Osada v. Experian Information Solutions, Inc. et al

Filing 62

MEMORANDUM Opinion and Order Signed by the Honorable Harry D. Leinenweber on 3/28/2012:Mailed notice(wp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

DAVID OSADA,
Case No. 11 C 2856
Plaintiff,
v.

Hon. Harry D. Leinenweber

EXPERIAN INFORMATION
SOLUTIONS, INC.,
Defendant.

MEMORANDUM OPINION AND ORDER
I.

INTRODUCTION

Pending before the Court are Plaintiff’s Motion for Class
Certification and his Motion to Compel Discovery Responses from
Defendant.

For the reasons stated herein, both motions are granted

in part and denied in part.
II.

FACTUAL BACKGROUND

This simplified background is based on the parties’ pleadings to
date, but does not constitute findings of fact.

In early 2008,

Plaintiff David Osada (“Osada”) applied for, but did not close on, a
mortgage loan.

However, in October 2008, he discovered that two

mortgage loans had been taken out in his name on properties that he
knew nothing about.

Each loan exceeded $300,000.

Plaintiff contacted Defendant Experian Information Solutions
(“Experian”), a credit reporting agency, on October 27, 2008 to
discuss his credit report.

By then, both mortgages were listed as

past due, and the report listed the fraudulent addresses as his. The
next day, Plaintiff filed a police report with the Niles Police
Department, but did not send it to Experian.
One of the mortgages evidently went into foreclosure in November
2008, and the other in July 2009.

The courts in both actions

apparently recognized, at some point, that the mortgages were the
product of identity theft.
Plaintiff executed a Federal Trade Commission (“FTC”) Identity
Theft Victims’ Complaint and Affidavit in October 2009.

He then

wrote to Experian in January 2010, requesting that both mortgages be
blocked – that is, removed from his credit report.

He attached his

FTC affidavit, the Niles police report, and proof of his residence.
Experian wrote back on January 26, 2010, telling Plaintiff that his
submissions were insufficient. (Experian has since admitted that the
materials were not insufficient under its policies.)

Experian’s

letter (the “Does Not Meet Guidelines Letter”) states, 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 questioned with the sources. If you still wish to have
this information blocked, please send us a valid identity
theft report.
The letter goes on to list what Experian looks for in such a
report, but does not specify what was missing from the materials
submitted.

Experian claims that its policy of not specifying what
- 2 -

information is missing strikes an important balance; it does not
provide a roadmap for fraudsters or credit repair organizations, but
does enough to ensure that identity theft victims can discover what
they

need

to

do

to

successfully

block

any

improper

credit

information.
Plaintiff alleges that Experian merely “verified” the disputed
accounts with the lenders, who maintained that the accounts were
valid.

On February 17, 2010, Experian sent Plaintiff another letter

and an updated credit report, showing the “verified” accounts.
Plaintiff claims that as of January 24, 2011, both mortgages remained
on his Experian credit report.
In

2011,

Plaintiff

resubmitted

his

materials

Plaintiff filed this suit on April 28, 2011.
his letter on May 5, 2011, writing:

to

Experian.

Experian responded to

“We are unable to honor your

request. Our records indicate that the police report we have on file
is more than a year old.

Due to your ongoing fraud situation, you

will need to submit a new/amended police report, obtained within the
past year.”

The letter (the “One Year Letter”) goes on to list

Experian’s requirements for such a police report.

Experian claims

that, in its experience, many block requests submitted with a police
report older than one year are fraudulent, but that individuals with
genuine claims will obtain a new police report when asked.
There is no dispute that Experian sent the January 2010 and May
2011 letters.

There is extensive dispute over whether Plaintiff

- 3 -

received and/or read them.

At deposition, Plaintiff reviewed the

letters, and reported no specific recollection of when and if he
received them, as he had received a large volume of correspondence
during that time.

He had, however, reviewed them with his counsel.

Plaintiff brings a claim on behalf of two putative classes, as
well as two individual claims. In the class claim, Plaintiff alleges
that Experian willfully failed to block information that class
members identified as identity theft-related, instead treating such
requests as ordinary credit disputes.

