LITTLEJOHN v. VIVINT SOLAR

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

DOUGLAS LITTLEJOHN, 1:16-cv-9446-NLH-JS

Plaintiff, OPINION

v.

VIVINT SOLAR,

Defendant.

APPEARANCES:

ANDREW M. MILZ

FLITTER MILZ, P.C.

1814 EAST ROUTE 70

SUITE 350

CHERRY HILL, NEW JERSEY 08003

CARY L. FLITTER

FLITTER MILZ, P.C.

1814 EAST ROUTE 70

SUITE 350

CHERRY HILL, NEW JERSEY 08003

JODY THOMAS LOPEZ-JACOBS

FLITTER MILZ, P.C.

1814 EAST ROUTE 70

SUITE 350

CHERRY HILL, NEW JERSEY 08003

Attorneys for Plaintiff.

DANIEL J.T. MCKENNA

BALLARD SPAHR LLP

210 LAKE DRIVE EAST

SUITE 200

CHERRY HILL, NEW JERSEY 08002-1163

JENNY NICOLE PERKINS

BALLARD SPAHR LLP

1735 MARKET STREET

51ST FLOOR

PHILADELPHIA, PENNSYLVANIA 19103

WILLIAM PATRICK REILEY

BALLARD SPAHR LLP

210 LAKE DRIVE EAST

SUITE 200

CHERRY HILL, NEW JERSEY 08002

Attorneys for Defendant.

HILLMAN, District Judge

This Fair Credit Reporting Act (“FCRA”) matter comes before

the Court on Defendant Vivint Solar’s (“Defendant”) motion for

summary judgment (ECF No. 75) and Defendant’s motion to strike

certain supplemental facts submitted by Plaintiff in opposition

to Defendant’s motion for summary judgment (ECF No. 87).1

Plaintiff Douglas Littlejohn (“Plaintiff”) alleges Defendant

violated the FCRA, 15 U.S.C. § 1681 et seq., when it accessed

his consumer credit report without a permissible purpose.

Defendant argues it had a permissible purpose for obtaining

Plaintiff’s consumer credit report under the FCRA. For the

reasons that follow, Defendant’s motion to strike will be

granted and Defendant’s motion for summary judgment will be

denied.

1 A third motion, Defendant’s motion to preclude the expert

testimony of Plaintiff’s putative expert, Evan Hendricks (ECF

No. 76) will be addressed in a separate Opinion and Order.

BACKGROUND

The Court takes its facts from the parties’ statements of

material fact submitted pursuant to Local Civil Rule 56.1(a).

Disputes of material fact are prevalent in this action, and they

are noted where relevant.

Defendant sells solar panels. (ECF No. 75-2 (“Def. SOMF”)

at ¶2). On either March 14 of 15, 2016, Phillip R. Chamberlain

(“Chamberlain”), then a sales representative for Defendant, was

visiting the home of one of Plaintiff’s neighbors when he

observed Plaintiff arrive home. (Def. SOMF at ¶¶3, 7).

Chamberlain approached Plaintiff to gauge his interest in

purchasing a solar panel system from Defendant. See (Def. SOMF

at ¶7). What happens after Chamberlain approached Plaintiff’s

home remains fiercely disputed by the parties.

According to Plaintiff, Chamberlain approached Plaintiff’s

home and the two had a brief, thirty-second conversation through

Plaintiff’s partially opened front door. (Def. SOMF at ¶9; ECF

No. 82-1 at ¶9).2 Plaintiff explained he was busy, was unable to

2 Plaintiff’s papers in opposition to Defendant’s motion for

summary judgment (ECF No. 82) are filed under temporary seal.

The Clerk advised Plaintiff that “pursuant to Local Civil Rule

5.3(c)(2), a single, consolidated motion to seal shall be filed

within 14 days following the completed briefing of the materials

sought to be sealed[.]” ECF No. 82. Plaintiff has not moved to

seal Docket Entry Number 82. Similarly, Defendant has filed

various exhibits to its motions under seal without moving to

have them permanently sealed. See ECF No. 76-3 and 76-4.

talk, and informed Chamberlain he could leave further

information in Plaintiff’s mailbox. (ECF No. 82-1 at ¶9).

Plaintiff told Chamberlain he could return over the weekend if

he wanted to continue the discussion. (Id.). According to

Plaintiff and his family, that is where the conversation ends.

Chamberlain tells a dramatically different story.

According to Chamberlain, the conversation was longer and more

substantial than Plaintiff describes. See (ECF No. 75-3 at 16).

