                         MISSOURI COURT OF APPEALS
                             WESTERN DISTRICT

 REBECCA COURTRIGHT, ET AL.,                   )
                                               )   WD82684
                      Appellants,              )
    v.                                         )   OPINION FILED:
                                               )
 O'REILLY AUTOMOTIVE,                          )   March 17, 2020
                                               )
                      Respondent.              )
                                               )

              Appeal from the Circuit Court of Jackson County, Missouri
                         Honorable John M. Torrence, Judge

                                Before Division Two:
          Cynthia L. Martin, P.J., Thomas H. Newton, and Gary D. Witt, JJ.


         Prospective employees, Ms. Rebecca Courtright; Mr. Anthony Bradley; Mr.

Raphael Saye; and Mr. Juan Estrada, Appellants, appeal a Jackson county circuit court

judgment granting a motion to dismiss in an action brought against O’Reilly

Automotive Stores, Inc.; CSK Auto, Inc.; and O’Reilly Auto Enterprises, LLC

(collectively, O’Reilly), Respondents, alleging violations of the Fair Credit Reporting

Act (FCRA) arising from their revocation of conditional job offers due to consumer

reports before disclosing the reports. We reverse in part and affirm in part.

         Ms. Courtright applied to work at an O’Reilly Auto Parts store in January 2014. Ms.

Courtright was given disclosure and authorization forms and authorized O’Reilly to procure her

background report. She was extended an employment offer conditioned on satisfactorily

completing a criminal-background check. Ms. Courtright though, had two felony identity-theft
convictions that appeared on her background report. Ms. Courtright did not challenge the

background report’s contents or the two felony convictions. Due to Ms. Courtright’s felony

convictions, O’Reilly revoked the conditional employment offer. Ms. Courtright testified that the

harm she suffered from the adverse action before disclosure was that she did not get the job and,

thereafter, did not have the means to pay for a place to live.

        Mr. Bradley applied to work for O’Reilly in March 2016. Mr. Bradley was given disclosure

and authorization forms, and he authorized O’Reilly to procure his background report. He was

extended an employment offer conditioned on satisfactorily completing a criminal-background

check. O’Reilly requested Mr. Bradley’s background report through a third-party vendor, General

Information Services (GIS). GIS’s background report erroneously indicated that Mr. Bradley had

been found guilty of stealing leased or rented property and had been sentenced to 30-day’s

confinement, with a suspended execution of sentence. O’Reilly informed Mr. Bradley that he

would not be extended the employment offer based on information in his background report.

O’Reilly also informed Mr. Bradley he could dispute the report’s accuracy directly with GIS.

        O’Reilly did not furnish the report to Mr. Bradley, but he requested and received the

erroneous report from GIS. Mr. Bradley disputed the errors in writing to GIS. GIS corrected the

errors and passed along the correction to O’Reilly, which in turn, contacted Mr. Bradley with an

employment offer in May 2016. Mr. Bradley accepted the offer and worked for O’Reilly until June

2016, when he voluntarily left. Mr. Bradley testified that the harm he suffered was that he was

“without a paycheck” for a period of time, that his name was tarnished, and that he was made to

look like a “liar.”

        Mr. Saye applied to work for O’Reilly in July 2013. Mr. Saye digitally completed and

signed an employment application that gave notice of the background check, and he authorized



                                                  2
O’Reilly to procure his background report. Mr. Saye’s background report revealed a burglary

charge and a scheduled court date for September 2013. Mr. Saye’s attorney sent a letter to O’Reilly

stating that the burglary charge had been dismissed on September 5, 2013, as part of a diversionary

program, but that Mr. Saye was to return to court a year later, where he would be “sentenced to an

infraction.” Mr. Saye was not hired because of the burglary charge. Mr. Saye testified that the

harm he suffered was that he did not obtain a job he expected and “slight harm” to his ego.

       Mr. Estrada applied several times for employment with O’Reilly and was given disclosure

and authorization forms, and he authorized O’Reilly to procure his background report. Mr. Estrada

testified that he was aware that there was a disclosure in the employment-application process. Mr.

Estrada was hired by and worked for O’Reilly. Mr. Estrada’s employment was later terminated

because he violated a company policy regarding drinks in company vehicles. Mr. Estrada testified

that the harm he suffered from O’Reilly’s report requests was that his credit score was negatively

affected. Mr. Estrada also testified that he did not know if his credit score had actually been

negatively affected.   Ms. Courtright initially filed her complaint in March 2014 as a putative class

action against only O’Reilly Automotive Stores, Inc., in the Jackson County Circuit Court.

