Farmer v. Phillips Agency, Inc.

285 F.R.D. 688, 2012 WL 4840707, 2012 U.S. Dist. LEXIS 146144
CourtDistrict Court, N.D. Georgia
DecidedSeptember 20, 2012
DocketCivil Action No. 2:11-CV-0089-WCO
StatusPublished
Cited by20 cases

This text of 285 F.R.D. 688 (Farmer v. Phillips Agency, Inc.) is published on Counsel Stack Legal Research, covering District Court, N.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Farmer v. Phillips Agency, Inc., 285 F.R.D. 688, 2012 WL 4840707, 2012 U.S. Dist. LEXIS 146144 (N.D. Ga. 2012).

Opinion

ORDER

WILLIAM C. O’KELLEY, Senior District Judge.

The captioned case is before the court for consideration of plaintiffs “Motion for Class Certification” [37],

I. Procedural History

This case was filed on April 11, 2011, alleging violations of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq.1 According to the complaint, plaintiff was the subject of an inaccurate and incomplete criminal background report prepared by defendant. Defendant is a corporation in the business of compiling individual consumer reports, including criminal background checks for employment purposes, from public records databases. Defendant furnishes these reports to employers wishing to investigate the background and criminal history of either a job applicant or a current employee. In this motion, plaintiff seeks to certify a [691]*691class action against defendant premised on one provision of the FCRA, 15 U.S.C. § 1681k.

II. The Fair Credit Reporting Act

The FCRA sets standards for consumer reporting agencies. A “consumer reporting agency” (“CRA”) includes “any person2 which, for monetary fees, dues or on a cooperative nonprofit basis, regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purposes of furnishing consumer reports to third parties, and which uses any means or facility of interstate commerce for the purpose of preparing or furnishing consumer reports.” 15 U.S.C. § 1681a(f). A “consumer” is “an individual,” id. § 1681a(c), and a “consumer report” is:

any written, oral or other communication of any information by a consumer reporting agency bearing on the consumer’s credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living which is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer’s eligibility for:
(A) credit or insurance to be used primarily for personal, family, or household purposes;
(B) employment purposes; or
(C) any other purpose authorized under section 1681b of this title.

Id. § 1681a(d)(l). It is undisputed that plaintiff is a consumer, that defendant is a CRA, and that the reports defendant prepared about plaintiff and the putative class members are consumer reports.

FCRA compliance is enforced in several ways. First, because the violation of any FCRA “requirement or prohibition” constitutes “an unfair or deceptive act or practice in commerce,” the Federal Trade Commission (“FTC”) has general authority to initiate administrative action against violators, subject to certain exceptions where other federal agencies have jurisdiction. See id. § 1681s(a)(l). The FTC may also bring a civil action in federal court to recover a civil penalty for a CRA’s knowing violation of a FCRA requirement. Id. § 1681s(a)(2)(A). Second, several federal agencies have authority to enforce certain FCRA provisions. Id. § 1681s(b).3 Third, a state, acting through either its attorney general or a designated state agency, may file a civil action to enjoin a FCRA violation or to recover damages on behalf of its residents. Id. § 1681s(c)(l)(A) and (B). Lastly, the FCRA contains a private right of action allowing an individual consumer to sue a CRA for a FCRA violation with respect to that consumer. Suit may be brought under either § 1681n for a willful violation or § 1681o for a negligent violation.

This putative class-action lawsuit is brought under § 1681n.4 Section 1681n(a) allows a consumer to sue when a CRA “willfully fails to comply with any requirement imposed under [the FCRA] with respect to [that] consumer____” Id. The CRA “is liable to that consumer in an amount equal to the sum of any actual damages sustained by the consumer as a result of the failure or damages of not less than $100 and not more than $1,000.” Id. § 1681n(a)(l)(A).

Plaintiff alleges that defendant willfully failed to comply with § 1681k. That statute applies to any CRA “which furnishes a consumer report for employment purposes5 and [692]*692which for that purpose compiles and reports items of information on consumers which are matters of public record and are likely to have an adverse effect upon a consumer’s ability to obtain employment.” Id. § 1681k. Such a CRA must do one of two things. The CRA can give the consumer notice “at the time such public information is reported” of “the fact that public record information is being reported ... together with the name and address of the person to whom such information is being reported.” Id. § 1681k(a)(l). This will be referred to as the “notice” provision of § 1681k. Or, the CRA can:

maintain strict procedures designed to insure that whenever public record information which is likely to have an adverse effect on a consumer’s ability to obtain employment is reported it is complete and up to date. For purposes of this paragraph, items of public record6 relating to arrests, indictments, convictions, suits, tax liens, and outstanding judgments shall be considered up to date if the current public record status of the item at the time of the report is reported.

Id. § 1681k(a)(2). This will be referred to as the “completeness” provision of § 1681k.

III. Procedural Background

On November 16, 2011, plaintiff filed this motion for class certification. A hearing was held on April 16, 2012. At the conclusion of the hearing, the court allowed the parties to submit supplemental briefing.

Plaintiff seeks to certify the following class:

All natural persons residing within the United States and its Territories who, beginning five years prior to the filing of this Complaint and continuing through the conclusion of this action, were the subject of an employment consumer report prepared by Defendant which included any adverse criminal or public record information — including any judgment of conviction, traffic offense, summary infraction, arrest, bankruptcy, civil judgment or tax lien.

(Pl.’s Mot. for Class Certification 1.) Plaintiff argues that this class of consumers has been aggrieved by defendant’s systematic violation of § 1681k. Since defendant concedes that it never sends notice when it issues an employment report, plaintiff claims that defendant can only comply with the FCRA-if it maintains the “strict procedures” described in § 1681k(a)(2). Plaintiff argues that defendant applied the same substandard quality-control procedures to every consumer report it furnished. Accordingly, plaintiff contends that defendant has willfully violated § 1681k — by failing to comply with either § 1681k(a)(l) or § 1681k(a)(2) — with respect to each putative class member.

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Cite This Page — Counsel Stack

Bluebook (online)
285 F.R.D. 688, 2012 WL 4840707, 2012 U.S. Dist. LEXIS 146144, Counsel Stack Legal Research, https://law.counselstack.com/opinion/farmer-v-phillips-agency-inc-gand-2012.