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Summerfield v. Equifax Information Services LLC

September 30, 2009


The opinion of the court was delivered by: Joseph H. Rodriguez U.S.D.J.


Hon. Joseph H. Rodriguez

This matter has come before the Court on motion of Plaintiff Bruce A. Summerfield for class certification. Oral argument was heard on the motion on September 24, 2009, and the record of that proceeding is incorporated here. For the reasons placed on the record that day, as well as those articulated below, the motion for class certification will be granted.


Plaintiff Bruce A. Summerfield filed a class action Complaint against Defendant Equifax Information Services LLC in this Court on March 21, 2008. He alleged a violation of the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681i. Specifically, Plaintiff asserts that Equifax falsely represents to consumers who have disputed the accuracy of public records information reported about them by Equifax that it has directly contacted the original source of the public records. According to Plaintiff, Equifax does not contact the original source of public records when investigating consumer disputes. In addition, Plaintiff alleges that if Equifax fails to remove an inaccurate public record from a consumer's credit report, it advises the consumer to take up his dispute with the "source" of the public record, but fails to disclose the true sources of the public records it reports about consumers.

In the named Plaintiff's case, Equifax allegedly reported false information that Plaintiff had an outstanding judgment of $1,075 owed to a collection agency on behalf of AT&T. In reality, the debt was owed by Plaintiff's son who was serving in Iraq. On or about February 22, 2007, Plaintiff disputed the inaccurate public record. On March 2, 2007, Equifax sent Plaintiff correspondence which stated that it had contacted the source of the public record, Camden City, but allegedly "verified" that the inaccurate public record belonged to Plaintiff. Plaintiff contends that Defendant never contacted the source of the inaccurate public record in response to Plaintiff's dispute.

Plaintiff seeks to have the class certified under Rules 23(a) and 23(b) of the Federal Rules of Civil Procedure on behalf of "all consumers in the State of New Jersey to whom, beginning two years prior to the filing of this Complaint and continuing through resolution of this action, in response to a dispute [about the accuracy of a public record Defendant reported], Defendant sent a letter substantially similar to [the one sent to Plaintiff misrepresenting Defendant's reinvestigation activities].


The proponent of certification bears the burden of proving the requirements of a class action. Chiang v. Veneman, 385 F.3d 256, 264 (3d Cir. 2004). Class certification under Rule 23 has two primary components. The party seeking class certification must first establish the four prerequisites of Rule 23(a): "(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class." Fed. R. Civ. P. 23(a).

"If all four requirements of Rule 23(a) are met, a class of one of three types (each with additional requirements) may be certified. See Fed. R. Civ. P. 23(b)(1)-(3)." In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 309-10 n.6 (3d Cir. 2008). In this case, Plaintiff moves for class certification under Rule 23(b)(3), which provides for certification when "the court finds that the questions of law or fact common to members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy." Fed. R. Civ. P. 23(b)(3). "The twin requirements of Rule 23(b)(3) are known as predominance and superiority." In re Hydrogen Peroxide Antitrust Litig., 552 F.3d at 310.

"Class certification is proper only 'if the trial court is satisfied, after a rigorous analysis, that the prerequisites' of Rule 23 are met." Id. at 309 (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982)). To be sure, the issue raised by a Rule 23 motion is whether a class action is an appropriate litigation vehicle, and not the merits of the claims asserted. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 (1974); Chiang, 385 F.3d at 269-70. However, "[b]ecause the decision whether to certify a class 'requires a thorough examination of the factual and legal allegations,' the court's rigorous analysis may include a 'preliminary inquiry into the merits,' and the court may 'consider the substantive elements of the plaintiffs' case in order to envision the form that a trial on those issues would take.'" In re Hydrogen Peroxide Antitrust Litig., 552 F.3d at 317 (citations omitted) (quoting Newton v. Merrill Lynch, Pierce, Fenner, & Smith, Inc., 259 F.3d 154, 166, 168 (3d Cir. 2001)); see also id. at 319 ("A critical need is to determine how the case will be tried." (quoting Fed. R. Civ. P. 23 adv. comm. note, 2003 Amend.)).