O’Reilly Automotive Stores, Inc., removed the action in April 2014 to the U.S. District Court for

the Western District of Missouri. While in federal court, Mr. Saye joined Ms. Courtright as a

plaintiff, and together they filed a first-amended complaint. The federal court consolidated Ms.

Courtright’s and Mr. Saye’s action in March 2015 with Mr. Estrada’s separate action.1 Ms.

Courtright, Mr. Saye, and Mr. Estrada moved to remand the case to the Jackson County Circuit




1
  Mr. Estrada’s case was transferred to the U.S. District Court for the Western District of Missouri
from the U.S. District Court for the Southern District of California. Count III alleges violations of
California’s Investigative Consumer Reporting Agencies Act (ICRAA) (Cal. Civ. Code. Section 1786
et seq.), and violations of California’s Unfair Competition Law (UCL) (Cal. Bus. & Prof. Code Section
17200 et seq.).

                                                 3
Court and, in September 2017, the federal court granted the motion. The federal court did not reach

the merits of O’Reilly’s summary-judgment motion, but instead declared it moot in light of the

remand.

       O’Reilly moved for dismissal of the first-amended complaint for lack of standing, and the

Appellants moved for leave to file a second-amended complaint. The circuit court granted leave

to do so in April 2018 and added Mr. Bradley as a plaintiff to the putative class action.

       Appellants’ second-amended complaint contains four counts. As applicable to the

individually named Plaintiff’s, Count I is an adverse-action claim which alleges that O’Reilly

violated the FCRA by obtaining a background report and taking adverse employment action based

on the contents of such report without first providing Ms. Courtright, Mr. Bradley, and Mr. Saye

an opportunity to “cure any inaccuracies” within the report. Count II is a disclosure claim and

alleges that O’Reilly violated the FCRA by failing to properly disclose to Mr. Saye and Mr. Estrada

that O’Reilly was procuring a background report. Count II also alleges that the requisite disclosure

form “was buried in a hyperlink in the application process” and that it was possible to complete

the application process without clicking on the hyperlink. Count IV is an authorization claim and

alleges that O’Reilly violated the FCRA by procuring background reports without proper

authorization from Mr. Saye and Mr. Estrada. Count V, brought by Mr. Saye, alleges that O’Reilly

violated California’s Unfair Competition Law. Count V is a derivative claim from Counts I, II,

and IV, alleging that O’Reilly violated California’s Unfair Competition Law by violating the

FCRA.2




2
 The second-amended complaint completely omits c ount III, which had previously alleged violations
of California’s Investigative Consumer Reporting Agencies Act.


                                                 4
       O’Reilly filed a “motion to dismiss” in November 2018, attaching and relying on several

exhibits that were outside the pleadings. O’Reilly also included a statement of facts in numbered

paragraphs. Appellants opposed O’Reilly’s motion by attaching and relying on several exhibits,

also outside the pleadings. Appellants responded to each of the numbered paragraphs in O’Reilly’s

statement of facts as either “controverted,” “controverted in part,” or “uncontroverted.” Appellants

also included their own additional statement of facts in response to O’Reilly’s motion.

       The circuit court held oral argument in February 2019 on the motion to dismiss

and granted it for lack of standing. Appellants timely appealed.

                                         Legal Analysis

       The standard of review for an appeal from a dismissal for lack of standing is de

novo. Dunn v. Precythe, 557 S.W.3d 454, 456 (Mo. App. W.D. 2018). Here, the trial

court conducted a hearing for the motion to dismiss and considered matters outside the

pleadings in making its judgment. 3 “[W]hen the parties both submit matters outside the

pleadings for the court's consideration,” the parties “waive notice of the court's

conversion of the matter into a motion for summary judgment, and they likewise waive

compliance with Rule 74.04's procedural requirements.” Lynch v. Hurley, 569 S.W.3d

33, 39 (Mo. App. W.D. 2019) (citations omitted). Here, the parties both submitted

matters outside the pleadings for the court's consideration and, therefore, they

acquiesced in treating this matter as a motion for summary judgment. Under these

circumstances, the motion to dismiss was converted into a motion for summary

judgment, and we will review it as such. Rule 55.27(a), (b); Naylor Senior Citizens

Hous., LP v. Side Const. Co., Inc., 423 S.W.3d 238, 241 n.1 (Mo. banc 2014).


