Santangelo v. Comcast Corporation
MEMORANDUM Opinion and Order Signed by the Honorable John Z. Lee on 9/17/18.Mailed notice(ca, )
Case: 1:15-cv-00293 Document #: 247 Filed: 09/17/18 Page 1 of 19 PageID #:6110
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
Judge John Z. Lee
MEMORANDUM OPINION AND ORDER
When Plaintiff Keith Santangelo contacted Defendant Comcast Corporation
(“Comcast”) to inquire about obtaining internet services, the Comcast representative
informed him that Comcast needed to obtain Santangelo’s credit score in order to
ensure that he qualified. The representative also told him that he could forego the
credit check if he simply paid a $50 deposit. Santangelo agreed and paid $50 with a
credit card. As it turns out, Comcast pulled his credit anyway, and Santangelo’s
credit score went down by six points that day. As a result, Santangelo filed this
lawsuit, alleging that Comcast violated the Fair Credit Reporting Act (“FCRA”), 15
U.S.C. § 1681 et seq., and the Illinois Consumer Fraud and Deceptive Business
Practices Act (“ICFA”), 815 Ill. Comp. Stat. 505. Santangelo also claims that Comcast
breached their agreement and was unjustly enriched when it obtained Santangelo’s
Comcast now moves for summary judgment as to all of Santangelo’s claims. In
response, Santangelo has filed his own motion seeking summary judgment as to his
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FCRA claim. For the reasons stated herein, each party’s motion is granted in part
and denied in part.
Santangelo contacted Comcast on December 3, 2014, to inquire about obtaining
internet service for his apartment. Pl.’s LR 56.1(a)(3) Stmt. ¶¶ 23, 24, ECF No. 224.
Comcast’s representative asked Santangelo for permission to do a credit check, id.
¶ 25, and Santangelo asked if there was an alternative available, such as providing a
refundable deposit, id. ¶ 26. The representative told Santangelo that, to avoid a
credit check, Santangelo could instead pay a $50 deposit via credit card online. Id.
¶ 27; Def.’s LR 56.1(b)(3)(C) Stmt. ¶ 9, ECF No. 228-2. This was in accordance with
a policy in place at the time in Comcast’s Greater Chicago Region, which required a
$50 deposit if consumers did not want their credit checked or if they failed a credit
check. Pl.’s LR 56.1(a)(3) Stmt. ¶ 13; Def.’s Ex. 11, R. Sanfelice Dep. at 50:1–7, ECF
No. 228-14; Def.’s LR 56.1(b)(3)(C) Stmt. ¶ 3.
Santangelo agreed to pay the $50 deposit, Pl.’s LR 56.1(a)(3) Stmt. ¶ 28. He
then submitted his credit card information for the deposit via the online link that the
representative provided and informed the representative that he had done so. Id.
¶ 30. However, the representative failed to uncheck a box on his computer screen
that, by default, sent a credit-check request to Equifax whenever a representative
clicked “Apply.” Pl.’s LR 56.1(a)(3) Stmt. ¶¶ 14, 15, 32; Pl.’s Ex. 6 at 3, ECF No. 224-
The following facts are undisputed or have been deemed admitted, unless otherwise
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6. As a result, just one minute after Santangelo informed the representative that he
had submitted his credit-card payment information, Comcast initiated a credit check
with Equifax. Pl.’s LR 56.1(a)(3) Stmt. ¶ 31; Def.’s LR 56.1(b)(3)(C) Stmt. ¶ 11. The
representative quickly received a result message, “Passed / Proceed with Order,” Pl.’s
LR 56.1(a)(3) Stmt. ¶ 31, and Comcast received Santangelo’s TELCO credit result
from Equifax. Id. ¶ 33.2
Two minutes later, the representative asked Santangelo to resubmit his creditcard information for the $50 deposit.
Pl.’s LR 56.1(a)(3) Stmt. ¶ 36; Def.’s LR
56.1(b)(3)(C) Stmt. ¶ 12. Santangelo did so and advised the representative of the
same. Pl.’s LR 56.1(a)(3) Stmt. ¶ 37. The representative then offered Santangelo an
internet service package, id. ¶ 38, which Santangelo proceeded to order, Def.’s LR
56.1(b)(3)(C) Stmt. ¶ 13.
