Lavon Phillips appeals from the district courts entry of summary judgment against him in his Fair Credit

Question:

Lavon Phillips appeals from the district court’s entry of summary judgment against him in his Fair Credit Reporting Act * * * claims against his prospective mother-in-law, Mary K. Grendahl; a detective agency, McDowell Agency, Inc.; and Econ Control, Inc., doing business as Sherlock Information System. The district court held that there was no evidence that Grendahl or the other defendants had obtained a credit report on Phillips by false pretenses. The court rejected Phillips’s contention that he had pleaded a claim for wrongful disclosure of a consumer report and stated that such a claim would not be viable anyway because the document at issue in this case was not a ‘‘consumer report’’ covered by the Fair Credit Reporting Act. * * * We affirm in part, reverse in part, and remand for trial.

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   Mary Grendahl’s daughter Sarah became engaged to marry Phillips and moved in with him. Mary Grendahl became suspicious that Phillips was not telling the truth about his past, particularly about whether he was an attorney and whether he had done legal work in Washington, D.C. She also was confused about who his ex-wives and girlfriends were and where they lived. She did some preliminary investigation herself, but she felt that she was hampered by not being able to use a computer, so she contacted Kevin Fitzgerald, a family friend who worked for McDowell, a private investigation agency. She asked Fitzgerald to do a ‘‘background check’’ on Phillips, and she also gave him the name of the woman Phillips had lived with before Sarah Grendahl.

   Fitzgerald began his search by obtaining Phillips’s social security number from a computer database. He also searched public records in Minnesota and Alabama, where Phillips had lived earlier. He discovered one suit against Phillips for delinquent child support in Alabama, a suit to establish child support for two children in Minnesota, and one misdemeanor conviction for writing dishonored checks.

   Fitzgerald then supplied the social security information to Econ Control and asked for ‘‘Finder’s Reports’’ on Phillips and the former girlfriend. Fitzgerald testified that he believed that Finder’s Reports were not consumer reports and therefore that they were not subject to the Fair Credit Reporting Act.

   Econ Control was in the business of furnishing credit reports, Finder’s Reports, and credit scoring for credit grantors and for private investigators. William Porter, president of Econ Control, testified in his deposition in this case that he had been advised by a representative of Computer Science Corporation that one of their products, called a ‘‘Finder’s Report,’’ could be obtained without authorization of the person who was the subject of the report because the Finder’s Report contained no information on credit history or creditworthiness. Porter testified that a Credit Report, on the other hand, requires authorization from the subject. * * * Porter told * * * [Fitzgerald] that no authorization was necessary to obtain a Finder’s Report and that it would be useful in trying to locate people. * * *  

   Robert McDowell, on behalf of McDowell Agency, had signed an Econ Control registration agreement, titled ‘‘Agreement for Consumer Credit Services.’’ One clause of the registration agreement stated:

3. I certify that I will order consumer reports, as defined by the Fair Credit Reporting Act, only when they are intended to be used as a factor in establishing a consumer’s eligibility for new or continued credit, collections of an account, insurance, licensing, employment purposes, or otherwise in connection with a legitimate business transaction involving the consumer. Such reports will be used for no other purpose. Each time I request a report I intend to use for employment purposes, I will specifically identify it to [Econ Control] at the time I request the report.

   Kevin Fitzgerald was listed in the registration agreement as an individual who was authorized ‘‘to request credit worthiness scores’’ for McDowell. To obtain the Finder’s Report on Phillips, Fitzgerald simply faxed Econ Control a request listing Phillips’s name, date of birth, address and social security number. Econ Control did not ask why McDowell wanted the report, and McDowell did not tell. Econ Control obtained a report from Computer Science Corporation on Phillips and passed it onto McDowell. 

   Fitzgerald met with Mary Grendahl and gave her the results of his investigation, including the Finder’s Report. Someone wrote on the copy of the Finder’s Report on Phillips: ‘‘Credit inquiry report and Employment Trace.’’

   Phillips learned that Sarah Grendahl’s family had investigated his past when Laura Grendahl, Sarah’s sister, telephoned Sarah about nine months after the investigation. * * *  

   The record contains evidence that each defendant has some familiarity with the fact that the law limits access to consumer credit reports. Mary Grendahl owns the Park Apartments in Minneapolis. The apartment business office obtains credit information on prospective tenants as part of its business. The office always obtains the tenant’s written permission to obtain a credit report, ‘‘because it’s necessary to have their signature to get a credit report,’’ according to Mary Grendahl. Porter, the president of Econ Control, testified that he had read the section of the Fair Credit Reporting Act governing resale of credit information. Fitzgerald testified that sometime during his employment with McDowell, he had heard of the Fair Credit Reporting Act.

