JOHN DOE-1 et al v. LEXISNEXIS RISK DATA MANAGEMENT, LLC et al
Filing
66
MEMORANDUM. Signed by Judge Harvey Bartle (EDPA), III on 1/27/2025. (lm, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
JOHN DOE-1, et al.
v.
LEXISNEXIS RISK SOLUTIONS,
INC., et al.
:
:
:
:
:
:
CIVIL ACTION
NO. 24-4566
MEMORANDUM
Bartle, J.
January 27, 2025
Plaintiffs John Doe and Jane Doe bring this putative
class action against defendant LexisNexis Risk Solutions, Inc.
(“LexisNexis”) for improperly imposing a “credit freeze” on
their accounts in violation of the New Jersey Identity Theft
Protection Act, N.J. Stat. Ann. §§ 56:11-44, et seq. (“NJITPA”)
(Count I).
Plaintiffs also claim intentional interference with
contractual and prospective relations (Count II) and have a
separate count for declaratory relief (Count III). 1
Their
“prayer for relief” requests actual and punitive damages,
injunctive relief as well as declaratory relief.
Subject matter
jurisdiction exists under 28 U.S.C. § 1332(a) as plaintiffs are
1.
Although plaintiffs identify declaratory relief as its own
cause of action, a request for relief in the form of declaratory
judgment is not an independent cause of action. See In re Joint
E. & S. Dist. Asbestos Litig., 14 F.3d 726, 731 (2d Cir. 1993)
(citing Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667,
671-72 (1950)); see also Mutasa v. U.S. Citizenship & Immigr.
Servs., 531 F. Supp. 3d 888, 893 n.4 (D.N.J. 2021).
citizens of New Jersey and the named defendant was incorporated
in Florida and has its principal place of business in New York. 2
Before the court is the motion of defendant LexisNexis
to dismiss the amended complaint under Rule 12(b)(6) of the
Federal Rules of Civil Procedure for failure to state a claim on
which relief can be granted (Doc. # 51).
I
For present purposes, the Court must accept as true
all well-pleaded facts in plaintiffs’ amended complaint.
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Bell
The Court
may also consider “exhibits attached to the complaint and
matters of public record.”
Pension Benefit Guar. Corp. v. White
Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993) (citing
5A Charles Allen Wright & Arthur R. Miller, Federal Practice and
Procedure § 1357 (2d ed. 1990)).
When there is a document
“integral to or explicitly relied upon in the complaint,” it may
also be considered as there is no concern of lack of notice to
the plaintiff.
See Schmidt v. Skolas, 770 F.3d 241, 249 (3d
Cir. 2014) (quoting In re Burlington Coat Factory Secs. Litig.,
114 F.3d 1410, 1426 (3d Cir. 1993) (quotation marks omitted)).
The amended complaint must plead more than “labels and
conclusions.”
Twombly, 550 U.S. 545.
It must plead more than
2.
While the amended complaint does not state the citizenship
of LexisNexis, the parties stipulated in open court as to its
citizenship.
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“a formulaic recitation of the elements of a cause of action” or
“naked assertions devoid of further factual enhancement.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly,
550 U.S. at 555) (internal quotations and alterations omitted).
Instead, it must recite sufficient factual content to state a
claim that is plausible on its face.
Id. at 678.
II
The well-pleaded facts as stated in the amended
complaint are as follows.
Plaintiff John Doe (“Doe-1”) is a
former police officer with the South Plainfield, New Jersey
police department.
Plaintiff Jane Doe (“Doe-2”) is a retired
New Jersey police officer who suffers from multiple sclerosis.
On January 2, 2024, Officer Doe-1 sent a request to
LexisNexis pursuant to a New Jersey statute known as Daniel’s
Law. 3
Officer Doe-2 sent the same request to LexisNexis on
January 1, 2024.
Daniel’s Law provides that judges, prosecutors
and other law enforcement officials as well as their immediate
family members may submit a written notice to any person,
business, or association (“entity”) not to disclose or otherwise
make available their home addresses and unpublished personal
telephone numbers.
The entity must comply within 10 business
3.
Daniel’s Law, as amended, is codified as follows: N.J.
