REILLY v. VIVINT SOLAR

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

JAMES REILLY, 1:18-cv-12356-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

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

Attorneys for Defendant.

HILLMAN, District Judge

This Fair Credit Reporting Act (“FCRA”) and identity theft

matter comes before the Court on Defendant Vivint Solar’s

(“Defendant”) motion for summary judgment (ECF No. 60), and

Defendant’s motion to strike certain supplemental facts

submitted by Plaintiff in opposition to Defendant’s motion for

summary judgment (ECF No. 72).1 Plaintiff James Reilly

(“Plaintiff”) alleges Defendant’s salespeople stole his identity

by forging his signature on various documents and accessing his

credit report without authorization, all to push through the

sale of a solar panel system to a third party. Defendant argues

it had a permissible purpose for obtaining Plaintiff’s consumer

credit report under the FCRA, did not invade Plaintiff’s

privacy, and did not steal his identity. For the reasons that

follow, Defendant’s motion to strike will be granted and

Defendant’s motion for summary judgment will be granted in part

and denied in part.

BACKGROUND

The Court takes its facts from the parties’ statements of

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

Disputes are noted where relevant.

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

testimony of Plaintiff’s putative expert, Evan Hendricks (ECF No.

61) will be addressed in a separate Opinion and Order.

In 2008, Melissa Knight (“Knight”) and her late husband

purchased a home in Williamstown, New Jersey. That home was

previously owned by Plaintiff and his wife before they sold it

to Knight.

In July of 2016, Knight contacted Defendant to inquire

about purchasing a solar panel system. On August 2, 2016,

Phillip R. Chamberlain (“Chamberlain”), a former sales

representative for Defendant, visited Knight at her home to

discuss Defendant’s products. After some discussion, Knight

decided to purchase a solar panel system from Defendant. As

part of that purchase, Knight appears to have authorized

Defendant to inquire into her credit worthiness. Somehow,

though, Defendant obtained a prospective consumer consent form

(“PCCF”), which authorizes it to conduct inquiries into a

prospective purchaser’s credit worthiness, among other things,

apparently signed by Plaintiff. Plaintiff finds this odd as he

never communicated with Knight, Chamberlain, or Defendant about

this transaction. Plaintiff avers that Chamberlain prefilled

the PCCF with his information and forged his signature on that

document.

On August 2, 2016, after Chamberlain uploaded a PCCF

purporting to bare Plaintiff’s signature to Defendant’s main

system, and with that PCCF in hand, Defendant accessed

Plaintiff’s consumer credit report. Plaintiff has identified

copies of the relevant PCCF which contain both Plaintiff’s and

Knight’s names and electronic signatures.

Solar panels were later installed on Knight’s home, and

Defendant filed a UCC financing statement indicating its

security interest in the solar panel system. Oddly, the UCC

statement lists Plaintiff as the debtor. On August 17, 2016,

Defendant submitted a registration form to the State of New

Jersey regarding the renewable energy credits generated by

Knight’s solar panel system. That form, quite clearly, contains

a hand-drawn signature purporting to be that of Plaintiff.

Chamberlain admits, at least in part, to forging documents

related to Knight’s purchase.

As a result of these circumstances, Plaintiff took

affirmative action to clear his name and credit history. All of

these circumstances created stress and anxiety for Plaintiff,

and forced him to incur costs for counsel and identity theft

protection services, among other things.

On May 29, 2019, Plaintiff filed the operative amended

complaint in this matter (ECF No. 49) (the “Amended Complaint”).

The Amended Complaint contains three counts. Count one alleges

Defendant negligently or willfully violated the FCRA. Count two

alleges Defendant stole Plaintiff’s identity, in violation of

N.J.S.A. 2C:21-17.4. Count three alleges common law invasion of

privacy. On October 15, 2019, Defendant filed its motion for

summary judgment (ECF No. 60). Plaintiff responded on December

2, 2019 (ECF No. 66).2 As such, Defendant’s motion for summary

judgment has been fully briefed as is ripe for adjudication.

While Defendant’s motion for summary judgment remained

under consideration by the Court, on February 18, 2020,

Plaintiff filed additional disputed material facts (ECF No. 71),

which Defendant moved to strike (ECF No. 72). Plaintiff opposed

Defendant’s motion to strike (ECF No. 73). As such, that motion

is also ripe for adjudication.

DISCUSSION

I. Subject Matter Jurisdiction

This Court exercises subject matter jurisdiction pursuant

to 28 U.S.C. § 1331.

