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David T. Shulick v. Experian

September 15, 2011

DAVID T. SHULICK,
PLAINTIFF
v.
EXPERIAN, ET AL., DEFENDANTS



The opinion of the court was delivered by: Stengel, J.

MEMORANDUM

David Shulick alleges various violations of the Fair Credit Reporting Act by numerous defendants. Defendants VW Credit, Inc. ("VW Credit") and Department Stores National Bank ("DSNB") (together, "Defendants") filed motions to dismiss the claims against them pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Defendants claim that a private cause of action has not been established and that Mr. Shulick has failed to allege an essential claim for relief. For the reasons set forth below, I will deny the motions.

I. BACKGROUND

Experian, Equifax, and Transunion are credit reporting agencies that collect credit information and provide credit reports to authorized parties. See 11-3809 Compl. ¶ 2; 11-3810 Compl. ¶ 2; 11-3811 Compl. ¶ 2. The credit reporting agencies collect credit information concerning an individual from "furnishers" of information such as VW Credit and DSNB. Furnishers collect information from a transaction between a consumer and an entity such as the payment of a credit card statement or the acquisition of a car loan. Credit reporting agencies then compile all the credit information for an individual and calculate a credit score, a measure of an individual's credit worthiness.

On December 23, 2009, Mr. Shulick retrieved his credit reports from Experian, Equifax, and Transunion (which contained credit scores of 707, 717, and 707, respectively) and noticed that they contained many errors. 11-3809 Compl. ¶ 11; 11-3810 Compl. ¶ 13; 11-3811 Compl. ¶ 10. Mr. Shulick contends that he disputed these errors prior to December 23, 2009 via written notice to each reporting agency and to the relevant furnishers. Id. In August 2010, Mr. Schulick sued the reporting agencies for violations of the Fair Credit Reporting Act but eventually withdrew the suits without prejudice after each assured him that the errors would be corrected. Id. Mr. Shulick inspected his credit reports from all three agencies again in May of 2011, and noticed much of the same incorrect information that appeared in the reports in December of 2009. 11-3809 Compl. ¶ 12; 11-3810 Compl. ¶ 14; 11-3811 Compl. ¶ 11. He subsequently filed suit against the reporting agencies and the furnishers who allegedly provided the incorrect information to them. See All Compls. (seeking recovery of damages under 15 U.S.C. § 1681(n) and (o), which provide civil liability for willful noncompliance and negligent noncompliance with the provisions of the statute).

II. STANDARD OF REVIEW

A motion to dismiss under Rule 12(b)(6) for a failure to state a claim examines the legal sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The factual allegations in the complaint must amount to a sufficient claim for relief and must not be merely speculative. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). When a court is determining whether to grant a motion to dismiss, it must accept all factual allegations as true and draw all reasonable inferences in favor of the plaintiff. Id.; see also D.P. Enters. v. Bucks Cnty. Cmty. Coll., 725 F.2d 943, 944 (3d Cir. 1984).

The Federal Rules of Civil Procedure do not require a plaintiff to plead in detail all of the facts upon which a claim is based. Conley, 355 U.S. at 47. The Rules require a "short and plain statement" of the claim that will give the defendant fair notice of the claim and the rationale behind it. Id. The claim must contain enough facts that suggest the required elements of the claim or to "raise a reasonable expectation that discovery will reveal evidence of" those elements. Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 556). Neither "bald assertions" nor "legal conclusions" are accepted as true. Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997).

III. DISCUSSION

The FCRA was enacted to protect consumer privacy and ensure fair and accurate credit reporting. Taggart v. Wells Fargo Mortg., Inc., No. 10-843, 2010 WL 3769091, at *10 (E.D. Pa. Sept. 27, 2010). The FCRA assigns different duties to credit reporting agencies and furnishers of information. Furnishers of information are prohibited from reporting information to credit reporting agencies when they possess actual knowledge that the information is inaccurate. 15 U.S.C. § 1681s-2(a)(1)(A) (2010) ("A person shall not furnish any information relating to a consumer to any consumer reporting agency if the person knows or has reasonable cause to believe that the information is inaccurate."). There is no private cause of action under subsection (a), only certain federal agencies and state and federal officials have authority to enforce furnisher obligations under section

(a). 15 U.S.C. § 1681s-2(c). However, there is a private right of action against a furnisher with respect to § 1681s-2(b) which provides after receiving notice of a dispute between an individual and a credit reporting agency, a furnisher shall:

(A) conduct an investigation with respect to the disputed information;

(B) review all relevant information provided by the consumer reporting agency pursuant to section ...


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