complaint (2)

1.2

MATTHEW RIGHETTI (SBN #121012) JOHN GLUGOSKI (SBN #191551) MICHAEL RIGHETTI (SBN #258541)

RIGHETTI - GLUGOSKI, P.C. 456 Montgomery Street, Suite I400 San Francisco, CA 94104 Telephone: (415) 983-0900 Facsimile: (415) 397-9005

ZACHARY CROSNER

CROSNER LEGAL

1800 Century Park East, 6th Fl. Suite #40 Los Angeles, California 90067 Telephone: (310) 4386565

Attorneys for PLAIN ITIFF

MAR 26 12813

SUPERIOR COURT OF CALIFORNIA

CITY AND COUNTY OF SAN LUIS OBISPO

ANTHONY IANNI, an individuai and on behalf of all others similarly situated,

Plaintiff,

vs.

TJX COMPANIES, INC, and DOES 1—100,

inclusive

Defendants,

CLASS ACTION

COMPLAINT

COMPLAINT - 1

Plaintiff Anthony Ianni (“Plaintiff”), by and through his attorneys, brings this action on

behalf of himself and a class of all other persons similarly situated against TJX Companies, Inc.

and DOES 1-100, inclusive (“Defendants”) and hereby alleges as follows:

PRELIMINARY STATEMENT

l. Defendants routinely procares or causes preparation of investigative consumer reports to

conduct background checks on prospective employees and existing employees, and frequently

relies on such information, in whole or in part, for employment purposes.

2. While the procuring, or causing preparation of, investigative consumer reporting

information for employment purposes is not per se uniawfill, it is subject to strict disclosure and

authorization requirements as provided by the Investigate Consumer Reporting Agencies Act,

Title 1.6A of Part 4 of Division 3 of Caiifomia Civil Code (Sec. 1786 et seq.)

3. Defendant has violated the statutorily required disclosure and authorization requirements

in a variety of ways as set forth herein.

4. Plaintiff asserts a claim against Defendant on behalf of himself and a class consisting of

all employees or prospective employees of Defendants (including employees or prospective

employees of stores owned, operated and/or controlled by Defendants, to Wit: HomeGoods,

Marshalls and TJ Maxx) in California where Defendants procured or caused preparation of an

investigative consumer report for employment purposes within the three years preceding the

filing of this lawsuit.

PARTIES, JURISDICTION AND VENUE

5. This class action is brought pursuant to Section 382 of the California Code of

Civil Procedure. The monetary damages sought by Plaintiff will be established according to

proof at trial. Plaintiff‘s damages are under the $75,000 jurisdictional threshold for federal court.

The total damages for the entire case are not anticipated to exceed $5,000,000.00. Further there

COMPLAINT — 2

is no federal question at issue, as all the issues related to payment wages alleged herein are based

solely on California law and statutes

6. Plaintiff Anthony Ianni was an employee of Defendants in California in the

position of Cashier within the applicable statute of limitations. Plaintiff is informed and believes

and on that basis, alleges that Defendants are and at all times material herein mentioned were

doing business in the State of California and within the County of San Luis Obispo. Defendants

employ individuals throughout the State of California including within San Luis Obispo COunty,

where Plaintiff was employed. Accordingly, at least some of the acts complained of herein

occurred in San Luis Obispo County.

7. The names and capacities of Defendants sued herein under California Code of

Civil Procedure Section 474 as Does 1 through 100, inclusive, are presently not known to

Piaintiff, who therefore sues these Defendants by such fictitious names. Plaintiff will seek to

amend this Complaint and include these Doe Defendants’ names and capacities when they are

ascertained. Each of the fictitiOusly named Defendants is responsible in some manner for the

conduct alleged herein and for the injuries suffered by Plaintiff, the members of the Class and the

general public.

FACTUAL ALLEGATIONS 8. Plaintiff applied for work with TJ C Companies, Inc. in December of 2012.

9. In connection with his employment application, Plaintiff completed Defendant’s

standard application materials. Among other things, these application materials include a

“Disclosure and Acknowledgment” form attached hereto as Exhibit 1.

10. This form discloses that TJX Companies, Inc may obtain information about

[employees and/or prospective empioyees] from a consumer reporting agency for employment

purposes. The form further discloses that these reports may contain information regarding your

credit history, criminal history, social seCurity verification, motor vehicle records (“driving

records”), verification of your education or employment history, or other background checks.

COMPLAINT — 3

11. The form also discloses that the notice and authorization is “all»encompassing”

and allows the company “to obtain from any outside organization all manner of consumer reports

now and throughout the course of your employment to the extent permitted by law.”

