Massey v. On-Site Manager, Inc.
MEMORANDUM DECISION AND ORDER granting 23 Motion to Certify Class. The plaintiff has satisfied each of the requirements of Rule 23(a) and 23(b)(3). Plaintiff's motion for class certification is granted as modified. See attached order for further details. Ordered by Judge Brian M. Cogan on 8/23/2012. (Siegfried, Evan)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
DAWN MASSEY, individually and on behalf of
all others similarly situated,
DECISION AND ORDER
11 Civ. 2612 (BMC)
-againstON-SITE MANAGER, INC.,
COGAN, District Judge.
The Fair Credit Reporting Act, 15 U.S.C. § 168lc(a)(2) ("FCRA"), prohibits a consumer
reporting agency from reporting information concerning "[c ]ivil suits, civil judgments, and
records of arrest that, from date of entry, antedate the report by more than seven years or until the
governing statute of limitations has expired, whichever is the longer period." Defendant in this
case is a consumer reporting agency that prepares credit reports for landlords who are eva! uating
rental applications. It reported a New York judgment of eviction against plaintiff that was more
than seven years old (and beyond New York's six year statute oflimitations).
Plaintiff moves for class certification of a class comprised of (1) consumers from every
state who had outdated civil actions reported against them; and (2) consumers from the states of
Arizona, New York, Pennsylvania, Nevada, and Mississippi who had outdated judgments
reported against them. For the reasons set forth below, I find that the class is appropriate for
certification and therefore grant the motion, although with slight modifications to the class
Defendant compiles consumer credit reports for landlords to consider in evaluating their
prospective tenants' rental applications. Each landlord specifies the criteria that it wishes to use,
such as prospective tenants' financial status and litigation history. Defendant then evaluates the
data it receives about the tenant according to those criteria and provides a report to the landlord.
Defendant generates an average of 60,000 reports per month for these landlords. These reports
contain a recommendation for the landlord concerning the tenant, including "decline,"
"approve," "approve with conditions," and "maybe."
Since 2009, defendant has obtained information about prospective tenants' housing court
histories pursuant to contracts with LexisNexis. Defendant has undertaken efforts to limit
reported housing court records to those less than seven years old, both in its communications
with LexisNexis and in its own review of the supplied data. Defendant concedes that, in January
20 II, it became aware of a software flaw that allowed it to report housing court records more
than seven years old. It claims to have fixed the problem by August 20 II.
Defendant ultimately issued over 8,000 reports containing outdated information under
FCRA. 1 However, defendant asserts that a maximum of 95 consumers within this group actually
may have had their rental applications rejected because of the outdated court judgments. This is
because, according to defendant, those consumers' reports are the only subset of the 8,000
erroneous reports in which each report: (I) contained a "decline" recommendation from
Defendant admits that it issued reports containing outdated judgments for 3,277 individuals. Additionally, plaintiff
represents that defendant acknowledged issuing over 5,000 reports containing information about outdated civil
actions. Defendant does not contest this figure.
defendant; (2) actually resulted in the landlord's rejection of the conswner's application; 2 ; and
(3) but for the obsolete information, would not have received a "decline" recommendation.
Plaintiff was sued in a summary holdover eviction proceeding in New York Civil Court
in 2002. Plaintiff did not know she had been sued because she had already moved out of the
apartment at the time the suit was commenced and service was effected by "nail and mail" to and
at the apartment. See N.Y. C.P.L.R. § 308(4). On October 31,2002, the court entered a default
judgment against plaintiff, awarding the landlord possession of the apartment but declining to
award money damages. Plaintiff never received notice of the judgment.
Over eight years later, in November 2010, plaintiff applied to rent an apartment in
Queens from Vantage Management Services, a landlord customer of defendant. The report that
defendant provided to Vantage included information about the 2002 eviction proceeding and
recommended that plaintiffs application be denied. Vantage rejected the application, advising
plaintiff that the rejection was based in whole or in part on the report obtained from defendant.
