The Gertsburg Law Firm was recently able to successfully argue that a Fair Credit Reporting Act (“FCRA”) plaintiff who doesn’t actually state how he’s been harmed doesn’t deserve to have his case go forward. This was a major win for our client, Blindbid, Inc., who runs the TCPA Litigator List.
The TCPA Litigator List compiles the phone numbers associated with individuals who have been involved in Telephone Communications Protection Act (“TCPA”) lawsuits. Blindbid then sells these lists to companies running telephone campaigns so that the companies know not to call these individuals, as it would put them at risk of TCPA liability.
James Shelton, a prolific filer of TCPA lawsuits, was included in many of these reports. Apparently taking offense that he was being listed as a serial litigator, even though he is and was, Shelton demanded that Blindbid hand over his “consumer report”, presumably the litigator list, and provide a list of all companies that had received his “consumer report” under the Fair Credit Reporting Act (“FCRA”).
Blindbid refused, concluding that the litigator lists did not meet the definition of a consumer report under the FCRA as the report was not used or expected to be used or collected for the purpose of establishing Shelton’s eligibility for any credit, insurance, or employment purpose (15 U.S.C § 1681a).
Defining a Consumer Report
As a refresher, a consumer report is “any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer’s credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living 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 purpose authorized under 15 U.S. Code § 1681b”
Shelton then sued Blindbid under the FCRA and Ohio’s consumer sales practices act (“CSPA”) alleging statutory damages for refusing to give him his “consumer report”. The case was removed to federal court.
This office argued that, despite the “litigator list” obviously not constituting a consumer report, that Shelton’s claim failed for a far more fundamental reason; he did not actually say how he had been harmed by the refusal to give the report.
The federal court agreed and dismissed Shelton’s FCRA claims. Assuming that Shelton’s claims were true (which this office continues to dispute), the Court stated that Shelton had still not explained how the failure to give him his consumer report had harmed him in any way.
This case is an important reminder to Ohio businesses who get sued under the FCRA. In Ohio, it’s not enough that the Plaintiff says you violated his FCRA rights, he also has to explain how that harmed him. If he can’t, and can only speculate as to how the alleged violation may have harmed him, his case can be dismissed at the pleading stage, without significant litigation expense. For those businesses looking to send a message to prolific consumer Plaintiffs, this can be an effective means of knocking these cases out early without much risk.
Read the Judge’s decision of this case in full at https://scholar.google.com/scholar_case?case=17407156873204825233&hl=en&as_sdt=6&as_vis=1&oi=scholarr
Gertsburg Licata is a full-service, strategic growth firm, specializing in business law, M&A advisory and executive talent solutions for entrepreneurs and executives of start-up and middle-market enterprises. Contact us today to discuss how we can help you secure your next competitive advantage. We are also home to CoverMySix®, our unique, anti-litigation audit service for middle-market companies.
This article is for informational purposes only. It is merely intended to provide a very general overview of a certain area of the law. Nothing in this article is intended to create an attorney-client relationship or provide legal advice. You should not rely on anything in this article without first consulting with an attorney licensed to practice in your jurisdiction. If you have specific questions about your matter, please contact an attorney licensed to practice in your jurisdiction.