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For a copy of the opinion, please see here - BuckleySandler LLP

For a copy of the opinion, please see here - BuckleySandler LLP

Case 1:08-cv-04708-RMB

Case 1:08-cv-04708-RMB -KMW Document 71 Filed 05/12/10 Page 14 of 29 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 section 1681b of this title. 15 U.S.C. § 1681a(d)(1) (emphasis added). Section 1681a(d)(1)(C) is the relevant provision here. By its plain terms, Section 1681a(d)(1)(C) directs the application of Section 1681b. “[S]ection 1681b has two functions: it adds to section 1681a(d)’s definition of a consumer report, as well as delineates the permissible uses for those ‘communications of information’ already falling within the definition of a consumer report.” Yang v. Gov’t Employees Ins. Co., 146 F.3d 1320, 1324 (11th Cir. 1998) (emphasis added). a. Consumer Information First, to qualify as a consumer report, the Accurint report must “bear[] on a consumer’s credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living.” 15. U.S.C. § 1681a(d)(1). Courts recognize that “the first element of the FCRA's definition of consumer report . . . ‘does not seem very demanding,’ for almost any information about consumers arguably bears on their personal characteristics or mode of living.” Trans Union Corp. 14

Case 1:08-cv-04708-RMB -KMW Document 71 Filed 05/12/10 Page 15 of 29 v. Federal Trade Comm’n, 245 F.3d 809, 813 (D.C. Cir. 2001) (“Trans Union II”) (quoting Trans Union Corp. v. Federal Trade Comm’n, 81 F.3d 228, 231 (D.C. Cir. 1996) (“Trans Union I”)), cert. denied, 536 U.S. 915 (2002); see also Phillips v. Grendahl, 312 F.3d 357, 365-66 (8th Cir. 2002), abrogated on other grounds by Safeco Ins. Co. of Am., 551 U.S. 47. Here, Plaintiff alleges that the Accurint report contains vast amounts of information about an individual American consumer that [Lexis] ha[s] assembled and compiled, including information about where the consumer resides, the consumer’s age, social security number, date of birth, economic profile data regarding the consumer’s home and neighboring properties, whether the consumer has filed for bankruptcy, has any liens or judgments, public records, UCC filings, professional licenses, accident history, recreational permits, and general information about the consumer’s assets and property. Amended Compl. 9. At this stage, Plaintiff’s allegations are sufficient to raise a factual question regarding whether the consumer information contained in the report meets the characteristics listed in Section 1681a(d)(1). b. Use of the Consumer Information “A report will not be covered by the Act solely because it contains the type of information generally found in consumer reports.” Arcidiacono v. Am. Express Co., No. Civ. A. 92-3428, 1993 WL 94327, at *3 (D.N.J. Mar. 29, 1993). The second step of the definition requires that the consumer information be used or expected to be used for the purpose of serving as a factor in establishing the consumer's eligibility for credit, 15

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