Plaintiff approached defendant to obtain a retraction of the obsolete data. When
defendant refused, plaintiff commenced this class action. The class that she seeks to certify
All persons who were the subject of a conswner report, prepared within two years
of the initiation of this action, which included either: a) records of a civil court
action filed anywhere in the country which did not result in a judgment which
predated the report by more than seven years; or b) a possessory judgment arising
from a judicial eviction proceeding which predated such report by more than
seven years where the judgment was issued in Arizona, New York, Pennsylvania,
Nevada, or Mississippi. 3
Landlords sometimes accept rental applications despite "decline" recommendations in defendant's reports.
Plaintiff initially sought to include Georgia and Delaware consumers in the class, but, after defendant pointed out
that Georgia has no statute of limitations for non-monetary judgments and Delaware has no statute of limitations for
any judgments, plaintiff modified the scope of the proposed class to exclude consumers from those states.
On behalf of the class, plaintiff seeks FCRA statutory damages of between $100 and $1 ,000 per
violation. See 15 U.S.C. § 1681n(a)(l)(A).
Standard for Class Certification
Rule 23(a) of the Federal Rules of Civil Procedure requires that any proposed class
action: "(1) be sufficiently numerous, (2) involve questions oflaw or fact common to the class,
(3) involve class plaintiffs whose claims are typical of those of the class, and (4) involve a class
representative or representatives who adequately represent the interests of the class." Myers v.
Hertz Com., 624 F.3d 537, 547 (2d Cir. 2010). Courts commonly use a shorthand summary to
describe these requirements, referring to the four prongs simply as "numerosity,"
"commonality," "typicality," and "adequacy." See, e.g., Gen. Tel. Co. of the Sw. v. Falcon, 457
U.S. 147, 156, 102 S. Ct. 2364,2370-71 (1982).
Regardless of whether class certification is contested, a court may not certify a putative
class unless it has performed a "rigorous analysis" and determined that each of Rule 23's
requirements has been met. Wal-Mart Stores. Inc. v. Dukes,_ U.S. _, 131 S. Ct. 2541, 2551
(2011); Falcon, 457 U.S. at 161, 102 S. Ct. at 2372. As part of this analysis, the court must
assess all relevant evidence admitted at the class certification stage and resolve any relevant
factual disputes, even if this requires a determination of issues that go to the merits of the case.
See In re Initial Pub. Offerings Sec. Litig., 471 F.3d 24,41-42 (2d Cir. 2006). The party moving
for class certification "bears the burden of establishing by a preponderance of the evidence that
each of Rule 23's requirements has been met." Myers, 624 F.3d at 547; accord Teamsters Local
445 Freight Div. Pension Fund v. Bombardier. Inc., 546 F .3d 196, 202 (2d Cir. 2008). Despite
this Court's obligation to carefully analyze each prong of Rule 23 before granting class
certification, "[t]he Second Circuit has emphasized that Rule 23 should be 'given liberal rather
than restrictive construction"' and has shown a "'general preference"' for granting rather than
denying class certification. Gortat v. Capala Bros., 257 F.R.D. 353, 361 (E.D.N.Y. 2009)
(quoting Marisol A. ex rei. Forbes v. Giuliani, 126 F.3d 372, 377 (2d Cir. 1997), and Cortigiano
v. Oceanview Manor Home for Adults, 227 F.R.D. 194, 203 (E.D.N.Y. 2005)).
In addition to satisfying each of the four prerequisites listed in Rule 23(a), a party seeking
class certification must demonstrate that the class can be maintained under one of the subsections
of Rule 23(b). Plaintiff seeks to certify the class pursuant to Rule 23(b)(3) and must therefore
show that "questions of law or fact common to class members predominate over any questions
affecting only individual members, and that a class action is superior to other available methods"
for adjudicating the controversy. Fed. R. Civ. P. 23(b)(3).
