Osada v. Experian Information Solutions, Inc. et al
Filing
104
MEMORANDUM Opinion and Order Signed by the Honorable Harry D. Leinenweber on 12/20/2012:Mailed notice(wp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DAVID OSADA and KIMBERLY
HOVENAC,
Plaintiffs,
v.
Case No. 11 C 2856
Hon. Harry D. Leinenweber
EXPERIAN INFORMATION
SOLUTIONS, INC.,
Defendant.
MEMORANDUM OPINION AND ORDER
Pending before the Court are Plaintiffs’ Amended Motion for
Class Certification and Plaintiffs’ Motion to Compel Responses from
Defendant. For the reasons stated herein, the Motions are granted.
I.
BACKGROUND
The Court presumes familiarity with its March 2012 Order [Dkt.
62], and accordingly, provides an abbreviated version of the
factual background.
See Osada et al. v. Experian, No. 11-C-2856,
2012 WL 1050067 (March 28, 2012).
On March 28, 2012, this Court certified one of the two
putative classes Plaintiff David Osada (“Osada”) sought to certify
for
his
lawsuit
against
Experian
Information
Solutions,
Inc.
(“Experian”) for violations of the Fair Credit Reporting Act (the
“FCRA”), 15 U.S.C. § 1681.
The Court certified Plaintiff’s “One
Year” class (“Class A”), but denied the proposed “Does Not Meet
Guidelines” class (“Class B”), determining that Osada was not an
adequate class representative pursuant to Federal Rule of Civil
Procedure 23(a)(3)—(4).
In light of this ruling, Plaintiff filed an Amended Motion to
Certify
Class
B
[Dkt.
65],
and
also
filed
a
Second
Amended
Complaint adding Kimberly Hovanec (“Hovanec”) as an individually
named Plaintiff and the proposed class representative for Class B.
[Dkt. 68].
Hovanec
alleges
that
in
or
about
June
2009
she
noticed
accounts on her credit report that did not belong to her.
Specifically, Hovanec alleges that she noticed a Capital One Auto
account for a car loan in excess of $49,000.00 as well a Capital
One
credit
telephone.
card
account
and
Subsequently,
an
Hovanec
AT&T
account
contacted
for
a
Capital
cellular
One
Auto
Finance to dispute the account, and also contacted Experian to
request that a block be placed on these accounts.
On July 31, 2010, Plaintiff submitted her Federal Trade
Commission (“FTC”) Identity Theft Victims’ Complaint and Affidavit,
a copy of her police report, and proof of residence to Experian.
With this submission, Hovanec requested that Experian block the
disputed accounts.
Rather than blocking the accounts, Hovanec
alleges that Experian responded to her request by sending a letter
informing
Hovanec
that
her
submissions
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were
insufficient.
Experian’s letter (the letter which all of the proposed Class B
members received) states, in part:
We are responding to your request that information in
your personal credit report be blocked due to the alleged
fraud. The identity theft report that you sent us does
not meet the guidelines established by the federal Fair
Credit Reporting Act; therefore, we are unable to honor
your request to block information.
However, if you
provided specific information, we are investigating the
information you questioned with the sources.
If you
still wish to have this information blocked, please send
us a valid identity theft report.
Pls.’ Second Amend. Comp.; Ex. 2.
The letter continues by listing what Experian looks for in a
valid identity theft report, but fails to specify exactly what was
missing
from
submitted.
the
materials
Hovanec
and
other
class
members
Experian claims this omission is intentional to avoid
fraudulent claims.
Hovanec alleges that the letter misrepresented
that Hovanec’s submissions were insufficient and further alleges
that the letter did not contain the requisite notice of the
business name and address of any furnisher of information that
Experian contacted after receiving Hovanec’s identity theft report.
Hovanec avers that this letter and its lack of notice violated the
FCRA.
Specifically, Plaintiffs Hovanec and Osada (collectively,
the “Plaintiffs”) allege that Experian is liable under 15 U.S.C.