3
  At oral argument both parties agreed that the motion to dismiss was properly converted to a motion
for summary judgment.

                                                 5
        A party is entitled to summary judgment when there is no dispute of material

fact and the moving party is entitled to judgment as a matter of law. ITT Commercial

Fin. Corp. v. Mid–Am. Marine Supply Corp., 854 S.W.2d 371, 382 (Mo. banc 1993). If

the [Respondents] can show that the undisputed material facts reveal that the plaintiff

lacks standing, then they are entitled to judgment as a matter of law. Id. at 377. We

make all reasonable inferences in favor of the non-moving party. Id. at 382.

        The Appellants allege that the trial court erred in dismissing the claims in the

second-amended complaint for lack of standing to bring the alleged FCRA violations

because Appellant’s allegations are sufficient to establish a concrete harm.

   I.      Adverse-Action Claims

        In the first point, Ms. Courtright, Mr. Bradley, and Mr. Saye allege the circuit

court erred in dismissing count I in the second-amended complaint based on lack of

standing. A party’s standing to bring an action is one of the requirements of

justiciability under both federal and Missouri law. Corozzo v. Wal-Mart Stores, Inc.,

531 S.W.3d 566, 573-74 (Mo. App. W.D. 2017). “‘Standing requires that a party have

a personal stake arising from a threatened or actual injury.’” Id. at 574. (quoting

Schweich v. Nixon, 408 S.W.3d 769, 774 (Mo. banc 2013)). Appellants, as the parties

seeking relief in the circuit court, “bore the burden of establishing that they had

standing.” Corozzo, 531 S.W.3d at 572. “To establish injury in fact, a plaintiff must

show that he or she suffered ‘an invasion of a legally protected interest’ that is ‘concrete

and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’” Spokeo,

Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016) (quoting Lujan v. Defs. Of Wildlife, 504

U.S. 555, 560 (1992)).



                                             6
        The FCRA provides that, before taking any adverse action against a consumer

based in whole or in part on the report, the employer must provide the consumer with

a copy of the report and a description in writing of the consumer ’s rights. 15 U.S.C. §

1681b(b)(3). 4 Appellants argue three grounds to assert standing: (1) the Third and

Seventh Circuit ruled that, under section 1681b(b)(3)(B)(i), a procedural violation such

as a pre-adverse action sufficiently establishes standing; (2) the Eighth Circuit

recognizes pre-adverse nondisclosure as an actual injury 5; (3) adverse-action claims

are consistent with the common law right of “confession and avoidance.” 6

        The U.S. Supreme Court in Spokeo 7 addressed whether an FCRA procedural

violation entails a degree of risk sufficient to meet the concreteness requirement.

Spokeo, 136 S. Ct. at 1550. In Spokeo, the appellant alleged violations of the FCRA

provision that requires consumer-reporting agencies to “follow reasonable procedures

to assure maximum possible accuracy.” Spokeo, 136 S. Ct. at 1545 (quoting 15 U.S.C.

§ 1681e(b)). The appellant alleged that he was out of work and that inaccuracies in his



4
 Under the FCRA, a person who willfully fails to comply with any of its requirements is liable to the
consumer for, among other things, either actual damages or statutory damages of $100 to $1,000, costs
of the action, attorney fees, and possibly punitive damages. 15 U.S.C. § 1681n(a).
5
  The Eighth Circuit found that “[t]he APA’s procedural rules are designed to allow parties the
opportunity for informed criticism and comments (citation omitted), and creating any exceptions to the
procedural requirements would allow agencies to significantly alter the course of a proceeding without
authorization.” Citizens Telecomm. Co. of Minn., LLC v. Fed. Commc’ns Comm'n, 901 F.3d 991, 1005–
06 (8th Cir. 2018).
6
  “An ‘affirmative defense’ contemplates additional facts not included in the allegations necessary to
support plaintiff's case and avers that plaintiff's theory of liability, even though sustained by the
evidence, does not lead to recovery because the affirmative defense allows the defendant to avoid legal
responsibility.” Peterson v. Discover Prop. & Cas. Ins. Co., 460 S.W.3d 393, 410 (Mo. App. W.D.
2015) (citation omitted). This common law right must be pleaded in a resp onse pleading but the
Appellant’s cite no Missouri case law recognizing this right.
7
  We recognize that, after Spokeo, federal courts have been split on whether an allegation of a violation
of a provision of the FCRA is sufficient, in and of itself, to amount to an Article III injury conferring
standing.

