Ernst v. Dish Network, LLC

49 F. Supp. 3d 377, 2014 U.S. Dist. LEXIS 132892, 2014 WL 4693700
CourtDistrict Court, S.D. New York
DecidedSeptember 22, 2014
DocketNo. 12 Civ. 8794(LGS)
StatusPublished
Cited by5 cases

This text of 49 F. Supp. 3d 377 (Ernst v. Dish Network, LLC) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ernst v. Dish Network, LLC, 49 F. Supp. 3d 377, 2014 U.S. Dist. LEXIS 132892, 2014 WL 4693700 (S.D.N.Y. 2014).

Opinion

ORDER & OPINION

LORNA G. SCHOFIELD, District Judge:

Scott Ernst, the named Plaintiff in this putative class action, was a satellite dish installation technician employed by non-party Superior Satellite, Inc. (“Superior”). Defendants Dish Network L.L.C. and Dish Network Service L.L.C. (collectively “Dish”) provide satellite television and installation services. Plaintiff alleges that Dish procured a credit report about him from Defendant Sterling Infosystems Inc. (“Sterling”), a consumer reporting agency, without his consent and without the proper disclosures. He further alleges that the report was used to terminate Plaintiff without Dish providing him with a copy of the report and a summary of his rights in violation of the Fair Credit Reporting Act (the “FCRA”), 15 U.S.C. § 1681. Plaintiff also asserts that Sterling violated the FCRA by providing outdated information and refusing to provide Plaintiff with its source of information upon request.

Having completed the first phase of discovery, Dish and Plaintiff now cross-move for summary judgment on a single potentially dispositive issue—whether the type of document obtained by Dish concerning Plaintiff (the “Summary Report”) is a “consumer report” within the meaning of the FCRA and therefore subject to its strictures. For the reasons discussed below, Plaintiffs motion is granted because the Summary Report is a consumer report as defined by the FCRA.

BACKGROUND

The facts are taken from the parties’ Rule 56.1 statements and the exhibits submitted in connection with the motions, and are undisputed except as otherwise noted.

When customers purchase Dish services, Dish installs a satellite dish at the customers’ residences using its own employees or its network of third-party contractors. Installation and service call assignments are assigned through Dish’s work order management system called “ETA Direct.”

In the fall of 2010, Dish implemented a customer safety program that required third-party contractors to obtain a background report on any technician who entered the home of a Dish customer. Only [379]*379third-party technicians who received a rating of “low risk” as a result of the background report were eligible to receive Dish work assignments or enter the homes of Dish customers. Dish worked with Defendant Sterling to develop a template for the information to be provided to third-party contractors in the reports about their technicians. Dish did not receive a copy of the full background reports. Instead, Dish received for each technician a Summary Report that contained only the following information: the company where the individual worked or was seeking employment; an order number based on the request for a background report; the date the background check request order was opened; the date the order was closed; the individual’s first and last name; the last four digits of the individual’s social security number; the individual’s status in ETA Direct; the type of report that the third-party contractor ordered for the individual; and the individual’s risk rating. The risk rating was one of three designations-“high risk,” “low risk,” or “review.”

Dish established the criteria that triggered these labels. The items in the background report that resulted in a “high risk” rating in the Summary Report included:

• Violent crimes—“Assault, Terroristic Threats, Stalking, Harassment”
• Property crimes—“Identity theft, Theft of property, Forgery”
• Sex crimes—“Rape, Child pornography, Indecent liberties with a minor, Voyeurism” and “Sex offenders— registered or those who fail to register”
• Drug crimes—“DUI—drug, Drug Trafficking/manufacture ... Prescription fraud, Possession of controlled substance”
• Alcohol-related crimes—“DUI—alcohol, Contribute to a minor, Drunk in public”
• “Miscellaneous—Escape, Perjury, Conspiracy, Evading police officer, Espionage, Accessory ... Disorderly Conduct, Breach of Peace”
• “Habitual Crim[inal] Offender”— Any three unrelated misdemeanor convictions
• Vehicular violations—“DUI Misdemeanor; Fail to Stop and Render Aid/Hit and Run; Fleeing Police Officer; Reckless Driving; Manslaughter/ Felony/Homicide Involving a Vehicle; Racing; Speed Contest; Theft of Vehicle,” as well as having three or more “pre-hire” moving violations, including “Driver License Not in Possession; Failure to Use Signal” etc.
“Ineligible”—“At Time of MVR [Motor Vehicle Record]: License Not Valid; License Currently Suspended, Expired; Provisional or Restricted License; Learner’s Permit (NOTE: These particular violations may not preclude the candidate permanently but he/she is Ineligible at that time). Risk [rating is] High until the issue is cleared and new MVR is rated Low Risk.” [emphasis in original]

Dish did not require its third-party contractors to terminate employees who were rated “high risk,” but did not permit them to register in ETA Direct or act as Dish technicians.

Superior hired Plaintiff, Scott Ernst, as a technician in the fall of 2009. During the relevant time, Superior was a third-party contractor for Dish, providing installation services to Dish customers in six states, and 99% of Superior’s work was for Dish. Dish had no ownership interest in Superi- [380]*380or, and Plaintiff never received any income from Dish.

When Superior hired Plaintiff, Superior did not require employees to undergo background checks. In April 2011, Dish informed Superior that it must obtain background reports on all third-party contractor technicians who provided services to Dish. Dish did not request that Superior send it a background report directly. On November 28, 2011, Superior sent a request to Sterling for a background report on Plaintiff. The background report revealed that Plaintiff had prior criminal convictions that resulted in his being rated “high risk” in the Summary Report sent to Dish. Plaintiffs boss informed him that he would no longer be able to work on Dish assignments, but that he could remain with Superior and perform other work such as retail sales. Plaintiff did not wish to perform retail sales and left Superior on December 9, 2011.

Dish never received the full background report concerning Plaintiff. The full report that Superior received was seven pages long and contained detailed information about Plaintiff including his current and previous addresses, a detailed criminal records search, a detailed motor vehicle report, a sexual offender database search, a social security trace and a rating of “high risk.”

LEGAL STANDARD

The standard for summary judgment is well established. Summary judgment is appropriate where the record before the Court establishes that there is no “genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A genuine dispute as to a material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,

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Cite This Page — Counsel Stack

Bluebook (online)
49 F. Supp. 3d 377, 2014 U.S. Dist. LEXIS 132892, 2014 WL 4693700, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ernst-v-dish-network-llc-nysd-2014.