Santangelo’s credit score dropped by six points on December 3, 2014, the same
day that Comcast initiated the credit check with Equifax. Def.’s LR 56.1(b)(3)(C)
Stmt. ¶ 31. And Comcast’s credit-check policy advises its representatives that “every
time credit is checked by Comcast it becomes a permanent part of the customer’s
credit history and can lower their credit rating.” Pl.’s LR 56.1(a)(3) Stmt. ¶ 43.
Santangelo’s credit report does not reflect any other credit inquiries on
December 3 or 4, Def.’s Ex. 9 at 7, ECF No. 228-12. That said, Capital One, Inc. and
“TELCO” refers to a type of credit product provided by Equifax that is specific to the
See Pl.’s Mem. Supp. at 6, ECF No. 223; see also
www.equifax.com/business/ telecommunications-risk-score (last referenced Sept. 14, 2018).
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Intuit Inc. each made a credit inquiry in the days immediately prior to December 3,
Def.’s LR 56.1(b)(3)(C) Stmt. ¶¶ 4, 7.
Soon after discovering that his credit score had dropped, Santangelo called
Comcast to complain.
Pl.’s LR 56.1(a)(3) Stmt. ¶ 44.
Santangelo spoke with a
different representative, who confirmed that Comcast, in fact, had requested his
credit information. Id. ¶ 46. Santangelo asked to speak with a supervisor, who told
him that she could not reinstate the points to his Equifax credit score. Id. ¶ 49.
However, she offered to “try to” transfer him to the collections department “to see if
they are actually able to do something.” Id. But she cautioned that she “will not be
able to guarantee that the taking out of the points will be fixed.” Id. Hearing this,
Santangelo hung up the phone. Id. ¶ 50; Def.’s LR 56.1(b)(3)(C) Stmt. ¶ 16.
Approximately seven months later, in June 2015, Comcast credited Santangelo
$50.10 for his deposit and accrued interest. Def.’s LR 56.1(b)(3)(C) Stmt. ¶ 22. That
same month, Comcast caused the credit inquiry it had made to be “masked.”3 Id.
¶¶ 33, 34. A few months later, Comcast credited Santangelo with another $50.18. Id.
Based on these events, Santangelo claims that Comcast violated the FCRA by
obtaining his credit information from Equifax without a permissible purpose (Count
I). Am. Compl. at 8, ECF No. 37. Santangelo also claims that, by obtaining his credit
information despite agreeing not do so, Comcast violated the ICFA (Count II),
The parties agree that “masking” results in “no one outside the consumer being able
to view the inquiry in question,” Def.’s LR 56.1(b)(3)(C) Stmt. ¶ 34, but neither has clarified
what effect, if any, this may have on Santangelo’s credit score.
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breached their contract (Count III), and was unjustly enriched (Count IV). Am.
Compl. at 9–12.
“The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a); see also Shell v. Smith, 789 F.3d 715, 717 (7th
Cir. 2015). To survive summary judgment, the nonmoving party must “do more than
simply show that there is some metaphysical doubt as to the material facts,”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986), and
instead must “establish some genuine issue for trial such that a reasonable jury could
return a verdict in her favor.” Gordon v. FedEx Freight, Inc., 674 F.3d 769, 772–73
(7th Cir. 2012).
The evidence considered for summary judgment “must be admissible if offered
at trial, except that affidavits, depositions, and other written forms of testimony can
substitute for live testimony.” Malin v. Hospira, Inc., 762 F.3d 552, 554–55 (7th Cir.
2014). The Court gives the nonmoving party “the benefit of conflicts in the evidence
and reasonable inferences that could be drawn from it.” Grochocinski v. Mayer Brown
Rowe & Maw, LLP, 719 F.3d 785, 794 (7th Cir. 2013).
Moreover, Rule 56 “mandates the entry of summary judgment . . . against a
party who fails to make a showing sufficient to establish the existence of an element
essential to that party’s case, on which that party will bear the burden of proof at
trial.” Khan v. Midwestern Univ., 879 F.3d 838, 840–41 (7th Cir. 2018) (quoting
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Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). The moving party has the initial
burden of establishing that there is no genuine issue of material fact. See Celotex,
477 U.S. at 322. Once the moving party has sufficiently demonstrated the absence of
a genuine issue of material fact, the nonmoving party must then set forth specific
facts showing there are disputed material facts that must be decided at trial. See id.
