disclosure.

We review the legal arguments about Robertson’s Arti

‐

cle III standing de novo

. Lewert v. P.F. Chang’s China Bistro,

Inc.

, 819 F.3d 963, 966 (7th Cir. 2016). Before proceeding to

the heart of the appeal we must dispense with some prelim

‐ inary matters. Allied argues that Robertson has waived the

injury argument she now advances. This is a baseless posi

‐

tion. Robertson advanced this argument in response to theNo. 17

‐ 3196 7

district court’s Order to Show Cause, and so it was properly

preserved. Allied also maintains that Robertson’s injury the

‐

ory has been “ad

‐ libbed” on appeal. But it is asking for too

much detail. If litigation proceeds, Robertson will have to

substantiate her allegations. Yet, “[i]n order to survive dis

‐

missal for lack of standing, the plaintiffs’ complaint must

contain sufficient factual allegations of an injury resulting

from the defendants’ conduct, accepted as true, to state a

claim for relief that is plausible on its face.” Diedrich v. Ocwen

Loan Servicing, LLC

, 839 F.3d 583, 588 (7th Cir. 2016). Robert

‐

son adequately pleaded her adverse

‐ action injury. She al

‐ leged that Allied made her an offer, then rescinded it. Be

‐

tween the offer and rescission, Allied ran a background

check, but it never gave her a copy of the report it obtained

and concededly relied on when it decided not to hire her.

Complaints need not delineate every detail of the plaintiff’s

legal theory. Because Robertson pleaded facts showing a

plausible injury, she “receives the benefit of imagination, so

long as the hypotheses are consistent with the complaint.”

Chapman v. Yellow Cab Coop.

, 875 F.3d 846, 848 (7th Cir. 2017)

(quoting Bell Atlantic Corp. v. Twombly

, 550 U.S. 544, 563

(2007). In this case, they are.

The FCRA regulates the use of materials such as these

background reports. Robertson relies on section

1681b(b)(3)(A) for her adverse

‐ action claim. That subsection

(to which we refer as “subpart A”) provides:

[B]efore taking any adverse action based in whole or

in part on [a consumer report used for employment

purposes], the person intending to take such adverse

action shall provide to the consumer to whom the re

‐

port relates—8 No. 17

‐ 3196

(i) a copy of the report; and

(ii) a description in writing of the rights of the

consumer under this subchapter

... .

As one can see, there is no reference to potential inaccuracies

or any other specific reason for the disclosure. This contrasts

markedly with the following paragraph, section

1681b(b)(3)(B) (“subpart B”), which creates an exception

from subpart A for employers taking an adverse action

against an applicant who applies by mail, telephone, or

computer for a position regulated by the Secretary of Trans

‐ portation ( e.g.

, truck drivers). An employer of would

‐ be

truck drivers, for example, has no duty to provide a copy of

the actual report; it is enough to notify the applicant that an

adverse action was based on the report. 15 U.S.C.

§ 1681b(b)(3)(B)(i)(I). The employer must also notify the ap

‐ plicant that she may “request a free copy of a report and

may dispute with the consumer reporting agency the accu

‐

racy or completeness of any information in a report.” Id.

§ 1681b(b)(3)(B)(i)(IV). Both notifications can be provided up

to three business days after the adverse action. Id.

§ 1681b(b)(3)(B)(i).

Only subpart (A) compels disclosure of the report itself,

and that provision requires disclosure prior to any adverse

action. This unique pre

‐ adverse action requirement assures

that the applicant will have a chance to review the actual

document on which the employer relied, and that she can do

so with time to respond to unfavorable information. Unlike

subpart (B), which explicitly limits the range of disputes to

“accuracy or completeness,” subpart (A) contemplates a

broad opportunity to respond.No. 17

‐ 3196 9

Subparts (A) and (B), read together, indicate that an em

‐ ployer’s disclosure obligations under (A) exist to serve inter

‐

ests beyond the problem of inaccurate reports. Other parts of

the Act corroborate that conclusion. In order to see why this

is so, it is helpful to recall that the Act identifies at least three

distinct actors with respect to any consumer report. A con

‐

sumer reporting agency aggregates data and creates the re

‐

port. Agencies then supply reports to users ( e.g.

, employers),

which rely on them to decide the fate of consumers ( e.g.

, job

applicants).

The interests protected by the Act’s disclosure rules re

‐

flect the distinctive roles played by the three types of actors.

Agencies’ disclosure obligations protect consumers’ interest

in accurate reporting. The Act’s agency

‐ specific compliance

procedures instruct that reports must be compiled to “assure

maximum possible accuracy.” Id. § 1681e(b). And all reports

furnished for employment purposes must be “complete and

up to date.” Id. § 1681k(a)(2). Upon a request from a con

‐

sumer, an agency must “clearly and accurately disclose”

everything in the consumer’s file, id. § 1681g(a), and notify

the consumer that there are procedures for disputing the

file’s accuracy, id. § 1681g(c)(1)(B)(iii). In addition, the Act

dedicates a section to the procedures for disputing the accu

‐

racy of an agency’s report. Id. § 1681i. No comparable section

exists for disputing an agency report on any other ground.

