Filed: Sep. 09, 2020
Latest Update: Sep. 09, 2020
Summary: Case: 19-11100 Date Filed: 09/09/2020 Page: 1 of 12 [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 19-11100 _ D.C. Docket No. 8:17-cv-00472-WFJ-SPF PERI DOMANTE, Plaintiff-Appellant, versus DISH NETWORKS, L.L.C., Defendant-Appellee. _ Appeal from the United States District Court for the Middle District of Florida _ (September 9, 2020) Before BRANCH, LUCK, and ED CARNES, Circuit Judges. PER CURIAM: Case: 19-11100 Date Filed: 09/09/2020 Page: 2 of 12 Peri Domante
Summary: Case: 19-11100 Date Filed: 09/09/2020 Page: 1 of 12 [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 19-11100 _ D.C. Docket No. 8:17-cv-00472-WFJ-SPF PERI DOMANTE, Plaintiff-Appellant, versus DISH NETWORKS, L.L.C., Defendant-Appellee. _ Appeal from the United States District Court for the Middle District of Florida _ (September 9, 2020) Before BRANCH, LUCK, and ED CARNES, Circuit Judges. PER CURIAM: Case: 19-11100 Date Filed: 09/09/2020 Page: 2 of 12 Peri Domante a..
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Case: 19-11100 Date Filed: 09/09/2020 Page: 1 of 12
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-11100
________________________
D.C. Docket No. 8:17-cv-00472-WFJ-SPF
PERI DOMANTE,
Plaintiff-Appellant,
versus
DISH NETWORKS, L.L.C.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(September 9, 2020)
Before BRANCH, LUCK, and ED CARNES, Circuit Judges.
PER CURIAM:
Case: 19-11100 Date Filed: 09/09/2020 Page: 2 of 12
Peri Domante appeals the district court’s grant of summary judgment in
favor of Dish Networks in Domante’s civil suit for breach of contract and
violations of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681b.
This dispute arose after Dish requested and obtained Domante’s consumer report
from a consumer reporting agency after an identity thief fraudulently submitted
some of Domante’s personal information to Dish. Despite the fact that Dish
discovered the fraud after receiving the report and never opened an account in
Domante’s name, Domante alleges that Dish negligently and willfully violated the
FCRA simply by requesting and obtaining the consumer report in the first place.
Domante also alleges that Dish’s actions violated a settlement agreement that the
parties signed after a similar incident occurred several years ago involving the
same parties. In that agreement, Dish promised to flag Domante’s social security
number to prevent future fraudulent attempts to obtain Dish services in Domante’s
name. After the benefit of oral argument and careful review, we affirm the district
court, holding that Dish had a “legitimate business purpose” under the FCRA when
it obtained Domante’s consumer report and that Dish did not violate the settlement
agreement.
I. Background
In both 2011 and 2013, Domante was a victim of identity theft, as her
personal information was stolen and used fraudulently to open two accounts with
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Dish, a provider of television services. Domante was alerted to the fraud after the
accounts became delinquent, and she then sued Dish and Equifax Information
Services, LLC, alleging non-compliance with the FCRA. Domante and Dish
ultimately entered a settlement agreement in October 2016. Pursuant to the terms
of the settlement agreement, Domante agreed to dismiss her claims against Dish in
exchange for Dish’s promise “to flag [Domante’s] social security number in order
to preclude any persons from attempting to obtain new [Dish] services by utilizing
[Domante’s] social security number.” To comply with the settlement agreement,
Dish input Domante’s personal information—first name, last name, date of birth,
and full social security number—into one of its internal mechanisms meant to flag
and prevent unauthorized accounts from being opened.
Individuals can apply for Dish services in a variety of ways, including online
and over the phone. An online applicant provides only the last four digits of his or
her social security number. To verify the online applicant’s identity and eligibility
for services, Dish’s system automatically sends the applicant’s information to a
consumer reporting agency.1 If the consumer reporting agency determines it has a
1
See 15 U.S.C. § 1681a(f) (defining “consumer reporting agency” 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”).