Comcast contends that Santangelo lacks Article III standing to pursue his
claims. It also argues that there is no material dispute of fact that would allow his
claims to survive summary judgment and, alternatively, that Santangelo has waived
his claims. For his part, Santangelo seeks summary judgment as to his FCRA claim.
Article III Standing
To have Article III standing to sustain a lawsuit in federal court, a plaintiff
must demonstrate “(1) an injury that is (2) fairly traceable to the defendant’s
allegedly unlawful conduct and that is (3) likely to be redressed by the requested
relief.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 590 (1992) (Blackmun, J., dissenting)
(internal quotation marks omitted). At summary judgment, a plaintiff “need show
only a ‘genuine issue’ of material fact as to standing.” Id. (citing Fed. R. Civ. P. 56(c)).
“This is not a heavy burden.” Id.
Here, Comcast argues that Santangelo’s lowered credit score does not satisfy
Article III’s injury-in-fact requirement with respect to his FCRA claim, because he
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has not shown that he was denied a loan, a purchase, or a credit application.4 Def.’s
Mem. Supp. at 6, ECF No. 228-1. In support, Comcast cites to a district-court decision
from outside this circuit. See Gallaher v. US Bank Nat’l Assoc., No. CIV.A. 3:14-cv1877, 2017 WL 2111593 (D. Conn. May 15, 2017).
Comcast is mistaken. That Santangelo was not harmed in the specific ways
suggested by Comcast does not mean that Santangelo did not face other injury, such
as the prospect of less favorable credit terms. The Seventh Circuit recently affirmed
that it is “very easy” to envision a lowered credit score creating a real risk of financial
or other harm that satisfies the injury-in-fact requirement.
Evans v. Portfolio
Recovery Assocs., LLC, 889 F.3d 337, 344–46 (7th Cir. 2018) (finding that the
plaintiff’s inaccurately low credit score was sufficient to confer standing at summary
judgment). As the court stated in Evans, a lower score has “a variety of negative
effects. For instance, it is ‘a red flag to the debtor’s other creditors and anyone who
runs a background or credit check, including landlords and employers.’” Id. at 345
(quoting Phillips v. Asset Acceptance, LLC, 736 F.3d 1076, 1082 (7th Cir. 2013)).
Comcast also contends that its conduct was not fairly traceable to the six-point
reduction in Santangelo’s credit score on the day it checked his credit.5 Def.’s Reply
Comcast also contends that Santangelo’s failure to provide any evidence of “actual
damages” also precludes him from establishing an injury-in-fact. But as the Court has
previously explained, see Santangelo v. Comcast Corp., 162 F. Supp. 3d 691, 697 (N.D. Ill.
2016), actual damages and injury in fact “are not the same thing.” Abbott v. Lockheed Martin
Corp., 725 F.3d 803, 808 (7th Cir. 2013).
Although arguments made for the first time in a reply brief are normally deemed
waived, the Court considers this argument because it bears on the Court’s subject matter
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at 2, ECF No. 239. As Comcast sees it, because Capital One and Intuit also had
checked Santangelo’s credit just days before, there is no evidence that Comcast alone
was responsible for the reduction. Id. It is undisputed, however, that Santangelo’s
score dropped by six points on the same day that Comcast initiated the inquiry, Def.’s
LR 56.1(b)(3)(C) Stmt. ¶ 31, and that there were no other credit inquiries on that day.
Moreover, as Comcast itself warns its representatives, credit inquiries have the
potential to negatively impact credit scores. Pl.’s LR 56.1(a)(3) Stmt. ¶ 43. From
these facts, a jury could reasonably conclude that Comcast’s conduct was fairly
traceable to some or all of the decrease in Santangelo’s credit score.
Relatedly, Comcast also argues that it refunded the $50 payment (plus
interest) to Santangelo, thereby effectively mooting his claims. “Mootness is ‘the
doctrine of standing set in a time frame: The requisite personal interest that must
exist at the commencement of the litigation (standing) must continue throughout its
existence (mootness).’” Laskowski v. Spellings, 546 F.3d 822, 824 (7th Cir. 2008)
(quoting Friends of the Earth, Inc. v. Laidlaw Env’tl Servs., Inc., 528 U.S. 167, 189
Although Comcast’s repayment of the deposit does undercut several of
Santangelo’s claims (as will be discussed below), it does nothing to remedy the decline
in Santangelo’s credit score and the associated risk of injury.
