A consumer sought to certify two classes in a lawsuit against a credit reporting agency, after the agency allegedly refused to remove negative information from his credit report that was the result of identity theft. The lawsuit asserted various claims under the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. The court certified one of the two classes in Osada v. Experian Information Solutions, Inc., No. 11 C 2856, slip op. (N.D. Ill., Mar. 28, 2012), finding that it met the requirements contained in Rule 23 of the Federal Rules of Civil Procedure.
According to the court’s opinion, the plaintiff learned in late 2008 that unknown parties had taken out two mortgage loans in his name in a total amount greater than $600,000. He contacted the defendant, Experian, regarding how the fraudulent loans would affect his credit report. He also filed a police report, but did not send a copy to Experian. When each mortgage eventually went into foreclosure, the courts handling those matters reportedly realized that identity theft was a factor. The plaintiff submitted an identity theft affidavit to the Federal Trade Commission (FTC) in late 2009 and wrote to Experian in early 2010 requesting removal of the mortgages from his credit report. He attached the FTC affidavit, the police report, and proof of residence to his request.
Experian wrote to the plaintiff on January 26, 2010 informing him that his request did not meet its guidelines for removal of information, which the court called the “Does Not Meet Guidelines Letter.” Osada, slip op. at 2. The letter did not specify what guidelines the request failed to meet. A year later, the plaintiff sent the materials to Experian again, and Experian responded in May 2011 with a letter stating that it could not honor his request for removal of information because the police report was more than one year old. The court called this the “One Year Letter.” Id. at 3.
The plaintiff’s lawsuit sought to certify a “One Year” class consisting of individuals requesting removal of identity theft-related information from their credit report who received a similar One Year Letter, and a “Does Not Meet Guidelines” class consisting of similarly-situated individuals who received a Does Not Meet Guidelines Letter. Id. at 4. He sought class certification under Rule 23(b)(3), which applies to matters where common legal or factual questions “predominate” over individual claims, and that “a class is superior to other available methods.”
The court granted certification of the One Year class, finding that it met the four Rule 23(a) criteria of numerosity, commonality, typicality, and adequacy. The court found that the plaintiff met the predominance element of Rule 23(b) by asserting that “a single, objective criterion” led to issuance of One Year Letters. Id. at 16-17. It also found that he met the superiority requirement by showing that individual class members would be unlikely to pursue a claim on their own, given maximum statutory damages between $100 and $1,000. Id. at 17.
Regarding the Does Not Meet Guidelines class, the court found that the plaintiff could not adequately represent the class because of the Does Not Meet Guideline Letter’s failure to state specific reasons for Experian’s refusal. Since the plaintiff cannot demonstrate that his claims are typical of the class, or that he could represent those claims for the class, the court denied class certification.
The Chicago class action attorneys at Lubin Austermuehle have decades of experience representing consumers throughout the greater Chicago area and the Mid-West region, including Illinois, Indiana, Wisconsin and Iowa. Class action lawsuits give consumers a way to assert their rights in cases of consumer fraud, even if they lack the resources individually to fight a much larger opponent. Please contact us today online, at (630) 333-0333, or at 630-333-0333 to schedule a confidential consultation with one of our attorneys.
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