Parker v. Wilson Technologies, Inc. et al
OPINION and ORDER Denying 25 Motion for Leave to File Amended Complaint. Signed by District Judge Stephen J. Murphy, III. (DPar)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 2:15-cv-14365
HONORABLE STEPHEN J. MURPHY, III
EQUIFAX INFORMATION SERVICES,
OPINION AND ORDER DENYING MOTION FOR LEAVE TO FILE AMENDED
Plaintiff Linda Parker filed a proposed class complaint against Defendants Equifax
Information Services, LLC and Wilson Technologies, Inc. for alleged willful violations of the
Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq. Parker voluntarily dismissed
her claims against Wilson Tech, and has moved for leave to amend her complaint. The
Court held a hearing on February 7, 2017.
Parker tried to buy a vehicle from Suburban Cadillac Buick, an auto dealership for
which Wilson Tech provides "technical and retail support," identity-verification services, and
retail and sales management. ECF 25-2 ¶¶ 8–9, 17. She received a copy of her "credit
report"1 from Equifax—a consumer reporting agency—and discovered that Wilson Tech
Equifax has addressed Parker's references to her "credit report" and Wilson Tech's
"inquiries" to underscore a preference for statutorily defined terms over colloquial ones.
Equifax argues—and the Court will presume—that Parker claims she received a consumer
disclosure from Equifax, 15 U.S.C. § 1681g(a)(1), and that Wilson Tech obtained a
consumer report about Parker from Equifax, 15 U.S.C. § 1681a(d)(1). See ECF 25-2 ¶ 20
(alleging that Equifax "provided a consumer report" to Wilson Tech), ¶ 37 (defining class
as persons to whom Equifax "issued consumer disclosures" after Wilson Tech accessed
their "consumer reports"). Indeed, the statutorily defined term "consumer report" has legal
significance, so courts must "look at the contents of the reports themselves to assess
"made two inquiries" about her credit without her permission. Id. ¶ 11–12. Wilson Tech
denied that it accessed the report, and stated that the dealership verified Parker's identity
using Wilson Tech's "automated system." Id. ¶ 15–16.
Parker asserts by implication that the "automated system" utilized two Equifax
products: (1) a subscription to "eIDcompare," a tool that verifies personal information for
legal and regulatory compliance, and generates alerts for possible instances of identity
theft; and (2) a subscription to "[Office of Foreign Assets Control (OFAC)] Alert Services,"
which verifies consumers by automatically screening new and existing accounts, crosschecking its database when a credit report is requested, and issuing a notice that the data
was verified against the database. Id. ¶¶ 30–31. The eIDcompare product, in particular,
receives from its subscribers data packets that include fields for a consumer's name, phone
number, social security number, date of birth, driver's license, current address, and time
spent at that address. Id. ¶¶ 23–24. Parker alleges that Wilson Tech purchased the
eIDcompare and OFAC Alert Services "in relation to [her] and a class of all other persons
similarly situated." Id. ¶ 26.
Pursuant to Federal Rule of Civil Procedure 15(a)(2), a court should "freely give
leave" for a party to file an amended complaint "when justice so requires." District courts
can, however, deny a motion for leave to amend on the basis of "undue delay, bad faith or
dilatory motive . . . [or] futility of amendment." Prater v. Ohio Educ. Ass'n, 505 F.3d 437,
whether they reach the threshold established in 15 U.S.C. § 1681a(d)(1), rather than
determining in a conclusory manner that something is a 'consumer report' based upon the
parties' idiosyncratic and self-serving nomenclature." Bickley v. Dish Network, LLC, 751
F.3d 724, 729 n.4 (6th Cir. 2014).
445 (6th Cir. 2007) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). "Amending would
be futile if a proposed amendment would not survive a motion to dismiss." SFS Check, LLC
v. First Bank of Delaware, 774 F.3d 351, 355 (6th Cir. 2014). Accordingly, the proposed
amended pleading must "raise a right to relief above the speculative level" and "state a
claim to relief that is plausible on its face." Hensley Mfg. v. ProPride, Inc., 579 F.3d 603,
609 (6th Cir. 2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007)).
