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Gillespie v. Equifax Information Services

October 15, 2008

HEATHER GILLESPIE, ET AL., PLAINTIFFS,
v.
EQUIFAX INFORMATION SERVICES, LLC, DEFENDANT.



The opinion of the court was delivered by: Matthew F. Kennelly, District Judge

MEMORANDUM OPINION AND ORDER

Heather Gillespie and Angela Cinson have sued Equifax Information Services, LLC (Equifax) on behalf of themselves and all others similarly situated. Plaintiffs allege that Equifax violated the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681g(a)(1), by failing to disclose clearly and accurately the date of first delinquency in the consumer files of persons with reported delinquent credit accounts. The Seventh Circuit remanded the case to this Court after concluding that the Court had erroneously granted summary judgment in Equifax's favor. See Gillespie v. Equifax Info. Servs., LLC, 484 F.3d 938, 942 (7th Cir. 2007). Following remand, Equifax filed a renewed motion for summary judgment, which the Court denied. See Gillespie v. Equifax Info. Servs., LLC, No. 05 C 138, 2008 WL 4316950 (N.D. Ill. Sept. 15, 2008).

In this decision, the Court considers plaintiffs' motion to certify a class pursuant to Federal Rule of Civil Procedure 23(b)(3). The Court grants plaintiffs' motion for the reasons stated below.

Background

The Court presumes familiarity with the facts of the case and will restate them only briefly here. Equifax is a credit reporting agency (CRA) that gathers consumer credit information from creditors and sells it to businesses in connection with credit transactions. The FCRA, which Congress amended in 1996, regulates the reporting and collection practices of CRAs. Section 1681g(a)(1) provides that "[e]very consumer reporting agency shall, upon request, and subject to section 1681h(a)(1) of this title, clearly and accurately disclose to the consumer: All information in the consumer's file at the time of the request." 15 U.S.C. § 1681g(a)(1).

Section 1681c(a)(4) prohibits CRAs from making consumer reports containing "accounts placed for collection or charged to profit and loss which antedate the report by more than seven years." 15 U.S.C. §1681c(a)(4). Under the 1996 amendments to the FCRA, which took effect in 1997, the seven-year period begins to run 180 days after the beginning of the delinquency immediately preceding the collection, charge-off, or similar action. Id. §1681c(c)(1). A consumer may contest the completeness and accuracy of the CRA's information through a dispute resolution process. Id. § 1681i.

An entity that notifies Equifax (or any other CRA) of a delinquent account must provide, within ninety days, the date of first delinquency on the account. See id. § 1681s-2(a)(5)(A). Equifax stores this date internally in a field labeled "DFD/DLA", with "DFD" referring to the "Date of First Delinquency." Gillespie, 2008 WL 4316950, at *1. When it discloses a file to a consumer, however, Equifax labels the field containing the date of first delinquency "Date of Last Activity"-not "Date of First Delinquency" or "DFD." Id.

Both Cinson and Gillespie opened and, later, defaulted on credit accounts, Cinson on a Sears account and Gillespie on a Direct Merchants Bank account. Their delinquent accounts were each sold to Sherman Acquisitions Company, a collection agency. In 2004, Cinson and Gillespie requested the contents of their credit files from Equifax. Although a date appeared in the field marked "Date of Last Activity" in each of their files for the original (Sears or Direct Merchants) accounts and the Sherman accounts, the field marked "Date Maj. Del. 1st Rptd" remained blank.

With each file, Equifax included an explanatory insert entitled "Facts You Should Know," which states, in part,

The length of time information remains in your credit file is shown below: Collection Accounts: Remain for 7 years Credit Accounts: Accounts paid as agreed remain for up to 10 years.

Accounts not paid as agreed remain for 7 years. (The time periods listed above are measured from the date in your credit file shown in the "date of last activity" field accompanying the particular credit or collection account.)

Id. at *2. The explanatory insert gave no indication whether, or to what extent, the "date of last activity" had anything to do with the date an account became delinquent.

In the current version of their complaint (the fourth amended complaint), plaintiffs allege that Equifax violated the FCRA. Specifically, they contend that Equifax's use of the "Date of Last Activity" field in consumer disclosures violated the requirement of 15 U.S.C. § 1681g(a)(1) to "clearly and accurately disclose . . . all information" in the consumer's files. Plaintiffs seek costs, fees, and statutory and punitive damages pursuant to a provision of the FCRA requiring a showing of willfulness. See id. § 1681n(a) ("Any person who willfully fails to comply with any requirement imposed under this subchapter with respect to any consumer is liable to that consumer . . .").

In March 2006, the Court granted summary judgment for Equifax, concluding that it was immaterial whether Equifax accurately denoted the true date of delinquency in the "date of last activity" field because plaintiffs could dispute any inaccurate information. Gillespie v. Equifax Info. Servs., LLC, No. 05 C 138, 2006 WL 681059, at *3 (N.D. Ill. Mar. 9, 2006).

In May 2007, the Seventh Circuit reversed and remanded the case for further proceedings, including determination of plaintiffs' motion for class certification. See Gillespie, 484 F.3d at 942. In its decision, the court expressed concern that Equifax's use of the "Date of Last Activity" field for both delinquent and paid-as-agreed accounts could "cause significant confusion and uncertainty for the consumer." Id. The unspecified nature of the information disclosed in the "Date of Last Activity" field led the court to hold that Equifax's disclosure method "may be accurate but is not necessarily clear." Id. at 941-42. To fulfill the purpose of the statutory scheme-allowing consumers to identify and dispute inaccurate information in their credit files-the court stated, "[t]he disclosure must be made in a manner sufficient to allow the consumer to compare the disclosed information from the credit file against the consumer's personal information." Id. at 942.

Following remand, plaintiffs renewed their motion for class certification and Equifax moved again for summary judgment, this time based on the Supreme Court's June 4, 2007 decision in Safeco Ins. Co. of Am. v. Burr, - U.S. -, 127 S.Ct. 2201, 167 L.Ed. 2d 1045 (2007). Equifax argued that its interpretation of "clearly and accurately" as allowing use of a "Date of Last Activity" field to display dates of first delinquency was objectively reasonable and that it therefore could not have willfully violated the provision. On September 15, 2008, the Court denied Equifax's motion, holding that "[a] reasonable jury could find that Equifax's use of the 'Date of Last Activity' field in its disclosures to consumers runs afoul of the statutory requirement that a consumer reporting agency 'clearly and accurately' disclose information in the consumer's file." Gillespie, 2008 WL 4316950 at *5. The Court could not conclude on summary judgment that the use of the term "Date of Last Activity" to denote the date of first delinquency was "an objectively reasonable interpretation of a non-ambiguous statutory term" foreclosing liability under Safeco. Id. at * 6.

Discussion

Plaintiffs seek to certify a class consisting of all persons who: 1) have a New Jersey or North Carolina address or email address, or an email address elsewhere, in their Equifax file; 2) have a Sherman collection account or delinquent account in their name in their file record; and ...


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