§ 1681c-2(c)(2) because Experian willfully failed to provide the
requisite notice after declining requests to block information and
failed to specify the additional information or documentation it
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needed from the consumer upon receiving requests to block pursuant
to 16 C.F.R. § 603.3.
Hovanec now seeks to bring a claim on behalf of putative
Class
B,
alleging
information
related.
that
that
class
Experian
members
willfully
identified
failed
as
to
block
identity
theft
Hovanec proposes Class B to include:
All persons to whom Experian sent a letter between
April 28, 2009 and May 18, 2011 stating at least in part:
‘We are responding to your request that information in
your personal credit report be blocked due to alleged
fraud. The identity theft report that you sent us does
not meet the guidelines established by the federal Fair
Credit Reporting Act; therefore we are unable to honor
your request to block information.
However, if you
provided specific information, we are investigating the
information you question with the sources . . .’
Pls.’ Amend. Mot. to Certify at 4.
II.
LEGAL STANDARD
To certify a class under FED. R. CIV . P. 23 (“Rule 23"), a court
must find:
are
(a) that the class is definite enough that its members
identifiable,
and
(b)
that
it
satisfies
not
only
the
requirements of Rule 23(a), but also one of the three subsections
of Rule 23(b).
Jamie S. v. Milwaukee Pub. Sch., 668 F.3d 481, 493
(7th Cir. 2012).
Rule 23(a) requires that class members be so
numerous that joining each is impracticable (numerosity); that
there be class-wide questions of law or fact (commonality); that
the named parties’ claims or defenses be typical of the class
(typicality); and that the representative be able to
class’s interests adequately (adequacy).
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Rule 23(a).
protect the
Here, Plaintiffs proceed under Rule 23(b)(3), which provides
that certification is appropriate if the common questions of law or
fact “predominate over any questions affecting only individual
members, and . . . a class action is superior” to other available
adjudication methods.
Rule 23(b)(3).
The Court must conduct a
rigorous analysis to determine whether Plaintiffs have shown, by a
preponderance of the evidence, that the class meets the Rule 23
criteria.
Messner v. Northshore Univ. Health Sys., --- F.3d ----,
2012 WL 129991, at *4 (7th
Cir. 2012).
must resolve material disputed facts.
III.
In doing so, the Court
Id.
DISCUSSION
In 2003, Congress amended the Fair Credit Reporting Act
(“FCRA,” 15 U.S.C. 1681 et seq.) to increase protection for victims
of identity theft.
See Pub. L. 108-159 (December 4, 2003).
One
new provision generally requires “consumer reporting agencies”
(“CRAs”) such as Experian to block information in a consumer’s
credit report if that information resulted from identity theft.
The
CRA
must
do
so
within
four
days
of
receiving
certain
documentation of the identity theft. 15 U.S.C. § 1681c-2(a). That
documentation includes:
proof of the consumer’s identity; a copy
of “an identity theft report”; identification of what information
should be blocked; and the consumer’s statement that the disputed
information does not relate to any transaction that she made.
Id.
Once a CRA receives the necessary information and places the block,
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it must inform the “furnisher” of the blocked information.
15
U.S.C. § 1681c-2(b).
The FCRA defines “identity theft” and “identity theft report”
and authorizes the FTC to add to those definitions by regulation.
15 U.S.C. § 1681a(q).
Thus, for the FTC’s purposes, an “identity
theft report” is a report that:
(1)
alleges identity theft with as much specificity as
the consumer can offer;
(2)
is a copy of “an official, valid report” that the
consumer filed with a federal, state, or local law
enforcement agency, and which subjected the
consumer to criminal penalties if the report is
false; and
(3)
“may
include
additional
information
or
documentation that . . . [a CRA] reasonably
requests for the purpose of determining the
validity of the alleged identity theft[.]”