In the proposed amended class complaint, Parker has abandoned her claim against
Wilson Tech and added a claim against Equifax under § 1681g(a), which requires a
consumer reporting agency to provide to consumers clear and accurate consumer
disclosures. ECF 25-2, PgID 102–03. Parker argues that the amendment accounts for two
Equifax provided a consumer report and disclosed the middle-man
(Wilson Tech) but failed to disclose the end-user as required by 15
U.S.C. § 1681g(a)(3); or
Equifax provided a false consumer disclosure to Plaintiff by disclosing
that a consumer report was provided to Wilson Tech when it was not,
in violation of § 1681[g](a).
ECF 31, PgID 183. Parker seeks further discovery to "ascertain exactly what information
was reported and to whom, if at all," because without the information she "cannot
reasonably determine which of the two possible alternatives is at play." Id. at 184. Equifax,
on the other hand, maintains the amendment is futile and unjustly prejudicial.
15 U.S.C. § 1681g(a)(3): "Reporting" Claims
Parker's proposed amended complaint alleges that Equifax violated § 1681g(a)(3).
That section requires a consumer reporting agency to "disclose to the consumer . . .
[i]dentification of each person (including each end-user identified under section 1681e(e)(1)
of this title) that procured a consumer report—(i) for employment purposes, during the
2-year period preceding the date on which the request is made; or (ii) for any other
purpose, during the 1-year period preceding the date on which the request is made."
Parker alleges that the Equifax products to which Wilson Tech subscribed,
eIDcompare and OFAC Alert Services, could provide significant biographical information
about consumers, and Parker further alleges the general features and capabilities of the
products. See ECF 25-2 ¶ 24, ¶¶ 30–33 (listing the products' various capabilities). She
claims that Wilson Tech has a customer ID from Equifax for both products, used
eIDcompare to verify consumers for its subscribers, and purchased both products from
Equifax "in relation to [Parker] and a class of all other persons similarly situated." Id. ¶¶
25–29. But Parker does not allege that Equifax produced specific information about Parker
to Wilson Tech. Parker simply alleges that "Equifax provided Wilson Tech with header
data, yet Equifax disclosed to Ms. Parker and the class members that it had disclosed a
consumer report." Id. ¶ 59.
The allegation that Wilson Tech purchased the products "in relation to" Parker and
her proposed class fails to allege willful, impermissible conduct. Safeco Ins. Co. of Am. v.
Burr, 551 U.S. 47, 68 (2007) (noting that willful action entails "an unjustifiably high risk of
harm that is either known or so obvious that it should be known"). Parker submits general
allegations about the capabilities of Equifax's products and Wilson Tech's status as a
subscriber, but she falls short of plausibly claiming that "Wilson Tech actually used
eIDcompare to do anything with respect to her except obtain her 'header' information for
the purpose of verifying her identity." See ECF 28 PgID 146–47 (emphasis omitted). In
other words, Parker failed to identify the necessary connection between the products'
general capabilities and the specific manner in which they were used here.
Even assuming that Parker alleged Equifax had provided all the personal information
that eIDcompare had the capacity to exchange, see ECF 25-2 ¶ 24, and that Wilson Tech
actually used it, Parker's proposed amended complaint did not allege that providing the
information constituted a consumer report. To trigger the disclosure-identification
requirements of § 1681g(a)(3), Parker must allege that Equifax provided a consumer report
to Wilson Tech. Parker, however, does not allege facts sufficient to raise her claim to relief
above simple speculation that Equifax provided Wilson Tech with a consumer report.