Chamberlain says he went over the solar program with Plaintiff

and Plaintiff expressed interest in receiving credit approval

for a solar panel system. (Id.). Chamberlain discussed the

requirements for pre-approval with Plaintiff, which included the

completion of a form Defendant calls a Prospective Customer

Consent Form (“PCCF”). The PCCF required Plaintiff to review or

share certain personal information and sign his name authorizing

Defendant to obtain his consumer credit report. Chamberlain

explains that he presented Plaintiff with an iPad containing the

While it is within the Court’s authority to restrict public

access to information under certain limited circumstances, it is

well-settled that there is a “common law public right of access

to judicial proceedings and records.” See In re Cendant Corp.,

260 F.3d 183, 192 (3d Cir. 2001). The Court expects any motion

to seal these documents will be filed within fourteen (14) days

of this Opinion. The parties’ election not to file such a

motion will result in the materials currently filed under

temporary seal being unsealed.

PCCF in electronic form, which Plaintiff electronically signed.3

(Id.; Def. SOMF at ¶23). Thereafter, Chamberlain left

Plaintiff’s home and left additional information in Plaintiff’s

mailbox.

Shortly after Chamberlain’s meeting with Plaintiff,

Chamberlain uploaded the PCCF allegedly baring Plaintiff’s

electronic signature to Defendant’s main system. See (Def. SOMF

at ¶11). Because Defendant possessed a PCCF purporting to

contain Plaintiff’s signature, on March 15, 2016, Defendant

accessed Plaintiff’s consumer credit report to determine whether

Plaintiff qualified for financing related to the purchase of

solar panels. (Def. SOMF at ¶¶11-12). Plaintiff received

notification of this credit inquiry from a credit monitoring

service he maintained, and on March 26, 2016 and March 28, 2016,

he contacted Defendant to question the credit search. (Def.

SOMF at ¶21). Defendant represented it had a completed PCCF

authorizing it to conduct the inquiry it made. Plaintiff

explained he never consented to such an inquiry, never completed

a PCCF, and was never presented with an iPad by Chamberlain.

After Defendant’s inquiry, Plaintiff alleges he began

suffering from various forms of emotional and physical distress.

3 Notably, the PCCF at issue reveals only Plaintiff’s typed-out

name on the signature line as opposed to a signature in

Plaintiff’s handwriting.

Most prominently, Plaintiff alleges his blood pressure increased

and he had difficulty sleeping.

On December 22, 2016, Plaintiff filed this action. After

close of discovery, on June 3, 2019, Defendant filed its motion

for summary judgment (ECF No. 75). After briefing on that

motion had concluded, on February 18, 2020, Plaintiff filed

supplemental facts in support of his opposition to Defendant’s

motion for summary judgment. (ECF No. 86). On March 4, 2020,

Defendant moved to strike Plaintiff’s supplemental filing. (ECF

No. 87). Both motions have been fully briefed and are ripe for

adjudication.

DISCUSSION

I. Subject Matter Jurisdiction

This Court exercises subject matter jurisdiction pursuant

to 28 U.S.C. § 1331.

II. Defendant’s Motion To Strike Plaintiff’s Supplemental

Filing Will Be Granted And The Supplemental Material Will

Not Be Considered In Deciding Defendant’s Motion For

Summary Judgment

Before reaching the merits of Defendant’s motion for

summary judgment, the Court must resolve the parties’ dispute

regarding the appropriate scope of the factual record. On

February 18, 2020, Plaintiff filed a supplemental statement of

disputed material facts in support of his opposition to

Defendant’s motion for summary judgment. (ECF No. 86). Those

supplemental facts are:

33. At the time Vivint Solar was receiving

consumer complaints of fraud, forgery and

impermissible credit pulls by Chamberlain in 2016 -

2017, the company was aware that impermissible credit

pulls and bogus emails were a “big” problem and a

“systemic issue.”

34. Vivint was alerted to the “big” and

“systemic” problem of impermissible credit pulls and

the use of bogus email addresses in January 2017, at

the latest, by a financing partner named Solar Mosaic,

Inc. Solar Mosaic is Vivint’s co-defendant in a

matter in a matter styled Cardona and Brown v. Vivint

Solar, U.S.D.C. M.D. Fla. No. 8:18-cv-02838-SCB-JSS,

and turned over scores of email communications with

Vivint as ordered by the Middle District of Florida.

35. The consumer Plaintiffs in Cardona allege

their signatures were forged by Vivint salesmen and

their credit was pulled without their consent in

January 2017 and September 2017, respectively.

36. As of January 2017, Vivint was aware of

between 87 and 152 such “incidents” with Mosaic

accounts in Florida alone.

(ECF No. 86 at ¶¶33-36) (internal citations omitted). To

support these factual assertions, Plaintiff relies on material

produced in another matter involving Defendant, Brown v. Vivint

Solar, No. 8:18-cv-02838-SCB-JSS (M.D. Fla.) (the “Brown

Documents”). Plaintiff represents this material was unavailable

to him at an earlier time as the information first surfaced

during the exchange of discovery in the Brown action.4

4 Plaintiff’s counsel is counsel to the plaintiffs in Brown,

which may explain how Plaintiff came to learn of the Brown

Documents.

