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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 16 of 29 insurance, employment purposes or any of the permissible purposes listed in Section 1681b. See 15 U.S.C. § 1681a(d)(1). Courts consider both the “purpose” for which the information contained in the report was “used or expected to be used or collected,” as well as how a third party actually used the information, when determining whether a document qualifies as a consumer report under the Act. 15 U.S.C. § 1681a(d)(1). 6 See Phillips, 312 F.3d at 366 (finding a consumer report existed where agency created the report with the expectation that it be used for a purpose permitted under the FCRA). Accord Bakker v. McKinnon, 152 F.3d 1007, 1012 (8th Cir. 1998), Yang, 146 F.3d at 1324 (directing courts to consider a report’s ultimate use, expected use and reason for the collection of information); Comeaux v. Brown & Williamson Tobacco Co., 915 F.2d 1264, 1273-74 6 The Court also notes that the Federal Trade Commission’s (“FTC”) official commentary, which does not have the force and effect of law, see 16 C.F.R. § 600.2, implicitly acknowledges that a report, that would not otherwise qualify as a consumer report, could nonetheless be subject to the FCRA if a person subsequently used the report for a “permissible purpose” under the Act and the reporting party had reason to know that the report would be used in this manner. See 16 C.F.R. Pt. 600, App. § 603(d) cmt. 5(D)(“The question arises whether a report that is not otherwise a consumer report is subject to the FCRA because the recipient subsequently uses the report for a permissible purpose. If the reporting party's procedures are such that it neither knows of nor should reasonably anticipate such use, the report is not a consumer report. If a reporting party has taken reasonable steps to insure that the report is not used for such a purpose, and if it neither knows of, nor can reasonably anticipate such use, the report should not be deemed a consumer report by virtue of uses beyond the reporting party's control.”). 16

Case 1:08-cv-04708-RMB -KMW Document 71 Filed 05/12/10 Page 17 of 29 (9th Cir. 1990); St. Paul Guardian Ins. Co. v. Johnson, 884 F.2d 881, 884 (5th Cir. 1989); Ippolito v. WNS, Inc., 864 F.2d 440, 450 (7th Cir. 1988), cert. dismissed, 490 U.S. 1061 (1989); Heath v. Credit Bureau of Sheridan, Inc., 618 F.2d 693, 696 (10th Cir. 1980). See also Houghton v. N.J. Mfrs. Ins. Co., 795 F.2d 1144, 1148 (3d Cir. 1986)(“[n]othing in the [defendant’s] request indicated that [defendant] desired a report on [plaintiff] for a purpose encompassed within the statutory definition of an investigative consumer report.”). (i) The Interaction of Sections 1681a(d)(1) and 1681b As set forth above, the FCRA incorporates Section 1681b into Section 1681a(d)(1). The Third Circuit considered the interaction of these two Sections in Houghton. 795 F.2d 1144. There, the Court reversed the district court’s holding that a report generated to evaluate a personal injury claim met the requirements for a “consumer report,” finding that the report at issue was neither used nor requested for a purpose encompassed within the statutory definition of an investigative consumer report. 7 Id. at 1448-49. Compare Hall v. Harleysville Ins. Co., 7 An investigative consumer report is defined, in relevant part, as a consumer report or portion thereof in which information on a consumer's character, general reputation, personal characteristics, or mode of living is obtained through personal interviews with neighbors, friends, or associates of the consumer reported on or with others with whom he is 17

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