16 C.F.R. § 603.3(a).
However, if a CRA requests additional information, it must do
so within 15 days of receiving the consumer’s block request or
identity theft report, and generally must make any additional
requests and its final decision on whether to place the block
within 15 days after its first request for additional information.
Id.
The regulation also provides examples of when it would or
would not be reasonable to request additional information or
documentation. 16 C.F.R. § 603.3(b, c). One such example provides
that, if
a
CRA
receives
a
police
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report
containing
detailed
information as well as the signature, badge number, or other
identifying information for the officer taking the report, it is
not reasonable for the CRA to request additional information
without “an identifiable concern,” such as an indication that the
report was fraudulent.
16 C.F.R. § 603.3(c)(1).
The FCRA gives CRAs some authority to decline or rescind
requested blocks.
15 U.S.C. § 1681c-2(c).
“reasonably determines that[:]”
A CRA may do so if it
(a) the block was requested or
placed in error; (b) the block or request was based on a material
misrepresentation of fact by the consumer; or (c) the consumer
received goods, services, or money as a result of the blocked
transaction.
15 U.S.C. § 1681c-2(c)(1).
If a CRA declines or
rescinds a block, it must “promptly” notify the consumer “in the
same manner as . . . under section 1681i(a)(5)(B) of this title.”
15 U.S.C. § 1681c-2(c)(2).
Section 1681i(a)(5)(B), as applicable
here, requires that a CRA notify the consumer in writing (or by
other
consumer-approved
§ 1681i(a)(5)(B)(ii).
means)
within
five
days.
15
U.S.C.
“[A]s part of, or in addition to” that
notice, the CRA must tell the consumer what has been declined or
un-blocked, the name and contact information of the business that
furnished the information at issue, and that the consumer has a
right
to
add
a
statement
information is disputed.
to
her
consumer
report
that
15 U.S.C. § 1681i(a)(5)(B)(iii).
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the
Accordingly, the FCRA gives CRAs discretion in two areas:
“reasonably requesting” additional information, and “reasonably
determining” whether a block request is fraudulent or mistaken.
The Court gives the “reasonable request” requirement its most
natural reading — that both the substance and manner of request
must be reasonable.
Any person who willfully fails to comply with the FCRA can be
liable to the affected consumer for: (a) either actual damages or
statutory damages of $100 to $1,000, (b) punitive damages, and (c)
fees and costs.
15 U.S.C. § 1681n.
Negligent violations bring
liability for actual damages, plus fees and costs.
15 U.S.C.
§ 1681o. With respect to Class B’s claim, Plaintiffs proceed under
the “willfulness” provision.
A.
Rule 23 (a) Factors
In its March 28, 2012 ruling, the Court determined that
Class B satisfies the numerosity and commonality requirements. See
[Dkt. 62 at 18-19].
Experian does not challenge Plaintiffs’
ability to satisfy these factors.
Therefore, the Court only will
address whether Hovanec satisfies the typicality and adequacy
factors.
1. Rule 23(a)(3) Typicality
In
order
to
satisfy
the
typicality
requirement
of
Rule 23(a)(3), “the claims and defenses of the class representative
must be typical of the claims and defenses of the putative class
- 8 -
members.”
Quiroz v. Revenue Production Management, Inc., 252
F.R.D. 438, 442 (N.D. Ill. 2008).
However, “[t]he typicality
requirement may be satisfied even if there are factual distinctions
between the claims of the named plaintiffs and those of other class
members.
Thus, similarity of legal theory may control even in the
face of differences of fact.”
De La Fuente v. Stokely-Van Camp,
Inc., 713 F.2d 225, 232 (7th Cir. 1983).
Experian argues that Hovanec fails to satisfy the typicality
requirement of Rule 23 because Hovanec’s claim of identity theft
was fraudulent, and she therefore has no legal claim.
not persuaded.
