LAUREL BEELER, Magistrate Judge.
Plaintiff Amit Patel applied to rent an apartment. Trans Union Rental Screening Solutions, Inc. performed a background report, which reported (inaccurately) that Mr. Patel was on a terrorist watch list. (Amended Complaint, ECF No. 41, ¶¶ 56-62.
In July 2013, Mr. Patel applied to rent an apartment in Union City, California from CBC Realty. (Amended Complaint, ECF No. 41, ¶ 56.) CBC contracted with Trans Union Rental Screening Solutions to use the SmartMove background-check product to evaluate applicants for residential leases. (Id. ¶ 57.) The product gives subscribers such as CBC a customized credit recommendation and a national background search about the applicant. (Id. ¶ 58.) It also provides subscribers with (1) a recommendation about the applicant (based on criteria provided by the subscriber) and (2) a letter with reasons an applicant was or was not approved for a lease. (Id. ¶ 59.)
As part of the rental-application process, CBC required Mr. Patel to access the SmartMove website to provide information and authorization for CBC to obtain a SmartMove report about Mr. Patel. (Patel Dep., ECF No. 56-25, at 31.) Then, on July 16, 2013, CBC applied "through SmartMove" for information about Mr. Patel's rental application (and paid a fee), and that same day, it received "a Trans Union [SmartMove] consumer report purportedly about" Mr. Patel. (Amended Complaint, ECF No. 41, ¶¶ 60-61.) The report was inaccurate. (Id. ¶ 62.) It said that Mr. Patel had 17 criminal records from New Mexico and Rhode Island, but these records do not belong to him, and he has never been to these states. (Id. ¶ 63.) It referred to Mr. Patel's 2008 misdemeanor DUI, but a California court vacated that offense by order dated July 24, 2012 (a year earlier). (Id.¶ 64.) It said that Mr. Patel was a "Terrorist" from Charlotte, North Carolina, and he is not a terrorist and has never been to North Carolina. (Id. ¶ 62.) The report does not identify the source of the terrorist alert about Mr. Patel. (Patel Report, Ex.1 to Motion, ECF No. 56-7 at 4; Colaprete Dep., Ex. 5 to Motion, at 86-87, 99-100). In fact, it came from a third-party data provider. (Id.) That provider obtained the data from the U.S. Officer of the Comptroller of the Currency ("OCC"), which enforces federal banking regulations such as the anti-money-laundering provisions of the Bank Secrecy Act, 31 U.S.C. §§ 5311-5330, which are aimed at deterring and disrupting terrorist financing networks. (Id. at 87; Motion, ECF No. 59-4 at 15-16.) The gist is that Trans Union, LLC can say only that the terrorist alert about Mr. Patel came from an OCC data set. (ECF No. 59-4 at 16, citing Colaprete Dep. at 100.)
Through the SmartMove product's "automated programing and process," SmartMove notified CBC that it should reject Mr. Patel's rental application, and "[s]olely based on the inaccurate information" in the report, CBC denied Mr. Patel's rental application. (Amended Complaint, ECF No. 41, ¶ 66.) Trans Union, LLC counters that CBC rejected Mr. Patel for reasons unrelated to the credit report, including the length of his current job (two months) and inability to verify the length of his previous job. (Opposition, ECF No. 69-5 at 13-14 (citing Lau Dep., ECF No.70-4 at 22-3; 46, 49).)
After CBC rejected his rental application, it gave Mr. Patel a copy of the SmartMove Report. (Patel. Dep., ECF No. 56-25 at 74-76.) (It was not available to Mr. Patel through SmartMove. (See Amended Complaint, ECF No. 41, ¶ 67.)) Mr. Patel identified and contacted Trans Union Rental Screening Solutions to get a copy of the report, but he did not get it. (Patel Dep., ECF No. 56-25 at 64-65.) Specifically, on July 22, 2013, he sent an email saying, "I would like a full report of my criminal background check. All of it is false . . . ." (ECF 56-17.) Trans Union Rental Screening Solutions Customer Service (identified in the email's "From" line as "TURSS Customer Service") responded with some information on how records were pulled, then told him (1) how to get his Trans Union LLC credit report (via phone or at www.annualcreditreport.com) and (2) how to get his background check (by submitting his government id and other identifying information to Trans Union Rental Screening Solutions), and ended by saying "Thank you for choosing TransUnion SmartMove." (Id.) (Mr. Patel says that he sent the information for the background check, and Trans Union Rental Screening Solutions says that it has no record of receiving it. (Patel Dep., ECF No. 70-5 at 68; Armbruster Dep., ECF No. 70-8 at 88-89.) On July 25, 2013, Mr. Patel's lawyer wrote a letter to Trans Union Rental Screening Solutions disputing the inaccurate information, and she asked for the information that had been reported, but no one responded. (Amended Complaint, ECF No. 41, ¶ 75; Letter, Ex.18 to Motion, ECF No. 56-30.) Trans Union Rental Screening Solutions says that it has no record of receiving this letter either. (Armbruster Dep., ECF No. 70-8 at 88.) Mr. Patel obtained a Trans Union, LLC credit report through "the online portal" on July 22, 2015, but it did not contain the inaccurate information. (Request, ECF No. 16, ECF No. 56-28; Report, Ex. 17, ECF No. 56-29; Amended Complaint, ECF No. 41, ¶ 73-74.)
