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General Overview Of The Federal Fair Credit Reporting Act (FCRA): Class Action Defense Issues

Jul 23, 2006 | By: Michael J. Hassen

In 1970, Congress enacted the FCRA (Fair Credit Reporting Act, 15 U.S.C. §§ 1681 et seq.) to “require that consumer reporting agencies adopt reasonable procedures for meeting the needs of commerce for consumer credit, personnel, insurance, and other information in a manner which is fair and equitable to the consumer, with regard to the confidentiality, accuracy, relevancy, and proper utilization of such information,” 15 U.S.C. § 1681(b). Congress did so based on its recognition that, “There is a need to insure that consumer reporting agencies exercise their grave responsibilities with fairness, impartiality, and a respect for the consumer’ s right to privacy.” § 1681(a)(4). And to ensure that its goals were met, Congress enacted a section of the FCRA that specifically prohibits consumer reporting agencies from avoiding the effects of the law through “corporate” or “technological circumvention,” see §1681x. Courts have referred to the FCRA’s statutory scheme as both “comprehensive,” FTC v. Manager, Retail Credit Co., 515 F.2d 988, 989 (D.C. Cir. 1975), and “complex,” Skwira v. United States, 344 F.3d 64, 74 (1st Cir. 2003). We provide but a brief overview here.

A “consumer reporting agency” is defined as “any person which, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties, and which uses any means or facility of interstate commerce for the purpose of preparing or furnishing consumer reports.” 15 U.S.C. § 1681a(f).

FCRA Class Actions Uncategorized



15 U.S.C. § 1681 – Congressional Findings and Statement of Purpose for the Fair Credit Reporting Act: Statutory Language for the Defense Lawyer of Class Action Lawsuits Under the FCRA

Jul 23, 2006 | By: Michael J. Hassen

As a service to class action defense attorneys, we provide here the text of the relevant statutory provisions of the FCRA. We have endeavored to make this accurate as of January 1, 2006. It includes those amendments to the FCRA contained in the Fair and Accurate Credit Transactions Act of 2003 (FACT), Public Law 108-159, as well as those in Section 506 of the Gramm-Leach-Bliley Act. Public Law 106-102. In 1970, Congress enacted the FCRA (Fair Credit Reporting Act, 15 U.

FCRA Class Actions Statutes & Rules Uncategorized



Multidistrict Litigation (MDL) Judicial Panel Transfers FCRA Class Action Cases Against H & R Block To Northern District Of Indiana: Class Action Defense Cases

Jul 19, 2006 | By: Michael J. Hassen

Judicial Panel on Multidistrict Litigation (MDL) Grants Defense Motion To Eliminate Duplicative Discovery, Prevent Inconsistent Rulings, and Conserve Resources of Parties and Court in Pretrial Proceedings of Class Action Cases Three class action lawsuits were filed against H & R Block Mortgage Corp. alleging violations of the FCRA (Fair Credit Reporting Act, 15 U.S.C. §§ 1681 et seq.) in that defendants purportedly “us[ed] consumer reports for purposes of mailing prescreened offers of credit for home loans to plaintiffs and potential class members.

Class Action Court Decisions FCRA Class Actions Multidistrict Litigation Uncategorized



Class Action Defense Issues–Gorman v. Wolpoff & Abramson: Law Firm Again Prevails In Action Alleging Violations of FCRA (Fair Credit Reporting Act) and FDCPA (Fair Debt Collection Practices Act)

Jul 17, 2006 | By: Michael J. Hassen

California Federal Court Grants Summary Judgment in Favor of Wolpoff & Abramson and Client MBNA, and Issues Order to Show Cause re Rule 11 Sanctions Against Plaintiff

The law firm of Wolpoff & Abramson LLP is no stranger to litigation: it routinely prosecutes debt collection actions on behalf of national retail and banking clients; and it has been named in many individual and class action lawsuits by people upset at the Wolpoff firm’s efforts to collect on delinquent accounts. According to a lawyer at Wolpoff & Abramson, the law firm aggressively defends lawsuits filed against it, and statistically it appears to do a very good job in presenting its defense. The most recent court ruling concerning the firm comes out of a California federal court, which granted the defense motions for summary judgment. Gorman v. Wolpoff & Abramson, ___ F.Supp.2d ___, 2006 WL 1728915 (N.D. Cal. June 23, 2006). The action was filed by a lawyer (John Gorman) against MNBA and its attorneys, the Wolpoff firm, asserting causes of action under the federal Fair Credit Reporting Act (FCRA), the federal Fair Debt Collection Practices Act (FDCPA), and libel. (The claims under California state law that existed in Gorman’s original complaint were dismissed without leave to amend in response to an earlier defense motion. _See Gorman v. Wolpoff & Abramson_, 370 F.Supp.2d 1005, 1010-11 (N.D. Cal. 2005).)

Gorman’s action was precipitated by a contested credit card charge of roughly $760 that MBNA initially removed but then reposted. The federal court found that Gorman stopped making payments to MBNA in May 2003, “but then deliberately charged thousands of dollars more on his MBNA credit card” and then in August 2003 demanded that MBNA write off “the entirety of his balance of over $5000.” Instead, MBNA retained Wolpoff to file a debt collection suit against Gorman.

