# REILLY v. VIVINT SOLAR

> District Court, D. New Jersey · June 8, 2020

URL: https://www.frixlaw.com/law-library/cases/10268325

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** June 8, 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/10268325

## 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

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10268325. Public record. Not legal advice.