The SmartMove reports include criminal-record information, other public-record information (e.g., eviction records), and terrorist-alert information. (Opposition, ECF No. 69-5 at 12.) The terrorist alerts on the SmartMove product come from different federal law-enforcement databases (e.g., the FBI and Secret Service), the Office of Foreign Assets Control ("OFAC") list, and other international, U.S., and foreign government lists. (Id.; Motion, ECF No. 59-4 at 12 & Ex.11.) As described in the previous section, the source for the data is a third-party vendor, which in turn gets the data from the government agencies; the data thereafter is stored on a database on a Trans Union, LLC server. (Ex. 11; Colaprete Dep., Ex. 5 at 48-49; Klassen Dep., Ex. 3 to Motion, at 48-50, 52-53.)
To generate a SmartMove report about a person, a computer program queries databases for a "match." (Klassen Dep. at 67-68.) Until December 2013, the "matching criteria" for including a terrorist alert on a SmartMove report were based only on the person's first and last names. (Colaprete Dep., Ex. 5 at 76, 81-82.) There are no steps beyond this "name only" logic to verify that the "hits" from the records relate to the person who is the subject of the background check. (Motion, ECF No. 59-4 at 13.) At different times, different headings in the SmartMove report described the "alert" records: (1) from February 2012 to August 2012, the heading was "Terrorist;" (2) starting in August 2012, the heading changed from "Terrorist" to "Potential OFAC Hit;" (3) sometime before July 2013 (the date of Mr. Patel's report) the heading "inadvertently" reverted to the "Terrorist" heading; and (4) from October 2013 to December 2013, the heading reverted to "Potential OFAC Hit." (Colaprete Decl., ECF No. 70-3, ¶¶ 5-10.)
A landlord reviews a SmartMove report online and can use hyperlinks to access additional pages with more detail. (Opposition, ECF. No. 69-5 at 12-13 (record citations omitted).) A frequently asked question on the SmartMove website is as follows:
See https://www.mysmartmove.com/SmartMove-FAQs/renter-faq.html#q13. (Amended Complaint, ECF No. 41, ¶ 67.) If consumers request a credit report from Trans Union, LLC, Trans Union LLC does not include the SmartMove report in the disclosure. (Litwa Dep., ECF No. 56-19 at 116-117.)
The Amended Complaint alleges that Trans Union Rental Screening Solutions and its parent Trans Union, LLC operate as a single consumer-reporting agency under the FCRA. (Amended Complaint, ECF No. 41, ¶ 1.) The defendants contend that each entity is a separate consumer-reporting agency. (Opposition, ECF No 69-5 at 10.)
The complaint names the defendants: "Trans Union, LLC, in its own name and trading as Trans Union Rental Screening Solutions, Inc., and Trans Union Background Data Solutions, as well as Trans Union Rental Screening Solutions, Inc. in its own name and trading as Trans Union Background Data Solutions (together, `Defendants' or `Trans Union')". (ECF No. 41, ¶ 6.) It alleges that "Trans Union, LLC has structured itself so as to warehouse its sale of credit[-]reporting consumer reports in one entity and its sale of criminal history (employment and landlord-tenant purposed) consumer reports in a second entity. However, it freely transfers data between units and operates without any impediments of corporate structure. In almost every regard, the above Defendants operate as if they are one and the same, a single `consumer reporting agency.'" (Id. ¶ 1.)
"Trans Union claims that it can offer paying customers `[a] database of more than 200 million files, which profile nearly every market-active consumer in the United States.' http://www.Trans Union.com/corporate/business/solutionsbyneed.page?." (Id. ¶ 7.) Its "best known product is conventional credit[-]reporting," and its "`database contains information provided by more than 85,000 credit-granting institutions and is updated, audited and monitored on a regular basis.' http://www.Trans Union.com/corporate/business/solutionsbyneed/credit-reporting.page?" (Id. ¶ 8.)
The complaint elaborates that Trans Union, LLC markets the SmartMove product:
For its tenant screening business, Trans Union markets its services as follows:
(Id. ¶ 10.) It also markets its data reselling business:
See http://www.Trans Union.com/corporate/business/solutionsbyneed/data-resellers.page. (Id. ¶ 11.) The complaint further describes how on this web landing page (bearing the Trans Union.com address), Trans Union, LLC explains and markets how customers can access instant criminal and eviction history databases and promotes the business. (Id. ¶¶ 13-15.)
Trans Union Rental Screening Solutions is a wholly owned subsidiary of Trans Union, LLC, and it produces and sells the SmartMove reports. (Ex. 2 to Motion, ECF No. 59-4.)
At the class-certification stage, no merits discovery has been taken. (Motion, ECF No. 59-4 at 8 n.9.) But so far, the plaintiff has identified Trans Union, LLC's "substantial involvement" in Trans Union Rental Screening Solution's operations, including the following:
(See Motion, ECF No. 59-4 at 9-10 (making these points).)
The companies are separate companies with distinct products: Trans Union Rental Screening Solutions sells background reports, including the SmartMove product, to landlords and other property owners, and Trans Union, LLC sells traditional credit reports that primarily contain information from credit grantors. (Opposition, ECF No. 69-5 at 10-11 (record cites omitted).) Trans Union Rental Screening Solutions is a separate but wholly owned subsidiary; the companies operate in different facilities and locations; they maintain separate corporate, financial, and accounting records; and they maintain their corporate data separately. (Id. at 10 n.2 (record cites omitted).) They maintain their consumer data separately, and neither party has unrestricted access to the other's data. (Id. at 11 (record cites omitted).) Trans Union, LLC provides limited data-hosting to Trans Union Rental Screening Solutions but does not have access to data "beyond these narrow [] purposes." (Id.) Trans Union Rental Screening Solutions maintains access controls over who has access to its data, and that prevents Trans Union, LLC from exporting the data or accessing it unless necessary for purposes related to Trans Union Rental Screening Solutions. (Id.) They do not have common access to each other's documents and data. (Id.) Trans Union, LLC includes some alert information in its credit reports, but it does not contain criminal records or criminal history. (Id.) Its third-party vendor for alert information is Accuity, and Trans Union Rental Screening Solutions uses a different vendor (identified in Ex. 11, Motion). (Id.)