The accumulation of biographical information from Equifax's products does not
constitute a consumer report because the information does not bear on Parker's credit
worthiness. The Sixth Circuit acknowledged that "header information" does not qualify as
a consumer report, but that court has not expressly defined what the content of header
information may be. Bickley v. Dish Network, LLC, 751 F.3d 724, 729 (6th Cir. 2014). While
the Sixth Circuit did not define header detail in Bickley, the term must refer to biographical
information. Few courts expressly define "header data", but the concept certainly includes
some combination of name (and aliases), address, change in address, date of birth, phone
number, and social security number. See e.g. Thompson v. Equifax Credit Information
Serv., Inc., No. 00–D–1468, 2001 WL 34142847, at *1–*2 (M.D. Ala. Dec. 14, 2001);
Dotzler v. Perot, 914 F.Supp. 328 (E.D. Mo. 1996), aff'd without opinion, 124 F.3d 207 (8th
Cir. 1997); Trans Union Corp. v. F.T.C., 81 F.3d 228 (D.C. Cir. 1996). The data at issue
here reflects biographical information generally recognized as header data and, thus, is not
a consumer report.
A report that conveys a consumer's "Echostar Risk number"—generated based on
the number of consumer-initiated credit inquiries during a 12-month period—is a consumer
report. Bickley, 751 F.3d at 729. By inference, therefore, any information that displays a
score communicating a consumer's credit worthiness must not be merely header data. Id.
And Federal Trade Commission guidance supports that inference. See Commentary on the
Fair Credit Reporting Act, 16 C.F.R. Part 600 App. at 548 (1990) (noting that information
bearing on at least one of the seven characteristics listed in the statutory definition, 15
U.S.C. § 1681a(d)(1), is necessary to qualify a disclosure as a consumer report).2
Here, Parker alleges that Equifax's products allow companies like Wilson Tech to
obtain substantial amounts of biographical information. And depending on context, header
data may well function effectively as a consumer report. For example, if a consumer
reporting agency groups the header data based on particular credit-related criteria, the
dissemination of that data may constitute a consumer report. See Trans Union Corp. v.
F.T.C., 81 F.3d 228, 229–30 (D.C. Cir. 1996) (noting that Trans Union "used special criteria
to cull [names and addresses] from its database" allowing any buyer of the data to know
"that the persons named satisfy the specified criteria"). But Parker does not allege that
Equifax communicated a score similar to an "Echostar Risk number" to Wilson Tech or
otherwise organized the information by criteria bearing upon the seven statutory
characteristics of a consumer report. The proposed amended complaint is bereft of any of
those types of allegations. And the allegations therefore fail to raise her right to relief
In 2011, the FTC rescinded all of its guidance interpreting the FCRA because the
Consumer Financial Protection Bureau ("CFPB") assumed agency responsibility for the
statute. The CFPB, however, has not issued guidance related to the disputed statutory
portions of the FCRA.
"above the speculative level", Twombly, 550 U.S. at 555. The amendment in this regard is
Parker seeks discovery to determine facts about her two proposed scenarios and to
"ascertain exactly what information was reported and to whom, if at all." ECF 31, PgID184.
But the "doors" of discovery are not "unlocked" for "a plaintiff armed with nothing more than
conclusions." Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009). And Parker "cannot use
discovery to obtain specific facts necessary to craft" a plausible proposed amended
complaint, "even when the information needed to establish a claim . . . is solely within the
purview of the defendant or a third party." Life For Relief & Dev. v. Charter One Bank, N.A.,
No. 12-CV-13550, 2013 WL 3810255, at *3 (E.D. Mich. July 23, 2013) (quoting New Albany
Tractor, Inc. v. Louisville Tractor, Inc., 650 F.3d 1046, 1051 (6th Cir. 2011)).
Parker has failed to plead in her proposed amended complaint "enough facts to state
a claim to relief that is plausible on its face" under section 1681g(a)(3). Twombly, 550 U.S.
at 555, 570. Attempts to "proceed to discovery simply by making bare allegations that the
defendants violated the law," 16630 Southfield Ltd. P'ship v. Flagstar Bank, F.S.B., 727
F.3d 502, 504 (6th Cir. 2013) (citing Iqbal, 556 U.S. at 695), are not sufficient. The motion
as to the reporting claims must be denied.