3
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match to the submitted information, it provides a “consumer report” 2 to Dish
containing the applicant’s full social security number. Once Dish receives the full
social security number, it then cross-references that number using its internal
mechanisms to ensure the applicant is otherwise eligible to obtain services.
On January 12, 2017, an unknown individual applied online for a Dish
account using the last four digits of Domante’s social security information,
Domante’s date of birth, and Domante’s first name. However, the online applicant
used a different last name, address, and telephone number. Dish’s automated
system submitted the applicant’s information to a consumer reporting agency (in
this case, Equifax) to verify the individual’s identity. Equifax matched this
information with Domante and returned to Dish her consumer report, which
included Domante’s full social security number. Dish then blocked the application
from going forward, and a Dish account in Domante’s name was not opened.
After learning that Domante’s credit report reflected that the credit inquiry had
occurred, Dish requested that Equifax delete the inquiry from Domante’s credit
record, and Equifax obliged.
2
Below and on appeal, Dish maintains that the social security number it obtained from the
consumer reporting agency was not a “consumer report” as defined by the FCRA. See 15 U.S.C.
§ 1681a(d). We need not address that issue because we find that, assuming arguendo that Dish
obtained a consumer report, it did so with a “permissible purpose.”
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Domante filed the underlying complaint in February 2017. In Counts I and
II, respectively, she alleged that Dish negligently and willfully obtained the
January 2017 consumer report without a “permissible purpose” in violation of
§ 1681b of the FCRA. In Count III, Domante alleged that Dish materially
breached its contractual obligations under the settlement agreement by “requesting
and obtaining [her] credit report [from Equifax], despite explicitly agreeing to flag
[her] social security number so as to prevent any person from opening an account
with [Dish] using [her] social security number.” Domante sought actual, statutory,
and punitive damages, injunctive relief, and attorney’s fees.3
During the pendency of the instant litigation, on January 23, 2018, yet
another online application was submitted to Dish by an unknown individual using
only the last four digits of Domante’s social security number and correct first
name. As before, Dish requested a consumer report from Equifax, received from
Equifax Domante’s full social security number, cross-checked the full social
security number in its internal mechanism, identified that the social security
number belonged to Domante, stopped the application before an account was
opened, and requested that Equifax remove the inquiry from Domante’s credit
report history—all by January 29, 2018. That very day, yet another fraudulent
attempt was made to open a Dish account online using Domante’s information.
3
The sole actual damages sought by Domante were non-economic, emotional damages.
5
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This time, however, pursuant to Dish’s policy, it did not request a consumer report
because the application was submitted within a 90-day window of a previously
denied application using the same information. Thus, Dish prevented both
fraudulent online attempts in January 2018 from ripening into a Dish account in
Domante’s name.
Upon cross motions for summary judgment, 4 the district court ruled in favor
of Dish on all three counts. Regarding Domante’s claims for negligent and willful
non-compliance with the FCRA, the district court found that Dish had a “legitimate
business need” to verify the identity and determine the eligibility of the online
applicant when it obtained a consumer report from Equifax in January 2017.5 The
district court also found that Domante’s breach of contract claim failed because
Dish satisfied its contractual obligations by “flagging” Domante’s full social
security number and preventing an account from being opened in her name. 6
Domante timely appealed.
4
Dish moved for summary judgment on all three counts. Domante moved for summary
judgment on her FCRA claims and partial summary judgment as to liability on her breach of
contract claim.
5
The district court noted that the instances of fraud on January 23 and 29 of 2018 were not
included in Domante’s complaint, but that even if they were, those two instances are “insufficient
to alter the Court’s analysis” as to either the § 1681b or breach of contract claims. We agree.
6
The district court also stated that Domante was “potentially” precluded from relief under
the FCRA because she could not demonstrate that she had suffered damages. We need not address
the issue of damages because we agree that Dish did not violate the FCRA by making its January
2017 inquiry to the consumer reporting agency.