The Consumer Finance Protection Bureau ("CFPB"), the independent government agency with primary authority to enforce the FCRA, publishes a list of consumer-reporting agencies ("CRA"). (Id. at 10.) Its list as of January 1, 2015 lists Trans Union, LLC as one of the three largest nationwide providers of consumer credit reports, and it lists Trans Union Rental Screening Solutions "among the smaller CRAs" that provide "`tenant screening services.'" (Id., citing the CFPB website.)
The complaint asserts seven claims against the defendants: (1) willfully failing to provide consumers with information in their files, in violation of the FCRA, 15 U.S.C. § 1681g, (2) failing to provide California consumers, upon request, with a copy of their disclosure with all information on the consumer, in violation of the CCCRAA, Cal. Civ. Code §§ 1785.10 & 1785.15, (3) negligently and willfully failing to maintain reasonable procedures to assure the maximum possible accuracy of consumer reports by including inaccurate public records, in violation of the FCRA, 15 U.S.C. § 1681e(b), (4) failing to follow reasonable procedures to assure the maximum possible accuracy of the reports it sold, in violation of the CCCRAA, Cal. Civ. Code § 1785.14(b), (5) reporting public records without including the specific source of information and the date the information was reported, in violation of the CCCRAA, Cal. Civ. Code § 1785.18, (6) negligently and willfully failing to maintain reasonable procedures to establish the maximum possible accuracy of consumer reports by selling background reports inaccurately identifying consumers as terrorists, in violation of the FCRA, 15 U.S.C. § 1681e(b), and (7) negligently and willfully failing to conduct a reasonable investigation into the completeness and accuracy of the information disputed by Mr. Patel, in violation of the FCRA, 15 U.S.C. § 1681i. (Amended Complaint, ECF No. 41, at 16-19.) Claims one through six are class claims, claims three through six also are individual claims asserted by Mr. Patel, and claim seven is an individual claim.(Id.)
The class-certification motion limits the claims to two "willful" FCRA claims: claims one and six (misnumbered five) in the complaint. (Motion, ECF No. 59-4 at 6, 24 (proposing a national class for disclosure of terrorist "alert" information and a national subclass for persons who had an "alert" and thereafter requested and were sent a file disclosure; limiting claims to willful violations); Reply, ECF No. 76-2 at 6-7, 15 n.5 (subclass definition).) The gist of the facts underlying the claims is that the SmartMove product used a faulty procedure (a "name-only" matching logic consisting of the rental applicant's first and last name) to determine whether to include a terrorist "alert" on a SmartMove report sold to a third party. (Motion, ECF No. 59-4 at 7, 12-13; Amended Complaint, ECF No. 41, ¶ 50.) The SmartMove procedure could have used other identifying information that Trans Union Rental Screening Solutions had (such as date of birth and social security information) but it did not use that information until approximately December 2013.
The plaintiff asks to certify two national classes: an "accuracy" class and a "disclosure" subclass:
(Motion, ECF No.59-4 at 6; Reply, ECF No. 76-2 at 15 n.5 (adding refinement of "sent").)
The defendants identified 11,048 SmartMove reports sent to third parties from February 2, 2012 to July 1, 2014, with at least one item of information in the "Terrorist Record" section. (Response to Interrogatory No. 3, ECF No. 56-24 at 7.) There are "at least 8,000 reports using the name-only matching criteria" from February 2, 2012 to December 2013. (Motion, ECF No. 59-4 at 17.)
The class-certification motion seeks certification of two classes based on two willful violations of the Fair Credit Reporting Act, 15 U.S.C. §§ 1681e(b) and 1681(g). The statutes are as follows:
The plaintiff seeks statutory damages only, which are as follows: (Motion, ECF No. 59-4 at 24.)
Class actions are governed by Federal Rule of Civil Procedure 23. A party seeking to certify a class must prove that all the prerequisites of Rule 23(a) are met, as well as those of at least one subsection of Rule 23(b) (and the relevant subsection here is 23(b)(3)). Fed. R. Civ. P. 23. The following are the prerequisites of Rule 23(a): numerosity, commonality, typicality, and adequacy of representation. A court may certify a class under Rule 23(b)(3) if the court finds that questions of law or fact common to class members predominate over any questions affecting only individual members, and a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. See Fed. R. Civ. P. 23(b)(3).
"Certification is proper only if the trial court is satisfied, after a rigorous analysis," that the proposed class meets Rule 23's demands. Comcast Corp. v. Behrend, 133 S.Ct. 1426, 1432 (2013). "Such an analysis will frequently entail `overlap with the merits of the plaintiff's underlying claim.'" Id. (quoting in part Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2551 (2011)). This is because "the class determination generally involves considerations that are enmeshed in the factual and legal issues [constituting] the plaintiff's cause of action." Id. Still, "Rule 23 grants no license to engage in free-ranging merits inquiries at the certification stage. Merits questions may be considered to the extent — but only to the extent — that they are relevant for determining whether the Rule 23 prerequisites for class certification are satisfied." Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 133 S.Ct. 1184, 1194-95 (2013).