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

summary judgment (ECF No. 66) 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. 66. Plaintiff has not moved to

seal Docket Entry Number 66. Similarly, Defendant has filed

various exhibits to its motions under seal without moving to

have them permanently sealed. See, e.g., ECF No. 60-3. The

Court will enter an Order requiring the parties to properly

proceed with sealing applications or otherwise risk these

documents being permanently unsealed by the Court.

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.

Plaintiff filed a supplemental statement of disputed material

facts in support of his opposition to Defendant’s motion for

summary judgment. (ECF No. 71). Those supplemental facts are:

105. 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.”

106. 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.

107. 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.

108. As of January 2017, Vivint was aware of

between 87 and 152 such “incidents” with Mosaic

accounts in Florida alone.

(ECF No. 71 at ¶¶105-08) (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.3

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. 72-2).

Plaintiff argues that the newly discovered evidence should

be considered part of the record. (ECF No. 73). 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. The Court disagrees

3 Plaintiff’s counsel is counsel to the plaintiffs in Brown, which

may explain how Plaintiff came to learn of the Brown Documents.

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 supporting material be in the record, the

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

statements are not temporally 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 105 is the only exception. In paragraph 105,

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.4

4 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. While the Court

declines to consider the Brown Documents for reasons other than

application of that protective order, the Court recognizes the

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

Brown court’s protective order would further support this

Court’s decision not to consider the Brown Documents.

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 Relating To

Plaintiff’s FCRA Claims

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.

Judgment 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, a court in 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). That is so, Defendant argues,

because it had forms uploaded to its system purporting to

contain Plaintiff’s signature evincing his interest in obtaining

credit from Defendant. Plaintiff argues that Defendant’s

intentions are not so clear because (1) Defendant’s salesman,

Chamberlain, forged the 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.

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 this

District (outside of this Court) 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 he visited with Knight and, as Plaintiff

argues, when he forged documents in Plaintiff’s name. 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 credit forms appears

material to Chamberlain’s job duties. Indeed, Defendant argues,

in part, that it ran Plaintiff’s credit based upon completion of

these forms, and that its sales representatives are tasked with

obtaining prospective customers’ signatures on them. While

Defendant argues that forging an application form would render

Chamberlain’s actions outside the scope of his employment, the

Court disagrees. While the act of forgery itself may not have

been approved by Defendant, it is beyond dispute that completion

of the forms were squarely within Defendant’s expectations of

its salespeople. 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 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 application form without Plaintiff’s permission), (3)

Chamberlain used that information to complete a form in

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

information to commit an intentional act harming Plaintiff. The

Court finds Costos analogous and persuasive. Therefore, the

Court concludes that an intentionally harmful act by Chamberlain

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 the holding in Jones teaches 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, (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 Defendant violated this

section. Defendant argues it had a reasonable belief that

Plaintiff initiated a business transaction with Defendant based

upon the forms uploaded to its system. Plaintiff identifies

evidence suggesting (1) Chamberlain and Plaintiff never met or

spoke and (2) Plaintiff never authorized Defendant to conduct a

credit inquiry or file documents with the State of New Jersey on

his behalf. On the facts presented, 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.

Plaintiff has identified evidence from which a jury could

find Defendant knew Plaintiff never authorized inquiry into his

credit and never indicated a desire to purchase Defendant’s

products. Indeed, Plaintiff has identified evidence suggesting

he never spoke to Chamberlain or Defendant. 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). Having never communicated with Defendant, it

would follow that Plaintiff never clearly understood he was

engaging in some transaction with Defendant. As such, summary

judgment must be denied.

iii. Plaintiff Can Establish Viable Injuries And May

Proceed With On His Damages Theory Based On

Emotional Harm

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.

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 own

testimony, 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 damage claims allowable for a willful

violation. Finding that Plaintiff may proceed on at least one

damages theory, the Court need not decide at this juncture

whether Plaintiff’s other damages claims (for out of pocket

costs) may be permitted. The parties may address those matters

in motions in limine.

B. Defendant’s Motion For Summary Judgment Relating To

Plaintiff’s Identity Theft/Forgery Claims

Defendant argues that Plaintiff’s identity theft claim must

be dismissed because there is no vicarious liability under the

identity theft statute. Contrary to Defendant’s presentation of

the issue, Plaintiff appears to have alleged that it was

Defendant itself – either alone or through its agent – that

stole Plaintiff’s identity. Because Plaintiff has identified

evidence from which a jury could determine that to be true, the

Court will not grant summary judgment on this claim.