Stat. Ann. §§ 2C:20-31.1, 17:46B-1.1, 19:31-18:1, 46:26A–12,
47:1-17, 47:1A-1.1, 47:1A-5, 47:1B-1, 47:1B-2, 47:1B-3, 47:1B–4,
56:8-166.1, 56:8-166.3.
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days.
The law creates a civil remedy for damages and injunctive
relief as well as criminal penalties for noncompliance.
In January 2024, each plaintiff sent the following
request to LexisNexis:
To Whom It May Concern:
I Am a “Covered Person” as defined by New
Jersey law P.L. 2023, c. 113, P.L. 2021, c.
371 (as amended, the “Act”). Pursuant to
the Act and Section 3 of New Jersey P.L.
2015, c.226 (C.56:8-166.1) (as amended), I
hereby request that you not disclose or redisclose on the Internet or otherwise make
available, the following protected
information:
Name: [plaintiff’s name was inserted]
Home Address: [plaintiff’s home address was
inserted]
As a result, LexisNexis imposed a security freeze on
plaintiffs’ entire files, not just as to their home addresses
and unlisted phone numbers.
LexisNexis sent letters to Officer
Doe-1 and Officer Doe-2, which stated in relevant part:
RE: Security Freeze Confirmation
Thank you for your request to place a
security freeze on your file with LexisNexis
Risk Solutions. (“LexisNexis”) as provided
by law in your state of residence. This
letter is to confirm that a security freeze
has been placed on your file.
Security freezes will be placed based on
your state of residency and the customers
use case. Based on this information,
LexisNexis may not release your report(s) or
score(s) derived for those use cases. You
should be aware that applying a security
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freeze to your file may delay, interfere
with, or prohibit the timely approval of
applications you make for items such as
credit, benefits, or insurance underwriting.
WARNING TO PERSONS SEEKING A CREDIT FREEZE
AS PERMITTED BY THE CREDIT REPORT PROTECTION
ACT: YOU MAY BE DENIED CREDIT AS A RESULT OF
A FREEZE PLACED ON YOUR CREDIT FILE. A
security freeze does not apply to certain
users of consumer reports, including those
with whom you already have an existing
account. These users request your file for
the purpose of reviewing that account.
This security freeze is being placed on your
file pursuant to the security freeze laws in
your state of residence, NJ, specifically,
N.J. Stat. Ann. § 56:11-30, 56:11-46,
13:45F-2.7, 18:45F-5.1 as of the date of
this letter. . . . This security freeze
will remain in place indefinitely until you
decide to temporarily or permanently remove
the security freeze. Below you will find a
unique Personal Identification Number (PIN)
that you will need in the event that you
choose to temporarily or permanently remove
the security freeze.
[plaintiff’s PIN is inserted]
Should you wish to remove your security
freeze, you must contact us and provide
proper identification and your PIN number.
. . .
If you have any further questions, you may
contact the LexisNexis Consumer Center via
email at
consumer.documents@LexisNexisRisk.com or by
phone at 800-456-1244.
. . .
LexisNexis Consumer Center
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According to the amended complaint, Doe-1 attempted to
have LexisNexis remove this freeze on multiple occasions, but it
has not complied.
Its letter requested him to use his PIN, but
his pleading does not say that he did so.
Officer Doe-2,
according to the amended complaint, has not attempted to remove
the freeze due to her serious medical condition.
Information about plaintiffs was still available on
LexisNexis’ “people search” function after the 10-day period had
expired under Daniel’s Law.
Officer Doe-2 avers that due to her
multiple sclerosis, she requires “unfettered access to
sophisticated and expensive treatments to moderate her medical
conditions” which “requires equally unfettered access to credit
on an ongoing basis.”
III
Plaintiffs articulate two violations of the NJITPA:
(1) LexisNexis imposed a security freeze without plaintiffs’
direct request; and (2) LexisNexis failed to lift the security
freeze upon their request. 4
LexisNexis argues that plaintiffs
4.