Defendant argues that Plaintiff’s supplemental statement of

disputed material fact should be stricken from the record

because (1) it violates Rule 56(c)(1)(A) of the Federal Rules of

Civil Procedure; (2) the material is beyond the scope of

discovery; (3) Plaintiff’s use of the Brown Documents in this

case violates a confidentiality order entered in Brown; and (4)

the documents Plaintiff relies on do not support the

supplemental facts he advances. (ECF No. 87-2).

Plaintiff argues that the newly discovered evidence should

be considered part of the record. (ECF No. 88 at 2). Plaintiff

argues that (1) the newly discovered evidence is within the

scope of discovery; (2) confidentiality designations in Brown

cannot prevent Plaintiff from using the Brown Documents in this

case; and (3) the supplemental statements of material fact are

relevant and therefore should be considered in deciding

Defendant’s motion for summary judgment. (ECF No. 88). The

Court disagrees with Plaintiff’s positions.

A. The Supplemental Material Will Not Be Considered In

Deciding Defendant’s Motion For Summary Judgment As It Is

Not Temporally Relevant To The Claims At Issue

A party asserting the existence of a disputed material fact

at the summary judgment stage must support that statement by

citation to material in the record. Fed. R. Civ. P.

56(c)(1)(A). A fact is material if, under the governing

substantive law, a dispute about the fact might affect the

outcome of the suit. Armano v. Martin, 157 F. Supp. 3d 392, 400

(D.N.J. 2016), aff’d, 703 F. App’x 111 (3d Cir. 2017) (quoting

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct.

2505, 91 L. Ed. 2d 202 (1986)). Setting aside Rule 56’s

requirement that the support material be in the record, the

Court finds that (1) in large part, Plaintiff’s proffered

statements are not relevant to this action, and (2) the

documentation Plaintiff relies upon in advancing those proffered

statements do not support the positions he advances.

Plaintiff suggests the supplemental facts are relevant to

whether Defendant knew of Chamberlain’s fraudulent practices

before the incident involving Plaintiff occurred. However, most

of Plaintiff’s proffered factual statements refer to information

known first to Defendant in 2017, after Plaintiff filed this

action and after the incident with Plaintiff occurred.

Paragraph 33 is the only exception. In paragraph 33, Plaintiff

suggests Defendant had certain knowledge in 2016. Plaintiff’s

citation to the record, however, does not support that

assertion. Instead, the source cited is an email chain, the

oldest email in which is dated January 6, 2017. While the

communications describe behavior occurring before that date,

they do not specify when that conduct occurred, or when

Defendant first became aware of it. Therefore, the document

relied upon by Plaintiff does not support Plaintiff’s

proposition that Defendant knew of Chamberlain’s actions before

the incident with Plaintiff occurred.

Because these supplemental facts and the material Plaintiff

relies upon to support them are not temporally relevant to

Defendant’s motion for summary judgment – or in other words,

they do not tend to prove Defendant had knowledge of

Chamberlain’s actions before the incident involving Plaintiff

occurred - they will not be considered by the Court in deciding

Defendant’s motion for summary judgment and will be stricken

from the record. For this reason, the Court need not address

the remainder of the parties’ arguments on this issue.5

5 The Court recognizes that the Brown Documents are the subject

of a protective order entered by the United States District

Court for the Middle District of Florida. See ECF No. 90-1.

While the Court declines to consider the Brown Documents for

reasons other than application of that protective order, the

Court recognizes the court in Brown found that “Plaintiffs, who

seek to use the discovery in collateral litigation, have not

established a basis for doing so at this time.” ECF No. 90-1 at

7. Such would also support this Court’s decision not to

consider the Brown Documents.

III. Defendant’s Motion For Summary Judgment

a. Legal Standard

Summary judgment is appropriate where the Court is

satisfied that “‘the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits if any,’ . . . demonstrate the absence of a genuine

issue of material fact” and that the moving party is entitled to

a judgment as a matter of law.” Celotex Corp. v. Catrett, 477

U.S. 317, 322-23 (1986) (citing Fed. R. Civ. P. 56).

An issue is “genuine” if it is supported by evidence such

that a reasonable jury could return a verdict in the nonmoving

party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. at

248. A fact is “material” if, under the governing substantive

law, a dispute about the fact might affect the outcome of the

suit. Id. “In considering a motion for summary judgment, a

district court may not make credibility determinations or engage

in any weighing of the evidence; instead, the non-moving party’s

evidence ‘is to be believed and all justifiable inferences are

to be drawn in his favor.’” Marino v. Indus. Crating Co., 358

F.3d 241, 247 (3d Cir. 2004) (citing Anderson, 477 U.S. at 255).