The Court is
While in its briefs opposing the certification of
Class B, Experian goes to great lengths to state its basis for
believing that Hovanec’s identity theft claim was fraudulent,
Experian also questions the validity of the identity theft claims
that other members of the proposed Class B submitted.
Assuming
this is true, the fact that Hovanec’s claim could be fraudulent
would not, according to Experian, make her an atypical member of
Class B.
Further, Experian undermines its own argument that
Hovanec’s claims are fraudulent.
It emphatically asserts that
Hovanec’s identity theft claim was fraudulent, and then in the same
breath, argues that she is not an adequate class representative
because the accounts she requested were eventually blocked.
If
Hovanec’s claims were fraudulent, the Court finds it strange that
Experian would eventually block the accounts.
- 9 -
Thus, the Court
rejects Experian’s argument that Hovanec is atypical because her
claims may be fraudulent.
See Levie v. Sears Roebuck & Co., 496
F.Supp.2d 944, 950 (N.D. Ill. 2007) (“[c]redibility is not a
requirement
of
a
class representative,
and
whether
or
not
a
plaintiff is credible is irrelevant to that person’s ability to be
a class representative.”)
Hovanec’s proposed class includes members who received the
exact same “Does Not Meet the Guidelines” letter she received after
reporting an identity theft to Experian between April 28, 2009 and
May 18, 2011.
Thus, the Court finds Hovanec’s claims to be
sufficiently typical of the class.
See also Pawelczak v. Fin.
Recovery Servs., No. 11 C 2214, U.S. Dist. LEXIS 153914 at *10-11
(N.D. Ill. Oct. 26, 2012).
2.
Rule 23(a)(4) Adequacy
Rule 23(a) provides that the named class member must be
capable of “fairly and adequately represent[ing] the interests of
absent class members.”
FED . R. CIV . P. 23(a)(4).
When making this
determination, the Court must inquire whether the named plaintiff
has “antagonistic or conflicting claims with other members of the
class or (2) has a sufficient interest in the outcome of the case
to
ensure
vigorous
advocacy;
and
(3)
has
counsel
that
is
“competent, qualified, experienced and able to vigorously conduct
the litigation.”
Quiroz, 252 F.R.D. at 442 citing Wahl v. Midland
Credit Mgmt., Inc., 243 F.R.D. 291, 297 (N.D. Ill. 2007).
- 10 -
For
starters,
this
Court
previously
found
class
counsel
sufficiently adequate. [Dkt. 62 at 19.] Experian does not contest
Plaintiffs’ counsel’s qualifications or ability under 23(a)(4). As
such, the Court determines class counsel is sufficiently adequate.
Next, in Plaintiffs’ first attempt at class certification, the
Court determined
Osada
failed
to
meet his
burden
of
showing
adequacy of representation because Osada could not remember whether
and when he received the letter from Experian stating that his
submitted information was insufficient.
The Court found these
facts
an
persuasive
in
finding
Osada
inadequate
class
representative because Osada would be unable to offer competent
evidence “of the burdens that . . . [Experian’s] policy and letter
impose on consumers.”
Id. at 21.
In Plaintiffs’ Amended Motion to Certify Class B, Hovanec
alleges that she is an adequate class representative because her
claims are based on the same legal theory as all the other class
members – that is, that “(1) Experian wrongfully rejected their
requests
to
block
before
seeking
additional
information,
(2)
Experian wrongfully failed to specify the particular additional
information it believed to be lacking, and (3) Experian failed to
provide the required noticed upon declining their requests to
block.” Pls.’ Amend. Mot. to Certify at 7.
Hovanec
is
an
adequate
class
Plaintiffs assert that
representative
because
in
her
deposition she testified that she remembered receiving and reading
- 11 -
the letter and remembered being confused by its contents.
See
Pl. Hovanec’s Memo. in Supp. of Amend, Mot. to Cert. Class B.;
Ex. 3.
Experian
argues
that
Hovanec
is
an
inadequate
class
representative because she failed to submit the requisite threshold
items under § 1681c-2 – namely that she failed to provide proper
proof of identification.