The proposed “One Year” class

consists of:
All persons from whom (1) Experian received an identity
theft report and written request to block information in
that person’s consumer report alleged to result from
identity theft; and (2) in response to which Experian,
between April 28, 2009 and May 18, 2011, sent a letter
[containing the language from the One Year Letter set out
above].
The proposed “Does Not Meet Guidelines” class includes:
All persons from whom (1) Experian received an identity
theft report and written request to block information in
that person’s consumer report alleged to result from the
identity theft; (2) in response to which Experian sent a
letter between April 28, 2009 and May 18, 2011 stating at
least in part [the language from the Does Not Meet
Guidelines Letter quoted above]; and (3) to which Experian
responded further by sending that person his or her
consumer report to the same address identified in the
written request.
Plaintiff seeks statutory and punitive damages, as well as fees
and costs, on the behalf of both classes. In his individual claims,
he also seeks compensatory damages.

- 4 -

III.

LEGAL STANDARD

To certify a class under FED . R. CIV . P. 23 (“Rule 23”), a court
must find: (a) that the class is definite enough that its members are
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
(adequacy).

protect the class’s interests adequately

Rule 23(a).

Here, Plaintiff proceeds under Rule 23(b)(3), which provides
that certification is only 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 Plaintiff has shown, by a
preponderance of the evidence, that the class meets the Rule 23
criteria.

Messner v. Northshore Univ. Health Sys., 669 F.3d 802,

2012 WL 129991, at *4 (7th

Cir. 2012). In doing so, the Court must

resolve material disputed facts.

Id.

- 5 -

IV.
In

2003,

Congress

DISCUSSION

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
that resulted from identity theft within four days of receiving
certain documentation of the identity theft. 15 U.S.C. § 1681c-2(a).
That documentation includes:
copy

of

“an

identity

theft

proof of the consumer’s identity; a
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, it must inform the “furnisher” of the blocked information
about the block, as well.

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 our 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
- 6 -

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 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

requested blocks.

CRAs

some

authority

15 U.S.C. § 1681c-2(c).

to decline

or

rescind

A CRA may do so if it

“reasonably determines that[:]” (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

- 7 -

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

means)

within

five

days.

15

U.S.C.

§ 1681i(a)(5)(B)(ii). “[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 to her consumer report that the information is disputed.
15 U.S.C. § 1681i(a)(5)(B)(iii).
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.
The parties disagree over whether the letters sent to Mr. Osada
were outright denials (which require an actual determination that
there was fraud or mistake) or whether they were interim denials that
constituted permissible requests for additional information.

The

regulation does not explicitly authorize CRAs to deny a block request
pending

additional

information;

however,

the

FTC

brochure

for

identity theft victims appears to contemplate such interim denials.

- 8 -

SeFdrlTaeCmiso,Dfn:RcvrFo Iett Tet ht:/w.t.o/c/d/irstsitet
e eea rd omsin eed eoe rm dniy hf, tp/wwfcgvbpeumcoie/dhf/
consumers/defend.html (noting that CRAs may decline an identity theft
report that lacks sufficient detail, and “[i]n that case, the [CRAs]
have certain time frames for responding to your [block request] with
requests for additional information.”).
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.

In the

class claim, Plaintiff proceeds under the “willfulness” provision.
A.

The One-Year Class

Because the two classes challenge different Experian policies,
the Court considers each in turn.
1.
a.

Rule 23 (a) Factors

Numerosity and Definiteness

In answering the Amended Complaint, Experian denied that the
proposed class is numerous enough to satisfy Rule 23.

However, it

admitted in discovery that it sent the One Year Letter 2,052 times
during the relevant period, and does not press a numerosity objection
in its certification briefing.

The Court finds that the proposed

class

that

is

populous

enough

and

ascertained.

- 9 -

its

members

can

be

readily

b.

Commonality

Rule 23 requires that a class have questions of law or fact
common to all members.

FED. R. CIV . P. 23(a).