Initially, the moving party bears the burden of

demonstrating the absence of a genuine issue of material fact.

Celotex, 477 U.S. at 323 (“[A] party seeking summary judgment

always bears the initial responsibility of informing the

district court of the basis for its motion, and identifying

those portions of ‘the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any,’ which it believes demonstrate the absence

of a genuine issue of material fact.”); see Singletary v. Pa.

Dep’t of Corr., 266 F.3d 186, 192 n.2 (3d Cir. 2001) (“Although

the initial burden is on the summary judgment movant to show the

absence of a genuine issue of material fact, ‘the burden on the

moving party may be discharged by []showing[]--that is, pointing

out to the district court—–that there is an absence of evidence

to support the nonmoving party’s case’ when the nonmoving party

bears the ultimate burden of proof.” (citing Celotex, 477 U.S.

at 325)).

Once the moving party has met this burden, the nonmoving

party must identify, by affidavits or otherwise, specific facts

showing that there is a genuine issue for trial. Celotex, 477

U.S. at 324. A “party opposing summary judgment ‘may not rest

upon the mere allegations or denials of the . . . pleading[s].’”

Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001). For

“the non-moving party[] to prevail, [that party] must ‘make a

showing sufficient to establish the existence of [every] element

essential to that party’s case, and on which that party will

bear the burden of proof at trial.’” Cooper v. Sniezek, 418 F.

App’x 56, 58 (3d Cir. 2011) (citing Celotex, 477 U.S. at 322).

Thus, to withstand a properly supported motion for summary

judgment, the nonmoving party must identify specific facts and

affirmative evidence that contradict those offered by the moving

party. Anderson, 477 U.S. at 257.

b. Defendant’s Motion For Summary Judgment Must Be Denied

Defendant advances three arguments in support of its motion

for a favorable judgment, two of which are so intertwined that

they will be addressed together. Defendant argues it had a

permissible purpose (or at least a good faith, reasonable belief

that a permissible purpose existed) for obtaining Plaintiff’s

credit report. Therefore, Defendant argues it did not violate

the FCRA, either negligently or willfully. Additionally,

Defendant argues Plaintiff cannot establish harm or damages

resulting from Defendant’s actions. Judgement as a matter of

law on these issues, the Court finds, would not be appropriate

at this juncture.

1. The FCRA’s Permissible Purpose Standard & Applicable

Legal Framework

“Congress enacted [the] FCRA in 1970 to ensure fair and

accurate credit reporting, promote efficiency in the banking

system, and protect consumer privacy.” Safeco Ins. Co. of Am.

v. Burr, 551 U.S. 47, 52, 127 S. Ct. 2201, 2205–06, 167 L. Ed.

2d 1045 (2007) (citing 15 U.S.C. § 1681; TRW Inc. v. Andrews,

534 U.S. 19, 23, 122 S. Ct. 441, 151 L. Ed. 2d 339 (2001)). To

achieve this end, the FCRA regulates the use of consumer reports

and prohibits using or obtaining a consumer report for any

impermissible purpose. 15 U.S.C. § 1681b(f); Spokeo, Inc. v.

Robins, 136 S. Ct. 1540, 1545, 194 L. Ed. 2d 635, 641 (2016)

(citing 15 U.S.C. §§ 1681a(d)(1)(A)-(C); 15 U.S.C. § 1681b).

The FCRA lists uses it deems permissible, two of which are

relevant to this action. First, the FCRA permits use of

consumer credit reports “in connection with a credit transaction

involving the consumer on whom the information is to be

furnished and involving the extension of credit to . . . the

consumer[.]” 15 U.S.C. § 1681b(a)(3)(A). Second, a consumer

report may be obtained if the user “otherwise 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).

The FCRA provides a cause of action against “[a]ny person

who willfully fails to comply” or who “is negligent in failing

to comply” with the FCRA’s permissible-use requirements. 15

U.S.C. §§ 1681n(a), 1681o(a). Said differently, to prevail on a

claim under the FCRA, a plaintiff must prove both that the

defendant used or obtained the plaintiff’s credit report for an

impermissible purpose, see 15 U.S.C. § 1681b(f), and that the

violation was either willful or negligent, 15 U.S.C. §§ 1681n,

1681o.