   Phillips brought this suit against Mary Grendahl, McDowell Agency, and Econ Control, alleging, ‘‘Defendants willfully and maliciously obtained Plaintiff’s credit report for impermissible and illegal purposes in violation of the Fair Credit Reporting Act * * *.’’ * * *  

   Phillips and the defendants filed cross motions for summary judgment. * * *

   The court entered summary judgment for the defendants  

   The Fair Credit Reporting Act, [citation], prohibits the disclosure of consumer credit reports by consumer credit reporting agencies, except in response to the following kinds of requests: (1) court order or subpoena, [citation]; (2) request by governmental agencies involved in setting or enforcing child support awards, [citation]; (3) request authorized in writing by the consumer about whom the report is made, [citation]; or (4) request by a person whom the reporting agency has reason to believe intends to use the consumer report for one of a number of specific, permissible business reasons, [citation].

   Phillips pursues two theories under the Fair Credit Reporting Act—that the defendants obtained a consumer report on him by use of false pretenses, [citation], and that they obtained a consumer report for an impermissible purpose, [citation]. * * *  

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   After the Fair Credit Reporting Act was enacted in 1970, courts noticed what appeared to be a loophole. The original sections [citation] only created civil liability for failure to comply with the Act. The original section [citation], which generally stated the circumstances under which consumer reporting agencies could provide reports, did not impose a duty on users of reports to refrain from requesting reports without a proper purpose..

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   The Fair Credit Reporting Act was amended in 1996 to add to section [citation] a provision that forbids using or obtaining a consumer report unless the report was obtained for a permitted purpose. [Citation.] Moreover, section [citation] received new language imposing civil liability * * * against natural persons for ‘‘obtaining a consumer report under false pretenses or knowingly without a permissible purpose.’’ [Citation.] Thus, the civil liability provisions now explicitly cover the act of obtaining a consumer report without a permissible purpose, which Chapter 42 Consumer Protection 885 formerly was included only by incorporating the criminal liability statute. * * *

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   We therefore will test Phillips’s claim against each of the three defendants under sections [citation], for allegations of willful and negligent misuse or acquisition of a consumer report. Under both sections, Phillips must prove that there was a consumer report, that defendants used or obtained it, and that they did so without a permissible statutory purpose. He must also prove that the defendants acted with the specified level of culpability, which is willfulness under section [citation] and negligence under section [citation].  

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   The first step in establishing liability under [FCRA] for obtaining a consumer report without a permissible purpose is to show that the document at issue was a ‘‘consumer report.’’ The statutory definition is complex. [The FCRA] defines a consumer report as (1) any written, oral, or other communication of information (2) by a consumer reporting agency (3) bearing on a consumer’s credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living (4) which is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer’s eligibility for (A) credit or insurance to be used primarily for personal, family, or household purposes; (B) employment purposes; or (C) any other purposes authorized under section [citation]. * * *

   In this case, there is no dispute that the Finder’s Report was (1) a written communication (2) by a consumer reporting agency, Computer Science Corporation. The two issues in dispute pertaining to whether the Finder’s Report is a consumer report are (3) whether it contained the sort of personal information that would bring it within the definition and (4) whether anyone ‘‘expected’’ the Finder’s Report or the information in it to be used for one of the purposes listed in the definition or ‘‘collected’’ the information in it for that purpose.  

   A consumer report must contain information ‘‘bearing on a consumer’s credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living.’’ [Citation.] The District of Columbia Circuit observed that this element ‘‘does not seem very demanding,’’ [citation], for ‘‘almost any information about consumers arguably bears on their personal characteristics or mode of living.’’ [Citation.] The Finder’s Report listed ‘‘Trade line Information,’’ consisting of the names of several creditors with whom Phillips had credit accounts and the existence of a child support obligation, with dates for ‘‘last activity,’’ but no other details such as amount of obligation or payment history. * * * The Finder’s Report also lists Phillips’s former employers, which also would bear on his mode of living by showing that he has been employed. We conclude that the Finder’s Report contains the kind of personal information required by the definition of consumer report.

   The second question, whether the putative consumer report or the information in it was ‘‘used or expected to be used’’ or ‘‘collected for’’ one of the listed purposes, such as use in a credit or employment decision, [citation], is more difficult. Three statutory ambiguities in this clause could affect what communications are covered by the clause: the statutory language does not specify who must do the using, collecting or expecting; whether those verbs describe a specific or habitual action; or whether those actions must be done with regard to ‘‘information’’ or with regard to the consumer report itself. McDowell Agency essentially argues the clause requires that either the credit agency prepared the Finder’s Report in the expectation that it would be used for a statutory purpose or that the requestors did so use it. McDowell Agency contends that the Finder’s Report was too incomplete to enable anyone to base a credit decision on it, so neither the requestors nor the credit agency could have expected the report to be used in a credit decision. Phillips, on the other hand, focuses on the information in the report, rather than the report itself. He argues that some of the information was of a type habitually ‘‘used’’ by people within the credit industry for the purposes covered by the statute and that therefore no showing about anyone’s actual intent with regard to the Finder’s Report was necessary to make it a consumer report.  