However, the Court finds Experian’s
argument strange in light of its statement that the “Does Not Meet
the Guidelines Letter” “can be sent to both consumers who have not
submitted the four threshold items as well as to consumers that
have done so.”
Defs.’ Opp. to Pl. Kimberly Hovenac’s Mot. for
Class Cert. and Mot. to Compel at 5.
Moreover, the Court does not
find that Hovanec’s claim and the claims of the other members of
Class B depend on the submission of the four threshold items in
§
1681c-2.
This
is
because
Plaintiffs
are
not
challenging
Experian’s decision to block or not block accounts, but rather seek
to challenge the adequacy of Experian’s form letter in providing
the required notice pursuant to § 1681c-2(c)(2) and challenge the
adequacy
of
the
letter
in
reasonably
requesting
additional
information.
Experian cites Thomas v. Early Warning Services, LLC, No. L10-0825, 2012 WL 37396 (D. Md. Jan. 5, 2012) for the proposition
that Experian is not subject the regulations under section 1681c-2
until a consumer has provided (1) proof of the consumer’s identity;
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(2) a copy of the identity theft report; (3) the identification of
such information by the consumer; and (4) a statement by the
consumer that the information is not actually information relating
to a legitimate transaction of the consumer.
§
1681c-2(a).
distinguishable.
The
Court,
however,
finds
See 15 U.S.C.
Thomas
readily
In Thomas, the court granted a defendant credit
reporting agency summary judgment because the plaintiff admitted
that he never filed a police report, thereby conceding that he
failed to submit to the defendant a valid identity theft report as
is required under § 1681c-2(a)(2).
Thomas, 2012 WL 37396 at *2.
Here, Hovanec not only filed a police report, but also submitted a
valid identity theft report to Experian pursuant to § 1681c2(a)(2).
Moreover, in the other case referenced by Experian,
Collins v. Experian Credit Reporting Services, the court granted
summary
judgment
to
Experian
with
respect
to
two
individual
plaintiffs’ claims under 15 U.S.C. § 1681c-1 and 1681c-2 because
there was “no evidence to suggest that either Mr. Collins or Mr.
Jessup [the plaintiffs] ever contacted any of the Defendants to
communicate to them their concerns about identity theft.”
Collins
v. Experian Credit Reporting Service, 494 F.Supp.2d 127, 133 (D.
Conn. 2007).
Additionally, in Collins, the court determined that
the named plaintiffs were inadequate class representatives because
they were proceeding pro se.
Id. at 129.
- 13 -
Here, Experian admits that enclosed with Hovanec’s dispute
letter were “copies of an Identity Theft Victims’ Complaint and
Affidavit, a Dallas Police Department Report, a document appearing
to be a utility bill (but lacking any name or address), and a
document appearing
to
be an
apartment rent
statement.
Def.
Experian Info. Solutions, Inc.’s Answer and Affirmative Defenses to
Second Amend. Class Action Compl. at 17.
In addition to this
distinction, Hovanec and Osada are represented by counsel.
Experian also asserts that Robinson v. Equifax Information
Services, LLC, No. Civ A CV 040229, 2005 WL 1712479 (S.D. Ala.
July 22, 2005) supports its position that Hovanec is an inadequate
class representative because she failed to provide the requisite
proof of identification pursuant to Section 1681c-2.
However, in
Robinson, the court noted that a CRA has the responsibility to
“promptly notify the furnisher” of credit information about a
dispute
when
relating
to
a
consumer
their
has
accounts,
disputed
and
also
inaccurate
stated
that
information
it
is
the
furnisher’s duty to reasonably investigate the dispute. Id. at *5.
Experian argues Robinson stands for the proposition that the
regulations under FCRA do not trigger until a consumer has provided
all of the requisite items under § 1681c-2.
The
Court
disagrees
with
Experian’s
interpretation.
