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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 22 of 29 “eligible” as “qualified to participate or be chosen” or “worthy of being chosen,” available at http://www.merriamwebster.com/dictionary/eligible), as well as “fitted or qualified to be chosen or used” or “worthy to be chosen or selected.” See Webster’s Third New Int’l Dictionary 736 (1993). These definitions make more sense and afford the statute its plain meaning. Clearly, whether or not a consumer is “qualified to participate” or “worthy to be chosen or selected,” i.e., eligible for collection of an account is a legitimate inquiry. For example, Plaintiff alleges that the Accurint report lists whether or not a consumer has filed for bankruptcy. Such information would be critical in determining whether or not the consumer is “qualified to participate” or “worthy to be selected” for a collection action. Lexis correctly points out that the law of this Circuit requires the Court to “recogniz[e] the preeminence of § 1681a and then conform[] the breadth of § 1681b to the former’s bounds.” Houghton, 795 F.2d at 1150 (quoting Cochran, 472 F.Supp. at 831). Applying this reasoning, however, leads the Court to conclude that use of a Accurint report for the purpose of “us[ing] the information in connection with a credit transaction involving the consumer on whom the information is to be furnished and involving the . . . review or collection of an account of[] the consumer,” 15 U.S.C. § 1681b(a)(3)(A)(emphasis added), would qualify the 22

Case 1:08-cv-04708-RMB -KMW Document 71 Filed 05/12/10 Page 23 of 29 report as a “consumer report” under Section 1681a(d)(1)(C). See Phillips, 312 F.3d at 366 (“In addition to the statutory purposes listed in section 1681a(d), such as extension of credit or offer of employment, the statute incorporates by reference the statutory purposes listed in 15 U.S.C. § 1681b. One purpose in that list is use “in connection with a credit transaction ... involving ... collection of an account of, the consumer,”-in other words, debt collection.”). See also Arcidiacono, 1993 WL 94327, at *2 (“The “other purposes” clause has been construed to add only the purpose listed in § 1681b(3)(D), which involves determining a consumer's eligibility for a government license or benefit. . . . The remainder of the purposes listed in § 1681b(3)(A)-(C) are the same as those listed in § 1681a(d), namely consumer credit, employment, and insurance.”). Therefore, to the extent that Plaintiff can establish through discovery that the information in the Accurint report qualified as “consumer information” that was “used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing a consumer’s eligibility for” collection of a consumer credit account, Plaintiff would succeed in establishing that Lexis produced consumer reports and that Lexis qualifies as a consumer reporting agency under the FCRA. In sum, at this early stage of the litigation, Lexis has not established that there are no material issues of fact concerning 23

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