There is sufficient proof that the proposed class satisfies all of Rule 23's requirements.
First, defendant effectively admits that numerosity is present here, for even under its view of the
law, there are still 95 class members who may have been denied a lease because of the reporting
of obsolete information. See Consol. Rail Com. v. Town of Hyde Park, 47 F.3d 473, 483 (2d
Cir. 1995) (presuming numerosity is satisfied where a class contains 40 or more members).
Second, the presence of commonality appears obvious since, as defendant concedes, it reported
outdated information as a result of a centralized flaw in its software system and this flaw affected
all of the reports it created about the class members during the relevant time period. See Marisol
A., 126 F.3d at 376 ("The commonality requirement is met if plaintiffs' grievances share a
common question oflaw or of fact."); see also Wai-Mart, 131 S. Ct. at 2551 (requiring, for
commonality purposes, the class to be based on a "common contention" which, in turn, "must be
of such a nature that it is capable of classwide resolution - which means that determination of its
truth or falsity will resolve an issue that is central to the validity of each one of the claims in one
stroke."). Third, plaintiff has demonstrated that she is typical of the class. Defendant issued a
report about her that illegally contained outdated information as a result of the flaw in
defendant's system, just as it did, by definition, for every class member. See Robidoux v.
Celani, 987 F.2d 931,936 (2d Cir. 1993) ("[The] typicality requirement is satisfied when each
class member's claim arises from the same course of events and each class member makes
similar legal arguments to prove the defendant's liability."). Finally, with regard to adequacy,
plaintiff has demonstrated that she has actively participated in the litigation of this case and that
her counsel, having previously litigated a FCRA class action, is sufficiently qualified to represent
the class. See Marisol A., 126 F.3d at 378 ("[Adequacy] requires that plaintiffs demonstrate that
class counsel is qualified, experienced, and generally able to conduct the litigation ... [and] that
there is no conflict of interest between the named plaintiffs and other members of the plaintiff
class.") (internal citations and quotation marks omitted). Defendant has not suggested that
plaintiff's interests are antagonistic to those of the other class members or otherwise challenged
With regard to Ru1e 23(b)(3)'s predominance requirement, the Second Circuit has held
that this requirement is satisfied "if resolution of some of the legal or factual issues that qualify
each class member's case as a genuine controversy can be achieved through generalized proof,
and if these particular issues are more substantial than the issues subject only to individualized
proof." Myers, 624 F .3d at 54 7 (internal citation and quotation marks omitted). Here, the
central issues of whether defendant issued reports containing obsolete information about
members of the class and whether it did so willfully can be proved on a generalized basis
through records and testimony from defendant. Indeed, the parties have already identified over
8,000 instances in which reports containing outdated information were issued.
Rule 23(b)(3)'s superiority requirement is satisfied for the same reasons. As the evidence
before the Court demonstrates, through the class action mechanism this Court and the parties can
resolve thousands of claims, which would otherwise have to be brought on their own or not
brought at all, using generalized and readily available proof. See Rodolico v. Unisys Com., 199
F.R.D. 468,479-80 (E.D.N.Y. 2001) ("Class actions are the superior method for resolving
controversies when the main objects of Rule 23 are served, namely the efficient resolution of the
claims or liabilities of many individuals in a single action, as well as the elimination of
repetitious litigation and possibly inconsistent adjudications.").
Defendant opposes class certification primarily by asserting a variety of technical points
to argue that plaintiff has failed to satisfy the related requirements of commonality, typicality,
predominance, and superiority. In evaluating defendant's arguments, I consider these criteria
jointly. I conclude that none of defendant's arguments are sufficient to erode the clear
entitlement to class certification that plaintiff has demonstrated.