Defendant argues that dismissal is warranted if it had a

“reasonable belief” that it had a permissible use for obtaining

Plaintiff’s consumer credit report. Plaintiff adamantly opposes

application of this reasonable belief standard, arguing it is

inconsistent with the FCRA. Defendant refers the Court to James

v. Interstate Credit & Collection, Inc., No. 03-cv-1037, 2005

U.S. Dist. Lexis 15495, *11 (E.D. Pa. July 29, 2005) in support

of its position. In James, the Eastern District of

Pennsylvania held that “[i]n evaluating whether the FCRA is

violated, ‘so long as a user has reason to believe that a

permissible purpose exists, that user may obtain a consumer

report without violating the FCRA.’” James, 2005 U.S. Dist.

LEXIS 15495, at *10 (quoting Korotki v. Attorney Servs. Corp.,

931 F. Supp. 1269, 1276 (D. Md. 1996), aff’d, 131 F.3d 135 (4th

Cir. 1997)). Other courts have more recently questioned the

suitability of the reasonable belief standard. See Brown v.

Vivint Solar, Inc., No. 8:18-cv-02838-SCB-JSS, 2020 U.S. Dist.

LEXIS 49675, *12-13 (“The law is somewhat unsettled regarding

whether the reasonable belief standard applies to lenders facing

liability under 15 U.S.C. § 1681b(f), as opposed to credit

reporting agencies to which the FCRA specifically sets forth a

reasonable belief standard in 15 U.S.C. § 1681b(a)(3).”).

Whether Defendant’s belief regarding its need for

Plaintiff’s consumer report was reasonable appears at least

partially relevant to whether Defendant acted negligently or

intentionally. Indeed, the plain language of the FCRA “focuses

on the intent of the party obtaining the [credit] report.”

Weitz v. Wagner, No. 07-1106, 2008 U.S. Dist. LEXIS 61112, *14

(E.D.N.Y. July 24, 2008), report and recommendation adopted,

2008 U.S. Dist. LEXIS 62729 (E.D.N.Y. Aug. 11, 2008). Such is

easily gleaned from the FCRA’s plain language requiring a

successful plaintiff prove that a user obtained a credit report

negligently or in willful violation of the FCRA’s permissible-

purpose standard. 15 U.S.C. §§ 1681n(a), 1681o(a) (imposing

liability upon “[a]ny person who willfully fails to comply” or

who “is negligent in failing to comply” with an FCRA

requirement) (emphasis added).

The Court views the reasonable belief standard in the

context of this case not as a standalone or separate rule of

law, but rather an alternative way of describing the intent

requirement inherent in the FCRA. In other words, if a

defendant establishes that it acted reasonably to inquire into a

plaintiff’s credit worthiness, it would appear to follow that

the defendant did not act negligently or willfully to violate

the statute. Absent establishment of negligence or willfulness,

a plaintiff could not succeed on their claim. Therefore, guided

by the relevant FCRA provisions, the Court finds it must focus

at this juncture on whether Defendant (1) accessed Plaintiff’s

consumer credit report without a permissible purpose and (2)

whether a jury could determine that Defendant did so negligently

or willfully. Because Plaintiff has identified facts from which

a jury could find that Defendant did not have a permissible

purpose for obtaining Plaintiff’s credit report, and because

Plaintiff has also identified facts from which a jury could

determine Defendant acted negligently or willfully, summary

judgment must be denied.

2. Plaintiff Has Identified Evidence From Which A Jury

Could Find Defendant Lacked A Permissible Purpose For

Obtaining Plaintiff’s Consumer Credit Report

i. 15 U.S.C. § 1681b(a)(3)(A)

15 U.S.C. § 1681b(a)(3)(A) permits use of a consumer credit

report if the user “intends to use the information in connection

with a credit transaction involving the consumer on whom the

information is to be furnished and involving the extension of

credit to, or review or collection of an account of, the

consumer[.]” 15 U.S.C. § 1681b(a)(3)(A). The Third Circuit has

recognized that Ҥ 1681b(a)(3)(A) authorizes access to a

consumer’s credit report ‘when the consumer applies for

credit[.]’” Huertas v. Citigroup, Inc., 639 Fed. Appx. 798, 801

(3d Cir. 2016) (quoting Gelman v. State Farm Mut. Auto. Ins.

Co., 583 F.3d 187, 191 (3d Cir. 2009)).

Defendant argues that, because it intended to use

Plaintiff’s consumer credit report in connection with pre-

approving Plaintiff for credit, it had a permissible use under

15 U.S.C. § 1681b(a)(3)(A). Plaintiff argues that Defendant’s

intentions are not so clear. Essentially, Plaintiff argues that

(1) Defendant’s salesman, Chamberlain, forged a document

purporting to evince that Plaintiff applied for credit and (2)

if Chamberlain’s knowledge is imputed to Defendant, Defendant’s

intentions appear less noble. Defendant counters that

Chamberlain’s knowledge cannot be imputed to it.