Accordingly, the Court concludes that Santangelo has sufficiently established
Article III standing.
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State Law Claims (Counts II–IV)
Comcast also seeks summary judgment as to Santangelo’s claims pursuant to
the ICFA (Count II), for breach of contract (Count III), and for unjust enrichment
(Count IV), arguing that Santangelo has not adduced evidence of actual damages. In
response, Santangelo effectively concedes the point, but contends that this does not
foreclose his claims for punitive damages and injunctive relief. Pl.’s Resp. at 6, ECF
ICFA Claim (Count II)
“[A]n action brought under the ICFA requires the plaintiff to show he suffered
‘actual damage’ as a result of the defendant’s violation of the act.” Camasta v. Jos.
A. Bank Clothiers, Inc., 761 F.3d 732, 739 (7th Cir. 2014) (citing 815 Ill. Comp. Stat.
505/10a). And, contrary to Santangelo’s contention, a plaintiff is not entitled to
injunctive relief absent a showing of actual damages. Id. at 740 (citing B. Sanfield,
Inc. v. Finlay Fine Jewelry Corp., 76 F. Supp. 2d 868, 873 (N.D. Ill. 1999)). The same
is true for punitive damages. U.S. ex rel. Pileco, Inc. v. Slurry Sys., Inc., 804 F.3d
889, 892 (7th Cir. 2015). Therefore, given Santangelo’s failure to offer any evidence
of actual damages, Comcast is entitled to summary judgment as to Count II.
Breach-of-Contract Claim (Count III)
Likewise, under Illinois law, a plaintiff must prove actual damages to prevail
on a claim for breach of contract.6 See TAS Distrib. Co. v. Cummins Engine Co., 491
The parties agree that Illinois law applies to Santangelo’s state-law claims.
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F.3d 625, 632 (7th Cir. 2007).
Because Santangelo has chosen to forgo actual
damages, Comcast is entitled to summary judgment as to Count III.
Unjust-Enrichment Claim (Count IV)
In his unjust-enrichment claim, Santangelo seeks the return of his $50 deposit,
disgorgement, and punitive damages. Am. Compl. at 12; Pl.’s Resp. at 17. But it is
undisputed that Comcast refunded Santangelo’s deposit, Def.’s LR 56.1(b)(3)(C) Stmt.
¶¶ 22, 24, and Santangelo has not argued that this is insufficient restitution or
disgorgement. Moreover, providing full restitution to a plaintiff moots an unjustenrichment claim under Illinois law, Gates v. City of Chicago, 623 F.3d 389, 412–13
(7th Cir. 2010), including a claim for punitive damages, see Cleary v. Philip Morris
Inc., 656 F.3d 511, 520 (7th Cir. 2011) (“Unjust enrichment is not a mode of imposing
punitive damages.”). Comcast is therefore entitled to summary judgment as to Count
FCRA Claim (Count I)
Under the FCRA, a “person shall not use or obtain a consumer report for any
purpose unless . . . [it] is obtained for a purpose for which [it] is authorized to be
furnished under this section.” 15 U.S.C. § 1681b(f)(1). The parties raise two issues
in their summary-judgment motions. First, the parties dispute whether Comcast had
a “legitimate business need” to obtain Santangelo’s TELCO score as permitted by
§ 1681b(a)(3)(F)(i). Second, the parties disagree as to whether Comcast’s actions in
obtaining the TELCO score were willful under § 1681n(a)(1)(A).
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Legitimate Business Need
According to Santangelo, there is no evidence that Comcast had a “legitimate
business need” to check his TELCO score. Pl.’s Mem. Supp. at 7–12. As Santangelo
sees it, this is because Comcast had a policy of offering consumers its services without
requiring a credit check—provided that a $50 deposit payment was made. Id. at 9.
For its part, Comcast contends that it had a legitimate need for Santangelo’s
TELCO credit information because it “obtained [it] to evaluate his eligibility for
service” and to verify his identity. Def.’s Mem. Supp. at 8–10. But this is unsupported
by the record.
There is no dispute that Comcast offered to provide Santangelo
internet service without obtaining his TELCO information, if he paid a $50 deposit.