A. Monetary v. Possessory Judgments
Defendant first attacks that portion of the proposed class which encompasses consumers
whose reports contained outdated judgments. Defendant focuses on the proposed class
definition's reference to "possessory" judgments and argues that this definition excludes
consumers injured because of outdated "monetary" judgments. This distinction, defendant
asserts, creates individual issues that defeat commonality and typicality as some of the class
members with reported outdated judgments reports may have "monetary" judgments, while
others may have "possessory" judgments, and others may have judgments containing both types
of relief. Further, determining whether a judgment is "possessory" or "monetary" will require an
individualized inspection of each class member's claim, which would defeat predominance.
Plaintiff has mooted this point in reply. It has refined its class definition to delete the
word "possessory," so that this portion of the class will now include those consumers with
reported outdated judgments, whether "monetary," "possessory," or both. Plaintiff's solution is
fully consistent with FCRA, which does not distinguish between judgments based on the relief
awarded. See 15 U.S.C. § 1681c(a)(2). So long as the judgment is older than seven years, then,
as to the states included in plaintiff's class, it must not be reported. 4 With plaintiff's
modification, all of the class members are now the same and there is no need for an
individualized determination of the kinds of judgments that were reported.
The only exception to this, and the only potential problem as to commonality, typicality,
and predominance, is the inclusion of New York judgment debtors (including plaintiff) in the
class. The law seems clear that, as to New York, unlike the other states included within the
class, monetary judgments are good for 20 years, see N.Y. C.P.L.R. 2ll(b), whereas possessory
judgments are good for six years. See N.Y. C.P.L.R. 213(1). There appears to be no law as to
whether a New York judgment that both awards possession and damages for unpaid rent falls
within the latter or the former category, but assuming that at least the monetary portion of such a
combined judgment would be enforceable for 20 years, then the judgment could be properly
reported under FCRA.
Plaintiff essentially raises an estoppel argument, asserting that since defendant reported
such judgments under a report heading entitled "evictions," all of these judgments must be
That is because plaintiff has restricted this portion of the class to consumers with judgments in states that impose a
statute oflimitations of seven years or less on actions on a judgment. See Ariz. Rev. Stat. Ann. §12-155l(B); Miss.
Code Ann.§ 15-1-43; Nev. Rev. Stat. Ann.§ 11.190(l)(a); 42 Pa. Cons. Stat. Ann.§ 5525(a)(5).
presumed to be possessory. However, the elements for an estoppel are utterly absent here, see
Kosakow v. New Rochelle Radiology Assocs., 274 F.3d 706, 725 (2d Cir. 2001), and, more
importantly, FCRA allows the reporting of such New York monetary or monetary-component
judgments for up to 20 years, regardless of the heading in the report under which they appear. I
therefore agree with defendant that this distinction precludes certification of a class that includes
New York judgment debtors whose reported judgment is between seven and 20 years old and is
either for money damages only or includes a monetary award in addition to its possessory decree.
Nevertheless, the modification of the class definition to exclude these New York
judgment debtors does not defeat plaintiffs ability to satisfy the criteria under Rule 23(a) or (b).
The law is clear that when the determination of class membership can be easily made based on
the review of readily available information, class certification is appropriate. See In re Nassau
Cntv. Strip Search Case, 461 F.3d 219,229 (2d Cir. 2006); In re Visa Check!MasterMoney
Antitrust Litig., 280 F.3d 124, 142 (2d Cir. 2001). Here, the parties have identified 585 potential
New York judgment debtor class members. Defendant has already reviewed approximately 80
of the reports for these members and has found that 28 of them include monetary judgments. As
defendant's review demonstrates, the information necessary to determine which New York
judgment debtors must be excluded from the class is readily accessible in database form.
Therefore, it should be easy for the parties to determine the exact number of the 585 New
Yorkers who have monetary awards as part of their seven to 20 year old judgments. I will
exclude such New York judgment debtors from the class definition, and having done so, there is
no longer an issue as to commonality or typicality with regard to the type of judgment against
each class member.