The parties clearly disagree about whether Chamberlain’s

knowledge may be imputed to Defendant. Therefore, the Court

must determine, as a legal matter, whether Chamberlain’s

knowledge may be imputed to Defendant and the Court finds that,

under the facts identified by Plaintiff, Chamberlain’s knowledge

may be properly imputed to Defendant.

Defendant concedes that vicarious liability theories apply

in the FCRA context. See (ECF No. 85 at 6) (“[Defendant] does

not claim . . . that agency theories can never apply in credit

pull cases.”). Instead, Defendant contends “only that

[Plaintiff] has not met, and cannot meet, his burden of proving

vicarious liability in this case.” (Id.). The parties

vacillate between the concepts of imputation of knowledge and

vicarious liability. While both concepts are related agency

principles, they are nonetheless distinct. Certainly, knowledge

may be imputed from an agent to a master without necessarily

creating vicarious liability. The Court has attempted to parse

the differences where relevant.

While it appears neither the Third Circuit nor a court in

this District have yet opined on whether an employer can be held

vicariously liable for actions of an employee or agent under the

FCRA, a growing number of courts agree that traditional agency

principles apply in the FCRA context, which may result in the

creation of vicarious liability. See, e.g., Jones v. Federated

Financial Reserve Corp., 144 F.3d 961, 966 (6th Cir. 1998)

(“Failure to impose vicarious liability on a corporation . . .

would allow it to escape liability for ‘willful’ or ‘negligent’

violations of the statute. Because a company . . . can act only

through its agents, it is difficult to imagine a situation in

which a company would ever be found to have willfully violated

the statute directly by obtaining a credit report for an

impermissible purpose”); Yohay v. City of Alexandria Employees

Credit Union, Inc., 827 F.2d 967, 973 (4th Cir. 1987) (holding

an employer liable for its agent’s intentional acts where the

agent had apparent authority to obtain a credit report). The

Third Circuit has cited Jones approvingly, suggesting its

approval of the application of traditional agency law principles

in the FCRA context. See Barbato v. Greystone All., LLC, 916

F.3d 260, 269 (3d Cir.), cert. denied sub nom. Crown Asset Mgmt.

LLC v. Barbato, 140 S. Ct. 245, 205 L. Ed. 2d 129 (2019) (citing

Jones, 144 F.3d at 965). More affirmatively, the Third Circuit

has explained that “when Congress creates a tort action, it

legislates against a legal background of ordinary tort-related

vicarious liability rules[.]” Barbato, 916 F.3d at 269.

There seems to be no dispute that Chamberlain was

Defendant’s agent when it visited with Plaintiff many years ago.

Under traditional agency law principles, an agent has a duty to

disclose material information to the principal, and the

principal is “deemed to have knowledge” of those material facts.

In re WL Homes, LLC, 534 Fed. Appx. 165, 169 (3d Cir. 2013)

(citation omitted). In determining the legal relationship

between a principal and a third-party with whom the principal’s

agent has interacted, “notice of a fact that an agent knows or

has reason to know is imputed to the principal if knowledge of

the fact is material to the agent’s duties to the principal[.]”

Huston v. Procter & Gamble Paper Prods. Corp., 568 F.3d 100, 106

(3d Cir. 2009) (quoting Restatement (Third) of Agency § 5.03

(2006)) (emphasis removed). To justify imputing an agent’s

knowledge of facts to a master, the facts must be important or

significant to the agent’s duties to the master. Id. at 106-07

(emphasis removed). Information is deemed material when the

“employee uses that knowledge in the performance of the

employee’s duties to the employer.” Id.

In this case, the completion of the PCCF appears material

to Chamberlain’s job duties. Indeed, Defendant argues, in part,

that it ran Plaintiff’s credit based upon completion of that

form, and that its sales representatives are tasked with

obtaining prospective customers’ signatures and completion of

the PCCF as a major part of their jobs. While Defendant argues

that forging a PCCF would render Chamberlain’s actions outside

the scope of his employment, the Court disagrees. For example,

the Court of Appeals for the First Circuit has found, albeit

under Maine law, that the intentional tort of rape committed by

an inn worker may lead to vicarious liability where the worker

was (1) the defendant’s agent, (2) was armed with information

only available through his employment role, (3) had access to

the room where the intentional tort occurred through his

employment role, and (4) used that access to commit the act.

Costos v. Coconut Island Corp., 137 F.3d 46, 50 (1st Cir. 1998).

Chamberlain had similar access points in this action. A jury

could find that (1) Chamberlain was being held out to Plaintiff

as Defendant’s agent or representative, (2) Chamberlain was

armed with information about Plaintiff available through

Chamberlain’s relationship with Defendant (namely, information

Chamberlain may have uploaded to the PCCF without Plaintiff’s

permission), (3) Chamberlain used that information to complete a

PCCF in Plaintiff’s name, and (4) Chamberlain used his access to

that information to commit an intentional act harming Plaintiff.