12. The form contains the following acknowledgment and authorization:

I acknowledge receipt of the NOTICE REGARDING BACKGROUND INVESTIGATION and A SUMMAR OF YOUR RIGHTS UNDER THE FAIR CREDIT REPORTING ACT and certify that I have read and understand both of these documents. I hereby authorize the obtaining of “consumer reports” by the Company at any time after receipt of this authorization and throughout my employment, including at the time of promotion, transfer or reassignment, if applicable. To this end, I hereby authorize, without reservation, any law enforcement agency, administrator, state or federal agency, institution, school or university (public or private), information service bureau, employer or insurance company to furnish any and all background information requested by Lexis Nexis Po Box 71417090 Philadelphia, PA 19170-7090, another outside organization acting on behalf of the Company, and/or the Company itself. I agree that a facsimile (“fax”), electronic or photographic copy of this Authorization shall be as valid as the original.

13. The acknowledgment and authorization violates Section l786.l6(a)(2)(B)(iv) of

the California Civil Code for a variety of reasons:

a. First, Defendants failed to identify the telephone number of the investigative

consumer reporting agency identified in the Disclosure;

b. Second, the investigative consumer reporting agency identified in the Disclosme

(i.e. Lexis Nexis located in Philadelphia, PA at PO Box 19170-7090) is not the investigative

consumer reporting agency who conducted the investigations as to Plaintiff and the clag.

Defendant did not notify Plaintiff or the class of the name, address and telephone number of the

investigative consumer reporting agency conducting the investigation. This constitutes a

violation of Section 1786.l6(a)(2)(B)(iv) ofthe California Civil Code

c. Third, the acknowledgment and authorization also violates Section

1786.16(a)(2)(B)(iv) of the California Civil Code because it discloses that “another outside

organization acting on behalf of the company” may furnish any and all background information.

This violates Section l786.l6(a)(2)(B)(iv) of the California Civil Code because it purportedly

authorizes any outside organization to furnish any and all background information without listing

COMPLAINT — 4

the name, address and telephone number of the investigative consumer reporting agency

conducting the investigation.

14. The acknowledgement and authorization also violates Section

I786.l6(a)(2)(B)(vi) of the California Civil Code, because Defendant failed to notify the

consumer of the Internet Web site address of the investigative consumer reporting agency

conducting the investigation.

15. The

I786.16(a)(2)(B)(v) of the California Civil Code, because nowhere does Defendant provide a

acknowledgment and authorization also violates Section

summary of the provisions of Section 1786.22 of the Cal. Civil Code in its acknowledgment and

authorization form.

l6. Defendants procured or caused to preparation of an investigative consumer report

as to Plaintiff and the class. On or about January 2, 2013, Defendants conveyed by letter to

Plaintiff that it had procured or caused preparation of an investigative consumer report from:

Lexis Nexis Risk Soiutions, Inc. PO Box 105108

Atlanta, GA 30348

(800) 845-6004

The investigative consumer reporting agency that provided the report to Defendants is not the

investigative consumer reporting agency that was disclosed to Plaintiff in the Acknowiedgrnent

and Authorization.

17. The investigative consumer report obtained by Defendants contained information

on Plaintiffs character, general reputation, personal characteristics and/or mode of living. It is

not merely a consumer credit report bearing on Plaintiff’s credit worthiness, credit standing, or

credit capacity, thus the disclosure and reporting requirements of Cal. Civ. Code Section 1786 et

seq.

18. Defendant’s actions described above constitute violations of the Investigative

Consumer Reporting Agencies Act.

CLASS ACTION ALLEGATIONS

COMPLAINT m 5

3.0

1.6

19. Plaintiff brings this case as a class action pursuant to California Code of Civil

Procedure Section 382- This action seeks relief on behalf of the following class:

All employees or prospective employees of Defendants (including employees or prospective employees of stores owned, operated and/0r controlled by Defendants, to wit: HomeGoods, Marshalls and TJ Maxx) in California where Defendants procured or caused preparation of an investigative consumer report for employment purposes within the three years preceding the filing of this lawsuit.

20. The Class is sufficiently numerous, since it is estimated to include several

hundred or more current or prospective employees geographically dispersed throughout

California, the joinder of whom in one action is impracticable, and the disposition of whose

claims in a class action will provide substantial benefits to both the parties and the Court.