Beyond Rule 23's express demands, courts have implied an additional requirement under Rule 23(a): that the proposed class be ascertainable. See, e.g., Marcus v. BMW of N. Am., LLC, 687 F.3d 583, 592-93 (3d Cir. 2012); Herrera v. LCS Fin. Servs. Corp., 274 F.R.D. 666, 671-72 (N.D. Cal.2011); see Fed. R. Civ. P. 23(c)(1)(B) ("[a]n order that certifies a class action must define the class and the class claims, issues, or defenses"). This preliminary requirement asks whether the class is so defined that its individual members can be readily identified. A class should be sufficiently definite and "clearly ascertainable" by reference to objective criteria "that it is administratively feasible to determine whether a particular person is a class member." Shepard v. Lowe's HIW, Inc., No. C 12-3893 JSW, 2013 WL 4488802, *2 (N.D. Cal. Aug. 19, 2013).
If the class proponent meets his or her burden under Rule 23, then the court has broad discretion to certify the class. Zinser v. Accuflix Res. Inst., Inc., 253 F.3d 1180, 1186, amended by 273 F.3d 1266 (9th Cir. 2001).
The defendants challenge the class definitions on the ground that the classes are not ascertainable because (A) the "accuracy class" cannot be defined by reference to objective criteria and instead inaccurate information (in the form of an inaccurate "alert") can be shown only by examining files individually, and (B) cross-referencing SmartMove and Trans Union, LLC lists will not necessarily produce a list of "disclosure"class members who requested a file disclosure, and even if it does, the list will contain people who may or may not be entitled to their files (for different reasons), which renders the class definition too broad. (Opposition, ECF No. 69-5 at 27-29, 43-45.)
The defendants acknowledge that they have identified approximately 11,000 consumers (at least 8,000 in the class period) who were the subject of a SmartMove report with at least one "alert", but they point out that a customer is aggrieved (and thus part of the "accuracy" class) only if the "alert" is false. (Id. at 44.) Limiting the class definition to members who were tagged with "inaccurate" alerts does not fix the problem because (for example) an "inaccurate" alert cannot be established by reference to objective criteria and instead requires proof on a class member-by-member basis. (Id.)
The issue of accuracy is a core issue for ascertainability and the predominance of common issues. The defendants' fundamental quarrel is with the plaintiff's assertion that tagging the class members as (for example) "terrorists" (via the name-only logic) is always inaccurate and thus is enough to define the class (and establish the predominance of this common issue). The defendants counter that the plaintiff cannot show, except file by file, that the SmartMove reports wrongly tagged the class members as terrorists. They complain that the plaintiff cannot just assert that the terrorist tags were inaccurate and then shift the burden to the defendants to prove that the tags were accurate.
Normally, the defendants would be right. But this case presents a peculiar situation. The defendants' implied argument is that a significant number of the proposed class actually may have been accurately tagged as potential terrorists. Absent some pretty significant proof to the contrary, the court is willing to assume that no significant (read: certification-breaking) fraction of the tagged proposed class was in fact accurately tagged as potential terrorists. The backdrop question is — as it was in Ramirez v. Trans Union, LLC — whether the name-only logic ensures the maximum possible accuracy of reports. See 15 U.S.C. § 1681e(b); Ramirez, 301 F.R.D. 408 (N.D. Cal. 2014). The (undisputedly) problematic name-only logic and the sheer number of hits makes the court's approach tolerable unless, again, the court is to start from the working assumption that a predominant number of class members tagged with alerts, based on their names only, were in fact accurately tagged as potential terrorists. The court elaborates on this point in the section on common-issue predominance.
The defendants also argue that the variations in the "headings" during the class period defeat ascertainability: (1) "Terrorist" until August 2012; (2) "Potential OFAC Hit" after that; (3) "Terrorist" again at some point before July 2013 until October 2013; and (4) "Potential OFAC Hit" until December 2013. (See supra Statement, discussing Colaprete Decl., ECF No. 70-3, ¶¶ 5-10.) They analogize the name differences to rolling label changes on food products that preclude class certification based solely on a class member's self-identification as a purchaser of a product. (Opposition, ECF No. 69-5 at 43, citing Bruton v. Gerbert Prods. Co., No. 12-cv-02412-LHK, 2014 U.S. Dist. LEXIS 86581 (N.D. Cal. June 23, 2014).) The holding in Bruton was that a teeming variety of baby-food labels made it infeasible for class members to "accurately recall" whether they bought a product, and thus they could not self-identify into the class by affidavit. Id. at *1-2. But that holding does not compel any result here. The Northern District regularly certifies small-ticket consumer classes based on subjective self-identification in cases where the consumers' recall about purchases is accurate. See Brown v. Hain Celestial Grp., Inc, No. 11-cv-03082 LB, 2014 WL 6483216, at *9-11 (analyzing cases). Moreover, this case is not about labels or header names: the issue is the (in)accuracy of all the alerts, regardless of label. To extent that the Bruton analogy is even useful, the court thinks that class members can accurately self-identify as to whether or not they are terrorists. And as the court said at the hearing, there are methods (such as applying criteria beyond the name-only matching logic) to winnow out less obviously false positives from the data set. When the working assumption must be that a predominant number of the proposed class were not terrorists, the court cannot accept "How can we find the positive hits in a field of 11,000" as blocking certification.
The defendants argue that cross-referencing SmartMove and Trans Union, LLC lists will not necessarily produce a list of members who requested a file disclosure. (Opposition, ECF No. 69-5 at 27-28.) To support this argument, they say that the plaintiff's evidence is only about the Trans Union Rental Screening Solutions database and not about Trans Union, LLC's actual database. (Id. at 21.)