The Court finds Costos persuasive. Therefore, the Court

concludes that the intentionality of Chamberlain’s act does not

necessarily immunize Defendant from vicarious liability or

imputation of Chamberlain’s knowledge. Such would, as the Jones

court recognized, essentially leave victims of an agent’s

actions without recourse for intentional acts committed while

under the employ of a master. See Jones, 144 F.3d at 966. Such

an outcome appears inconsistent with Congressional intent in

enacting the FCRA, namely, to protect consumers from

unauthorized access to consumer reports. See Safeco Ins. Co. of

Am., 551 U.S. at 52, 127 S. Ct. at 2205–06.

Defendant directs this Court to a number of cases it

suggests compel an alternative conclusion, the most factually

analogous of which is Kennedy v. Victoria’s Secret Store, Inc.,

No. 03-2691, 2004 U.S. Dist. LEXIS 19525 (E.D. La. Sept. 29,

2004). In Kennedy, the plaintiff visited a Victoria’s Secret

store to purchase goods. The plaintiff attempted to purchase

goods with her American Express card, but instead of charging

the American Express card, the cashier surreptitiously opened a

Victoria’s Secret credit card in the plaintiff’s name and

charged her purchase to that account. Id. at *1-2. The

plaintiff was not aware the account had been opened until she

received the physical credit card and a statement in the mail.

Id. at *3. The plaintiff pursued an FCRA action alleging the

defendant did not have a permissible purpose for obtaining her

consumer report. The defendant argued it had a permissible

purpose under 15 U.S.C. § 1681b(a)(3)(A) because the report was

obtained for purposes of extending the plaintiff credit. The

plaintiff, however, maintained she never applied for that line

of credit. In a single paragraph examining the vicarious

liability issue, the Kennedy court determined that “the consumer

report allegedly obtained by VS and WFNNB was obtained for the

purposes of using the information to extend credit or to review

or collect on an account. Therefore, [the plaintiff’s] claims

under 15 U.S.C. § 1681b should be dismissed.” Id. at *9.

While Defendant relies on Kennedy, the Kennedy court does

not appear to have thoroughly applied or analyzed the issue of

vicarious liability or imputed knowledge. Therefore, the Court

finds it of only limited guidance. If Kennedy was good law,

corporate entities could essentially escape FCRA liability by

hiding behind an agent’s or employee’s inappropriate actions;

such a conclusion appears contrary to the purpose of the FCRA,

which among other things, seeks to protect consumer privacy and

restrict improper use of consumer credit information. See

Safeco Ins. Co. of Am., 551 U.S. at 52, 127 S. Ct. at 2205–06;

Jones, 144 F.3d at 966. Additionally, such an outcome would, as

the Jones court recognized, essentially immunize employers from

liability for their employees’ improper actions and would

significantly frustrate a victim’s ability to enforce their

rights under the FCRA. In balancing Jones and Kennedy, the

Court finds that Jones compels the proper result.

Defendant also argues it has policies against forging PCCFs

and informs its salespeople about the potential illegality of

violating those rules. Because Plaintiff’s allegations indicate

Chamberlain acted outside the scope of those polices, Defendant

argues that Chamberlain’s actions should be deemed outside the

scope of his employment. However, a companies’ preventive

measures and polices are no defense to liability when its

employee intentionally acts in a manner that would violate the

FCRA. Todd v. Target Corp., No. 10-cv-05598, 2012 WL 1080355,

at *4 (N.D. Ill. Mar. 30, 2012).

For these reasons, the Court finds it may be appropriate to

impute Chamberlain’s knowledge to Defendant. Finding as much,

the Court leaves to the jury to determine (1) whether or not the

PCCF was actually forged, (2) whether or not Chamberlain

intentionally forged that document without consent, (3) whether

such knowledge should be imputed to Defendant, and (4) whether

that knowledge renders Defendant’s actions negligently or

willfully in violation of the FCRA.

ii. 15 U.S.C. § 1681b(a)(3)(F)

As relevant to this action, 15 U.S.C. § 1681b(a)(3)(F)

permits use of a consumer’s credit report if the user “otherwise

has a legitimate business need for the information” and if such

use is in connection with a business transaction that is

initiated by the consumer.

The parties dispute whether Plaintiff initiated a business

transaction with Defendant and whether Defendant had a

legitimate business need for Plaintiff’s credit information.

Plaintiff identifies evidence suggesting (1) Chamberlain and

Plaintiff engaged in only a brief conversation in which

Plaintiff agreed to receive additional marketing materials from

Defendant and (2) Plaintiff never authorized Defendant to

conduct a credit inquiry. On these facts, a jury may find there

was never a “business transaction” initiated by Plaintiff.

