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Shamara T. King, On Behalf of Herself and All Others Similarly v. General Information Services

November 6, 2012


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


November___, 2012

Presently before the Court is Defendant General Information Services, Inc.'s Motion for Judgment on the Pleadings (Doc. 40); Plaintiff Shamara King's Response in Opposition thereto (Doc. 46); the United States' Response in Opposition thereto (Doc. 52); and Defendant's Reply (55). For the reasons set forth below, this Court will deny Defendant's motion.


The Fair Credit Reporting Act, 15 U.S.C. §§ 1681 -- 1681x ("FCRA"), regulates the collection, maintenance, and disclosure of consumer reports by consumer reporting agencies, including public record information. Section 1681c of the FCRA provides requirements relating to information contained in consumer reports. 15 U.S.C. §1681c. When a consumer reporting agency produces a copy of a consumer's report to the consumer or a third-party, the consumer reporting agency is required to exclude, inter alia, "adverse items of information, other than records of convictions of crimes which antedates the report by more than seven years." 15 U.S.C. § 1681c(a)(5). The statute also provides that consumer reporting agencies must exclude records of arrest that antedate the report by more than seven years. 15 U.S.C. § 1681c(a)(2). Nevertheless, there are limited instances in which a consumer reporting agency may report these outdated items of information. This statutory exemption applies to (1) credit transactions involving a principal amount of $150,000 or more; (2) the underwriting of life insurance involving a face amount of $150,000 or more; and (3) the employment of an individual at an annual salary which equals, or which may be reasonably expected to equal $75,000 or more. 15 U.S.C. §1681c(b).

General Information Services, Inc. ("GIS" and "Defendant") is a consumer reporting agency, as defined by section 1681a(f) of the FCRA,*fn1 that investigates and reviews public record databases and maintains consumer files which contain public record information concerning, among other things, the criminal history of individuals. From its files, GIS sells consumer reports to potential employers wishing to investigate the criminal record history, or lack thereof, with regard to various job applicants.

In or around early 2010, representative plaintiff, Shamara King ("Ms. King" and "Plaintiff") applied for a job with the United States Postal Service. In connection with Ms. King's application, the Postal Service ordered a background check from GIS. GIS sold to the Postal Service a background check consumer report on Ms. King that included ten nolle prossed charges she received in July, 2000 after an arrest for a criminal incident. Ms. King's consumer report also disclosed an inaccurate charge date and arrest date for the offense, and failed to state her hair color. On or about March 4, 2010, GIS mailed Ms. King a copy of the consumer report that was earlier sent to the Postal Service.

The present action was brought by Ms. King, on behalf of herself and others similarly situated, against GIS for its alleged failure to comply with section 1681c of the FCRA by maintaining a policy and practice of willfully reporting outdated adverse public information, including records of arrest, that is required to be excluded from the consumer reports that it sells.*fn2 Ms. King specifically alleges that GIS violated section 1681c when disclosing her 10-year old nolle prossed charges to the Postal Service. Accepting all of the facts alleged in the Complaint as true, GIS now challenges the constitutionality of section 1681c.*fn3


a. Judgment on the Pleadings pursuant to Rule 12(c)

Defendant moved for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c), stating that section 1681c of the FCRA is unconstitutional. The standard of review for a Rule 12(c) motion is similar to the standard invoked for consideration of a Rule 12(b)(6) motion. As with a Rule 12(b)(6) motion, this Court views the facts alleged in the pleadings and the inferences to be drawn from those facts in the light most favorable to the non-moving party. Rosenau v. Unifund Corp., 539 F.3d 218, 221 (3d Cir. 2008) (quoting Jablonski v. Pan Am. World Airways, Inc., 863 F. 2d 289, 290-91 (3d Cir. 1988)). The motion is not granted unless the moving party has established that there is no material issue of fact to resolve, and that it is entitled to judgment in its favor as a matter of law. Mele v. Fed. Reserve Bank, 359 F.3d 251, 253 (3d Cir. 2004) (quoting Leamer v. Fauver, 288 F.3d 532, 535 (3d Cir. 2002)).


a. Procedural Arguments

As a preliminary matter, "it is well established that courts have a duty to avoid passing upon a constitutional question if the case may be disposed of on ...

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