N.J.S.A. 2C:21-17.4 provides in relevant part that “[a]ny

person who suffers any ascertainable loss of moneys or property,

real or personal, as a result of the use of that person’s

personal identifying information, . . . may bring an action in

any court of competent jurisdiction.” The Court can locate only

a handful of decisions discussing the contours of this statutory

provision. Of those cases, Defendant has identified several

that it argues support a finding that N.J.S.A. 2C:21-17.4

applies exclusively against the “thief” as opposed to the

thief’s employer. Piscitelli v. Classic Residence by Hyatt, 973

A.2d 948, 967 (N.J. Super. Ct. App. Div. 2009) (“N.J.S.A. 2C:21–

17.4 provides a civil remedy for identity theft for the victim.

It provides for treble damages, costs, and attorneys' fees. Its

relief, though, is directed against the thief.”). The cases

Defendant refers to include Fogarty v. Household Fin. Corp. III,

No. 14-4525 RBK/JS, 2015 WL 852071, at *15 (D.N.J. Feb. 25,

2015). In Fogarty, the plaintiff alleged that the defendant

negligently or mistakenly relied on a third party’s

representation he was the plaintiff. Because the plaintiff did

not allege that the defendant purposefully assisted that third

party in obtaining the plaintiff’s information, or that the

defendant intended to use the information it received for a

fraudulent purpose, the court found the plaintiff’s identity

theft claim against the defendant could not proceed. The

present action is distinguishable from Fogarty. Plaintiff

alleges Defendant and its agent, Chamberlain, were the ones that

procured and misappropriated his identity. Indeed, according to

Plaintiff, it was Defendant through its agent that stole his

identity and used it to its benefit. Plaintiff has identified

numerous forms procured by Defendant on which appears

Plaintiff’s name and signature, despite having never signed

those documents or engaging with Defendant. Moreover,

Chamberlain – in carrying out the business of Defendant as its

agent - has admitted to forging Plaintiff’s signature. On that

basis, a jury could find that Defendant (or its agent, and

therefore it) was the thief of Plaintiff’s information. The

essential distinction between the cases Defendant relies upon

and this action is that Plaintiff has sufficiently alleged that

it is this Defendant that stole his identity. As such, the

issue will be submitted to the fact finder.

C. Defendant’s Motion For Summary Judgment Relating To

Plaintiff’s Invasion of Privacy Claims

Plaintiff narrows his privacy claim to one under a “false

light” theory, arguing that he was held out in a false light

based upon Defendant’s recording of a UCC lien filed in his

name.

The tort of false light, involves “publicity that

unreasonably places the other in a false light before the

public.” Leang v. Jersey City Bd. of Educ., 969 A.2d 1097,

1115–16 (N.J. 2009) (quoting Romaine v. Kallinger, 537 A.2d 284

(N.J. 1988)). The tort of false light has two elements: (1)

“the false light in which the other was placed would be highly

offensive to a reasonable person”; and (2) “the actor had

knowledge of or acted in reckless disregard as to the falsity of

the publicized matter and the false light in which the other

would be placed.” Id. (quoting Romaine, 537 A.2d 284). The New

Jersey Supreme Court has suggested that evidence of a false

statement and knowledge that the false statement would cause

public response were the “bare minimum” needed for a plaintiff

to be able to proceed on such a claim. Id. at 1116. In this

case, Plaintiff has sufficiently pointed to statements that

Defendant could have known to be false, namely, that Plaintiff

was indebted to Defendant, and that others could reasonably be

found to rely on that statement.

However, as Defendant correctly recognizes, false light

claims carry a one-year statutory limitations period. Flanagan

v. City of Atl. City, No. A-3647-12T3, 2014 WL 6861583, at *5–6

(N.J. Super. Ct. App. Div. Dec. 8, 2014). That period begins to

run from the date of publication. Id. at *6 (quoting Swan v.

Boardwalk Regency Corp., 969 A.2d 1145 (N.J. Super. Ct. App.

Div. 2009)). The UCC statement that Plaintiff bases his false

light claim upon was filed in October of 2016. (ECF No. 66-1 at

¶41). Plaintiff did not file this action until August 2, 2018.

As such, Plaintiff’s false light claim is barred by the

applicable statute of limitations and must be dismissed.

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.

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

(ECF No. 60) will be granted in part and denied in part; and (3)

as expressed in footnote two, the parties shall have fourteen

(14) days to file any relevant motions to seal.

An appropriate Order will be entered.

Date: June 8, 2020 s/ Noel L. Hillman

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