Plaintiffs argue in their brief in opposition to
defendant’s motion to dismiss that they also state a claim that
LexisNexis disclosed their personal information without
authorization in violation of the NJITPA. In support of their
contention, they cite Boone v. T-Mobile USA Inc. for the
proposition that New Jersey state law “provides a right of
action” for the unauthorized disclosure of personal information.
See Civ. A. No. 17-378, 2018 WL 588927, at *8 (D.N.J. Jan. 29,
2018). However, plaintiffs in Boone brought their claims under
Sections 31a and 40 of the New Jersey Fair Credit Reporting Act,
N.J. Stat. Ann. § 56:11-31a, 40. Plaintiffs in this action do
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fail to state a claim under the NJITPA for either of these
claims.
The New Jersey Identity Theft Protection Act was
enacted in 2005 to amend and supplement the New Jersey Fair
Credit Reporting Act (“NJFCRA”).
See Reed v. Swatch Grp. (US),
Inc., Civ. A. No. 14-896, 2014 WL 7370031, at *6 n.2 (D.N.J.
Dec. 29, 2014).
Its purpose is to protect consumers from
identity theft and to “enact certain other protections and
remedies related thereto and thereby further the public safety.”
N.J. Stat. Ann. 56:11-45(h).
Similar to the federal Fair Credit
Reporting Act, the statute is remedial and therefore should be
constructed liberally in order to achieve its “consumer oriented
objectives.”
See Long v. Se. Pa. Transp. Auth., 903 F.3d 312,
318-19 (3d Cir. 2018) (quoting Cortez v. Trans Union, LLC, 617
F.3d 688, 706 (3d Cir. 2010)).
The NJITPA allows a consumer to compel a consumer
reporting agency such as LexisNexis to impose a security freeze
on his or her consumer report. 5
When a security freeze is placed
not cite to those subsections and only allege in their amended
complaint that LexisNexis violated N.J. Stat. Ann. § 56:11-46.
As plaintiffs do not allege that it also violated N.J. Stat.
Ann. § 56:11-31a or 40, they may not belatedly maintain in an
opposing brief that they adequately allege that LexisNexis
disclosed their personal information without authorization under
that statute.
5.
A consumer report is
[A]ny written, oral or other communication
of any information by a consumer reporting
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on a consumer’s report, a consumer reporting agency is
prohibited from releasing the report or any information within
it “without the express authorization of the consumer.”
N.J.
Stat. Ann. § 56:11-30. 6
The NJITPA provides that:
a.
A consumer may elect to place a
security freeze on his consumer report
by:
(1)
(2)
making a request in writing by
certified mail or overnight mail
to a consumer reporting agency; or
making a request directly to the
consumer reporting agency through
a secure electronic mail
connection, if an electronic mail
connection is provided by the
consumer reporting agency.
agency bearing on a consumer's credit
worthiness, credit standing, credit
capacity, character, general reputation,
personal characteristics or mode of living
which is used or expected to be used or
collected in whole or in part for the
purpose of serving as a factor in
establishing the consumer's eligibility for:
(a) credit or insurance to be used primarily
for personal, family or household
purposes;
(b) employment purposes; or
(c) any other purpose [authorized under the
New Jersey Fair Credit Reporting Act].
N.J. Stat. Ann. 56:11-30.
6.
While a security freeze placed on a consumer’s consumer
report “prohibits the consumer reporting agency from releasing
the report or any information from it without the express
authorization of the consumer,” it “does not prevent a consumer
reporting agency from advising a third party that a security
freeze is in effect with respect to the consumer report.” Id.
-8-
b.
A consumer reporting agency shall place
a security freeze on a consumer report
no later than five business days after
receiving a written request from the
consumer.
. . .
j.
A security freeze shall remain in place
until the consumer requests that the
security freeze be removed. A consumer
reporting agency shall remove a
security freeze within three business
days of receiving a request for removal
from the consumer, who provides the
following:
(1)
(2)
Proper identification; and
The unique personal identification
number or password provided by the
consumer reporting agency pursuant
to subsection c. of this section.
N.J. Stat. Ann. § 56:11-46 (emphasis added).
Section 56:11-50
of the NJITPA provides a civil remedy for failure to comply with
the above requirements:
a.
b.