And no reasonable jury could conclude that Comcast needed Santangelo’s credit score
to determine his eligibility for service when Comcast’s own policies and
representations to Santangelo indicated otherwise. See, e.g., Ali v. Vikar Mgmt. Ltd.,
994 F. Supp. 492, 499 (S.D.N.Y. 1998) (holding that no reasonable jury could conclude
that a landlord had a legitimate need for a tenant’s credit report when the tenant was
allowed to renew the lease without regard to credit score); Hernandez v. Lamboy
Furniture, Inc., No. CIV.A. 07-00240, 2008 WL 4061344, at *6 (E.D. Pa. Sept. 2, 2008)
(defendant business lacked actual evidence that it needed consumer report).
Furthermore, Comcast did not need Santangelo’s TELCO information to confirm his
identify, because it used another Equifax product, Positive ID, to do just that. Pl.’s
LR 56.1(a)(3) Stmt. ¶ 21.
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Comcast also argues that “the legitimacy of a business need does not hinge on
having a consumer’s consent.” Def.’s Mem. Supp. at 8. This is true enough, but it is
beside the point. It is not Santangelo’s lack of consent that demonstrates Comcast’s
lack of a legitimate business need. Rather, it is Comcast’s own practice of foregoing
a credit check if a potential subscriber agrees to pay the $50 deposit, as Santangelo
did. See Santangelo, 162 F. Supp. 3d at 698–99.
Undeterred, Comcast contends that its credit inquiry was legitimate because
Santangelo’s payment of the $50 deposit did not eliminate the ongoing credit risk
Santangelo posed to Comcast. Def.’s Mem. Supp. at 9. According to Comcast, this is
because the total cost of services used by Santangelo in the coming months could
exceed $50. Id. This is a puzzling argument. If accepted, it would allow Comcast
and other subscription-based service providers to pull a consumer’s credit score
whenever there was a possibility (however remote) that the subscriber would
continue to use the services beyond the time covered by the deposit amount. For
Comcast, and providers with similar monthly subscription payment models, this
would mean that it could effectively pull a consumer’s credit score at will.
In any event, the argument is not supported by evidence. First, there is no
evidence that Comcast even considered this possibility for Santangelo or any other
subscriber. Nor has it provided any evidence that it ever initiated a credit inquiry for
a current subscriber because it feared that the deposit that it had required was
somehow insufficient. One could imagine, for example, that Comcast might request
credit checks of a subscriber on an ongoing basis to consider revoking its services or
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altering its terms as its prices and packages changed, but again Comcast has provided
absolutely no evidence of this.
Finally, Comcast states in passing that Santangelo authorized a credit check
pursuant to its Subscriber Agreement. Def.’s Mem. Supp. at 10. It is wholly unclear
what this has to do with a legitimate business need. Perhaps Comcast means to
suggest that Santangelo retroactively consented to the credit check when he agreed
to the Subscriber Agreement, see Def.’s Mem. Supp. at 15 (making this argument with
regard to its breach-of-contract claim). If so, it is true that one of the authorized
purposes for obtaining a consumer report under the FCRA is that it is done “in
accordance with the written instructions of the consumer to whom it relates.” 15
U.S.C. § 1681b(a)(2). And some district courts have found that authorization in a
contract constitutes a consumer’s “written instructions.” See, e.g., LeBlanc v. Allstate
Ins. Co., No. CIV.A. 99-2724, 2000 WL 687900, at *3 (E.D. La. May 17, 2000).
But Comcast does not mention § 1681b(a)(2) or further develop the argument,
thereby waiving it. See Godbole v. Ries, No. 15 C 5191, 2017 WL 219506, at *2 (N.D.
Ill. Jan. 19, 2017) (“The Court is not required to construct arguments for [parties].”)
(citing Pine Top Receivables of Ill., LLC v. Banco de Seguros del Estado, 771 F.3d 980,
987 (7th Cir. 2014)).
In any event, the Subscriber Agreement appears to be a
standard one, and under Comcast’s theory, every customer who becomes a subscriber
has retroactively agreed to a credit check, even when he or she paid a $50 deposit to
Comcast in exchange for Comcast’s promise that it would not initiate one. It also is
worth pointing out that, when Comcast and a future customer agree that Comcast
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will take a $50 deposit in lieu of conducting a credit check, the individual is only a
potential subscriber, who has not even been provided a subscription agreement to
review.7 Comcast points to no evidence or case authority that would support such a
For these reasons, Santangelo is entitled to summary judgment that Comcast
violated 15 U.S.C. § 1681b(f)(1), because it did not have a “legitimate business need”
for Santangelo’s credit information as required by § 1681b(a)(3)(F).