Each class member must

have suffered the same injury, not merely a violation of the same
statute. Wal-Mart Stores, Inc. v. Dukes et al., 131 S.Ct. 2541, 2551
(2011).

That is, class claims must contain a common contention,

determining the truth or falsity of which “will resolve any issue
that is central to the validity of each one of the claims in one
stroke.” Id.

Showing that all class members were subjected to the

same policy may suffice.

See id at 2553.

A common “injury” means something slightly different under the
FCRA than it did in Dukes.

Consumers are entitled to statutory

damages for willful violations of the FCRA, even if they cannot prove
any injury in the ordinary sense of the word.

Shlahtichman v. 1-800

Contacts, Inc., 615 F.3d 794, 796 (7th Cir. 2010).

The FCRA gives

consumers procedural rights; a consumer need only show that the FCRA
was violated with regard to 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 07, 2012).
Plaintiff argues that the common question is whether the FCRA
permits Experian to require that the police reports be less than one
year old before blocking credit information.

Defendant argues that

there is no common injury because many, if not most, of the block
requests in response to which Experian sent the One Year Letter were
- 10 -

fraudulent; because the requests were invalid, Defendant argues, no
one was injured.

Experian has made no effort to show how many One-

Year Letter recipients later successfully blocked the requested
information, so there is no evidence by which this Court can evaluate
its argument.

In any event, as noted above, that is not the sort of

injury that the FCRA requires; accordingly, the Court need not
determine whether each block request was valid in order to evaluate
the

One

Year

policy.

Cf.

15

U.S.C.

§

1681c-2(a)

(tying

CRA

obligations to “alleged” identity theft).
Similarly, Defendant argues that because the statute gives it
some discretion to deny claims, the Court will have to determine
whether each individual claim was reasonably denied, and if not,
whether each denial was willful or wanton.

However, there is no

dispute that each person who received the One-Year Letter had his or
her claim denied for the same reason and pursuant to the same uniform
policy.

See Hughes Dep. 98:3-99:10 (noting that consumers received

the One-Year Letter only if their Identity Theft Report otherwise met
Experian’s requirements).

The Court agrees with Plaintiff that

whether Experian’s express written policy conforms to the FCRA is a
question capable of class-wide resolution, and that the commonality
requirement is met.
c.

Typicality and Adequacy

Under Rule 23(a), a named plaintiff must show that his claims
and defenses are typical of the class, and that he and his counsel
- 11 -

can adequately represent the class’s interest in litigation. A named
plaintiff may be inadequate if his interests conflict with those of
the class, or if he is subject to a defense inapplicable to the class
as a whole.

Boundas v. Abercrombie & Fitch Stores, Inc., --- F.R.D.

---, 2012 WL 748769, at *3 (N.D. Ill. 2012).
typicality requirements tend to merge.

The commonality and

Dukes, 131 S.Ct. at 2551.

See also, Randall v. Rolls-Royce Corp., 637 F.3d 818, 824 (7th Cir.
2011) (noting that “the usual practical significance of lack of
typicality . . . is that it undermines the adequacy of the named
plaintiff as a [class] representative[.]”).
Plaintiff argues that his counsel is sufficiently qualified and
experienced to represent the class.

Although Experian denied this

allegation in answering the Amended Complaint, it makes no attack on
Plaintiff’s counsel’s qualifications in the certification briefing.
Based on Plaintiff’s submissions, the Court concludes that his
counsel can adequately represent the putative class.
Plaintiff argues that he adequately represents the class because
his interests are not antagonistic to the class members’ and because
all of their claims are identical by definition — every class
member’s block request was denied for the same reason and with the
same letter.

As a general matter, the Court agrees. Defendant,

however, raises several objections.
First, Experian argues that Plaintiff is atypical because, were
it not for Experian’s error, Plaintiff’s report would have been

- 12 -

accepted initially and he would not have resubmitted his report after
it was one year old.

That mistake, Experian argues, cannot be fairly

extrapolated to the remainder of the class.