                                                   7
consumer report represented “imminent and ongoing actual harm to his employment

prospects,” but he did not allege that any particular employer declined to hire him

because of the inaccuracies. Id. at 1554 (Ginsburg, J., dissenting) (alterations omitted).

The Court ruled that the injury was “particularized” because it “affected the plaintiff

in a personal and individual way.” Id. at 1548 (majority opinion) (citation omitted).

The court emphasized, however, that particularity is not sufficient to show injury in

fact; concreteness is also required. Id. It further explained what a concrete injury is and

is not: a concrete injury is “de facto”; it “actually exist[s],” though it need not be

“tangible.” Id. at 1548-49. Spokeo stated that a “bare procedural violation, divorced

from any concrete harm,” cannot “satisfy the injury-in-fact requirement of Article III.”

Id. at 1549. The Court reaffirmed, however, that “the risk of real harm” can show

concreteness. Id.

       The Appellants rely on Long v. Southeastern Pennsylvania Transportation

Authority., 903 F.3d 312 (3d Cir. 2018), and Robertson v. Allied Solutions., LLC, 902

F.3d 690 (7th Cir. 2018), where the courts held that a procedural violation under the

FCRA is an injury in fact sufficient to establish standing. Both circuit courts stated that

section 1681b(b)(3) does not protect against adverse action based only on inaccurate

information. See Robertson, 902 F.3d at 695; Long, 903 F.3d at 319.

The Third Circuit held:

       Under Spokeo’s congressional test, the FCRA clearly expresses
       Congress’s “intent to make [the] injury redressable.” Congress granted
       the consumer a right to receive a copy of his report before adverse action
       is taken, and provided for statutory damages plus attorney’s fees for
       willful noncompliance, which Plaintiffs allege here. 15 U.S.C. §§
       1681b(b)(3), 1681n (Congress “allowed for statutory damages for willful
       violations—which clearly illustrates that Congress believed that the


                                            8
      violation of FCRA causes a concrete harm to consumers.”). This harm
      was within Congress’s power to elevate to an injury in fact. “Although it
      is possible to read ... Spokeo as creating a requirement that a plaintiff
      show a statutory violation has caused a ‘material risk of harm’ ..., we do
      not believe that the Court so intended to change the traditional standard
      for the establishment of standing.”

Long, 903 F. 3d at 323-24 (citations omitted).

The Seventh Circuit held:

      An informational injury can be concrete when the plaintiff is entitled to
      receive and review substantive 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 received 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
      particular.” 526 U.S. at 21, 118 S. Ct. 1117. Applying that principle to our
      case, what matters is that [Appellant] was denied information that co uld
      have helped her craft a response to [Employer’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 required 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
      passage 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).

Robertson, 902 F.3d at 697.

      We have also addressed the sufficiency of injuries to establish standing for FCRA violation

claims. Campbell v. Adecco USA, Inc., 561 S.W.3d 116, 121 (Mo. App. W.D. 2018). In


                                               9
determining whether the plaintiffs in Campbell had standing under Missouri law, we first

examined Spokeo. Id. We also looked to Braitberg v. Charter Communications, Inc., 836 F.3d 925

(8th Cir. 2016), to determine whether a plaintiff asserting a violation of a statutory right had

sufficiently alleged concrete injuries to establish standing under Spokeo.8 Id. In Campbell, a

former employee alleged that the employer violated the FCRA by failing to provide him a copy of

the consumer report and the FCRA-mandated summary of rights and by failing to provide him

reasonable time to address the consumer report and/or any inaccuracies within the report before

terminating his employment. Campbell, 561 S.W.3d at 122. As for his injuries, Mr. Campbell

specifically alleged that the consumer report was “not maximally accurate” and “contained errors”

and, if the employer had provided him a copy of the consumer report and the summary of rights

before terminating him, he “may have been able to notify [the employer] that the report was

misleading and/or inaccurate,” he “may have been in a position to correct information in the

consumer report that appears misleading and/or incorrect,” and he “may have been able to maintain

his employment and/or maintain his ability to work for [the employer] at other locations.” Id. at

