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Danita Henry, Terrence Flowers, Alonzo v. Teletrack

March 7, 2012

DANITA HENRY, TERRENCE FLOWERS, ALONZO PATTERSON, AND ANDRE JONES, ON BEHALF OF THEMSELVES AND A CLASS PLAINTIFFS,
v.
TELETRACK, INC. DEFENDANT.



The opinion of the court was delivered by: Judge Sharon Johnson Coleman

MEMORANDUM OPINION

Plaintiffs Danita Henry, Terrance Flowers, Alonzo Patterson and Andre Jones bring forth this class action to secure redress from unlawful practices of defendant, Teletrack, Inc. ("Teletrack") in violation of the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. ("FCRA"). Plaintiffs contend that Teletrack furnished consumer reports containing their personal information to third parties who did not have a permissible purpose to obtain them. Teletrack has filed a motion to dismiss plaintiffs' complaint pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for failure to allege any basis for Article III standing. For the following reasons, defendant's motion is denied.

BACKGROUND

Teletrack is a consumer reporting agency as that term is defined by the FCRA, which sells consumer reports and other services to businesses, not limited to, but including pay-day lenders, high interest lenders, rental purchase stores and no-prime auto lenders, that primarily serve non-traditional credit consumers. Teletrack's clients use the consumer reports to make decisions about whether and on what terms to provide credit to consumers. When requesting an individual's consumer report, Teletrack's clients provide them with personal information about the consumer including: the consumer's name, home address, social security number, phone number and date of birth. In addition to providing its clients with consumer reports, plaintiffs allege that Teletrack adds consumers' personal information into a database and denotes whether the consumer has previously undergone a credit inquiry. Teletrack then compiles lists of the names and addresses of the individuals on the database that have received a credit inquiry and sells this list to certain third parties. These third parties use the personal information obtained from these lists to solicit new customers. This conduct is prohibited under the FCRA.

In June 2011, Teletrack was sued by the Federal Trade Commission (the "FTC") for engaging in illegal practices in violation of §1681b of the FCRA. United States v. Teletrack, Inc., Civ. A. No. 1:11-cv-2060 (N.D.Ga., filed June 24, 2011). In that action, the FTC alleged that "[s]ince 2007, in multiple instances, Teletrack has furnished consumer reports to third parties for the purpose of marketing, which is not a permissible purpose under the FCRA" and that this conduct exhibited reckless indifference to legal obligations. (Am. Compl. ¶ 27). That action was settled with a consent decree in which Teletrack agreed to pay a $1.8 million in civil penalties and to furnish consumer reports only to "those persons which it has reason to believe have a permissible purpose, or as other wise permitted by the Fair Credit Reporting Act." (Pls.' Resp. to Def.'s Mot. to Dismiss, Ex. A).

Plaintiffs contend that in past years they were customers of Teletrack and that they each have obtained payday or high-interest loans. Therefore, their personal information was included in Teletrack's marketing lists. Plaintiffs also contend that they have received solicitations from other high interest or pay day lenders as well as calls demanding payments for loans that plaintiffs did not obtain. Plaintiffs assert that these solicitations are a result of Teletrack's unlawful disclosure of their personal information. Accordingly, plaintiffs have brought forth this claim alleging that Teletrack has willfully violated the FCRA by disclosing their consumer reports to impermissible third parties and bring forth this claim. Defendants have moved to dismiss plaintiffs' claim in its entirety.

DISCUSSION

The FCRA places a number of restrictions on "consumer reporting agencies," which is defined as any individual or any other entity that regularly assembles or evaluates consumer credit information for the purpose of furnishing consumer reports to third parties. 15 U.S.C. §1681, et seq. One of the Act's many requirements is that "consumer reporting agencies adopt reasonable procedures for meeting the needs of commerce for consumer credit, personnel, insurance, and other information in a manner which is fair and equitable to the consumer, with regard to the confidentiality, accuracy, relevancy, and proper utilization of such information in accordance with the requirements of this subchapter." Id., at §1681(b).

To ensure compliance with its mandates, the FCRA contains several enforcement mechanisms, one of which allows private individuals to obtain relief against either willful or negligent violators of the Act. The statute describes the willfulness private right of action as:

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 an amount equal to the sum of--

(A) any actual damages sustained by the consumer as a result of the failure or damages of not less than $100 and not more than $1,000; or

(B) in the case of liability of a natural person for obtaining a consumer report under false pretenses or knowingly without a permissible purpose, actual damages sustained by the consumer as a result of the failure or $1,000, which ever is greater; [. . .]. Id., at §1681n(a).

Plaintiffs claim that Teletrack willfully violated this section of the FCRA by selling their personal information to third parties for marketing purposes. Teletrack argues that plaintiffs do not have standing to bring forth this claim. To establish standing, a plaintiff must show (1) injury in fact, meaning an invasion of legally protected interest that is concrete and particularized, actual or imminent, and not conjectural or hypothetical; (2) a casual connection between the injury and the conduct complained of such that the injury is fairly traceable to the defendants' actions and (3) that a favorable decision is likely to redress the injury. Scanlan v. Eisenberg, No. 11-1657, 2012 WL 169765, *1, *3 (7th Cir. Jan. 20, 2012) ...


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