15 U.S.C. § 1681g: "Disclosure" Claims
Parker's proposed amended complaint includes an alternative claim that Equifax
failed to provide a clear and accurate disclosure under 15 U.S.C. § 1681g(a)(1). That
section provides, in pertinent part, that "[e]very consumer reporting agency shall, upon
request, . . . clearly and accurately disclose to the consumer [a]ll information in the
consumer's file at the time of the request." 15 U.S.C. § 1681g(a)(1) (emphasis added). A
legal standard for assessing the type of claim alleged here has not been developed by the
Sixth Circuit and the Plaintiff does not offer a standard by which the Court may review
whether a disclosure was "clear and accurate" within the meaning of § 1681g. ECF 31,
PgID 184–85.3 Parker has therefore failed to allege sufficient facts to raise her claim above
the speculative level because Equifax clearly and accurately disclosed the information
contained in Parker's credit file within the meaning of § 1681g.
Parker does not allege that the disclosure failed to clearly and accurately provide her
with all the information that Equifax had in her file. Rather, Parker alleges that the credit
report contained misinformation and constituted a "false disclosure." ECF 31, PgID 184.
While neither party disputes the completeness of the credit report that Equifax provided to
Parker, the statutory language regarding accurate disclosures does not require a consumer
reporting agency to produce or maintain credit reports that are free from error. The
statutory requirement that the disclosure "accurately" reflect "[a]ll information in the
consumer's file at the time of the request" merely prohibits the consumer reporting agency
from manipulating information in a consumer's credit report. Finding otherwise could
transform the FCRA into a strict liability statute. And when interpreting other provisions of
the FCRA, the Sixth Circuit has rejected the idea of reading the statute so strictly. See
Nelski v. Trans Union, LLC, 86 F. App'x. 840, 844 (6th Cir. 2004) ("[T]he FCRA does not
Only the Seventh Circuit has addressed the "clearly and accurate language set forth
in § 1681g. See Gillespie v. Equifax Info. Serv., LLC, 484 F.3d 938, 941 (7th Cir. 2007). In
a persuasive, but non-binding, that court determined that a "primary purpose of the
[FCRA's] statutory scheme" in the section "is to allow consumers to identify inaccurate
information in their credit files and correct this information . . . ." Gillespie, 484 F.3d at 941.
The court explained that clear and accurate disclosures must "make an accurate disclosure
of the information in the consumer's credit file" and make the disclosure in "a manner
sufficient to allow the consumer . . . to determine the accuracy of the information set forth
in [the] credit file." Id.
impose strict liability for incorrect information appearing on an agency's credit reports.").
Moreover, the FCRA provides a distinct remedy for inaccurate reports; from that fact, it may
be inferred that Congress did not intend to impose upon consumer reporting agencies a
requirement of error-free credit reports. See 15 U.S.C. § 1681e.
Second, the disclosure here was clear. Parker successfully requested disclosure of
her credit report, received all information that Equifax maintained in her file, and, upon
review of the credit report, made the determination that there were alleged inquiries into her
credit that she did not recognize. The clarity requirement for disclosures to consumers does
not require error-free credit reports, but does require that the credit report be clear enough
for a consumer to compare the report to her own files and to challenge any potential errors.
Equifax's credit report here allowed Parker to dispute the information set forth in her file.
And the credit report therefore complied with the FCRA.
Because Equifax "clearly and accurately disclose[d]" to Parker "[a]ll information in the
consumer's file at the time of the request," Equifax complied with the FCRA as a matter of
law and Parker's proposed amended complaint would be futile. Parker has not stated a
claim upon which relief may be granted.
WHEREFORE, it is hereby ORDERED that Plainitff's Motion for Leave to Amend
Complaint  is DENIED.
Dated: September 12, 2017
s/Stephen J. Murphy, III
STEPHEN J. MURPHY, III
United States District Judge
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was served upon the parties and/or
counsel of record on September 12, 2017, by electronic and/or ordinary mail.
s/David P. Parker
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