When a defendant is in the business of collecting, analyzing, and arranging consumer data for sale or on-demand retrieval, when it has already identified over 11,000 people with "alerts," and when all tagged persons gave their contact information as part of the background-check process, the defendants' argument that the class is not ascertainable is not convincing. The plaintiff also points out that in Ramirez, Trans Union, LLC produced records of class members that Trans Union, LLC associated with the OFAC list and who requested disclosures from Trans Union, LLC in a specified time. (Reply, ECF No. 76-2 at 26 (citing Ramirez, 301 F.R.D. at 417).) Trans Union, LLC maintained detailed records regarding consumer requests for file disclosures. (See Patel Request, ECF No. 56-28, Ex. 16 to Motion). At the hearing, the plaintiff's counsel said that he will rely on these records. Cross-referencing them to the SmartMove list will identify the "disclosure" subclass.
The defendants next contend that the disclosure class is overbroad because Trans Union, LLC's obligation to provide a disclosure depends on whether the requester is entitled to it: a person might fail to make a proper request, pay a required fee, or provide proper identification. (Opposition, ECF No. 69-5 at 28-29.) In their reply, and as reflected in the modified definition in the Statement, supra, the plaintiff refined the "disclosure class" definition from those who merely "requested" a file disclosure to those who also were "sent" one. This eliminates the individual issues and solves any problem with the class definition because the defendants presumably would not have sent a disclosure unless the request was in order. It also resolves the similar argument that these individual issues require an individual determination and defeat commonality. (See Opposition, ECF No. 69-5 at 32.)
Finally, the defendants argue that a consumer who has an alert on a SmartMove report might have credit-only reasons for requesting a report from Trans Union, LLC (as opposed to the broader background reasons implicated by the SmartMove report). That person is defined into the proposed class and thus renders the class definition over broad. (Id. at 29.) The court disagrees. The point of the lawsuit — discussed in more detail in the Commonality section below — is not the reason for the request and instead is that the disclosure from Trans Union, LLC needs to include the full customer file, including the background report with the "terrorist" alert. It is undisputed that the Trans Union, LLC reports do not disclose the background report with the alert. (See supra Statement.)
Rule 23(a) requires a class proponent to show four things: (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). These are usually termed the prerequisites of numerosity, commonality, typicality, and adequacy. The court finds that the plaintiff has met all of the prerequisites to certify both classes.
The parties stipulated to numerosity. (ECF No. 56-31.) There is no dispute that the proposed classes both are "so numerous that joinder of all members is impracticable." There is no absolute minimum class size for establishing numerosity, but courts have held that classes as small as 40 satisfy the numerosity demand. Delarosa v. Boiron, 275 F.R.D. 582, 587 (C.D. Cal. 2011). The defendants have identified over 11,000 persons with an "alert" on the SmartMove report (albeit for a period that is slightly longer than the class period). (See supra.) The plaintiff has established that the proposed classes each meet Rule 23(a)(1)'s numerosity requirement.
Under Rule 23(a)(2), a class cannot be certified unless the class proponent establishes that "there are questions of law or fact common to the class." Fed. R. Civ. P. 23(a)(2). The named plaintiff need not show that each class member's factual and legal issues are identical: "To establish commonality, `[t]he existence of shared legal issues with divergent factual predicates is sufficient, as is a common core of salient facts . . . .'" Parra v. Bashas' Inc., 536 F.3d 975, 978 (9th Cir. 2008) (quoting Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998)). "Commonality requires the plaintiff to demonstrate that class members have suffered the same injury. This does not mean merely that they have all suffered a violation of the same provision of law." Dukes, 131 S. Ct. at 2551. The common question "must be of such a nature that it is capable of classwide resolution — which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke." Id. "What matters to class certification . . . is not the raising of common `questions' — even in droves — but rather the capacity of a classwide proceeding to generate common answers apt to drive resolution of the litigation. Dissimilarities within the proposed class are what have the potential to impede the generation of common answers." Id. In that light, "even a single common question will do." Id. at 2556 (quotation and interpolation omitted); accord Stockwell v. San Francisco, 749 F.3d 1107, 1111 (9th Cir. 2014).
Commonality exists here. Several common questions define and drive this lawsuit. The most central questions include: (1) was there a disclosure?; (2) was the disclosure accurate?; (3) were there reasonable procedures in place (here, the name-only logic) to ensure the maximum possible accuracy of the information?; (4) did Trans Union, LLC control Trans Union Rental Screening Solutions sufficiently that it can be held liable for Trans Union Rental Screening Solution's conduct?; and (5) did Trans Union, LLC include the alert information when it sent disclosures to consumers who had "alerts" in the SmartMove reports?
The defendants nonetheless argue that a central question is whether each class member requested the "alert" information, and this is not susceptible to common proof. (Opposition, ECF No. 69-5 at 25.) For example, one consumer might want a SmartMove report, and another might know nothing about the report but instead wants a true credit report. (Id. at 25-26.) But the claim is not about the form of the request and instead is about Trans Union, LLC's failure to disclose "all information in the consumer's file at the time of the request." 15 U.S.C. § 1681g(a)(1). Of course, a request matters: there is no disclosure obligation without it. But it is the failure to disclose "all information" that is the claim here. It is undisputed that Trans Union, LLC did not disclose any alert information to anyone. This is a common issue.