In
Robinson, the court faced the issue of whether a furnisher of
credit information conducted a “reasonable investigation” pursuant
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to Section 1681.
In determining it had, the court relied on the
fact that the plaintiff failed to advise the furnisher defendant
that there was a forgery. Instead, the plaintiff merely denied the
existence of an account belonging to her.
Because of this, the
court found the furnisher’s investigation sufficient.
Here,
Plaintiffs
Osada
and
Experian, a CRA, not a furnisher.
Hovanec
bring
suit
against
Moreover, Plaintiffs claim that
upon receiving the information from Hovanec and other members of
Class B, Experian had a duty under § 1681 to notify the furnishers
of the credit information at which time those furnishers would
conduct a reasonable investigation.
In Robinson, the plaintiff
merely sent a form letter requesting further investigation into an
account that was not hers and testified that she never sent to the
furnisher or the CRA’s any documentation alleging “forgery, fraud,
or identity theft.”
Experian
Id. at *3.
further
alleges
Hovanec
is
an
inadequate
class
representative because she has no injury since her accounts were
ultimately blocked.
The Court disagrees, and finds the fact that
Experian eventually blocked Hovanec’s accounts entirely independent
from Plaintiffs’ claims that Experian violated § 1681 with their
form letter.
Thus, the Court rejects this argument.
Moreover, in
its March 28, 2012 opinion, this Court already recognized that the
injury at issue is not Experian’s failure to block, but instead, is
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“Experian’s allegedly unreasonable response to block requests.”
[Dkt. 62 at 18-19].
Finally,
Experian
argues
that
the
class
should
not
be
certified because Hovanec, as well as the other members of the
class were not entitled to notice under 1681c-2(c)(2).
finds
this
assertion
odd
in
light
of
The Court
Experian’s
prior
representations that the class should not be certified because one
of the individual questions that predominates over the common
questions in this litigation is whether Experian “sent proper
notification to the consumer.”
[Dkt. 51 at 12-13].
In light of
this and the Seventh Circuit’s instruction that the courts should
not refuse to certify a class merely because the Court anticipates
the class will lose on the merits, the Court does not find that
Experian’s argument regarding the fact that Hovanec and other
consumers were not entitled to notice persuasive.
See Szabo v.
Bridgeport Machines, Inc., 249 F.3d 672 (7th Cir. 2001); see also
Bowen v. Groome, CIV. 11-139-GPM, 2012 WL 2064702 at *2-3 (S.D.
Ill. June 7, 2012) (stating while “a judge should make whatever
factual and legal inquiries are necessary under Rule 23 . . . the
court should not turn class certification proceedings into a dress
rehearsal for the trial on the merits.”).
The Court concedes that whether and to what extent members of
Class B were entitled to notice under one of the subsections of
Section 1681 is
an issue in this case.
- 16 -
However, the Court
declines, at this juncture, to make that determination. Therefore,
the Court finds Hovanec satisfies the adequacy requirement under
Rule 23 (a)(4).
B.
Rule 23 (b) Factors
After finding that the putative class satisfies the Rule 23(a)
factors, the Court now must ask whether it meets the requirements
of Rule 23(b)(3) – namely, that common questions of law or fact
predominate over individual questions, and that a class action is
superior to other methods of adjudication.
See FED . R. CIV .
P. 23(b).
1.
Predominance
Plaintiffs argue that individual issues are not likely to
predominate in this action, and assert that the primary question is
whether
the
form
letter
adequately
requested
the
additional
information and adequately provided the required notice and that
this inquiry is common to the entire class.
Experian argues that
individual issues predominate because each individual class member
may
have
received
the
letter
for
different
triggering different legal obligations.
reasons
thereby
Experian specifically
alleges that because the only instance where it is required to
provide notice
under
1681c-2(c)(2)
is
when it
makes
a
final
determination that a consumer’s block request will be denied, there
will be individual issues with respect to each class member in
determining
whether
the
letter
was
- 17 -
a
final
determination.