The Act does not similarly link accuracy concerns and the

disclosure obligations imposed on “users.” Quite the oppo

‐

site. The section of the Act entitled “Requirements on users

of consumer reports” refers to accuracy only to require that

users instruct consumers to lodge accuracy

‐ based disputes

with the agency. Id. § 1681m(a)(4)(B). The substantive inter

‐10 No. 17

‐ 3196

est behind a user’s disclosure obligation is the one at issue

here: allow the consumer to review the reason for any ad

‐

verse decision and to respond. These rights are independent

of any underlying factual disputes. A consumer might, for

example, wish to concede the facts presented in the report

but to bring additional facts to the employer’s attention that

put matters in a better light for the consumer. In other

words, the consumer might wish to use the “confession and

avoidance” option that existed at common law. 5 C HARLES

A LAN W RIGHT et al.

, F EDERAL P RACTICE AND P ROCEDURE

§ 1270 (3d ed. 2017). Something similar is available to public

employees, who have the right to a pre

‐ termination hearing

before a discharge in many instances. See Cleveland Bd. of

Educ. v. Loudermill

, 470 U.S. 532, 542–43 (1985). The employee

has the right to present her side of the story “even where the

facts are clear” because “the appropriateness or necessity of

the discharge may not be; in such cases, the only meaningful

opportunity to invoke the discretion of the decisionmaker is

likely to be before the termination takes effect.” Id. at 543.

Providing context may be more valuable than contesting

accuracy. Some consumers may collect supporting docu

‐

ments quickly enough to corroborate an accuracy challenge

before the employer makes its decision. Yet in a swearing

contest, the employer might not be likely to side with the

consumer (applicant) over the agency. But information that

seems damning at first glance might not be so bad in context.

A person with a spotted record might convince an employer

to revisit its decision if she can explain what happened.

That Robertson has not pleaded what she may have said

if given the chance to respond, or that she may not have

convinced Allied to honor its offer, is immaterial to the sub

‐No. 17

‐ 3196 11

stance of her interest in responding. Article III’s strictures are

met not only when a plaintiff complains of being deprived of

some benefit, but also when a plaintiff complains that she

was deprived of a chance to obtain a benefit. Czyzewski v. Jev

‐

ic Holding Corp.

, 137 S. Ct. 973, 983 (2017); Ne. Fla. Chapter of

Associated Gen. Contractors of Am. v. City of Jacksonville

, 508

U.S. 656, 666 (1993). An informational injury can be concrete

when the plaintiff is entitled to receive and review substan

‐

tive information. The Supreme Court recognized as much in

Akins, where it held that “[t]here is no reason to doubt [that

plaintiffs’] claim that the information would help them (and

others to whom they would communicate it) to evaluate

candidates for public office, especially candidates who re

‐

ceived assistance from AIPAC, and to evaluate the role that

AIPAC’s financial assistance might play in a specific election.

Respondents’ injury consequently seems concrete and par

‐

ticular.” 524 U.S. at 21. Applying that principle to our case,

what matters is that Robertson was denied information that

could have helped her craft a response to Allied’s concerns.

Spokeo does not require a contrary result. There the Court

hypothesized that there might not be any concrete harm

when “a consumer reporting agency fails to provide the re

‐ quired notice to a user of the agent’s consumer information,

[but] that information

... may be entirely accurate.” Spokeo

,

136 S. Ct. at 1550. We put to one side the fact that this pas

‐

sage is probably dicta, because the case before the Court

concerned inaccurate information. Id. at 1545. The Court

never decided whether a concrete injury had been alleged.

Id. at 1550. Furthermore, Spokeo was discussing a different

point in the process—the relationship between an agency

and a user ( i.e. employer), not the relationship between the

user and the consumer ( i.e. the job applicant). The statutory12 No. 17

‐ 3196

duties that apply to each of these situations differ in im

‐

portant respects, as we noted earlier.

We conclude, therefore, that Robertson has alleged

enough at this stage to demonstrate standing under Arti

‐

cle III. Her injury is concrete and particular to her, and the

remaining criteria for standing (causation, redressability) are

also present. This is not to say that she is home

‐ free, of

course. We express no opinion at this point on questions

such as her suitability to serve as the class representative, the

propriety of class certification, or the adequacy of the pro

‐ posed settlement. We hold only that she has adequately al

‐ leged that what Allied divulged was insufficient under the

Act, and that she is entitled from an Article III standpoint to

press her adverse

‐ action claim.