122-23. We concluded:

       Campbell failed to identify what the alleged errors in the consumer report were or
       how those alleged errors caused him harm or presented a material risk of causing
       harm. As the Supreme Court noted in Spokeo, “not all inaccuracies cause harm or
       present any material risk of harm.” 136 S. Ct. at 1550. Moreover, Campbell’s
       assertion that, if he had been provided a copy of the consumer report and the
       summary of rights and had been able to address the alleged errors with Adecco, he
       “may have been able to maintain his employment and/or maintain his ability to
       work for [Adecco],” was purely conjectural and hypothetical. (Emphasis added.)
       “[A] speculative or hypothetical risk is insufficient” to allege a concrete injury.
       Braitberg, 836 F.3d at 930. Neither Campbell’s vague assertion that the consumer

8
  As a state court, we are not bound by precedent from the Eighth Circuit, but we “may consider it as
persuasive authority, particularly where the law at issue is a federal statute that provides concurrent
jurisdiction in both state and federal courts,” and that we do so for the purpose of furthering
“consistency in the legal standards to be applied by our state courts and the Eighth Circuit if at all
possible.” Corozzo v. Wal-Mart Stores, Inc., 531 S.W.3d 566, 574-75 (Mo. App. 2017) (citations
omitted).


                                                  10
        report was “not maximally accurate” nor his speculative contention that, absent the
        FCRA violations, he “may have been able to maintain his employment” alleged an
        injury that actually existed. Therefore, Campbell failed to allege a concrete injury
        sufficient to confer standing on his Adverse Action claim. The court properly
        dismissed this claim.

Id. at 123.

        Applying the principles articulated in Campbell to this case, we look first at the sufficiency

of Ms. Courtright’s and Mr. Saye’s allegations of injuries in the adverse-action claim. The

Appellants assert that these FCRA violations resulted in an “actual injury” because they were

denied the opportunity to review and dispute the contents of the consumer report before their

terminations. As the Supreme Court noted in Spokeo;

        …Congress plainly sought to curb the dissemination of false information by
        adopting procedures designed to decrease that risk. . . A violation of one of the
        FCRA's procedural requirements may result in no harm. For example, even if a
        consumer reporting agency fails to provide the required notice to a user of the
        agency's consumer information, that information regardless may be entirely
        accurate. In addition, not all inaccuracies cause harm or present any material risk
        of harm.

Spokeo, 136 S. Ct. at 1550.9

        Ms. Courtright and Mr. Saye did not allege that the information in their reports was

inaccurate or that having more time to correct inaccuracies or information about their FCRA rights

would have changed the employment action that O’Reilly took. Ms. Courtright alleged that she

was harmed in that she could not afford a place to live because of the termination. Ms. Courtright’s

alleged harm is conjectural or hypothetical because a mere procedural violation by O’Reilly did

not cause her the loss of the means to pay for a place to live, it caused her not be employed at



9
 Contrary to the Appellants’ argument, t he Eighth Circuit has not overruled or limited its holding in
Braitberg that a bare procedural violation of a statutory duty, without resulting harm or a material risk
of harm from that violation, is insufficient to c onfer standing. Braitberg v. Charter Commc’ns, Inc.,
836 F.3d 925, 930 (8th Cir. 2016). Because the Eighth Circuit’s position on this issue has not changed
since Braitberg, we see no reason not to follow the analysis set forth in Corozzo, which relies, in part,
on Braitberg.

                                                   11
O’Reilly’s Auto. Mr. Saye alleges that he lost his job and had slight harm to his ego. Mr. Saye had

his attorney explain by letter to O’Reilly the circumstances of his charge, which did not change

O’Reilly’s decision, so any argument that he “may have been able to maintain his employment

and/or maintain his ability to work for O’Reilly” is purely conjectural and hypothetical. Campbell,

561 S.W.3d at 123. We are not persuaded by the Third and Seventh Circuit opinions especially as

applied to Ms. Courtright and Mr. Saye, because there was no risk to accuracy, relevancy, proper

utilization, and fairness. Nor is this analogous to the recent Eighth Circuit APA holding in Citizens.

Ms. Courtright and Mr. Saye failed to allege more than a mere procedural violation to establish a

concrete injury sufficient to confer standing in their adverse-action claim. Point one is denied as

to their adverse-action claims.