Experian, however, fails to cite any authority to support the
proposition that this is the only time notice is required under
§ 1681c-2(c)(2).
In light of this, the Court turns to the plain
language of the statute.
It reads “[i]f a block of information is
declined or rescinded under this subsection, the affected consumer
shall be notified promptly . . .”
See 15 U.S.C. § 1681c-2(c)(2).
The letter which all members of the proposed Class B received
states, “[t]he identity theft report that you sent us does not meet
the guidelines . . . therefore, we are unable to honor your request
to block information.”
See Pl. Hovanec’s Memo. in Supp. of Amend.
Mot. to Certify Class B; Ex. 1.
Thus, at this time, the Court
refuses to conclude that whether each class member is entitled to
notice is dependent upon the exact purpose which Experian sent the
letter.
The Court also rejects Experian’s argument that because some
class members did not provide the “threshold items” that this will
create individual issues that will predominate.
Experian boldly
asserts that an individual must submit all threshold items under
Section 1681c-2(a) before an individual has a legal claim.
Here
again, though, Experian fails to provide any authority for this
proposition.
whether
the
Additionally, one of the two claims of Class B is
letter
each
additional information.
member
received
reasonably
requested
This claim survives regardless of whether
a plaintiff submits all threshold items.
- 18 -
Experian
next
argues
that
individual
issues
predominate
because in some instances, its request for additional information
was reasonable.
Class
B
do
The Court reminds Experian that the claims of
not
involve
the
reasonableness
of
denying
an
individual’s request to block or whether it was reasonable to
request
additional
information.
“Instead
the
class
claims
challenge the language of the form letter itself, in that (A) the
letter fails to provide the notice required by 15 U.S.C. 1681c2(c)(2) when a CRA declines to block and (B) the letter fails to
reasonably request[] additional information as required by 12
C.F.R. § 1022.3(i)(3) because it does not specify what was lacking
in the report already submitted by the consumer . . . “
Pls.’
Reply in Supp. of Amend. Mot. to Certify Class B at 3.
The Court finds Experian’s argument regarding the fact that
some class members could be “fraudsters” equally unpersuasive. The
Court previously addressed this argument in its prior Order and
thus refuses to belabor it again here. The FCRA provides consumers
procedural rights; a consumer need only show that the FCRA was
violated with regard to his or her own information to show a
sufficient injury.
Henry v. Teletrack, Inc., No. 11-CV-4424, 2012
WL 769763, at *3 (N.D. Ill. March 7, 2012).
Therefore, the Court
need not individually examine the validity of each class member’s
identity theft claim.
As such, the Court finds the common issues
of whether the letter provides adequate notice and whether the
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letter
reasonably
requests
additional
information
without
specifying the lacking information predominate.
2.
Superiority
Under Rule 23(b)(3) the Court must determine whether the
proposed class “is superior to other available methods for fair and
efficient adjudication of the controversy.” Lemon v. International
Union of Operating Eng’rs, Local No. 139, 216 F.3d 577, 581 (7th
Cir. 2000).
“A class is superior where potential damages may be
too insignificant to provide class members with incentive to pursue
claims individually.”
Jackson v. Nat’l Action Fin. Servs., 227
F.R.D. 284, 290 (N.D. Ill. 2005).
The FCRA permits individual
plaintiffs to recover up to $1,000 in statutory damages.
See 15
U.S.C. § 1681. Therefore, the potential recovery for an individual
is unlikely to provide sufficient incentive for that individual to
bring her/his own claim.
As such, the Court finds Plaintiffs
satisfy the requirements under Rule 23(a) and Rule 23(b).
C.
Motion to Compel
Plaintiffs ask this court to compel responses to Plaintiffs’
Requests for Production #25 (“RFP #25”) and Plaintiff Hovanec’s
Interrogatory
compelling
Admissions.