   We need not choose among the competing interpretations of the clause urged by the parties, because we conclude that the Finder’s Report fell within the ‘‘used, expected to be used, or collected’’ clause even under the interpretation urged by McDowell Agency. The record demonstrates that the Finder’s Report, not just the information in it, was actually intended by the credit reporting agency that prepared it to be used for a statutory purpose. The sample Finder’s Report supplied by Econ Control to McDowell Agency states: ‘‘FINDERS delivers skip-locate power in a cost effective, easy-to-use format. This remarkable product was designed by and for collections professionals who need timely debt-recovery support at an economical price.’’ * * *

   We next determine whether each of the defendants ‘‘obtained or used’’ the consumer report. There is no dispute that McDowell Agency and Econ Control obtained a consumer report, for each of them requested a Finder’s Report.  

   Mary Grendahl, on the other hand, testified that she did not request the release of any credit information on Phillips. Mere passive receipt of the report would not be enough to satisfy the statutory element that she ‘‘use or obtain’’ a consumer report. [Citations.] However, Phillips argues that the phone machine message Grendahl left for Sarah is evidence that she asked Fitzgerald to obtain credit information: ‘‘Sarah, this is mom. I didn’t directly do a credit report. I hired a PI and they have every right to do that.’’ This evidence is ambiguous. On the one hand, it could mean that Grendahl hired a private investigator because she thought he was entitled to do a credit report. On the other hand, it could mean that she simply hired a private investigator who ordered a credit report on his own initiative, which she now understood he was entitled to do. Because this case was disposed of on summary judgment, we must resolve any ambiguities in the evidence in favor of Phillips. [Citation.] In this procedural posture, the ambiguous telephone message is sufficient to create a genuine issue of fact as to whether Mary Grendahl asked Fitzgerald to obtain a consumer report on Phillips.

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   The next inquiry is whether any of the defendants had a permissible statutory purpose for obtaining the consumer report. The only purpose for obtaining the report was to obtain information on Mary Grendahl’s prospective son-in-law. Investigating a person because he wants to marry one’s daughter is not a statutory consumer purpose * * *. Even if getting married can be characterized as a consumer transaction * * *, it was not Mary Grendahl, but her daughter, whom Phillips was engaged to marry. He had no business transaction pending with Mary Grendahl. There was no permissible purpose for obtaining or using a consumer report 

   The element of culpability varies according to whether the cause arises under section 1681n generally, section 1681n(a), or section 1681o

   Section 1681n(a) provides civil liability for willful noncompliance with any requirement of the Fair Credit Reporting Act.

   We must initially determine first, what state of mind amounts to willfulness and second, whether the defendant must willfully request the report or willfully violate a requirement of the Fair Credit Reporting Act. * * *

   The statute’s use of the word ‘‘willfully’’ imports the requirement that the defendant know his or her conduct is unlawful. [Citation.] * * *  

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   We conclude * * * that willful noncompliance under section 1681n requires knowing and intentional commission of an act the defendant knows to violate the law.

   Here, there is evidence that none of the three defendants believed their conduct to be covered by the Fair Credit Reporting Act. * * *

   On the other hand, there is also evidence that each defendant had some experience in dealing with credit reports and either knew of the Fair Credit Reporting Act or at least knew that such reports can only be obtained legally under certain circumstances. This kind of experience can support an inference that the defendants knew that their actions were impermissible. * * * These facts are sufficient to create a genuine issue of material fact as to whether defendants acted knowingly and with conscious disregard for Phillips’s legal rights.  

   Section 1681n(a)(1)(B) provides for statutory damages for obtaining a consumer report under false pretenses or knowingly without a permissible purpose, only in actions against natural persons. Our discussion of this section is therefore limited to the claim against Mary Grendahl. This section requires either false pretenses or knowing acquisition of a consumer report without a permissible purpose. Since either is sufficient, Phillips’s evidence raising a fact issue as to whether Mary Grendahl knowingly obtained a consumer report on him with conscious disregard for his legal rights is also sufficient to make a submissible case under this section. We therefore need not reach the question of whether the statute’s use of the term ‘‘false pretenses’’ requires intent to mislead.

   Section 1681o provides a private cause of action for negligent failure to comply with the Fair Credit Reporting Act. Since Phillips has raised factual issues sufficient to require trial on whether defendants willfully violated his rights under the Act, it follows that he has also made a submissible case as to negligent violation of those same rights.

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   We reverse the entry of summary judgment on Phillips’s Fair Credit Reporting Act claim and affirm the entry of judgment on the Invasion of Privacy claim. We remand for further proceedings in accordance with this opinion.

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