The defendants maintain that it matters what the consumers request and cite out-of-circuit cases to support that conclusion. (Opposition, ECF No. 69-5 at 32-33 (citing Taylor v. Screening Reports, Inc., 294 F.R.D. 680, 689 (N.D. Ga. 2013), and Campos v. Choicepoint, Inc., 237 F.R.D. 478, 485-486 (N.D. Ga. 2006)).) These cases are different from this one.
In Taylor, the named plaintiff applied to rent an apartment, and the background check (prepared by a credit-reporting agency called SRI) listed felony convictions when he had none. See 294 F.R.D. at 683. When the landlord rejected Taylor's application, it notified him that he had a right to obtain a copy of his "consumer report." Id. Thereafter, he sent a request for his "report" to SRI, and SRI disclosed the background report (with the criminal history) but not "all information" in the file. Id. The dispute in Taylor was whether requesting a "report" was synonymous with requesting the "file" (and thus whether SRI's practice of differentiating between the requests violated 15 U.S.C. § 1681g). Id. The court held that a consumer's general request for his "report" triggered an obligation to disclose all information in the file. Id. at 685. But because consumers could limit their requests to specific portions of the file (e.g., a request for information leading to the adverse event as opposed to a general request by a curious consumer), the court denied class certification on the ground that Taylor (who asked for his entire file) was not typical of consumers who limited their requests to precise information. Id. at 685, 689.
Campos also involved a distinction between consumers who requested their files because they were curious about what was in them and consumers who requested their files after an adverse event. 237 F.R.D. at 481. The named plaintiffs were "curious" consumers. The Campos court certified the class only for "curious consumers" and denied certification for "adversely affected" consumers on the ground that the "curious" plaintiffs submitted evidence only about requests by "curious" consumers and did "not demonstrate[] that adversely affected consumers made similar requests." Id. at 485 (observing that it was reasonable to assume that "adversely affected consumers" would make substantially different requests targeted at specific information about the adverse event).
Taylor and Campos do not affect the analysis here. Trans Union, LLC did not tailor its disclosures to specific consumer requests. At least, there is nothing in the record to suggest that. (See Reply, ECF No. 76-2 at 15.) Instead, in response to consumer requests (whatever they were), Trans Union, LLC disclosed its complete file (in the form of a Trans Union, LLC credit report). The dispute is about Trans Union, LLC's failure to also disclose Trans Union Rental Screening Solution's file, meaning, the SmartMove report with the terrorist alert. The claim, in other words, has nothing to do with any unique characteristics of the various requests for disclosure;
This is a core dispute: whether Trans Union, LLC has sufficient control (to use a convenient word) over Trans Union Rental Screening Solutions so that under section 1681g(a)(1), it had to include the Trans Union Rental Screening Solutions background report (e.g., the alerts) when it sent disclosures to consumers. That common question is resolvable by common proof, and the claim against Trans Union, LLC for the failure to disclose stands or falls on the resolution of it. The court cannot resolve it now: the facts are disputed, discovery is open, and the plaintiff has plausibly alleged that the Trans Union entities operate as one. (See Statement, supra, summarizing the parties' positions on the relationship of the entities.) For example, Trans Union, LLC markets the SmartMove product, and the SmartMove website tells consumers that they cannot get the SmartMove "credit report" and directs them "as an alternative" to the Trans Union, LLC website to get their Trans Union, LLC "credit report." (Id.) This is a disputed merits issue that will be decided after the class is certified. See Brown, 2014 WL 6483216, at *7-8 (discussing one-way intervention and the reasons for avoiding pre-certification merits rulings).
Rule 23(a)(3) requires that "the claims or defenses of the class representatives [be] typical of the claims or defenses of the class." Fed. R. Civ. P. 23(a)(3). "Under the rule's permissive standards, representative claims are `typical' if they are reasonably co-extensive with those of absent class members; they need not be substantially identical." Hanlon, 150 F.3d at 1011. "Typicality refers to the nature of the claim or defense of the class representative, and not to the specific facts from which it arose or the relief sought." Ellis v. Costco Wholesale Corp., 657 F.3d 970, 984 (9th Cir. 2011). "The test of typicality is whether other members have the same or similar injury, whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by the same course of conduct." Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992) (quotation omitted). "The purpose of the typicality requirement is to [en]sure that the interest of the named representative aligns with the interests of the class." Id. "[C]lass certification is inappropriate when a putative class representative is subject to unique defenses which threaten to become the focus of the litigation." Id. (citing cases).
The named plaintiff's claims are typical of the class's claims. He does more than allege "a violation of the same provision of law." See Dukes, 131 S. Ct. at 2551. The conduct he challenges was not unique to any plaintiff; rather, the plaintiff and the class suffer injury from the "same course of conduct." Hanon, 976 F.2d at 508. There is moreover no real dispute that the named plaintiff is a members of the class he would represent. See, e.g., Bautista-Perez v. Holder, No. 07-cv-4192 THE, 2009 WL 2031759, at *8 (N.D. Cal. July 9, 2009) (citing Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 156 (1982)). There appear to be no claims that the named plaintiff brings that class members cannot bring, or vice versa.
The defendants' argument to the contrary is not persuasive. The defendants contend that Mr. Patel is not typical because he requested only his credit report from TransUnion, that is what he got, and that is all he was entitled to. (Opposition, ECF No. 69-5 at 21.) But this is the argument that the court just rejected. The claim does not turn on what the plaintiff requested but instead turns on whether Trans Union, LLC had to provide the alert information because it stands in Trans Union Rental Screening Solution's shoes. Any steps that Mr Patel did or did not take to get the background report from Trans Union Rental Screening Solutions are not relevant to this claim. (Reply, ECF No. 76-2 at 17-18 (affirming that the claims are about what Trans Union, LLC must disclose).) The claim is typical of the class claims.