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Class Action Defense Cases–McCready v. eBay: eBay Not A Debt Collector Under Federal FDCPA Or Reporting Agency Under Federal FCRA, And eBay Lawfully Produced Documents Pursuant To Subpoena, Seventh Circuit Holds

Jul 15, 2006 | By: Michael J. Hassen

Fair Debt Collection Practices Act Requires Affirmative Action, Fair Credit Reporting Act Does Not Apply to Commercial Activity,

On July 10, 2006, a federal appellate court consolidated two appeals and (1) agreed with eBay’s defense team that eBay was not subject to the federal FDCPA (Fair Debt Collection Practices Act) or the federal FCRA (Fair Credit Reporting Act), and (2) affirmed that eBay compliance with a subpoena for records did not violate the federal ECPA (Electronic Communications Privacy Act) or the federal SCA (Stored Communications Act): it therefore affirmed the dismissals entered in both underlying lawsuits. McCready v. eBay, Inc., ___ F.3d ___, 2006 WL 1881142 (7th Cir. 2006). For clarity, we address the two lawsuits separately. The first lawsuit arose from the fact that plaintiff utilized eBay’s services to operate an online business through which he would buy and sell goods. Several eBay users became unhappy with their business dealings with plaintiff; they used eBay’s “Feedback Forum” to explain their dissatisfaction, and several of them notified eBay of their complaints. eBay told plaintiff of the complaints and explained that his accounts would be suspended if the complaints were not resolved. Ultimately, eBay suspended plaintiff’s accounts but offered to reinstate them if he reimbursed monies to the claimants. “Rather than make good on his sales, [plaintiff] embarked on retaliatory litigation,” Slip Opn., at 2, and a summary of that litigation is described in the Note below. Relevant here, plaintiff filed a federal court complaint against eBay alleging violations of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692 _et seq._, the Fair Credit Reporting Act (FCRA), 15 U.S.C. §§ 1681 _et seq._, the Electronic Fund Transfers Act (EFTA), 15 U.S.C. §§ 1693 _et seq._, Title 11 of the U.S. Bankruptcy Code, and nine (9) state law claims. _Id._, at 3. The district court granted the defense motion to dismiss the FDCPA and FCRA claims, and declined to exercise supplemental jurisdiction over the state law claims; the parties stipulated to dismissal with prejudice of the bankruptcy claim. _Id._, at 4.

With respect to the FDCPA claim, the Seventh Circuit observed that eBay simply suspended plaintiff’s accounts until he resolved the outstanding fraud complaints and never threatened to take collection against him; the Court held that such conduct could not be deemed an attempt to “collect” a debt. McCready, at 8. With respect to the FCRA claim, plaintiff asserted that eBay’s “Feedback Forum” constituted a “consumer report, id., at 9. The Court quickly dispatched this claim on several grounds:

Class Action Court Decisions FCRA Class Actions FDCPA Class Actions Uncategorized



Mirfasihi v. Fleet Mortgage — Defense of Class Action Cases

Jun 21, 2006 | By: Michael J. Hassen

Class Action Settlement Approval of Nationwide Class Action Reversed and Remanded for District Court Failure to Analyze Value of Class Claims Under the State Laws of Each Applicable Jurisdiction Seventh Circuit Holds

On June 19, 2006, the Seventh Circuit Court of Appeals considered for the second time a proposed class action settlement of a nationwide class action against Fleet Mortgage brought under the Truth in Lending Act (TILA), the Fair Credit Reporting Act (FCRA) and various state laws. Mirfasihi v. Fleet Mortgage Corp., ___ F.3d ___, 2006 WL 1667802 (7th Cir. 2006) (“_Fleet II_”). As explained below, the class action involved two classes: a “telemarketing class,” and an “information-sharing class.” The Seventh Circuit previously reversed district court approval of a proposed settlement of the class action claims because “the district court failed to consider adequately the value of the claims of the so-called ‘information-sharing class’ (a class of consumers whose privacy interests were purportedly intruded upon, but who did not suffer any out-of-pocket damages).” Slip Opn., at 1-2 (citing _Mirfasihi v. Fleet Mortgage Corp._, 356 F.3d 781 (7th Cir. 2004) (“_Fleet I_”).

The class action involved claims that Fleet sold mortgage information to third-party telemarketers, and that Fleet “was an active collaborator in drafting the script that the telemarketers used and allowed direct billing of the fees for the telemarketers’ products onto the mortgage bill of its customers, without obtaining pre-approval from customers.” Slip Opn., at 2. The “telemarketing class” consisted of 190,000 people who purchased financial products from the telemarketers; the “information-sharing class” consisted of 1.4 million Fleet borrowers whose information had been sent to telemarketers but who had not purchased any services from them. Id., at 2-3.

The class action settlement approved by the district court in Fleet I provided for payments to the telemarketing class, but the information-sharing class “was left out in the cold and received nothing.” Slip Opn., at 3. (The terms of the class action settlement are detailed in Fleet I and Fleet II; we focus here only on the monetary recovery for each class.) Fleet I reversed the district court’s approval of the class action settlement because “the district court failed to consider with adequate specificity the reasonableness of an entire class receiving a ‘big fat zero’ in the settlement.” Slip Opn., at 4 (citing Fleet I, at 785). “Specifically, the district court did not canvass all potential avenues of recovery to determine whether the information-sharing class’s claims were indeed essentially hopeless (and thus worthless) under the pertinent controlling law.” Slip Opn., at 4.

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