Any person who willfully fails to
comply with the requirements [Section
56:11-46] shall be liable to a consumer
as provided in [Section 56:11-38].
Any person who is negligent in failing
to comply with the requirements of
[Section 56:11-46] shall be liable to a
consumer as provided in [Section 56:1139].
Sections 56:11-38 and 11-39 are contained within the NJFCRA.
Plaintiffs argue that their emails to LexisNexis were
not requests to freeze their credit but rather narrow requests
pursuant to Daniel’s Law simply not to disclose or make
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available their home addresses or unlisted phone numbers. 7
While
plaintiffs’ requests to LexisNexis do not use the term “Daniel’s
Law,” they do cite the relevant sections of the New Jersey
statute.
The NJITPA permits a consumer to elect to impose a
security freeze by making a written request that the consumer
reporting agency do so.
Section 56:11-50 provides that a
violation occurs when a person negligently or willfully fails
“to comply with the requirements” of Section 56:11-46, which
deals with security freezes.
LexisNexis maintains that it may
be held liable only for failing to implement a freeze when asked
to do so but not, as occurred here, for mistakenly imposing a
freeze without a request to do so.
The court construes the NJITPA as allowing a consumer
reporting agency to implement a freeze only when the consumer
makes the request.
The statute provides for only one procedure
to obtain a security freeze of a consumer credit report.
It
necessitates a request by the consumer among other steps.
The
one specific procedure outlined in the NJITPA to obtain a freeze
necessarily eliminates all other means for obtaining or
implementing a freeze.
The inclusion of one is the exclusion of
another (expressio unius est exclusio alterius).
See Jacobsen
7.
Daniel’s Law does not require the imposition of a credit
freeze.
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v. Dara, 62 A.3d 942, 945 (N.J. Super. Ct. 2011); see also
United States v. Giordano, 416 U.S. 505, 513-15 (1974).
Here it
is alleged that LexisNexis implemented a freeze even though
plaintiffs did not request one.
If LexisNexis did so, it acted
contrary to the prescribed statutory procedure.
The exception
LexisNexis urges would also create a giant loophole in the
NJITPA.
LexisNexis’ reading of the statute would run counter to
the statute’s liberal construction to achieve consumer-oriented
objectives.
See Young v. Schering Corp., 660 A.2d 1153, 1158
(Pa. 1995); see also Long, 903 F.3d at 318.
Plaintiffs have
stated a claim that LexisNexis has violated the NJITPA by
imposing credit freezes without their direction for such a
result.
LexisNexis further argues that Officer Doe-1 has
failed to state a claim based on its failure to lift the
security freeze upon his request.
It maintains that Officer
Doe-1 does not allege he followed the required statutory
procedure to vitiate a security freeze.
As noted above, the
agency must do so within three business days after receipt of
the consumer’s “proper identification” and “[t]he unique
personal identification number or password provided by the
consumer reporting agency.”
N.J. Stat. Ann. § 56:11-46(j).
While Officer Doe-1 avers that he made multiple attempts to lift
the security freeze, the amended complaint states only that he
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included “the same personal information contained in those
initial requests.”
He does not allege that he provided his
personal identification number, that is his PIN, to LexisNexis
as required under the NJITPA in order to remove the freeze.
This PIN was not provided to him until after he made his initial
request under Daniel’s Law, that is not until LexisNexis sent
its letter, which he received on or about January 17, 2024 and
which is quoted in the amended complaint.
Since his request to
remove the freeze did not include his PIN, his claim that
LexisNexis violated Section 56:11-46(j) of the NJITPA in failing
to lift the freeze is fatally deficient.
In plaintiffs’ opposing brief, Officer Doe-2 maintains
that she also alleges a claim under Section 56:11-46(j) and that
LexisNexis did not lift a security freeze upon her request.
However, Officer Doe-2 fails to state in the amended complaint
that she made any attempt to lift the security freeze on her
credit.
On the contrary, she alleges she has chosen not to
attempt to lift the security freeze on her file.
To the extent
that Officer Doe-2 pleads a violation of Section 56:11-46(j),
her claim also fails.