III

Although Robertson does not argue that she has standing

to bring her notice claim, she takes the position that the dis

‐

trict court was nonetheless empowered to approve the set

‐

tlement agreement, as it pertains to notice, because the par

‐

ties reached their tentative settlement before the Article III

issue was noticed. She would like us to order the district

court to resume the Rule 23(e) process and consider whether

to approve the settlement. This is an ambitious claim, given

that the district court’s subject

‐ matter jurisdiction must be

secure before it can do anything to resolve a case. That rule

applies with just as much force to a court’s approval of a set

‐

tlement under Rule 23 as it does for anything else. See

Synfuel Techs., Inc. v. DHL Express (USA), Inc.

, 463 F.3d 646,

650 (7th Cir. 2006).No. 17

‐ 3196 13

Robertson offers two reasons why the general rule

should not apply here, notwithstanding the notice claim’s

Article III problems. The first is that her concrete interest in

the agreement supports jurisdiction. See Schumacher v. SC

Data Ctr., Inc.

, No. 2:16

‐ CV

‐ 04078

‐ NKL, 2016 WL 7007539, at

*1 (W.D. Mo. Nov. 29, 2016) (“[B]ecause the parties entered

into a settlement agreement

... the issue is not whether the

Court has subject matter jurisdiction over her FCRA claims.

Instead, the issue is whether the Court has subject matter ju

‐

risdiction to enforce the parties’ settlement agreement.”).

With all due respect to the district court in Schumacher

, how

‐

ever, that analysis cannot get off the ground. An approved

settlement takes the form of a judgment of the court, and

without both Article III power and proper subject

‐ matter ju

‐

risdiction, the court cannot act. The district court here cor

‐ rectly saw the problem and took the issues in the right order.

Robertson’s second argument is that post

‐ agreement legal

changes do not warrant unsettling a valid agreement. This

argument also falls apart for several reasons. Spokeo did not

change the law of standing and thus was not a post

‐

agreement change in the law. It merely reiterated that an Ar

‐

ticle III injury must be both particular and concrete. 136 S.

Ct. at 1458; see also Lujan

, 504 U.S. at 560 (compiling cases

holding that injury in fact must be concrete and particular

‐ ized). The district court was duty

‐ bound to look into its ju

‐

risdiction the minute the question arose. Article III’s re

‐ quirements must be continuously met throughout the life of

a case. See Walters v. Edgar

, 163 F.3d 430, 432 (7th Cir. 1998).

That this was a class action makes no difference: nothing in

the Rules of Civil Procedure may “abridge, modify, or en

‐ large any substantive right.” 28 U.S.C. § 2072(b). Finally,

changes in the legal background that do not affect Article III14 No. 17

‐ 3196

or subject

‐ matter jurisdiction are an entirely different matter.

In those instances, one of the risks the parties address in the

settlement is the chance of just such a change, and so such

changes do not require the court to reject the settlement. See

Whitlock v. FSL Mgmt.

, LLC

, 843 F.3d 1084, 1091 (6th Cir.

2016) (affirming approval of class

‐ action settlement because

change in underlying state law did not affect plaintiffs’

standing to bring suit); Ehrheart v. Verizon Wireless

, 609 F.3d

590, 596 (3d Cir. 2010) (change in law eliminating buyers’

cause of action did not render a preliminarily approved set

‐

tlement moot); Dawson v. Pastrick

, 600 F.2d 70, 72 (7th Cir.

1979) (affirming approval of consent decree despite Supreme

Court disapproving—on the same day that the decree was

entered—of one form of relief authorized in the decree).

IV

That leaves only the question whether Robertson should

have been permitted to amend her complaint. The district

court denied her request—a decision we review for abuse of

discretion. Huon v. Denton

, 841 F.3d 733, 745 (7th Cir. 2016).

Ordinarily a plaintiff should have the chance to amend if she

had no earlier chance to remedy the relevant deficiency. Do

‐

ermer v. Callen

, 847 F.3d 522, 528 (7th Cir. 2017). Robertson

had no such chance. Nevertheless, a district court may deny

leave to amend a complaint if an amendment would be futile

or the plaintiff cannot explain how any revisions might ad

‐

dress the deficiencies. The latter describes this case. The dis

‐

trict court denied Robertson’s request for leave to amend be

‐

cause she had not indicated what facts she could plead that

would salvage her Article III standing for the notice claim.

She has not offered any on appeal either. The closest she

comes is stating an intention to “conform her complaint to aNo. 17

‐ 3196 15

change in applicable law following the district court’s inter

‐ pretation of Groshek and Spokeo .” We therefore find no abuse

of discretion in the court’s decision to deny leave to amend.

V

Based on information discovered in a background check,

Allied rescinded Robertson’s job offer without furnishing

Robertson a copy of that report on which it relied. By failing

to do so, Allied deprived her of the chance to review it and

present her side of the story. That is the very reason why the

FCRA obligates employers to produce a copy of the report

before taking adverse action. Because the alleged injury is

concrete and Robertson otherwise alleged enough to support

her Article III standing on her adverse

‐ action claim, we

R EVERSE the judgment of the district court dismissing that

claim for lack of standing and R EMAND for further proceed

‐ ings. In all other respects, the judgment of the district court

is A FFIRMED

.