“[A] request for general information about products and

prices offered does not involve a business transaction initiated

by the consumer.” Boone v. T-Mobile USA Inc., No. 17cv-378-KM-

MAH, 2018 WL 588927, at *14 (D.N.J. Jan. 29, 2018) (quoting FTC

Advisory Opinion on the Fair Credit Reporting Act, 1998 WL

34323748, at *1 (Feb. 11, 1998)). For example, a consumer who

asks a car dealer to “test drive” a car, or asks questions about

pricing and financing, “is not necessarily indicating an intent

to purchase or lease a vehicle from that particular dealer.”

Id. (quoting FTC Advisory Opinion on the Fair Credit Reporting

Act, 1998 WL 34323748, at *1). Obtaining a consumer’s credit

report based solely upon such early-stage inquires is

inappropriate and violates the FCRA. Id. (quoting FTC Advisory

Opinion on the Fair Credit Reporting Act, 1998 WL 34323748, at

*1).

For example, in Boone, the plaintiff alleged he made a

general inquiry with T-Mobile about the availability and cost of

phone plans. The plaintiff never signed any agreement and never

agreed to purchase products or services from T-Mobile. On those

facts, the court in Boone found the plaintiff’s actions did not

amount to a business transaction initiated by the consumer.

Boone is both analogous and persuasive. Like the plaintiff

in Boone, Plaintiff has identified evidence from which a jury

could find Defendant knew Plaintiff never authorized inquiry

into his credit, never indicated a desire to purchase

Defendant’s products, and did nothing more than generally

inquire about Defendant’s services. Such circumstances would

not amount to initiation of a business transaction under the

FCRA and would not permit Defendant to access Plaintiff’s credit

report.

Moreover, as the court in Boone explains, “[o]nly in those

circumstances where it is clear both to the consumer and to the

[seller] that the consumer is actually initiating the purchase

[of a product]” may a seller have “obtain a report without

written permission” Boone, 2018 WL 588927, at *14 (quoting FTC

Advisory Opinion on the Fair Credit Reporting Act, 1998 WL

34323748, at *1). Under Plaintiff’s version of events, such was

certainly not clear to Plaintiff. As such, Defendant would

require written authorization to obtain Plaintiff’s credit

report. Plaintiff has identified evidence from which the jury

could find Defendant knew he never provided such written

authorization. As such, summary judgment must be denied.

iii. Plaintiff Can Establish Viable Injuries And May

Proceed With On His Damages Theory

Plaintiff alleges he suffered emotional distress as a

result of Defendant’s actions. Defendant argues Plaintiff has

not sufficiently established that he suffered any actual damage,

requiring dismissal of his claim. Plaintiff argues his

testimony – and the testimony of his family members – is

sufficient basis to submit the issue to a jury. The Court

agrees with Plaintiff.

A plaintiff may recover actual, punitive, or statutory

damages for willful violations of the FCRA, but may recover only

actual damages for negligent violations. 15 U.S.C. § 1681o(a);

15 U.S.C. § 1681n(a); Brown, 2020 U.S. Dist. LEXIS 49675, at

*11. Emotional distress damages are recoverable as actual

damages under the FCRA. Cortez v. Trans Union, LLC, 617 F.3d

688, 719-20 (3d Cir. 2010). The Third Circuit has held that

proof of such injury does not require “corroborating testimony

or medical or psychological evidence in support of the damage

award.” Id. at 720 (citation omitted). Such corroboration, our

Circuit has held, “goes only to the weight of evidence of

injury, not the existence of it.” Id. Therefore, if a jury

accepts testimony of a plaintiff that establishes an injury

without corroboration, the plaintiff should be allowed to

recover under the FCRA. Id. The fact that a plaintiff’s

injuries relate to the stress and anxiety caused by a

defendant’s conduct does not change that. Indeed, “this is

precisely the kind of injury that Congress must have known would

result from violations of the FCRA.” Id.

Plaintiff has identified evidence, including his testimony

and the testimony of his family, on which a jury could find he

suffered emotional distress from Defendant’s actions. As such,

the issue must be submitted to the jury. Additionally, because

there remains a live claim for willful FCRA violations,

Plaintiff may proceed on punitive and statutory damages

allowable for a willful violation.

CONCLUSION

For the reasons expressed above, (1) Defendant’s motion to

strike certain supplemental facts submitted by Plaintiff in

opposition to Defendant’s motion for summary judgment (ECF No.

87) will be granted; (2) Defendant’s motion for summary judgment

(ECF No. 75) will be denied; and (3) as expressed in footnote 2,

the parties shall have fourteen (14) days to file any relevant

motions to seal.

An appropriate Order will be entered.

Date: May 17, 2020 s/ Noel L. Hillman

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.