       Applying the principles of Campbell to Mr. Bradley, however, we find an actual

injury sufficient to establish standing. We find the trial court’s finding too narrow in

applying the relevant principles of law when it held that “[t]he clear cause of Bradley’s

delayed income and any alleged harm to his reputation was the inaccurate report

produced by a third-party company – not Defendant’s alleged non-compliance with the

FCRA.” Spokeo contemplates the plaintiff like Mr. Bradley, who experiences a concrete

injury because of a procedural violation. Had O’Reilly furnished the background report

to Mr. Bradley before the adverse action, as statutorily required, Mr. Bradley would

have had the opportunity to dispute the errors before the employment-offer revocation.

O’Reilly did not furnish the background report to Mr. Bradley; instead, it revoked the

conditional offer based on inaccurate information, and Mr. Bradley had to

independently retrieve the background report and correct the issues with GIS. While

the false information by itself may not have created statutory damages under the FCRA,



                                                 12
the false information coupled with the employer’s failure to be statutorily compliant

denied Mr. Bradley the opportunity to contest that information before the adverse

action; thus, the procedural violation grew into a concrete injury. The U.S. Supreme

Court stressed curbing the dissemination of false information and the risk of harm due

to it. Spokeo, 136 S. Ct. at 1550.

           Mr. Bradley’s evidence is distinguished from Campbell because there we

characterized the pleading as a “vague assertion” that the consumer report was “not

maximally accurate.” We also noted that Mr. Campbell’s alleged injury that, absent the

FCRA violations, he “may have been able to maintain his employment,” was

speculative. Campbell, 561 S.W.3d at 123. It is undisputed that Mr. Bradley’s assertion

of the report’s inaccuracy was not vague but definite, and once those disputed

inaccuracies were corrected, O’Reilly did in fact offer employment to Mr. Bradley. 10

Had Mr. Bradley been afforded the opportunity to dispute the inaccuracies pre -adverse

action, then his asserted harm, i.e, that he was “without a paycheck” for a period of

time, would not have occurred. 11 Point one is granted as to Mr. Bradley’s claim for

adverse action.

     II.      Disclosure and Authorization Claims

           In the second point, the Appellants argue that the circuit court erred in ruling



10
   The Appellants, in response to the summary-judgment motion, cannot rely on mere pleadings and
allegations but must set forth by affidavit or other evidence specific facts. Lujan v. Defs. of Wildlife,
504 U.S. 555, 119 L. Ed. 2d 351 (1992). Here, Mr. Bradley set forth the letter of termination and,
deposition testimony, and O’Reilly admitted the pertinent facts in its motion to dismiss.
11
  Respondents argue that Mr. Bradley’s harm of delayed income and damage to his reputation was the
result of independent action by GIS, and thus such harm lacked a causal connection to O’Reilly’s
alleged actions. Respondent erroneously relies on an Eighth Circuit case dealing with unlawful
governmental regulation. Lujan v. Defs. of Wildlife, 504 U.S. 555, 562, 119 L. Ed. 2d 351 (1992).


                                                   13
that Mr. Saye and Mr. Estrada did not have standing to bring count I I and count IV of

their   second-amended          complaint,      which      alleged     “disclosure”      claims     and

“authorization” claims respectively. 12 The Appellants argue that under Campbell and

Corozzo, the allegations are sufficient to establish standing. Appellants are incorrect,

however, in applying the standard of review from the cases that were reviewed for

motions to dismiss rather than cases dismissed on summary judgment. In Campbell and

Corozzo, we determined standing as a matter of law by examining the petition “along

with any other non-contested facts accepted as true by the parties at the time the motion

to dismiss was argued” and by construing the pleadings liberally, accepting all alleged

facts as true and construing them in a light most favorable to the pleader. Corozzo, 531

S.W.3d at 572. As noted above, the parties both submitted matters outside the pleadings

for the court's consideration and therefore acquiesced in treating this matter as a motion

for summary judgment. A party is entitled to summary judgment when there is no

dispute of material fact and the movant is entitled to judgment as a matter of law.” ITT

Commercial, 854 S.W.2d at 377.

        In response to summary judgment motion, however, plaintiff can no
        longer rest on such mere allegations but must set forth by affidavit or
        other evidence the specific facts which for purposes of summary judgment
        motion will be taken to be true. And at the final stage, those facts (if
        controverted) must be supported adequately by the evidence adduced at
        trial.