Whether Comcast Willfully Violated the FCRA
Both parties also move for summary judgment as to whether Comcast willfully
failed to comply with the FCRA. Because Santangelo does not seek actual damages,
he must prove that Comcast “willfully fail[ed] to comply” with the FCRA to be entitled
to any relief, including statutory or punitive damages, as well as reasonable
attorney’s fees. 15 U.S.C. § 1681n(a)(1)(A). Willfulness in this context means either
that Comcast acted knowing that its conduct violated the FCRA or with reckless
disregard of the FCRA’s requirements. Safeco Ins. Co. v. Burr, 551 U.S. 47, 57 (2007).
In order for one’s actions to be reckless, the actions must entail “an unjustifiably high
The Subscriber Agreement provides that the subscriber “authorize[s] Comcast to make
inquiries and to receive information about your credit experience from others.” Def.’s LR
56.1(b)(3)(C) Stmt. ¶ 28. But Santangelo did not receive a copy of the agreement from Comcast
until after he had paid the $50 with the understanding that Comcast would not check his credit.
Comcast claims that Santangelo “had access to the Subscriber Agreement that same day,” Def.’s
Reply at 12, but none of the sales representative’s statements upon which Comcast relies supports
the contention that Santangelo was informed that he could review a copy of the Subscriber
Agreement before making the $50 deposit.
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risk of harm that is either known or so obvious that it should be known.” Id. at 68–
69 (internal quotations and citations omitted).
Comcast contends that, when its representative initiated a credit check on
Santangelo, it was simply an unfortunate, human error. In support, Comcast points
to its written policy of allowing those who pay a $50 deposit to avoid a credit inquiry,
as well as its training and ongoing communications to representatives regarding this
Def.’s Mem. Supp. at 12.
For example, a training manual instructed
representatives to uncheck the default-checked box in the customer software that
would otherwise initiate a credit inquiry with Equifax. Def.’s LR 56.1(b)(3)(C) Stmt.
To support its position, Comcast also points to Newlin v. Comcast Cable of Ind.,
Inc., No. 2:12-CV-430-TLS, 2015 WL 363426 (N.D. Ind. Jan. 27, 2015). In that case,
like here, Comcast pulled the plaintiff Newlin’s credit score from Equifax despite the
plaintiff having paid Comcast a $50 deposit. Id. at *1. After a bench trial, the court
found that Comcast did not “knowingly and intentionally” ignore Newlin’s desire to
avoid a credit check. Salient for our purposes, the court based its determination on
Newlin’s failure to “present any evidence that Comcast had a deliberate policy of
ignoring consumer requests pertaining to credit reports, or a deliberate practice of
ignoring its own policy with respect to the deposits, or that it was aware of problems
with its system but took no remedial action.” Id. at *4.
For his part, Santangelo points out that, unlike Newlin, he has presented
evidence that Comcast was aware of problems with its system, but did nothing to
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remedy it. For this, Santangelo points to the Newlin litigation, which was brought in
2012 and, by December 2014, was nearly finished, with the court issuing its decision
the month after the events at issue here. In addition, Santangelo cites to complaints
sent to Comcast about the same conduct in 2012 and 2013. Pl.’s LR 56.1(b)(3)(C)
Stmt. ¶ 6, ECF No. 234. In response, Comcast argues that the complaints were few
and far between and that, rather than supporting Santangelo’s argument, Newlin
exonerated Comcast.8 Def.’s Reply at 9.
Both are correct to some extent. There is evidence in the record from which a
jury could reasonably conclude that the Comcast representative who initiated the
credit check did so in error. But, there is other evidence from which a reasonable jury
could conclude that Comcast knew or should have known that it would likely happen
based upon prior experiences with similar incidents.
Additionally, Comcast contends that it did not know, and could not reasonably
have known, that pulling Santangelo’s credit score would violate the FCRA “because
we’re entering into a business transaction, we have the right to run risk.” Def.’s Mem.
