Owner-Operator Independent Drivers Ass'n v. USIS Commercial Services, Inc.

537 F.3d 1184, 37 A.L.R. Fed. 2d 711, 28 I.E.R. Cas. (BNA) 1, 2008 U.S. App. LEXIS 17635, 2008 WL 3844752
CourtCourt of Appeals for the Tenth Circuit
DecidedAugust 19, 2008
Docket06-1430
StatusPublished
Cited by24 cases

This text of 537 F.3d 1184 (Owner-Operator Independent Drivers Ass'n v. USIS Commercial Services, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Owner-Operator Independent Drivers Ass'n v. USIS Commercial Services, Inc., 537 F.3d 1184, 37 A.L.R. Fed. 2d 711, 28 I.E.R. Cas. (BNA) 1, 2008 U.S. App. LEXIS 17635, 2008 WL 3844752 (10th Cir. 2008).

Opinions

MURPHY, Circuit Judge.

The plaintiffs, Shane Paul, Steven Bus-sone, Dale Stewart, Kenneth Hinzman, and William Meek,1 are individual truck drivers. They brought suit contending the defendant, USIS Commercial Services, Inc., violated the Fair Credit Reporting Act (FCRA), 15 U.S.C. §§ 1681-1681x, in its procurement and dissemination of their employment histories. They claimed that USIS failed to comply with FCRA’s notice and authorization requirement when it procured information from former employers regarding their job performance. 15 U.S.C.' § 1681b(b). The plaintiffs also charged the reports produced by USIS are routinely inaccurate and USIS failed to [1187]*1187follow reasonable procedures to assure maximum possible accuracy, as required by FCRA. 15 U.S.C. § 1681e(b). The plaintiffs moved for class certification and the district court denied the motion.

The plaintiffs’ claims went to trial. The district court granted judgment as a matter of law with respect to some of the plaintiffs’ accuracy claims. It also deter-, mined that the information procured from former employers by USIS did not constitute “consumer reports” as defined by FCRA and was therefore not regulated by the statute. 15 U.S.C. § 1681a(d). During USIS’s presentation of its case, the plaintiffs objected to the admission of evidence regarding the employer trucking companies’ use of the reports they obtained from USIS. The objection was overruled. The remaining accuracy claims went to the jury, which found in favor of USIS.

Plaintiffs appeal the district court’s ruling that the disputed reports are not consumer reports procured for employment purposes, its evidentiary ruling, and its denial of class certification. Taking jurisdiction pursuant to 28 U.S.C. § 1291, this court AFFIRMS.

1. Background

The Department of Transportation requires motor carriers to investigate drivers’ employment histories and driving records before hiring. See 49 C.F.R. § 391.23 (2008). USIS2 sells a service to assist motor carriers in complying with this requirement. USIS is an investigation and security services company that compiles and disseminates truck driver employment histories. USIS gathers these histories from individual motor carriers who subscribe to USIS’s service. The companies providing the information to USIS fill out a Termination Record Form (TRF) for truck drivers who have left the company. The TRF contains seventeen different sections such as “eligible for rehire,” “reason for leaving,” and “work record.” Each section lists several descriptors, which employers are instructed to circle if applicable to the driver. For example, the “work record” section contains twenty-eight descriptors, including “superior,” “outstanding,” “excessive complaints,” “cargo loss,” “late pick up/delivery,” and “failed to report accident.” The employer is permitted to circle as many descriptors as applicable. The employer may choose to circle “other” and provide a short explanation, but the form provides no mechanism for the employer to explain why they chose a given descriptor.

The TRFs are transmitted to USIS by the motor carrier and USIS keys in the codes associated with each descriptor. The TRFs are then compiled to form the employee’s Employment History Report (EHR). For a fee, a potential employer may request an applicant’s EHR. Employers also receive a credit toward purchasing USIS services each time they submit a completed TRF.

The plaintiffs brought suit, alleging USIS’s practices violated FCRA. Congress enacted FCRA in 1970 to protect consumer privacy and to ensure fair and accurate credit reporting. 15 U.S.C. § 1681(a); Safeco Ins. Co. of Am. v. Burr, — U.S. -, 127 S.Ct. 2201, 2205-06, 167 L.Ed.2d 1045 (2007). FCRA regulates the distribution of consumer reports and sets out certain procedures and standards that consumer reporting agencies must comply with when preparing consumer reports. The statute requires that in preparing a consumer report a consumer reporting agency must “follow reasonable procedures to assure maximum possible accuracy of the information.” 15 U.S.C. § 1681e(b). It also mandates that a con[1188]*1188sumer reporting agency may only “furnish a consumer report for employment purposes” if the entity obtaining the report has received the consumer’s authorization to procure the report. Id. § 1681b(b)(l). FCRA provides civil liability for willful or negligent failure to comply with the statute. 15 U.S.C. §§ 1681n, 1681o.

In the district court, the plaintiffs contended that the TRFs are “consumer reports” obtained for “employment purposes” as defined by FCRA and that the employers providing the TRFs to USIS must therefore comply with the statute’s requirements.3 They further alleged that USIS has not met the requirements of FCRA in procuring TRFs from employers. In particular, the plaintiffs challenged the TRFs’ accuracy and USIS’s failure to provide notice when procuring a TRF.4 The plaintiffs moved for class action certification under Fed.R.Civ.P. 23. The district court denied the motion. It concluded that questions of fact and law affecting individual plaintiffs predominated over those common to the proposed class.

The trial began on August 21, 2006. As provided in the Final Pretrial Order, the plaintiffs presented four statutory claims: unlawful procurement of consumer reports, taking adverse action by receiving inaccurate TRFs without discharging notice obligations, willfully or negligently taking adverse action by selling inaccurate EHRs without discharging notice obligations, and willfully or negligently failing to assure maximum possible accuracy in its TRFs and EHRs. 15 U.S.C. § 1681b(b). At the close of the plaintiffs’ case, USIS moved to dismiss under Fed.R.Civ.P. 50(a)(1). USIS argued that the plaintiffs had not shown that the TRFs were consumer reports. USIS also argued that the plaintiffs had not met their burden with respect to the inaccuracy claims.

The district court concluded that as an essential element of the first three claims, the plaintiffs were required to demonstrate USIS procured the TRFs for “employment purposes.” 15 U.S.C. § 1681b(a)(3)(B). FCRA defines “employment purposes” as “a report used for the purpose of evaluating a consumer for employment, promotion, reassignment or retention as an employee.” 15 U.S.C.

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Bluebook (online)
537 F.3d 1184, 37 A.L.R. Fed. 2d 711, 28 I.E.R. Cas. (BNA) 1, 2008 U.S. App. LEXIS 17635, 2008 WL 3844752, Counsel Stack Legal Research, https://law.counselstack.com/opinion/owner-operator-independent-drivers-assn-v-usis-commercial-services-inc-ca10-2008.