Rule 23(a)(4) requires that, before a court may certify a class, it must find that "the representative parties will fairly and adequately protect the interests of the class." This requirement applies to the class representative and class counsel and poses two questions: "(1) do the named plaintiffs and their counsel have any conflicts of interest with other class members, and (2) will the named plaintiffs and their counsel prosecute the action vigorously on behalf of the class?" Hanlon, 150 F.3d at 1020. The defendants do not dispute the adequacy of class counsel or the willingness of the named plaintiff to vigorously prosecute the class's case. "Adequate representation is usually presumed in the absence of contrary evidence." Californians for Disability Rights, Inc. v. California Dept. of Transp., 249 F.R.D. 334, 349 (N.D. Cal. 2008).
Rule 23(g) provides further guidance for assessing the adequacy of class counsel. Rule 23(g)(4) restates the demand that class counsel "must fairly and adequately represent the interests of the class." Under Rule 23(g)(1)(A), the court must consider the following criteria:
Rule 23(g)(1)(B) permits the court to "consider any other matter pertinent to counsel's ability to fairly and adequately represent the interests of the class."
The court finds that class counsel is adequate in all these respects. They have extensive experience in litigating similar cases (including Ramirez and Cortez), they have represented consumer classes in many cases in many districts, they have shown their proficiency in this case, and they acknowledge and accept their duties as class counsel. (See ECF No. 59-4 at 22-23.)
Rule 23(a)(4)'s adequacy requirement evaluates whether "the named plaintiff's claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence." Falcon, 457 U.S. at 158, n.13. To this extent the adequacy, commonality, and typicality prerequisites "tend to merge." Dukes, 131 S. Ct. at 2550-51 n.5.
The adequacy requirement is met here. The named plaintiff's claims share core common issues with those of the unnamed class, and there are no "conflicts of interest" between the named plaintiff and the absent claimants whom they would represent. The defendants' challenges mostly were about the typicality of Mr. Patel's claim regarding the disclosure class, but the court rejected those challenges and found that both claims were typical of the class's so that "the class claims [are] . . . fairly encompassed by the named plaintiff[s'] claims." Dukes, 131 S. Ct. at 2550 (quoting Falcon, 457 U.S. at 156). The defendants pick at Mr. Patel's characterizations of what he did and did not send to Trans Union Rental Screening Solutions, but (as the court held) his interactions with Trans Union Rental Screening Solutions are not relevant to the claims. The court does not think his clarification of his deposition testimony renders him an unfit representative.
In addition to proving the prerequisites of Rule 23(a), a plaintiff who seeks to certify a class must show that the proposed class meets the requirements of at least one subsection of Rule 23(b). Here, the plaintiff moves for certification under Rule 23(b)(3). To form a Rule 23(b)(3) class, the plaintiff must show two things: "that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Fed. R. Civ. P. 23(b)(3).
The predominance inquiry involves weighing and evaluating the common and individual issues in the case. See Dukes, 131 S. Ct. at 2556. It involves the same principles that guide the Rule 23(a)(2) commonality analysis, but it "is even more demanding than Rule 23(a)." See Comcast, 133 S. Ct. at 1432. The predominance inquiry looks at a suit's common questions, "focuses on the relationship between the common and individual issues," Hanlon, 150 F.3d at 1022, and requires the court to weigh the common issues against the individual issues. See Dukes, 131 S. Ct. at 2556. Class certification under Rule 23(b)(3) is proper when common questions represent a significant portion of the case and can be resolved for all members of the class in a single adjudication. Hanlon, 150 F.3d at 1022. Finally, predominance is not a matter of merely toting up common and individual issues; the inquiry is pragmatic and qualitative and focuses on whether common questions present the overriding issues in a suit. See, e.g. Newberg on Class Actions, § 4.51; Butler v. Sears, Roebuck & Co., 727 F.3d 796, 801 (7th Cir. 2013), cert. denied, 134 S.Ct. 1277 (2014) (single, central issue of liability supported a class action involving product defects; different specific defects and different damages could be handled by forming subclasses, by individual damages hearings, or in settlement negotiations).
The court finds that common issues of fact and law predominate and that the class device is the superior method of handling this dispute. The next two sections address these subjects in turn.
Several central common issues drive this case, including the following:
The defendants' arguments against finding common-issue predominance do not change this conclusion. The defendants' main argument is that the class members can prove the inaccuracy of the alerts only on an individual basis. The court rejected this argument in the section on Ascertainability: given the record, it is reasonable to infer at this stage that there is not a fraction accurately tagged as potential terrorists that destroys predominance.
To the extent that there are individual issues, they do not predominate over the several key shared issues that dominate this case. Nor do they create an impermissibly "overbroad" class. See, e.g., In re Cathode Ray Tube (CRT) Antitrust Litig., MDL No. 1917, 2013 WL 5429718, at *8-9 (N.D. Cal. June 20, 2013)( report and recommendation adopted 2013 WL 5391159 (N.D. Cal. Sept. 19, 2013).) ("[A] class will often include persons who have not been injured by the defendant's conduct but [this]. . . does not preclude class certification."); Nat'l Fed'n of the Blind v. Target Corp., No. C 06-01802 MHP, 2007 WL 1223755, at *3 (N.D. Cal. April 25, 2007) ("an over-inclusive class definition need not defeat certification entirely.") If someone on the class list really is a terrorist, that person has no claim, and the defendants will remain free to offer individual defenses.