IV
LexisNexis next argues that plaintiffs fail to state a
claim for intentional interference with contractual and
prospective contractual relations under New Jersey law (Count
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II).
It asserts that this is an “amalgam” of two separate
common-law claims: tortious interference with contract and
tortious interference with prospective contractual relations.
The elements of tortious interference with a contract
under New Jersey law are:
(1) actual interference with a contract; (2)
that the interference was inflicted
intentionally by a defendant who is not a
party to the contract; (3) that the
interference was without justification; and
(4) that the interference caused damage.
Dello Russo v. Nagel, 817 A.2d 426, 434 (N.J. Super. Ct. 2003)
(citing 214 Corp. v. Casino Reinvestment Dev. Auth., 656 A.2d
70, 72 (N.J. Super. Ct. 1994)).
To succeed on a claim for intentional interference
with a contractual relationship under New Jersey law, the
tortfeasor’s interference must be “knowing, intentional, and
wrongful.”
Mylan Inc. v. SmithKline Beecham Corp., 723 F.3d
413, 422 (3d Cir. 2013).
According to Mylan, “[a]ctual
knowledge of the contract with which a defendant supposedly
interfered is a prerequisite to making out a claim for tortious
interference.”
Id.
The tortfeasor must have actual knowledge
of the “specific contractual right.”
Id.
Simply having
“[g]eneral knowledge of a business relationship is not
sufficient.” DiGiorgio Corp. v. Mendez & Co., 230 F. Supp. 2d
552, 564 (D.N.J. 2002); see also Restatement (Second) Torts
§ 766, cmt. i (Am. L. Inst. 1979).
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The amended complaint does not allege that LexisNexis
had actual knowledge of any contractual relationship of
plaintiffs.
They simply rely on the response of LexisNexis to
their request that certain personal information not be disclosed
or otherwise made available.
In applying the security freeze,
LexisNexis wrote:
You should be aware that applying a security
freeze to your file may delay, interfere
with, or prohibit the timely approval of
applications you make for items such as
credit, benefits, or insurance underwriting.
The argument that this suffices as pleading actual
knowledge by LexisNexis of specific contractual rights of
plaintiffs falls far short.
The response by LexisNexis merely
advises plaintiffs of what the consequences may be if a security
freeze is imposed.
It says nothing about its actual knowledge
of specific contracts to which plaintiffs are a party.
Even if
it can be inferred that LexisNexis had some general knowledge of
business relationships plaintiffs may have with vendors, it is
not reasonable to infer that it had any specific information
about those relationships.
Plaintiffs have failed to meet the
plausibility pleading standard under Iqbal and Twombly, supra.
Conclusory allegations will not do.
To state a claim for intentional interference with
prospective economic relations, plaintiff must allege: (1) that
plaintiff had a “reasonable expectation of economic advantage;”
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(2) which plaintiff interfered with intentionally and with
malice; and (3) that such interference led to the “loss of the
prospective gain.”
MacDougall v. Weichert, 677 A.2d 162, 174
(N.J. 1996) (citing Printing Mart-Morristown v. Sharp Elecs.
Corp., 563 A.2d 31, 37 (Pa. 1989) (per curiam)).
A plaintiff
need not allege the existence of a “formal, binding contract”
but must demonstrate a specific protectable interest.
Printing Mart-Morristown, 563 A.2d at 39.
See
A plaintiff’s claim
will be dismissed if plaintiff, for example, merely alleges the
loss of unknown customers.
Austar Int’l Ltd. V. AustarPharma
LLC, 425 F. Supp. 3d 336, 359 (D.N.J. 2019) (citing Harmon v.
Borough of Belmar, No. 17-2437, 2018 WL 6068216, at *8 (D.N.J.
Nov. 29, 2018)).
In this action, the amended complaint states that
Officer Doe-1 had “prospective relationships in the future.”
gives no further detail.
It
This allegation is insufficient as it
does not identify a specific prospective contract that
LexisNexis frustrated by the imposition of the credit freezes.
Again, plaintiffs allegations do not meet the plausibility
requirement of Iqbal and Twombly.
