Jones v. Sterling Infosystems, Inc.

317 F.R.D. 404, 2016 U.S. Dist. LEXIS 148056, 2016 WL 6124114
CourtDistrict Court, S.D. New York
DecidedMarch 30, 2016
Docket14-CV-3076 (VEC)
StatusPublished
Cited by3 cases

This text of 317 F.R.D. 404 (Jones v. Sterling Infosystems, Inc.) 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
Jones v. Sterling Infosystems, Inc., 317 F.R.D. 404, 2016 U.S. Dist. LEXIS 148056, 2016 WL 6124114 (S.D.N.Y. 2016).

Opinion

ORDER

VALERIE CAPRONI, United States District Judge:

Plaintiff seeks to certify a nationwide class in order to pursue his claim that Sterling Infosystems, Inc. (“Sterling”) willfully violates the federal Fair Credit Reporting Act (“FCRA”) and its New York analogue when it reports criminal records obtained from the New York Office of Court Administration [407]*407(“NYOCA”)1 for employment purposes. Defendant opposes class certification, arguing that Plaintiff has not satisfied his burden to demonstrate that the requirements of Rule 23 of the Federal Rules of Civil Procedure have been met. Because Plaintiff has not demonstrated that a class action is the appropriate vehicle to rectify the wrong that Plaintiff alleges Sterling perpetrated, Plaintiffs motion for class certification is DENIED.

BACKGROUND

Kevin Jones lost a job with Halstead Management Company because Sterling, which had been hired to do a criminal background check on him, reported that he had four criminal convictions when, in fact, he had none. The mistake by Sterling was the result of the facts that there are (at least) two Kevin Joneses in New York with the same date of birth, at least one of whom has a criminal record, and prior to disseminating its report, Sterling did not match all of the identifying information that was available in the court records to the information it had regarding the applicant Kevin Jones in order to determine whether the records it reported related to the correct Kevin Jones. Mem. of Law in Supp. of Pl.’s Mot. for Class Certification (“Pl. Mem”) at 10-14 (Dkt. 39).

Jones seeks to certify a Rule 23(b)(3) class of employees or applicants for employment anywhere in the United States who were the subject of a report sold by Defendant for employment purposes that contained at least one criminal conviction in New York.2 In addition, the Plaintiff seeks to certify for injunctive relief a subclass of all members of the class who are residents of New York State under Rule 23(b)(2). Pl. Mem. at 3. Plaintiff asserts that Sterling willfully violates the FCRA because it never sends notice to the person about whom it is reporting adverse information, and it never provides complete records. Accordingly, he argues, a class action is appropriate because Sterling violates the statute every time it reports adverse criminal information for employment purposes.

DISCUSSION

I. Fair Credit Reporting Act

Jones is pursuing class certification only for his claims that Sterling willfully violated FCRA section 1681k(a), 15 U.S.C. § 1681k(a), and its New York analogue, the New York Fair Credit Reporting Act (“NY-FCRA”) section 380-g, N.Y. Gen. Bus. Law, § 380-g.3 He has also asserted an individual claim that Sterling also violated section 1681e(b) of the FCRA, which requires credit reporting agencies (“CRAs”) to follow rea[408]*408sonable procedures to assure accuracy in the information they report. Compl. at Count VI (Dkt. 2).

The FCRA is a complicated statute that “was crafted to protect consumers from the transmission of inaccurate information about them, and to establish credit reporting practices that utilize accurate, relevant, and current information in a confidential and responsible manner.” Guimond v. Trans Union Credit Info. Co., 45 F.3d 1329, 1333 (9th Cir. 1995). The provision at issue in Plaintiffs motion for class certification, section 1681k(a), relates to the portion of the business of CRAs that involves reporting public record information (such as arrests and convictions) in the employment context. When a CRA is reporting matters of public record that are likely to have an adverse effect on a person’s ability to obtain employment, section 1681k(a) requires the CRA to do one of two things: either provide notice to the subject of the report when the report is transmitted or

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 record relating to arrests, indictments, convictions, ... 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.

15 U.S.C. § 1681k(a)(1), (2).

It is undisputed in this case that Sterling does not provide notice to the subject of the reports. Def. Opp’n at 11. Accordingly, a critical issue to be tried is whether Sterling has “strict procedures” that are designed to ensure that the information it reports is “complete and up to date.”

Plaintiffs original position was that the statute obligates Sterling to provide a “complete” record, meaning not just the disposition of a criminal case, but every event associated with that criminal conviction (e.g., the date of arrest; arraignment; status conferences). Tr. of Oral Arg., Feb. 10, 2016 (“Tr.”) at 5-7 (Dkt. 62-1). Counsel for Plaintiff cited no precedent for that expansive interpretation, and, when required to brief specifically what constitutes a “complete” record under the statute, Plaintiff shifted his position to argue that a “complete” record is one that includes, at a minimum, “all personal identifying information from the underlying publicly available courthouse records — such as actual first name, middle name, last name, social security number, address, and the date of birth of the person convicted.” PL’s Suppl. Br. in Further Supp. of Mot. for Class Certification (“PI. Suppl.”) at 2 (Dkt. 63) (emphasis in original). Defendant argues that in the context of section 1681k(a), which defines “up to date” but does not define “complete,” and reading that section in the context of the entire statute, “complete and up to date” means the “current status of the public record.” Def. Sterling Infosystems, Inc.’s Suppl. Br. in Opp’n to Pl.’s Mot. for Class Certification: the Meaning & Interpretation of the Word “Complete,” as Used in 15 U.S.C. § 1681k(a)(2) and N.Y. Gen. Bus. Law § 380-g(b) (“Def. Suppl”) at 2 (Dkt. 61).

Defendant is correct that the Court must look at the entire statutory scheme in order to determine the meaning of “complete and up to date.” Plaintiffs proffered definition would make some sense if the purpose of § 1681k(a)(2) were to prevent criminal records from being attributed to the wrong person, as occurred here. If that were the purpose, then requiring the CRA to report all identifying information in the record might minimize, if not entirely eliminate, the problem that arises when there is more than one person with the same first and last name and birthdate.

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Bluebook (online)
317 F.R.D. 404, 2016 U.S. Dist. LEXIS 148056, 2016 WL 6124114, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jones-v-sterling-infosystems-inc-nysd-2016.