6
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II. Standard of Review
We review de novo a district court’s order on cross motions for summary
judgment. Owen v. I.C. Sys., Inc., 629 F.3d 1263, 1270 (11th Cir. 2011).
Summary judgment is appropriate when there is “no genuine dispute as to any
material fact” and the moving party is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(a). We view the evidence and draw all reasonable inferences in the
light most favorable to the non-moving party.
Owen, 629 F.3d at 1270.
III. Discussion
A. FCRA Claims
The district court did not err by ruling in favor of Dish on the FCRA claims.
The FCRA enumerates an exhaustive list of the “permissible purposes” for which a
person7 may use or obtain a consumer report. 15 U.S.C. § 1681b(a)(3); id.
§ 1681b(f)(1); see Pinson v. JP Morgan Chase Bank, Nat’l Ass’n,
942 F.3d 1200,
1213 (11th Cir. 2019). One of those permissible purposes is where a person “has a
legitimate business need for the information . . . in connection with a business
transaction that is initiated by the consumer.” 15 U.S.C. § 1681b(a)(3)(F)(i)
(emphasis added).
We have never weighed in on what constitutes a “legitimate business need”
in connection to a business transaction for FCRA purposes. The Sixth Circuit,
7
In this case, the “person” obtaining the consumer report is Dish.
7
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however, has addressed the meaning of “legitimate business need” in a situation
very similar to the one here—in fact, it involved the same defendant. See Bickley
v. Dish Network, LLC, 751 F.3d 724 (6th Cir. 2014). In Bickley, the plaintiff
argued in part that Dish violated § 1681b when Dish requested and used his credit
report after receiving an application for Dish services by phone, despite the fact
that Dish had prevented an identity theft in so doing.
Id. at 726, 732. The Sixth
Circuit disagreed that Dish had violated the FCRA and affirmed the district court’s
grant of summary judgment to Dish on those claims. In so doing, the court held
that the term “legitimate business need” in § 1681b includes “verifying the identity
of a consumer and assessing his eligibility for a service.”
Id. at 731; accord
Estiverne v. Sak’s Fifth Ave.,
9 F.3d 1171, 1173 (5th Cir. 1993) (holding that a
retail store had a “legitimate business need” under the FCRA when it requested a
credit report to determine whether to accept or reject a consumer’s check).
Similar to its winning argument in Bickley, here Dish contends that it
requested and obtained Domante’s consumer report from Equifax in an effort to
verify the identity and determine the eligibility of the potential consumer who
applied online for Dish services in January 2017 and, in so doing, prevented an
identity theft. The district court found that verification for eligibility indeed was
Dish’s purpose in requesting and obtaining the report. We see no genuine factual
dispute, as Dish clearly relied on Equifax for this purpose whenever an individual
8
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applied for Dish services online. And we agree with the Sixth Circuit that
requesting and obtaining a consumer report for verification and eligibility purposes
is a “legitimate business need” under the FCRA. See id. at 731; see also
Estiverne,
9 F.3d at 1173. Thus, Dish had a permissible purpose in obtaining Domante’s
consumer report and did not run afoul of § 1681b by doing so.
Arguing to the contrary, Domante contends that Dish did not have a
legitimate business need because Dish either knew or should have known that
Domante had not initiated the business transaction because of their prior settlement
agreement. We find this argument unpersuasive. Like the plaintiff in Bickley,
Domante “blithely ignores that a consumer did initiate the transaction.” Bickley,
751 F.3d at 732. 8 When the unknown applicant applied for Dish services online in
January 2017, Dish had only the last four digits of the provided social security
number, not the full number. Dish depended in part on Equifax’s consumer-report
services to verify the identity of the applicant so that it could obtain the full social
security number and cross-check that information via its internal mechanisms.
