# LITTLEJOHN v. VIVINT SOLAR

> District Court, D. New Jersey · May 18, 2020

URL: https://www.frixlaw.com/law-library/cases/10268075

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** May 18, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10268075

## How later opinions describe it (automated extraction)

- holding an employer liable for its agent’s intentional acts where the agent had apparent authority to obtain a credit report

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10268075. Public record. Not legal advice.