12
   This point relied on “is impermissibly multifarious, as it raises multiple, discrete complaints, that
are required by Rule 84.04(d)(1)(A) to be asserted in separate points on appeal. Multifarious points on
appeal preserve nothing for appellate review.” Host v. BNSF Ry. Co., 460 S.W.3d 87, 96 n.4 (Mo. App.
W.D. 2015). “Failure to comply with Rule 84.04 merits dismissal.” Anderson v. Am. Family Mut. Ins.
Co., 173 S.W.3d 356, 357 (Mo. App. W.D. 2005). “We have the discretion to review non-compliant
briefs ex gratia where the argument is readily understandable. But we cautiously exercise this discretion
because each time we review a noncompliant brief ex gratia, we send an implicit message that
substandard briefing is acceptable. It is not.” Scott v. King, 510 S.W.3d 887, 892 (Mo. App. E.D. 2017)
(internal citation omitted). However, this Court “prefers to dispose of cases on the merits if it can
discern the argument being made.” Hink v. Helfrich, 545 S.W.3d 335, 338 (Mo. banc 2018). Because
we can readily discern the arguments made by Appellants, we proceed to review ex gratia.

                                                   14
Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). Here, the Appellants only

presented evidence that applicants would not have been provided with a disclosure or

given an authorization from January 2013 through March 2014 unless they clicked the

hyperlink within the Respondents’ employment application. The Appellants failed to

dispute the material fact of whether Mr. Saye and Mr. Estrada received the requisite

disclosure or authorization forms by clicking or not clicking the link. In contrast, Mr.

Saye completed an employment application and signed with a digital signature that

gave notice of the background check and Mr. Estrada testified that he was aware of the

disclosure during the employment application process. Further, Appellant ’s counsel

conceded during oral argument that Mr. Saye and Mr. Estrada did receive notice of the

background check during the application process. Point two is denied.

   III.      Derivative Claims

          In the third point, the Appellants argue that the circuit court erred in dismissing

count III and count V of the second-amended complaint, which alleged California state

law claims derivative of the FCRA for adverse action, and disclosure and authorization.

This point, like point II, is multifarious. Count III of the Appellants’ first-amended

complaint alleged violations of California’s Investigative Consumer Reporting

Agencies Act (ICRAA). Count III was abandoned, however, in the second-amended

complaint and is thus unpreserved for this Court’s review. “By filing an amended

pleading, a plaintiff generally abandons his former pleadings and those pleadings may

not be considered for any purpose afterward.” Johnson v. GMAC Mortg. Corp., 162

S.W.3d 110, 115 (Mo. App. W.D. 2005). Missouri law requires parties to give the trial

court an opportunity to correct the error alleged. The record reflects that the Appellants



                                              15
did not plead count III in the second-amended complaint thereby abandoning it, thus

giving the trial court no reason to consider it in the motion to dismiss. Therefore, this

issue has not been preserved for review for two violations of Rule 84.04. This Court

has discretionary authority to review an unpreserved issue for plain error. Mayes v.

Saint Luke's Hosp. of Kansas City, 430 S.W.3d 260, 269 (Mo. banc 2014). Under these

facts, we elect not to review this argument concerning the ICRAA for plain error as

nothing in the record facially establishes substantial grounds for us to believe that

evident, obvious and clear error has occurred or that a manifest injusti ce or a

miscarriage of justice has resulted. Id.

      Count V alleges violations of California’s Unfair Competition Law (UCL) (Cal.

Bus. & Prof. Code Section 17200 et seq.) The Appellants argue that if Mr. Saye has

standing under the FCRA or ICRAA, their derivative claims under the UCL should also

survive. For the reasons stated earlier in this opinion we do not find that Mr. Saye had

standing under the FCRA, and standing under the ICRAA was not preserved. This point

is denied.

                                       Conclusion

      We find that the trial court erred in determining that Mr. Bradley did not have

standing to present the adverse-action claim. We find that the trial court did not err in

granting summary judgment on all other counts of the second-amended complaint. We

remand for further proceedings consistent with this opinion.

                                                /s / Thomas H. Newton
                                                Thomas H. Newton, Judge

Cynthia L. Martin, P.J., and Gary D. Witt, J. concur.



                                           16