And, contrary to Domante’s assertions, the fact that Equifax had the mechanisms in
place to verify that the scant information provided by the January 2017 applicant
8
Domante asserts that Bickley is distinguishable because there, unlike here, Dish had no
prior dealings with the plaintiff. But even assuming that such prior dealings are relevant generally,
they do not matter in this case because Domante cannot show that Dish affirmatively knew the
fraudulent application contained her personal information at the time it requested the consumer
report.
9
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actually belonged to Domante does not necessarily lead to the conclusion that Dish
suspected (or was able to verify) the same.
Although Domante suggests that Dish should have done more to verify her
identity before requesting a consumer report, the FCRA does not explicitly require
a user of consumer reports to confirm beyond doubt the identity of potential
consumers before requesting a report. We are not at liberty to add statutory
language where it does not exist. See Bostock v. Clayton Cty., Ga., 140 S. Ct.
1731, 1823 (2020) (Kavanaugh, J., dissenting) (“[W]e are judges, not Members of
Congress. . . . Under the Constitution’s separation of powers, our role as judges is
to interpret and follow the law as written, regardless of whether we like the
result. . . . Our role is not to make or amend the law.”); Harris v. Garner,
216 F.3d
970, 976 (11th Cir. 2000) (“[T]he role of the judicial branch is to apply statutory
language, not to rewrite it.”).
Domante also argues that the settlement agreement itself established that
Dish did not have a legitimate business need to access her credit report.
Specifically, Domante argues that because the agreement precluded any Dish
account from being opened in her name, even by Domante herself, there was no
legitimate business need to obtain her credit report. Domante’s argument about
contracting around the FCRA fails, however. As discussed above, at the time Dish
requested a consumer report for the fraudulent online application, Dish did not yet
10
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have enough information to connect the online application to Domante. Rather, all
the online application provided to Dish was a partial identity—a first name, birth
date, and last four digits of a social security number. True, this limited information
matched Domante. But the settlement agreement does not expressly prohibit Dish
from entertaining an application from a potential consumer who happens to share a
few personal identifiers with Domante.
We therefore affirm the district court’s holding that Dish did not violate
§ 1681b because Dish had a legitimate business need, and thus a permissible
purpose, for obtaining the consumer report in January 2017.
B. Breach of Contract
Domante next contends that Dish breached the settlement agreement. In
relevant part, the settlement agreement provided that
[Dish] agrees to flag [Domante’s] social security number in order to
preclude any persons from attempting to obtain new [Dish] services by
utilizing [Domante’s] social security number.
Based on this language, Domante argues that Dish agreed to preclude any external
credit inquiry involving her information following the attempted fraudulent
transaction. Thus, she maintains that Dish violated the settlement agreement when
it made the January 2017 credit inquiry.
Under Florida law, a plaintiff asserting a breach of contract claim must
demonstrate “(1) the existence of a contract, (2) a breach of the contract, and
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(3) damages resulting from the breach.” Rollins, Inc. v. Butland, 951 So. 2d 860,
876 (Fla. 2d Dist. Ct. App. 2006). The district court found that Domante’s claim
failed to establish the breach element.9 We agree.
The only affirmative action Dish agreed to take in the settlement agreement
was “to flag” Domante’s “social security number.” As an initial matter, Dish
satisfied that contract term when, after entering into the settlement agreement, it
input Domante’s personal information—first name, last name, date of birth, and
full social security number—into one of its internal mechanisms as a “flag.” And
Dish again satisfied the terms of the agreement when, after obtaining Domante’s
full social security number from Equifax following the January 2017 online
application, it plugged the number into its internal system, triggered the “flag,” and
stopped the fraudulent application without opening an account. Thus, Dish did not
breach the settlement agreement, and Domante’s arguments to the contrary fail.
IV. Conclusion
For the foregoing reasons, summary judgment in favor of Dish was
appropriate.
AFFIRMED.
9
As to the claim for breach of the settlement agreement, the district court expressly
declined to reach the issue of damages. We too find it unnecessary to reach that issue.
12