It is true that the

reason each class member submitted an old police report likely varied
widely.

There is no indication, however, that such variations

affected Experian’s response (with the possible exception of some
active-duty military personnel – by Experian’s account, however,
their claims would not have been denied, and so they would not be
class members). Accordingly, Plaintiff’s factual background need not
be identical to the other class members for him to adequately
represent them.
Next, Experian argues that the long gaps between Mr. Osada’s
interactions with Experian subject him to unique defenses, making him
inadequately

representatI’ve.

See

CE

Design

Ltd.

v.

King

Architectural Metals, Inc., 637 F.3d 721, 724 (7th Cir. 2011).
Although Experian alleged several affirmative defenses in its Answer,
it has not identified which, if any, it relies upon for this
argument.
overbear

On this record, none of those defenses so obviously
the

common

issues

in

the

case

as

to

make

Plaintiff

impermissibly unique.
Experian also argues that, having admitted that he never read
the letter, Plaintiff cannot represent a class of those who did.

As

noted above, Plaintiff could not specifically recall when or if he
read the One Year Letter before reviewing it with his counsel. This

- 13 -

fuzziness or failure of recollection is of greater concern with the
second class, as discussed below.

Here, however, the common injury

is the rejection of a block request due to an old police report.

The

letter itself, while useful for identifying class members, is not the
source of the injury. Cf. Hillis v. Equifax Consumer Services, Inc.,
237 F.R.D. 491, 497 (N.D.Ga. 2006) (where a claim involved allegedly
misleading representations, named plaintiff’s inability to recall
having seen most of the representations was fatal to the class).
Accordingly, Plaintiff’s inability to recall when he first saw the
letter does not make him inadequate.
Experian next objects that Plaintiff conceded in deposition that
the One Year policy is reasonable.
plaintiffs

who

make

damaging

Some courts have found named

concessions

in

deposition

to

be

inadequate representatives.

See, e.g., id. at 502-03.

In Hillis,

although

evaluating

misleading

the

standard

for

the

allegedly

statements was objective, the court noted that the jury would be
influenced by the plaintiff’s statement that he had not been misled.
That prejudice to class members, the court noted, made him an
inadequate representative.

Id. (Of course, this Court’s role is not

to assure that the class wins, but to ensure that class members with
stronger claims are not prejudiced by a representative with a weak
one.

See CE Design Ltd., 637 F.3d at 726.)
Here,

under

what

can

only

be

described

as

badgering

interrogation, Mr. Osada made two potentially damaging statements:
- 14 -

first, he stated that Experian was reasonable for asking him to
obtain a new police report.

Osada Dep. 170:14-171:1.

Second,

assuming that some people would try to take undue advantage of the
debt-blocking remedies, Mr. Osada conceded that “it makes sense” for
Experian to have the One Year policy.

Osada Dep. 183:7-184:20.

Throughout the deposition, however, he also objected to the policy
and to having to obtain a second police report for what he sees as
the same issue.

Reading the deposition as a whole, the Court finds

that

has

Mr.

statements

Osada
are

not

defeated

sufficiently

his

damaging

own
to

claim.
make

Whether
him

a

his
poor

representative is a closer question, but the Court concludes that
they are not so damaging as to preclude class certification.

It also

is doubtful that the Plaintiff would be allowed to present such
opinions.
Finally, Experian argues that Plaintiff seeks to enrich himself
at class’s expense by seeking only statutory damages on their behalf.
The Seventh Circuit has already rejected this argument in the FCRA
context. Murray v. GMAC Mortg. Corp., 434 F.3d 948, 952-53 (7th Cir.
2006).

As will be discussed below, here, as in Murray, the average

claim for actual damages is likely to be small, and class members
with substantial actual damages may opt out of the class. Id. at 953.
Accordingly, the Court concludes that Plaintiff has established that
he is an adequate and sufficiently typical representative plaintiff.

- 15 -

2.