B. The Possibility of Renewal
Many states allow for renewal of judgments. See generally 46 Am. Jur. 2d Judgments §§
391, 420. Defendant contends that, at least with regard to Arizona and Mississippi class
members, the possibility of renewal requires an individualized inquiry into whether each class
member has had the judgment against her renewed. As a result, defendant asserts, plaintiff's
claim may not be typical of the class, and common issues, i.e., the determination as to whether
each class member is subject to a renewed judgment that could be legitimately reported, do not
predominate over individual issues.
Defendant presents a possible scenario but both common sense and the record before me
require its rejection. The class is not composed of judgment debtors who are Fortune 500
companies. The members are individual consumers who rent their apartments, few if any of
whom are going to be in "the 1%." If a judgment creditor cannot get possession of his real estate
or satisfaction of a judgment against a renter for seven years, the odds are overwhelming that it
will conclude that it is not worth the legal fees to renew the judgment, even in those states where
such renewal does not require extensive effort; some lawyer still has to be paid to make a court
filing and the judgment creditor probably has to pay a filing fee. Plaintiff has produced evidence
that supports this conclusion; she has reviewed about 100 outdated Arizona judgments
containing a monetary component and none have been renewed. Defendant has similarly
reviewed 189Arizona judgments and has not disclosed that any were renewed after their statute
of limitations expired.
Moreover, as was the case with New York monetary judgment debtors, determining
whether a judgment has been renewed is a straightforward paper exercise that will not require a
lot oftime on anybody's part. If there are any class members whose judgments were renewed
and thus legitimately reported, they can be excluded. 5 Although it is plaintiff's burden to prove
that the criteria for class certification have been met, see Myers, 624 F.3d at 547, plaintiff has
offered sufficient evidence with regard to this issue, and defendant has offered to nothing to
suggest that the existence of renewed judgments is anything more than theoretical. See Cross v.
21st Century Holding Co., No. 00-CV-4333, 2004 WL 307306, at *3 (S.D.N.Y. Feb. 18, 2004)
(rejecting a challenge to typicality based on a possible unique defense where that defense was
"speculative" and defendants failed to demonstrate that the "potential defense, if available, will
divert attention from the prevailing, common issues"); cf. In re NASDAQ Market-Makers
Antitrust Litig., 169 F.R.D. 493, 513-15 (S.D.N.Y. 1996) (rejecting "hypothetical" and
"potential" conflicts between class members as insufficiently "palpable" to defeat a finding of
Defendant also asserts that common issues do not predominate by pointing to the
difference between the 95 class members who may have been injured by the misreported
information, because it was the sole basis for the rejection of their rental applications, and the
vast majority of class members who were allowed to rent the apartment for which they applied
despite the misreported information. These latter class members were not injured solely by
defendant's reporting of outdated information either because (I) defendant recommended
approving their application, (2) the landlord disregarded defendant's recommendation, (3) the
applicants withdrew their applications, or (4) the application would have received a "denial"
recommendation even without the misreported information. Defendant claims that plaintiff falls
within this last group, because even if it had not reported the outdated information, plaintiff's
Therefore, the certification of this class will in no way impair defendant's ability "to litigate its statutory defenses
to individual claims." Wal-Mart, 131 S. Ct. at 2561.
income level would still have required a "decline" recommendation. 6 These various distinctions,
defendant contends, make plaintiff's claim atypical, and introduce numerous disparate issues that
defeat commonality and predominance. To support its argument, defendant relies on cases in
which courts have rejected claims for false representations under the Fair Debt Collection
Practices Act, 15 U.S.C. § 1692e ("FDCPA"), where the allegedly false representation was found
to be immaterial. See, e.g., Lane v. Fein, Such and Crane, LLP, 767 F. Supp.2d 382 (E.D.N.Y.