Officer Doe-2 alleges that LexisNexis interfered with
her “unfettered access to [treatments for multiple sclerosis]”
by denying her “unfettered access to credit on an ongoing
basis.”
The amended complaint does not allege that LexisNexis
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had any knowledge of her medical condition or her need for
continued medical treatment.
Nor is there any allegation that
it knew of any relevant specific contractual or prospective
contractual relationships.
Neither plaintiff has stated a claim for intentional
interference with contractual relations or a claim for
intentional interference with prospective contractual relations.
V
LexisNexis next argues that even if plaintiffs have
alleged valid claims under state law, their claims are preempted
by the Fair Credit Reporting Act, 15 U.S.C. § 1671, et seq.
(“FCRA”).
Preemption is an affirmative defense and therefore,
dismissal under Rule 12(b)(6) is only justified when defendant
can show that preemption is “manifest in the complaint itself.”
Lupian v. Joseph Cory Holdings LLC, 905 F.3d 127, 130-31 (3d
Cir. 2018).
The FCRA preempts some but not all actions brought
pursuant to related state laws such as the NJITPA.
U.S.C. § 1681t(a).
See 15
It specifically preempts state law to the
extent that state law makes any “requirement or prohibition”
“with respect to any subject matter under . . . subsections (i)
and (j) of section 1681c-1” relating to security freezes.
at § 1681t(b)(1)(J).
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Id.
Subsections 1681c-1(i) and (j) detail the process by
which a consumer reporting agency 8 shall place a security freeze
on a consumer’s credit file after a request by a protected
consumer or his or her representative.
It must do so only upon
the consumer’s “direct request . . . upon receiving proper
identification from the consumer[.]”
See 15 U.S.C. § 1681c-
1(i)(2)(A).
Similar to the FCRA, the NJIPTA sets forth how a
consumer may place a security freeze on his consumer report.
A
consumer reporting agency is directed to place a security freeze
after receiving a request directly from a consumer.
Ann. § 56:11-46(a).
N.J. Stat.
Both statutes require that the consumer
reporting agency comply with the request within a certain time
period.
See N.J. Stat. Ann. § 56:11-46(b); see also 15 U.S.C.
§ 1681t(i)(2)(A).
Within five days, both the FCRA and the
NJITPA require a consumer reporting agency provide the consumer
with written confirmation of the requested freeze.
(b); see also 15 U.S.C. § 16681t(i)(2)(B).
See id. at
Like the FRCA, the
NJITPA directs consumer reporting agencies to lift a credit
freeze upon a consumer’s request only after it is provided with
8.
A consumer reporting agency is an entity that “regularly
engages in the practice of assembling or evaluating, and
maintaining [public record and credit account information], for
the purpose of furnishing consumer reports to third parties
bearing on a consumer’s credit worthiness, credit standing, or
credit capacity . . . .” 15 U.S.C. § 1681a(p).
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“proper identification.”
Compare N.J. Stat. Ann. § 56:11-46(j),
(k) with 15 U.S.C. § 1681c-1(i)(3)(C).
The NJITPA, however,
imposes a requirement not included in the FCRA.
Before a
consumer may lift a security freeze under the NJITPA, he or she
must also provide the consumer reporting agency with his or her
personal identification number (PIN), which the consumer
reporting agency is required to provide upon the imposition of
the freeze.
See N.J. Stat. Ann. § 56:11-46(c), (j)(2).
It also
provides that when a reporting agency removes a security freeze
because it was placed “due to a material misrepresentation of
fact by the consumer,” the agency must notify the consumer in
writing at least five business days prior to removing the
freeze.
Id. at (g)(2).
1(i)(3)(A)(ii).
But see 15 U.S.C. § 1681c-
As noted by plaintiffs, the FCRA also regulates
“national security freezes,” while the NJITPA contains no such
qualifier.
Plaintiffs maintain that their claims are not
preempted despite the express preemption of claims within
subsections 1681c-1(i) and (j) of the FCRA.
In support of their
contention, they cite an interpretive rule which clarifies that
states are free to enact “laws that are more protective” than
the FRCA.
See The Fair Credit Reporting Act’s Limited
Preemption of State Laws, 87 Fed. Reg. 41042 (July 11, 2022).