Rule 23 (b) Factors

Having found that the putative class satisfies Rule 23(a), the
Court 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
available adjudication options.
a.
Plaintiff’s

Predominance

predominance

argument

mirrors

his

commonality

argument — that all class members received the same form rejection
pursuant to the same policy.
reasonableness

of

each

Once again, Experian objects that the

denial (and

its

willfulness,

unreasonable) must be determined case by case.

if

it

was

This is so, Experian

argues, because there are “scores” of reasons why Experian could
decline a block request.
Not

Meet

Guidelines

This argument is better suited to the Does

class,

given

that

Experian’s

own

30(b)(6)

deposition witness explained that consumers receive the One Year
Letter only if their Identity Theft Report otherwise meets Experian’s
requirements.

Hughes

Dep.

98:3-99:10

(explaining

the

two-tier

process).
It is unclear from Experian’s pleadings whether it contends that
the One Year Letter is a final denial under 15 U.S.C. § 1681c-2(c) or
a request for additional information under 16 C.F.R. § 603.3.

In

either case, the policy must at least be reasonable. Because it seems
to be undisputed that there is a single, objective criterion by which
- 16 -

the One Year policy mandates that these block requests be denied, the
common question of whether that policy is permissible under the FCRA
towers above all the rest.

Accordingly, Plaintiff has shown that

common issues predominate over individual ones in the One Year class.
b.

Superiority

Plaintiff argues that class treatment is superior because the
relatively small statutory damages (between $100 and $1,000) give
class members little incentive to litigate individually.

Defendant

counters that this is not so, because the FCRA provides for actual
damages and fee shifting, increasing the potential recovery for
members of the putative class who might litigate on their own.
Indeed, Experian argues, Mr. Osada’s own case belies his argument, as
he filed a suit for actual damages before this case became a class
action.
The magnitude of any injury to class members is critical to
evaluating whether class treatment is appropriate, and such injuries
are often small in FCRA cases.

See Murray, 434 F.3d at 952-53.

Here, the Court concludes that any injury to most class members would
be small, because most recipients of the One Year Letter would comply
with Experian’s request and eventually vindicate any valid blocking
requests.

Indeed,

Experian’s

30(b)(6)

deposition

witness

took

exactly that position — that consumers with genuine claims will
overcome whatever obstacles these letters may pose.
56:9-57:9.

Hughes Dep.

Having taken that position to defend the policy, it ill

- 17 -

suits Experian to argue now that a class should not be certified
because compensation for actual damages is available.
Because there appears to be little incentive or benefit to class
members to litigate these claims individually, and no party has
raised objections to, for example, litigating in this forum, the
Court concludes that Plaintiff has demonstrated that a class action
is the best way to address these claims.

Having thus found that the

One Year Class satisfies Rule 23, the Court concludes that the class
should be certified.
B.

Does Not Meet Guidelines Class
1.

Rule 23 (a) Factors
a.

As

above,

Experian

Numerosity

initially

denied

that

this

class

is

sufficiently numerous, but has dropped that argument (having admitted
to sending the letter 16,800 times during the relevant period).
Accordingly, the class easily satisfies the numerosity requirement
and its members are readily ascertainable.
b.

Commonality

Plaintiff argues that the question common to this class is
whether the Does Not Meet Guidelines letter had to specify what
information was missing from an Identity Theft Report.

Although

Plaintiff argues that the common injury is Experian’s refusal to
block the disputed information, Plaintiff’s framing of the common
question dictates that the common injury, if any, is Experian’s
- 18 -

allegedly unreasonable response to incomplete block requests.

In

response, Experian raises many of the arguments discussed above,
including that Experian’s exercise of discretion must be evaluated on
an individual basis, and that there is no injury because many of the
claims were fraudulent.

As noted above, the FCRA creates procedural

rights in consumers; having rejected these arguments once, the Court
need not reconsider them here.

See Gardner v. Equifax Information

Services, LLC, Civil No. 06-3102, 2007 WL 2261688, at *4 (D. Minn.
Aug. 6, 2007) (finding that the legality of an Equifax business
policy constituted a common legal question).
Defendant also objects that the legal question Plaintiff poses
— whether Experian must specify what information is missing from a
block request — lacks support in the law.

