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It looks like everyone is shifting to FCRA lately.
The Fair Credit Reporting Act–which has been on the books for 50 years but has really created a ton of litigation over the last decade– is a tricky and comprehensive statute governing the nation’s critical credit reporting apparatus. The statute contains a private right of action for both individual and class actions and, like the TCPA, permits the recovery of enhanced damages in the event of a willful violation of FCRA’s rules.
And there is one little trick to FCRA litigation that makes it even worse than the TCPA– Plaintiffs can recover attorneys fees if they succeed in the litigation. That means a Defendant must deploy a different litigation strategy in approaching individual FCRA litigation–although class litigation in this space somewhat mirrors the TCPA when it comes to standing/damages/ascertainability arguments.
You’ve heard Morgan & Morgan’s Head of Consumer Protection Tav Gomez talk about his firm’s shift to FRCA lately and, of course, Squire Patton Boggs’ team of financial services and privacy litigators have the FCRA market well covered, with years of experience litigating these cases and helping folks comply with the tricky enactment.
And with the fate of the TCPA in some jeopardy—although it looks like it just received a stay of execution due to a COVID19 related delay— we’re noticing a predictable shift by a number of other firms trying to dive into this area for the first time (we’ve seen that before). But we’re also seeing a shift from notorious TCPA repeat-players as well.
For example, J.E. Shelton—a well-known repeat-player in the TCPA space—is jumping into the FCRA game with both feet.
Just yesterday Shelton filed a putative FCRA class action against Comcast Cable. (The complaint is here: Shelton FCRA.) Its purported crime? Pulling his credit report without a permissible purpose to do so (just one of a litany of ticky-tack requirements under the FCRA.) Interestingly Comcast apparently claims Shelton had requested credit–which would have given it a “permissible purpose” to pull his credit history–but Shelton claims he never gave such permission. (Seems like a highly-visible and individualized question of fact that should thwart certification, but we’ll have to wait and see.)
The class Shelton purports to represent is something of a hybrid TCPA/FCRA class, tying class membership to the receipt of a solicitation call and the lack of an application:
All natural persons residing in the United States, who received a telephone solicitation from Comcast, whose consumer reports displays an inquiry by Comcast and for which Comcast has no open account or record of an application for an account within the last five years.
Pretty unique stuff.
The lack of an account application implies, perhaps, the absence of a permissible purpose and seems to spell out an objective criteria by which members of the class can be identified–but think about all the tricky data analysis that will be required to locate class members. This is a goldmine for data experts.
But enough free analysis– the point for TCPAWorld to keep in mind is that litigation-savvy repeat-players are not going to rest on their laurels and wait for the TCPA to evaporate. They’re already moving into the world of credit reporting. And with the COVID19 pandemic stretching operations and forcing greater reliance-than-ever on automation, the prospect of errant credit reporting—and process-wide impermissible credit pulls—is fast becoming a critical concern for all consumer-facing businesses (and employers that rely on credit scores and background reports in their hiring process.)
If you find yourself hampered by a suit of this sort–or just want more information on FCRA requirements generally–feel free to reach out. Always happy to assist.
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