2011); Hasbrouck v. Arrow Fin. Servs., No. 09-CV-748, 2011 WL 1899250 (N.D.N.Y. May 19,
2011 ). Defendant contends that determining materiality here will require an examination of the
circumstances of each class member in order to ascertain whether she would have received an
"approved" recommendation and actually rented the apartment absent the improperly reported
Defendant's reliance on cases applying a materiality requirement to FDCPA § 1692e
claims is misplaced. Those cases address the provisions of FDCP A § 1692e that prohibit false
representations. In other words, they address the anti-fraud provisions of FDCPA § 1692e.
Materiality is almost always a required element in proving a fraud. See Hahn v. Triumph
P'ships, 557 F.3d 755, 757 (7th Cir. 2009) ("Materiality is an ordinary element of any federal
claim based on a false or misleading statement."). But FDCP A § 1692e also contains other
provisions that do not require a showing of materiality. For example, FDCPA §1692e(ll)
mandates that debt collectors disclose in the initial communication with a consumer that they are
attempting to collect a debt. The failure to give the required disclosure is actionable per se,
without any requirement of materiality. Warren v. Sessoms & Rogers, P.A., 676 F.3d 365,374
(4th Cir. 2012) ("whether a materiality requirement attaches to other violations of§ 1692e has no
Plaintiff disputes this point, alleging that she was participating in a rent subsidy program and, thus, would have
qualified for the apartment but for defendant's reporting of the outdated judgment.
impact on [plaintiff's] allegations that the defendants violated § 1692e(ll ). "). Statutory damages
are available for every consumer who has suffered a violation of FDCP A § 1692e(ll ), regardless
of whether they were actually injured or not. See 15 U.S.C. § 1692k(a)(2)(A).
Although there is no case law expressly considering defendant's argument under FCRA,
my conclusion is that FCRA § 168lc(a)(2) is more properly analogous to FDCPA § 1692e(ll)
than it is to FDCPA's anti-fraud provisions. FCRA § 1681c(a)(2) is not an anti-fraud statute. It
is a regulatory and coercive statute. It is a flat-out prohibition against doing exactly what the
defendant did here. A consumer whose report contains an outdated judgment but who
nevertheless obtains her desired apartment is just as entitled to recover statutory damages as a
consumer whose outdated judgment precluded her from getting her desired apartment. Although
it could be argued that Congress should have differentiated between these two situations, that is
an argument for Congress to consider, not the courts, as nothing in the statute suggests that
Materiality is therefore not an issue, and not an impediment to class certification.
D. The accrual date for actions not ending in a judgment under FCRA
FCRA § 168lc(a)(2) is reasonably clear in its application to reporting judgments:
judgments older than seven years or the applicable statute of limitations, whichever is longer,
must not be reported. However, the statute also prohibits the reporting of civil actions more than
seven years old that do not end in a judgment, and it is unclear when the seven year period
begins to run as to such actions.
Plaintiff contends that Congress implicitly intended that actions that had been
commenced more than seven years prior to the issuance of the consumer report must not be
reported. Plaintiff recognizes that under this interpretation it would be possible that a reported
action, commenced eight years prior to the report date, might still be pending or have ended
shortly before the report date, but plaintiff views this as a remote possibility given the lengthy
seven year period and the relatively short lifespan of housing court litigation. The problem with
plaintiffs argument is that FCRA is not limited to housing court litigation; it applies to all civil
lawsuits without distinction. Nevertheless, plaintiffs position has the advantage of uniformity
and thereby militates in favor of the commonality and predominance factors in determining the
propriety of class certification.
Plaintiff, however, has undercut her own position by relying heavily on the Federal Trade
Commission's Official Staff Commentary on this issue. That commentary states:
1. Operative Date. For a suit, the term "date of entry" means the date the suit was
initiated. A protracted suit may be reported for more than seven years from the
date it was entered, if the governing statute oflimitations has not expired. For a
judgment, the term date of entry means the date the judgment was entered.
Commentary on the Fair Credit Reporting Act, 55 Fed. Reg. 18804, 18818 (May 4, 1990).
