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KAY v. FIRST CONTINENTAL TRADING

June 17, 1997

GARY MARCUS KAY, Plaintiff,
v.
FIRST CONTINENTAL TRADING, INC., et al., Defendants.



The opinion of the court was delivered by: SHADUR

 Gary Kay ("Kay") has filed a six-count Complaint against his short-term former employer First Continental Trading, Inc. ("First Continental") and credit reporting agency James E. Van Ella & Associates, Inc. ("Van Ella"), seeking damages stemming from Van Ella's false report that attributed a state court felony charge of "Receiving/Possession/Selling Stolen Vehicle" against Gary Stephen Kay to plaintiff Gary Marcus Kay instead. *fn1" Kay has asserted Counts I and II against Van Ella under the Fair Credit Reporting Act ("Act" *fn2" ), coupling those claims with a common law defamation claim (Count V). Kay also charges First Continental in Counts III and IV with two violations of the Act (those dealing with the obligations of the user rather than obligations of the producer of a false credit report) and in Count VI with the wrongful termination of Kay's employment. *fn3"

 After Van Ella then turned around and filed a cross-claim for contribution and indemnity against First Continental, the latter filed a Fed. R. Civ. P. ("Rule") 56 motion for summary judgment against Van Ella. Both sides have complied with this District Court's General Rule 12(M) and (N) and have briefed the Rule 56 motion, which is thus ready for disposition. For the reasons stated in this memorandum opinion and order, the motion is granted in its entirety.

 Contribution Claim as to Act Violations

 Although Van Ella's Cross-Claim Count I P6 cited only to the Illinois Joint Tortfeasor Contribution Act ("Illinois Act," 740 ILCS 100/0.01 to 100/5) as the source of First Continental's claimed liability for contribution, Van Ella has shifted ground in its current responsive memorandum to add a claim of implied contribution under the Act. That switch is well-advised, for as stated in Donovan v. Robbins, 752 F.2d 1170, 1179 (7th Cir. 1984) in the course of rejecting the applicability of the Illinois Act to a contribution claim as to another federally-based statutory liability:

 
Where contribution is sought by one who has had to pay damages for violating a federal statute, the scope and limitations of the right of contribution are invariably treated as questions of federal rather than state law.

 But that effort to shift gears does not help Van Ella, for none of the three potential federal grounds for contribution--express or implied congressional enactment, federal common law or private contractual agreement (see Sikes v. AT&T Co., 841 F. Supp. 1572, 1581-82 (S.D. Ga. 1993) and cases cited there)--is applicable to this case. Those three possible theories will be discussed in turn.

 As for the Act itself, the short answer is that it contains no express provision for contribution, in addition to which its structure really negates any inference to that effect. As Wiggins v. Philip Morris, Inc., 853 F. Supp. 470, 482 (D. D.C. 1994) has pointed out in the course of rejecting an attempted imposition of consumer reporting agency obligations under the Act on the users of those agencies' consumer reports:

 Cort v. Ash, 422 U.S. 66, 45 L. Ed. 2d 26, 95 S. Ct. 2080 (1975) and its progeny reflect the increasing general reluctance of the Supreme Court to recognize implied rights of action where Congress has not itself created them. And in the more particularized area of the judicial recognition or nonrecognition of actions for contribution, Musick, Peeler & Garrett v. Employers Ins. of Wausau, 508 U.S. 286, 290-92, 124 L. Ed. 2d 194, 113 S. Ct. 2085 (1993) and the cases cited there plainly signal that no such claim should be implied in this instance. *fn4"

 That same aversion to any such implied right of action also serves to negate any extension of the limited concept of federal common law that would permit Van Ella to shunt the responsibility that Congress has expressly imposed on it onto the less culpable user of its flawed report. Again Musick, Peeler & Garrett and the cases that it cites strongly counsel the rejection of any judicially-created remedy of that nature.

 Finally as to this segment of the case, Van Ella correctly does not claim any contractual arrangement between the litigants that would entitle it to contribution. That being the case, Van Ella's contribution claim for any Act-based liability that may be imposed on it is devoid of merit on any possible theory.

 Indemnity Claim as to Act Violations

 Van Ella's claim of contractual indemnity (not contribution) poses an added level of complexity. In response to First Continental's order for a credit report, which had no such provision, Van Ella transmitted its seriously misleading Background Investigation ...


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