Supp. at 11. But, as Santangelo points out, there is no evidence in the record that
Comcast needed the TELCO score from Santangelo for any such purpose. Of course,
Comcast might have enjoyed having Santangelo’s credit information notwithstanding
their policy. But this is not enough. To obtain or furnish credit information, one must
have an authorized purpose. See Safeco, 551 U.S. at 59.
Comcast also objects to the admissibility of the third-party complaints as hearsay, Def.’s
Reply at 10, but these statements are offered, not for their truth, but for their impact on Comcast’s
knowledge and state of mind.
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Comcast also states that it reasonably interpreted the FCRA because its
Subscriber Agreement gave it express consent to pull Santangelo’s credit report
notwithstanding any prior agreement or representations to the contrary. Def.’s Mem.
Supp. at 10–11.
But, as noted above, not only is this argument insufficiently
developed and thus waived, see Estate of Moreland v. Dieter, 395 F.3d 747, 759 (7th
Cir. 2005) (“Perfunctory or undeveloped arguments are waived.”), but it is not
supported by the record.
Moreover, Comcast admits that, in 2012 and 2013, prior to the events at issue
here, it had attempted to fix the credit scores of other consumers who complained
about similar conduct. Def.’s Resp. Pl.’s 56.1(b)(3)(C) Stmt. ¶ 6, ECF No. 239-3. But
this is a dual- edged sword. On the one hand, a reasonable jury could infer from these
actions that Comcast believed it had remedied a fairly isolated problem. On the other,
a reasonable jury could infer that Comcast realized the risk of an unauthorized credit
check and the illegality of such conduct as far back as 2012 or 2013.
When the record is viewed in its entirety, there is a genuine dispute as to
whether Comcast knew or should have known that it was violating the FCRA in
December 2014 when its representative caused a credit check to be performed on
Santangelo even though he and Santangelo had agreed to the contrary. As such,
whether Comcast’s violation of the FCRA was willful must be resolved by the jury.
Waiver and Mootness
Lastly, Comcast seeks summary judgment on the basis of what it calls
“waiver.” See Delta Consulting Grp., Inc. v. R. Randle Constr., Inc., 554 F.3d 1133,
Case: 1:15-cv-00293 Document #: 247 Filed: 09/17/18 Page 18 of 19 PageID #:6127
1140 (7th Cir. 2009) (stating that “waiver is the voluntary and intentional
relinquishment of a known right”). It also argues that Santangelo’s claims are moot
because, as Comcast sees it, he caused the injury to himself. Def.’s Mem. Supp. at 18
(citing Clapper v. Amnesty Int’l USA, 568 U.S. 398, 416 (2013); Chapman v. First
Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015)).
Specifically, Comcast claims that it immediately offered to “mask”
Santangelo’s credit score and to pay back the $50 deposit, but that he refused the
offer. Def.’s Mem. Supp. at 18–19. But this is not what the evidence shows. Rather,
it is undisputed that Comcast’s representative told Santangelo that she could not fix
the drop in his credit score. She also said that she could transfer him to someone else
who might be able to fix it, but could not guarantee it. Pl.’s LR 56.1(a)(3) Stmt. ¶ 49.
Only then did he hang up the phone with Comcast.
Id. ¶ 50. While it is true that
Comcast returned the $50 deposit and interest, it is not entirely clear whether
Comcast remedied the decline in Santangelo’s credit rating, or how it might have
done so. Accordingly, Comcast’s motion for summary judgment as to the FRCA claim
on this basis also is denied.
For the reasons stated herein, Plaintiff’s motion for summary judgment 
and Defendant’s motion for summary judgment  are granted in part and denied
in part. Comcast’s motion is granted as to Santangelo’s state-law claims (Counts II
through IV) and denied as to his FCRA claim (Count I). Santangelo’s motion is
granted as to his FCRA claim (Count I) insofar as the Court concludes that Comcast
Case: 1:15-cv-00293 Document #: 247 Filed: 09/17/18 Page 19 of 19 PageID #:6128
had no legitimate business purpose to check his credit; it is denied in all other
respects. The only remaining issue for trial is whether Comcast violated the FCRA
willfully. This case is set for status hearing on 10/3/18 at 9:00 a.m. The parties should
be prepared at the hearing to set a schedule for pretrial filings and a date for the
pretrial conference and trial.
IT IS SO ORDERED.
John Z. Lee
United States District Judge
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