They also cite several decisions in other circuits that narrowly
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construed the FRCA’s express preemption provisions and held that
additional state regulation is permissible.
See, e.g., Consumer
Data Indus. Ass’n v. Frey, 26 F.4th 1, 6 (1st Cir. 2022); Galper
v. JP Morgan Chase Bank, 802 F.3d 437, 447 (2d Cir. 2015).
In each case identified by plaintiffs, the courts
permitted plaintiffs to proceed with their state law claim
because the subject matter was not one the FCRA expressly
preempted.
For example, in Consumer Data Industry Association
v. Platkin, the court considered whether New Jersey could
require, via the NJFCRA, consumer reporting agencies to provide
credit file disclosures in twelve or more languages.
Civ. A.
No. 19-19054, 2024 WL 1299256, at *1 (D.N.J. Mar. 27, 2024). 9
The credit reporting agencies argued that Section 1681t(b)(5)(B)
and (E) of the FCRA prohibited the application of this
requirement.
Platkin, 2024 WL 1299256, at *17.
Those
subsections bar a state’s imposition of requirements or
prohibitions relating to Sections 1681c-1 and 1681j(a), which
concern, respectively, identity theft protection and the free
annual disclosures that consumers are entitled to under the
FCRA.
Id.
The court concluded that because neither section of
9.
The court severed this requirement from the NJFCRA on First
Amendment grounds, and plaintiff Consumer Data Industry
Association appealed this decision on May 6, 2024. On October
17, 2024, the parties stipulated to dismiss the action without
prejudice and without costs against any party. Stipulation of
Dismissal, Consumer Data Indus. Ass’n v. Platkin, No. 24-1810
(3d Cir. Oct. 17, 2024).
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the FCRA “addressed the language file disclosures should be made
in,” the federal FCRA did not preempt this provision of the
NJFCRA.
Id. at *18.
Again, plaintiffs’ remaining claim is that LexisNexis
imposed a security freeze without first receiving a consumer’s
direct request to do so.
This is a violation of Sections 56:11-
46(a), (b) and (c) of the NJITPA.
While those sections of the
NJITPA are not more protective than Section 1681c-1(i)(2) of the
FCRA, they regulate the same conduct.
Both statutes require
that a consumer reporting agency not only impose a freeze upon
the direct request of a consumer within a specific time period
but also send a confirmation that the security freeze has been
placed.
Nonetheless, the FCRA expressly preempts plaintiffs’
NJITPA claim related to the imposition of a security freeze.
Plaintiffs also argue that preemption is not
appropriate because Daniel’s Law, which prohibits the disclosure
of the home addresses and unlisted phone numbers of covered
persons is not preempted by Section 1681t(b)(1)(J) of the FCRA.
They maintain that neither home addresses nor unlisted phone
numbers are necessary components of a security freeze and so
therefore, their claim is not preempted by the FCRA.
The
question whether Daniel’s Law is preempted by the FCRA is not
germane because plaintiffs bring a claim under the NJITPA.
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The
correct inquiry is whether the NJITPA, and not Daniel’s Law, is
preempted by the federal FCRA. 10
Plaintiffs may pursue their claims relating to
security freezes under the FCRA but not under the NJITPA.
VI
Plaintiffs’ claims under the NJITPA are expressly
preempted by the Fair Credit Reporting Act.
Further, plaintiffs
have not stated viable claims under the New Jersey common law.
Accordingly, the court will dismiss the amended complaint with
leave to file a second amended complaint on or before February
6, 2025 under the Fair Credit Reporting Act only.
BY THE COURT:
_/s/ Harvey Bartle III___
J.
10. Finally, plaintiffs contend that LexisNexis should be
estopped from arguing that the security freezes “were somehow
mandated under the FCRA” upon plaintiffs’ request under Daniel’s
Law. Plaintiffs maintain that this is a course change from its
prior statements that identifying information such as a
consumer’s name, phone number, or address were not
characteristics “enumerated in the definition of a ‘consumer
report’ in the FCRA.” At this stage of the litigation, the
court cannot determine this issue as a matter of law.
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