Since class certification requires a finding that each of the requirements of Rule 23 has been met, "[f]actual determinations necessary to make Rule 23 findings must be made by a preponderance of the evidence." In re Hydrogen Peroxide Litig., 552 F.3d at 320. "In other words, to certify a class the district court must find that the evidence more likely than not establishes each fact necessary to meet the requirements of Rule 23." Id. "A party's assurance to the court that it intends or plans to meet the requirements is insufficient." Id. at 317. "If a class is certified, 'the text of the order or an incorporated opinion must include: (1) a readily discernible, clear, and precise statement of the parameters defining the class or classes to be certified; and (2) a readily discernible, clear, and complete list of the claims, issues or defenses to be treated on a class basis.'" Id. at 320-21 (quoting Wachtel ex rel. Jesse v. Guardian Life Ins. Co. of Am., 453 F.3d 179, 187 (3d Cir. 2006)).


The theory of Plaintiff's case seems to be that Defendant violated the Fair Credit Reporting Act by failing to reveal, in a letter to Plaintiff, the identity of one of its public record vendors in its notice of results of reinvestigation it sends consumers. He seeks statutory damages under 15 U.S.C. § 1681(n) in the statutory range of $100 to $1,000 for himself and the putative class of New Jersey residents who received a substantially similar letter. The Complaint also requests punitive damages for the allegedly willful conduct of Defendant in misleading consumers.*fn1

As a consumer reporting agency, Defendant gathers credit information and stores it in a computer database (Fluellen Decl., ¶ 3, 4.) With respect to public records such as bankruptcies, liens, and judgments, Defendant contracts with a public records vendor ("PRV") whose employees are specifically trained to gather information relating to court filings. (DeGrace Decl., ¶ 3.) The PRV collects this information directly from a "primary source" -- the courthouses where judgments, bankruptcies, and liens are filed or from other appropriate electronic databases designated by a court as "official public records." (DeGrace Decl., ¶ 4.) From October 2004 through February 2007, the Defendant's PRV was ChoicePoint, Inc.; Defendant's current PRV is LexisNexis. (DeGrace Decl., ¶ 6, 5.)

Included in Defendant's database is a credit file on Plaintiff. (Fluellen Decl., ¶ 12.) In December 2006, ChoicePoint provided information regarding a judgment filed in a Camden court against "Bruce Summerfield." (Fluellen Decl., ¶ 13.) Plaintiff claims that the judgment was against his son, Bruce R. Summerfield. (Summerfield Dep., 59:22-60:3.) The name and address on the official court record regarding the judgment, however, matched Plaintiff's identification and thus his credit file. (Fluellen Decl., ¶ 14; Summerfield Dep., 22:12-17, 66:2-67:6.) Nothing in the court record indicated that the information concerned Plaintiff's son rather than Plaintiff; there was no date of birth or social security number included in the court record. (Summerfield Dep., 67:7-22.)

On February 22, 2007, Defendant received an on-line dispute on behalf of Plaintiff, sent by Plaintiff's daughter, stating that the judgment "does not belong to Bruce A. Summerfield. Please remove ASAP." (Fluellen Decl., ¶ 15; Summerfield Dep., 76:16-19.) Plaintiff received an online confirmation that his e-mail had been sent. It read:

Your online investigation request is awaiting answers from the creditor, courthouse, and/or other agency that reported the item originally.

Equifax verifies all credit account, public record, and collection account information with the original sources when you initiate an investigation. . . . (Soumilas Cert., Ex. E.)

Defendant advised ChoicePoint that Plaintiff had stated that the item was not his, and asked ChoicePoint to provide complete identification so that Defendant could compare the item to what it had on file. (Fluellen Decl., ¶ 16.) On February 28, 2007, ChoicePoint verified to Defendant that the identification matched and that the record was reporting accurately.*fn2 (Fluellen Decl., ¶ 16.)On March 2, 2007, Defendant sent a response to Plaintiff stating,

Equifax contacted each source directly, and our investigation is now completed. If you have any additional questions or concerns, please contact the source of that information directly.

Equifax verified that this item belongs to you. If you have additional questions about this item, please contact: Camden Cty CT, City Hall Room 311, Camden, NJ 08100.*fn3 (Fluellen Decl., ¶ 16; Soumilas Cert., Ex. F.) Defendant does not provide the name and address of its PRV to consumers in responding to disputes because the PRV, as an independent contractor, is merely acting as Defendant's agent for obtaining public records. (DeGrace Decl., ¶ 14; Klaer Dep., 15:23-16:18, 20:10-20.)

Plaintiff admits that he did not seek credit during the two years preceding the filing of the Complaint, (Summerfield Dep., 70:3-23), and Defendant's records show that the disputed judgment was not ...

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