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Ascencio v. Orion International Corp.

Supreme Court of Montana

May 15, 2018

NISSA ASCENCIO AND ALL OTHERS SIMILARLY SITUATED, Plaintiffs and Appellants,
v.
ORION INTERNATIONAL CORP., Defendant, Appellee and Cross-Appellant.

          Submitted on Briefs: February 14, 2018

          APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DV-15-1000 Honorable Leslie Halligan, Presiding Judge.

          For Appellants:Christopher W. Froines, Froines Law Office, Inc., Missoula, Montana

          For Appellee: Bradley J. Luck, Tessa A. Keller, Garlington, Lohn & Robinson, PLLP, Missoula, Montana

          OPINION

          JAMES JEREMIAH SHEA JUSTICE.

         ¶1 Plaintiff Nissa Ascencio ("Ascencio") appeals the denial of class certification by the Fourth Judicial District Court, Missoula County. We restate the issue on appeal as follows:

Whether the District Court abused its discretion by denying class certification on the basis that Ascencio failed to satisfy the M. R. Civ. P. 23(b)(3) element of superiority.

         ¶2 We affirm in part and remand to the District Court for further proceedings consistent with this Opinion.

         PROCEDURAL AND FACTUAL BACKGROUND

         ¶3 Defendant Orion International Corporation ("Orion") was a small, family-owned Montana business that performed background checks on prospective employees at the request of employers. Orion's principals were Donald and Patricia Whitney. Their son Kyle Whitney handled daily business operations.

         ¶4 In 2012, Ascencio applied for a job with St. Luke's Hospital in Polson. St. Luke's retained Orion to perform a background check of Ascencio. The background check Orion provided to St. Luke's included "obsolete information, " the inclusion of which was prohibited by § 31-3-112, MCA. The obsolete information consisted of Ascencio's criminal history that reflected a 1997 arrest for forgery that resulted in two misdemeanor convictions in 1998. St. Luke's hired Ascencio, and she worked there for approximately two years.

         ¶5 In 2015, Ascencio applied for a job with Missoula Bone and Joint. On May 20, 2015, Missoula Bone and Joint hired Ascencio, then retained Orion to perform a background check on her the following day. Again, the background check Orion provided to Ascencio's employer contained prohibited obsolete information, including the two 1998-misdemeanor forgery convictions as well as a Chapter 7 bankruptcy filing that was discharged in 2000. Ascencio called Orion to ask why it would be releasing illegal background checks to a prospective employer in violation of § 31-3-112, MCA, that prohibits the disclosure of such obsolete information by reporting agencies. Kyle Whitney, the Orion employee with whom Ascencio spoke, responded that he would contact Orion's attorney. On June 9, 2015, Orion issued a corrected background check of Ascencio to Missoula Bone and Joint that included the following disclaimer:

As mandated by Montana State Law, Orion International Corporation may not report Obsolete Information in any consumer report. Obsolete Information is defined as: Bankruptcy from more than 14 years of the most recent bankruptcy; judgments or suits from the longer of more than 7 years of the date of entry, or after the statute of limitations expiration; paid tax liens from more than 7 years of the date of payment; collections or accounts placed to profit and loss from more than 7 years ago; records of arrest, indictment, or conviction of a crime for more than 7 years of the disposition, release, or parole; or any adverse information from more than 7 years ago. Mont. Code. Ann. § 31-3-112.

         ¶6 Missoula Bone and Joint terminated Ascencio at the conclusion of her six-month probationary period, noting concerns with her background check and credit report, as well as requests for time off, not reporting when she left work early, and personality conflicts with a co-worker.

         ¶7 On September 23, 2015, Ascencio filed suit against Orion, asserting claims in her individual capacity, as well as a claim for class action. On October 29, 2015, Orion filed a Motion to Dismiss. On December 13, 2016, the District Court denied Orion's Motion to Dismiss. On January 25, 2017, Orion responded to Ascencio's first discovery requests, which included a list of individuals for whom Orion prepared background checks or other consumer reports. Ascencio identified at least 360 instances on this list in which Orion's reports contained obsolete information in violation of § 31-3-112, MCA.

         ¶8 On February 1, 2017, Ascencio moved to certify the class. Ascencio attached Orion's list with 360 ...


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