In doing so, however,

Defendant merely argues that the answer to Plaintiff’s question is
“no,” which does nothing to refute its existence.

Although the

certification inquiry may overlap somewhat with the merits of the
case, Dukes, 131 S.Ct. at 2551, the Seventh Circuit is clear that
courts should not refuse to certify a class on the belief that it
will lose.

Schleicher v. Wendt, 618 F.3d 679, 685 (7th Cir. 2010).

Plaintiff has shown adequate commonality.
c.

Typicality and Adequacy

Having already found class counsel sufficient, the Court will
not repeat that analysis.

Plaintiff argues that he is adequately

representative because he suffered the same treatment and injury as
- 19 -

all class members — the rejection of his block request without
specification as to what was missing.
Defendant argues that Plaintiff cannot be typical, because
Experian admits that he received the Does Not Meet Guidelines letter
in error.

Assuming that Plaintiff read the letter, Experian argues

that he (unlike most class members) would have been justifiably
confused about why his materials were rejected.

Thus, Experian

argues, even if sending Plaintiff the Does Not Meet Guidelines letter
was unreasonable, this does not prove that the other rejections were
equally unreasonable.

Again, however, Plaintiff is challenging the

letter’s lack of specificity – not Experian’s decision to send it.
The

identified

neither

factual

inadequate

as

distinction
a

class

therefore

representative

renders
nor

Plaintiff

impermissibly

atypical.
Defendant again argues that Plaintiff has conceded not receiving
and/or reading the letter.

Experian raises a standing as well as an

adequacy and typicality challenge, claiming that Plaintiff cannot
have been injured by a letter he did not read.

As Judge Sharon

Johnson Coleman recently observed, however, an injury for standing
purposes is the invasion a legally protected right; a plaintiff can
have standing under the FCRA if the statute was violated as to his
credit information – whether or not he suffered any additional
detriment.

Teletrack, 2012 WL 769763, at *3.

See also Murray v. New

Cingular Wireless Services, Inc., 523 F.3d 719, 725-26 (7th Cir.

- 20 -

2008) (“statutory damages . . . may range from $100 to $1,000 per
violation whether or not the consumer was injured.”).

If Plaintiff

is correct that Experian’s policy of not specifying what information
is missing violates the FCRA, the statute would seem to have been
violated as to him, giving him standing.
However,

regarding

Plaintiff’s

adequacy

as

a

class

representative, the allegation in this case is that Experian’s letter
is unlawfully unreasonable.

As such, the jury will have to evaluate

the benefits and burdens of Experian’s policy not to identify missing
information.

Without remembering whether and when he received the

letter, his response, and any impact it had on him, Plaintiff is
necessarily inadequate to represent the class, because he cannot
offer competent evidence of the burdens that the policy and letter
impose on consumers. Plaintiff has not carried his burden of showing
adequacy, and the class fails.
2.

Rule 23 (b) Factors

Because the Court concludes that Mr. Osada cannot be an adequate
class representative to the second putative class, it need not
address the Rule 23(b)(3) factors.
C.

Motion to Compel

Plaintiff asks this Court to compel responses to three of his
Requests for Production (“RFPs”).

The first two requests relate to

Experian’s practice of placing advertisements for credit monitoring
services in some of its communications with possible victims of
- 21 -

identity theft.

Those services are offered by Experian’s “sister”

company, which is owned by Experian’s parent company, Experian Plc.
The

third

request

relates to

any complaints

Experian

may

have

received from their business subscribers about account information
being blocked.

Plaintiff intends to use evidence from these three

RFPs to support his allegation that Experian makes it difficult to
block information in order to sell more credit monitoring services
and keep its business subscribers happy.

This Court has reaffirmed

countless times that it takes a broad view of relevance in discovery.
Accordingly, Defendant’s argument the evidence is not discoverable
because

Plaintiff

discussion.

is

wrong

on

the

merits

warrants

no

further

For the reasons that follow, the request is granted in

part and denied in part.
1.