Defendant asks me to disregard this comment as inconsistent with Congressional intent, because
if Congress had meant to use "date of filing" with regard to lawsuits, it would have said so. I
find both parties' treatment of the comment rather ironic, because, while the first sentence of the
comment assists plaintiffs position, the second sentence introduces additional ambiguity that
might well defeat commonality and predominance.
There are two problems with the second sentence of the comment. First, it does not
define what it considers to be "a protracted suit." Second, there is no such thing as a "governing
statute oflimitations" for a suit that is timely commenced. A timely commenced suit is not
"governed" by a statute oflimitations; rather, the statute oflimitations has by definition been
satisfied and therefore simply does not apply. If what the FTC meant was that a "protracted
suit," whatever that means, may be reported under a scenario where, if that suit were dismissed, a
new suit on the same claim would be timely under the applicable statute of limitations, that is a
rather tortured construction of the statute. There is nothing in the statute to suggest that
Congress had in mind a hypothetical, duplicative second suit in determining which suits could
and could not be reported. Moreover, the comment would fail to account for the Jarndyce v.
Jarndyce scenario, in which litigants are engaged in a battle to the death for decades, long after
any new action on the same claim would be barred by any applicable statute of limitations; yet it
is precisely that kind of case that might be of most interest to a potential creditor. Finally, and
perhaps most importantly for our purposes, determining the reportability of "protracted" claims
based on the statute of limitations applicable to a hypothetical second duplicative lawsuit might
well require the kind of individualized inquiry that would defeat commonality, typicality, and
superiority. It might require, for example, inquiry into state laws that provide for the tolling of a
statute of limitations based on the pendency of a prior action. See, e.g., N.Y. C.P.L.R. § 205(a)
(permitting six month toll of statute of limitations where an earlier case was dismissed except on
certain specified grounds).
Although I am required to give due deference to the FTC comment, I am not required to
accept it as a binding interpretation of the law. See Beggs v. Rossi, 145 F.3d 511, 512 (2d Cir.
1998). See also United States v. Mead Com., 533 U.S. 218,221, 121 S. Ct. 2164,2168 (2001).
Stated otherwise, I am permitted to disregard it the FTC's commentary ifl think it is clearly
wrong. And with regard to the second sentence of the comment, I do.
The statute's qualifier "date of entry" cannot apply to lawsuits not resulting in judgments,
because that phrase is commonly used to apply only to orders and judgments. No experienced
lawyer or judge would refer to the date on which an action is commenced as the "date of entry;"
rather, they would refer to that date as the date on which an action is commenced or filed. Civil
actions have a commencement date, but not a "date of entry." Similarly, the statute's reference
to "the governing statute of limitations" has no application to civil actions that do not end in a
judgment because the statute of limitations is irrelevant to such actions. Both qualifiers, the
"date of entry" and "the governing statute of limitations," relate only to the reporting of
judgments, and the courts are left to divine congressional intent as to when "civil actions" not
resulting in judgments begin to age for FCRA purposes.
To ascertain Congressional intent with regard to the reporting of civil suits not ending in
judgments, defendant looks analogously to the preceding subsection of FCRA which governs the
reporting of consumer bankruptcy filings. Section 1681 c(a)(l) prohibits a credit reporting
agency from reporting bankruptcy cases "that, from the date of entry of the order for relief or the
date of adjudication, as the case may be, antedate the report by more than 10 years." Defendant
suggests that because multiple events in a bankruptcy case can trigger the order for relief,
Congress did not intend the filing date of a bankruptcy case to be the "trigger date" for FCRA
reporting purposes. According to defendant, if Congress had intended that, it would have simply
identified the filing date as the relevant date.