21. There is a well-defined community of interest in the questions of law and fact

involved affecting the parties to be representfid. The qucstions of law and fact common to the

Class predominate over questions that may affect individual class members, including but not

limited to the following:

a. Whether Defendants implemented and engaged in a policy and practice of

requiring employees to sign the standard Disclosure and Acknowledgment

form attached as Exhibit 1 as a condition of employment and/or as part of

standard “new hire paperwork”;

b. Whether Defendants implemented and engaged in a policy and practice of

obtaining and/or conducting investigative consumer reports in violation of

the Cal. Civ. Code Section 1786 et seq. by failing to make proper

disclosures;

0. Whether Defendant’s disclosure practices regarding investigative

consumer reports are compliant with California law; and

d. The proper form of injunctive and declaratory relief; and

22. Plaintiff will fairly and adequately represent and protect the interests of the Class

in that he has no disabling conflict of interest that would be antagonistic to those of the other

COMPLAINT - 6

members of the Class. Plaintiff has retained counsel, who is competent and experienced in the

prosecution of class action wage and hour violations.

23. Class action treatment is superior to any other available alternatives to ensure that

fair and efficient adjudication of the controversy alleged herein. Class treatment will permit a

large number of similarly situated persons to prosecute their common claims in a single forum

simultaneously, efficiently and without the duplication of efforts and expense that numerous

individuals would entail. N0 difficulties are likely to be encountered in the management of this

class action that would preclude its maintenance as a class action, and no superior alternative

exists for the fair and efficient adjudication of this controversy. T he Class members are readily

identifiable from Defendants' records, and the Disclosure and

24. Defendants' wrongful and unlawful conduct alleged herein has been Widespread,

recurring and uniform throughout California. Defendant knew or should have known that

Defendant was not complying with disclosures requirements regarding investigative consumer

reporting. Absent a class action, Defendants will likely continue their wrongdoing resulting in

further damage to Plaintiff and members of the Class.

FIRST CAUSE OF ACTION

(Failure To Provide Proper Disclosures In Violation of Cal. Civ. Code Section 1786.16(a)(2)(B)(iv)

25. Plaintiff re~a11eges and incorporates by reference each and every allegation set

forth in the preceding paragraphs.

26. Defendants violated Cal. Civ. Code Section I786.16(a)(2)(B)(iv), (v) and (vi) by

failing to make the required disclosures to Plaintiff as well as other similarly situated current and

prospective employees prior to procuring and/or causing preparation of investigative consumer

reports. Defendant failed to include the name, address, telephone number and website of the

investigative consumer reporting agency obtaining the investigate consumer report and also

faiied to include a summary of the provisions of Section 1786.22 of the Cal. Civil Code in its

acknowledgment and authorization form.

COMPLAI NT — 7

27. As a result, Defendant is liable to Plaintiff and other similarly situated members

of the class.

28. Plaintiff requests attorney’s fees and costs pursuant to Civil Code §l786.5.

SECOND CAUSE OF ACTION

Violation of Business & Professions Code 17200 and 17203

(As Against All Defendants)

29. Plaintiff hereby re~alleges and incorporates by reference all paragraphs above as

though fully set forth in detail herein‘

30. By and thIough the conduct described herein, Defendants have engaged and

continue to engage in unfair, unlawfill, and fraudulent business acts and practices in violation of

California Business & Professions Code §§17200 and 17203. The acts and practices constitute a

continuing and ongoing unfair, unlawful and fraudulent business activity defined by Business &

Professions Code §17200, and justify the issuance of an injunction and other equitable relief

pursuant to Business & Professions Code §17203.

31. The conduct of Defendants is inimical to the public welfare since it transgresses

civil statutes of this state designed to protect workers from exploitation.

32. Plaintiff, and all persons similarly situated, and all persons in interest, are entitled

to and do seek a declaration that the above described business practices are unfair, unlawful,

and/or fraudulent, and injunctive relief restraining Defendants from engaging in the conduct

described herein and determined to be unfair, unlawful, and/or fraudulent business practices at

all times in the future.

COMPLAINT — 8

Prayer for Relief

I. For the First Cause of Action:

a. That common issues of liability be established against

Defendant on behalf of Plaintiff and similarly situated class

members.

b. For damages according to proof;

c. For reasonable attorney fees and costs;

1.6

24.

2. For the: Second Cause of Action:

That common issues of liability be established against

Defendant on behalf of Plaintiff and similarly situated class

members finding that Defendants’ practices violate the UCL;

For declaratory and injunctive relief enjoining the practices

deemed to be in violation of the Investigative Consumer Reporting

Agencies Act and the UCL;

3‘ Such other and further relief as the Court deems just and proper.

DATED: March 25, 2013

RIGIiETTI ' GLUAGOSKIMPC.

Attorneys for Plaintiff

COMPLAINT — 9