RFPs One and Two

In RFP One, Plaintiff seeks “[a]ll documents describing any
Experian entity’s income from the sale of its products and services”
relating to credit monitoring or identity theft. Similarly, RFP Two
requests all documents “describing any Experian entity’s policies”
for placing ads for such services in consumer disclosures.
Experian first objects that Plaintiff seeks information from
consumerinfo.com (“CIC”), a separate corporation not a party to this
suit.

Although it admits to engaging in “limited cross-promotion”

with CIC, Experian objects that it does not keep CIC’s profit
records.

Plaintiff argues that nothing prevents Experian from

- 22 -

turning over documents that are actually in its possession — such as
agreements between Experian and CIC regarding advertising placement.
The Court is inclined to agree that Experian should turn over
whatever relevant documents are actually in its possession.

The

Court does not agree, however, that the companies – despite sharing
a

business

address

and

some

officers

and

directors

–

are

so

intertwined that it is appropriate to compel CIC and Experian, Plc.
to turn over their separate records in response to the RFP.

Cf.

Wachovia Securities, LLC v. Loop Corp., No. 05 C 3788, 2008 WL
2625907 (N.D. Ill. June 27, 2008) (discovery ordered where the
corporate affiliate was a wholly-owned subsidiary with a virtually
identical corporate existence).
Next, Defendant argues that although Plaintiff received two
advertisements for credit monitoring services, those advertisements
came before either of the two

letters at issue in this suit.

Therefore, Experian argues, they are irrelevant.

Plaintiff argues

that they are relevant because they demonstrate that Experian had a
financial incentive to make blocking information difficult (either
through advertising revenue or on behalf of CIC and Experian, Plc.),
which shows that the alleged FCRA violations are willful.

Although

evidence to support that claim is thin, the Court concludes that
Plaintiff has made a sufficient showing of relevance to warrant
production.

- 23 -

Finally,

Defendant

argues

that

the

information

is

not

discoverable because it is too inflammatory to be admissible.

This

sort of objection, however, is best reserved for trial, when the
Court can actually examine the proffered evidence.
2.
In

RFP

documents

Three,

relating

subscribers

or

RFP Three

Plaintiff
to

other

seeks

“[a]ll

communications

communications

between

Experian

furnishers

credit

information

of

and

and
its

about

Experian’s blocking of information alleged to result from identity
theft.”

Plaintiff plans to argue that Experian makes blocking

difficult in order to appease corporate subscribers who wish collect
on the allegedly fraudulent accounts.

Defendant attacks Plaintiff’s

interpretation of the evidence he offers to support this theory’s
viability.

As noted above, however, such objections are misplaced.

Plaintiff is entitled to reasonable discovery in support of his
willfulness claim.
Defendant next objects that the FCRA’s privacy restrictions
preclude it from turning over the requested information.

That

problem is illusory; the FCRA allows CRAs to release such information
pursuant to a court order, 15 U.S.C. §§ 1681b, 1681e, and in any
event, Plaintiff has offered to accept the records in redacted form.
Finally, Experian argues that records of such communications
probably do not exist, and that searching for them would require a
hand search of all of their database files, which would take years

- 24 -

and millions of dollars.

Plaintiff argues that responsive documents

can be found through computer searches, and can also be found outside
of individual consumer credit files — for example, there may be
emails or meeting documents discussing subscribers’ objections to
Experian’s blocking policy.

The Court agrees with Defendant that

requiring it to search through the individual credit files is not
warranted at this stage. However, asking Defendant to search through
its general corporate files for relevant documents does not appear to
be unduly burdensome.

As such, Defendant is to produce responsive

documents from its client relations departments, as well as any other
documents dealing with general complaints from subscribers about
account blocking.
V.

CONCLUSION

For the reasons stated herein, the Court rules as follows:
1.

Grants class certification for the One Year class;

2.

Denies certification for the Does Not Meet Guidelines

class; and
3.

Grants in part and denies in part Plaintiff’s Motion to

Compel.
IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court
DATE:

3/28/2012
- 25 -