I think defendant has found the proper analogy, but it has drawn the wrong conclusion
from it. Section 1681c(a)(l) does, in fact, fix the earliest possible date that a debtor is in
bankruptcy as the accrual date for FCRA reporting purposes. The subsection addresses both
forms of bankruptcy: voluntary and involuntary. As to a voluntary bankruptcy, the law is clear
that the order of relief is entered on the day the bankruptcy petition is filed. See 11 U.S.C. §
301(b) ("(t]he commencement of a voluntary case under a chapter of this title constitutes an
order for relief under such chapter."). There thus can be no earlier reporting date. With
involuntary bankruptcies, however, it is not clear that a debtor belongs in bankruptcy unless and
until the bankruptcy court so determines - that is, until it "adjudicates" the involuntary
bankruptcy petition. Defendant's counter-argument, that if Congress had meant the petition
filing date it would have said so, does not account for the difference between voluntary and
involuntary petitions. Thus, what we can draw from this is that, whether a debtor is in voluntary
or involuntary bankruptcy, the date Congress intended to use for FCRA reporting purposes is the
earliest possible date on which it is clear that the debtor is properly in bankruptcy.
Carrying forward this "earliest possible date" approach as a manifestation of
Congressional intent from §1681c(a)(l) to §168lc(a)(2) requires resolution of this issue in
plaintiff's favor, despite the fact that doing so may pick up some litigation of more recent
vintage. There is no indication that Congress was thinking of multiple dates for accruing the
reporting date of civil actions, and the commencement date of such actions is readily
determinable in almost any case. Although the statute could clearly have been better drafted, the
commencement date for the action is the only date consistent with Congress' intent as expressed
Accordingly, since the date of commencement of lawsuits against class members is
readily ascertainable, there is no issue presented as to commonality, typicality, or superiority.
E. Manageability and Superiority
Finally, defendant contends that certifying plaintiff's class would be unmanageable and
inflict harm on it that is out of proportion to the harm suffered by class members. This is not a
serious argument. 7 As noted above, this is essentially a paper case; the paper has already been
collected and analyzed in substantial part. The fact issues are limited, if they exist at all. The
matter may be subject to resolution on summary judgment; if it is not, defendant has described
no issues that would require a protracted trial. Clearly, relegating these claims to a single action
is highly preferable to requiring every class member to fmd counsel and bring their own action.
That might enable defendant to severely limit its liability, but that of course is irrelevant to a
finding of superiority. See In re Visa Check/MasterMoney Antitrust Litig., 280 F .3d at 145.
I therefore find that plaintiff has satisfied each of the requirements of Rule 23(a) and
23(b)(3). Plaintiff's motion for class certification is granted as modified. The Court certifies the
Defendant cites Spikings v. Cost Plus. Inc., No. 06-CV-8125, 2007 U.S. Dist. LEXIS 44214 (C.D. Cal. May 29,
2007), in support of its argument that class certification should be denied where the defendant's potential liability is
potentially devastating and out of proportion to the hann suffered by the class. The Spikings court's reasoning has
been rejected by the Ninth Circuit and the Seventh Circuit in cases involving the exact same damages provision at
issue here. See Bateman v. Am. Multi-Cinema. Inc., 623 F.3d 708, 721 (9th Cir. 2010) (holding that ''the district
court abused its discretion in considering the proportionality of the potential liability to the actual hann alleged in its
Rule 23(b)(3) superiority analysis"); Murray v. GMAC Mortg. Corn., 434 F.3d 948, 953-54 (7th Cir. 2006) (holding
that the district court's denial of class certification because of its belief that "technical" violations of the FCRA
should not give rise to billions of dollars in potential liability was inappropriate and vacating the district court's
All persons who were the subject of a consumer report, prepared within two years
of the initiation of this action, which included either: a) records of a civil court
action filed anywhere in the country which did not result in a judgment and which
was commenced more than seven years prior to the report; or b) a judgment
arising from a judicial eviction proceeding which predated such report by more
than seven years where the judgment was issued in Arizona, Pennsylvania,
Nevada, or Mississippi and has not been renewed; or c) a New York judgment
arising from a judicial eviction proceeding, which contained no monetary award
and predated the report by more than seven years.
Dated: Brooklyn, New York
August 23, 2012
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