The defendants nonetheless characterize Ramirez, which also found accuracy to be a predominate common issue, as an outlier. (Opposition, ECF No. 69-5 at 37.) In particular, they quarrel with the Ramirez court's grounding its conclusion on Trans Union, LLC's inability "to identify any instance in which a person it identified as a `potential match' was in fact a match." (Id. (citing 301 F.R.D. at 422).) The court understands the defendants' perspective, but the conclusion that Ramirez reached is understandable. There was evidence before it, none of which showed a potential match. And the backdrop question on this point — Did the system in place ensure maximally accurate results — is more uniform, focusing as much on the nature of Trans Union, LLC's system as the discrete results it reached. With that question hovering behind the individual matches, it makes sense that the Ramirez court would decide that this can be handled on a predominately common basis.
To illustrate their conclusion of "outlier," the defendants cite FCRA cases that they say compel the conclusion that "[t]he question of accurate attribution is necessarily individualized and precludes a finding of both commonality and predominance." (Opposition, ECF No. 69-5 at 38-39 (collecting cases).) Many of the cases involve the reporting of data that varies markedly by individual. This case by contrast involves a terrorist alert that is demonstrably the result of the problematic name-only logic. Again, absent some proof suggesting that a predominant part of the proposed class was in fact accurately tagged as potential terrorists, the court cannot accept the defendants' argument that accuracy here is largely an individual question.
In Owner-Operator Indep. Drivers Ass'n, Inc., for example, the named plaintiffs were truck drivers who challenged the gathering of their employment data by a provider called USIS. Owner-Operator Indep. Drivers Ass'n, Inc. v. USIS Commercial Servs., Inc., 537 F.3d 1184, 1186 (10th Cir. 2008). The Department of Transportation requires motor carriers to investigate drivers' employment history and driving records before hiring them. Id. USIS sells a service to help motor carriers comply with this requirement. Id. USIS compiles information from subscribing companies, who submit a termination form when a driver leaves. Id at 1187. The form has 17 sections (such as "eligible for rehire," "reason for leaving," and "work record"), and each section has several descriptions that employers circle if applicable. Id. The work-record section for example has 28 descriptors, including "superior," "outstanding," "excessive complaints," "cargo loss," "late pick up/delivery," and "failed to report accident." Id. The plaintiffs brought a section 1681e(b) claim, challenging USIS's failure to follow reasonable procedures to assure maximum possible accuracy in generating employment-history reports from the compiled information. Id. The district court concluded that the accuracy of each individual's employment history necessarily required a particularized inquiry. Id. at 1194. The court of appeals affirmed, finding no abuse of discretion. Id.
Other cases similarly involve data that is highly individual. See Harper v. Trans Union, LLC, No. 04-cv-03510, 2006 WL 3762035, at *8-9 (E.D. Pa. Dec. 20, 2006) (individual credit histories); Pendleton v. Trans Union Sys. Corp., 76 F.R.D. 192, 197 (E.D. Pa. 1977) (same); Farmer v. Phillips Agency, Inc., 285 F.R.D. 688, 703 (N.D. Ga. 2012) (criminal-history records). Gomez v. Kroll Factual Data, Inc., 2014 U.S. Dist. LEXIS 51303, at *3 (D. Colo. Apr. 14, 2014), was a class-action challenge to OFAC alerts, and the district court there denied class certification. It did so without explaining its reasons, pointing only to the statement in Owner-Operator that "`[w]hether a report is accurate may involve an individualized inquiry.'" Id. (quoting Owner-Operator, 537 F.3d at 1194). On this record, the court has already concluded that whatever small fraction is accurately tagged as potential terrorists, it does not defeat common-issue predominance, especially because the defendants may offer their individual defenses.
Moreover, the court already found that the several variations in the label ("Terrorist" or "OFAC hit") do not change this result: the issue is the (in)accuracy of all the alerts, regardless of label. Accord Ramirez, 301 F.R.D. at 320. The defendants also point to the ability of subscribers to access additional information (ECF No. 69-5 at 44-45), but that ability does not impact accuracy given the court's conclusion that no certification-breaking fraction of the class is accurately tagged as potential terrorists. Whatever variations there are in the underlying records thus have no bearing on class certification.
In sum, Ramirez did not rely on inapposite authority or stand apart from what most courts have done in the same or similar areas. To the contrary, it drew upon Ninth Circuit law, and its reasons and conclusions are straightforward and seem in no way like outlier logic. The court finds its reasoning sound and follows it.
The other main prong of Rule 23(b)(3) requires a class proponent to show that the class action is the superior method for adjudicating the dispute. Factors to be considered in weighing this question include: class members' interest in individually controlling litigation; the nature of the litigation; the desirability of concentrating the claims in one suit; and the likely difficulties in managing the class action. Fed. R. Civ. P. 23(b)(3)(A)-(D); Leyva v. Medline Indus. Inc., 716 F.3d 510, 514 (9th Cir. 2013).
Considering these factors, the court has no difficulty concluding that a class suit is superior to individual lawsuits. The defendants' main objection is that the issue of the alerts' accuracy is an individualized determination, and it also disputes the appropriateness of class treatment for a case that it says "has nothing to do with reports issued by Trans Union." (Opposition, ECF No. 69-5 at 4-5.) The court has already addressed these objections. The defendants note that statutory attorney's fees allow individuals to vindicate their claims, and they point to the modification of the alert procedures in December 2013 (the end of the class period here). Neither detracts from the court's conclusion that a class action is superior to individual litigation. Accord Ramirez, 301 F.R.D. at 423-24.
The court certifies the following class and subclass:
IT IS SO ORDERED.