#7.
Experian
Alternatively,
Plaintiffs
to
of
answer
one
seek
Hovanec’s
an
order
Requests
for
All of Plaintiffs’ requests relate to Experian’s
practice (or lack thereof) of providing a member of Class B written
notice that it has the right to add a statement to his or her file
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regarding the accuracy of the disputed information.
RFP #25 seeks
exactly this information, while Plaintiffs’ request to admit seeks
an admission from Experian that it never sent such notice to any
members of Class B.
Experian objects to these requests arguing
that such information is irrelevant, poses an undue burden, and
contains
confidential
information.
Experian
argues
such
information is irrelevant because Hovanec was not entitled to
1681c-2(c)(2) notice and because notice is only required in a
limited set of circumstances.
The Court does not agree.
a
block
of
information
is
Section 1681c-2(c)(2) states “[i]f
declined
or
rescinded
under
this
subsection, the affected consumer shall be notified promptly . . .”
The Court concedes that Experian’s argument that members of Class B
who failed to provide the threshold items in 1681c-2 are not
entitled to notice may have merit.
However, the Court finds that
whether Experian provided the notice Plaintiffs seek is relevant to
Plaintiffs’ claims.
Federal Rule of Civil Procedure 26 governs discovery.
It
provides that a party may “obtain discovery regarding any matter,
not privileged, that is relevant to the claim or defense of any
party, including
the
existence,
description,
nature,
custody,
condition, and location of any books, documents or tangible things.
FED. R. CIV. P. 26(b)(1).
In the context of discovery, the Court
construes relevancy broadly to encompass “any matter that bears on
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or that reasonably could lead to other matter[s] that could bear
on, any issues that is or may be in the case.”
Chavez v.
DaimlerChrysler Corp., 206 F.R.D. 615, 619 (S.D. Ind. 2002); see
also, Shapo v. Engle, 2001 WL 629303 at *2 (N.D. Ill. May 25, 2001)
(stating “[d]iscovery is a search for the truth.”).
Under Federal
Rule of Civil Procedure 37, a party may seek an order to compel
discovery when the opposing party fails to respond to discovery
requests.
The burden “rests on the objecting party to show why a
particular discovery request is improper.”
Kodish v. Oakbrook
Terrace Fire Protection Dist., 235 F.R.D. 447, 449-50 (N.D. Ill.
2006).
The burden is not satisfied by a “reflexive invocation of
the same baseless, often abused litany that the requested discovery
is vague, ambiguous, overly broad, unduly burdensome, or that it is
neither relevant nor reasonably calculated to lead to the discovery
of admissible evidence.”
Burkybile v. Mitsubishi Motors, Corp.,
No. 04-C-4932, 2006 WL 2325506 at *6 (N.D. Ill. Aug. 2, 2006).
The
Court
finds
that
Experian
regarding Plaintiffs’ requests.
fails
to
meet
its
burden
After examining interrogatory
number seven and RFP #25, the Court does not find Plaintiffs’
request irrelevant.
The Court agrees with Experian only with
respect to the breadth of Plaintiffs’ request.
Because of this,
the Court instructs Experian to produce such information for the
time period of Class B (April 28, 2009 to May 18, 2011).
the
documents
Plaintiffs
seek
include
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confidential
If any of
consumer
information such as Social Security numbers the Court instructs
Experian to redact such information.
Alternatively, if Experian has never sent such notice to any
of its consumers for the relevant time period, the Court directs
Experian to respond appropriately to Plaintiffs’ request to admit.
The Court instructs Experian to follow this order within 21 days
from the entry of this ruling.
IV.
CONCLUSION
For the reasons stated herein, the Court rules as follows:
1.
Grants class certification for Class B; and
2.
Grants in part Plaintiffs’ Motion to Compel.
IT IS SO ORDERED.
Harry D. Leinenweber, Judge
United States District Court
DATE:12/20/2012
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