# DRONEY v. VIVINT SOLAR

> District Court, D. New Jersey · March 19, 2021

URL: https://www.frixlaw.com/law-library/cases/10270526

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** March 19, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

:
CHRISTINE DRONEY, et al., :
:
Plaintiffs, : Civil No. 18-849 (RBK/JS)
:
v. : AMENDED OPINION1
:
VIVINT SOLAR, :
:
Defendant. :
:
:
:
:
KUGLER, United States District Judge:
This matter comes before the Court upon Defendant’s Motion for Summary Judgment
(Doc. 48) and Defendant’s Motion to Strike (Doc. 60). For the reasons expressed herein,
Defendant’s Motion to Strike is GRANTED, and Defendant’s Motion for Summary Judgment is
DENIED.
I. BACKGROUND
Plaintiffs Christine and Timothy Droney (“Plaintiffs” or “Mr. and Mrs. Droney”) brought
this action pursuant to the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681, et. seq., alleging
that Defendant Vivint Solar (“Defendant” or “Vivint”) violated the FCRA when it obtained their
individual credit reports.
A. Factual History

1 This Amended Opinion supersedes the Court’s original June 23, 2020 Opinion (Doc. 73). This Amended Opinion
is the result of Defendant’s Motion for Reconsideration or Clarification (Doc. 77), which the Court granted in its
Opinion and Order entered today.
Plaintiffs are spouses, and live together at their home in Linwood, New Jersey. (Doc. 48-2
(“Def. SOF”) ¶2.) On January 21, 2016, Mrs. Droney was at home when the doorbell rang. (Doc.
54-1 (“Pl. RSOF” ¶1.) Answering it, she met someone named Jeremy O’Dell, an employee of
Defendant. (Id. ¶2.) Plaintiffs and Defendant paint starkly different pictures of what transpired

during this interaction.
Plaintiffs claim that O’Dell informed Mrs. Droney that he was working with her electric
supplier, Atlantic City Energy, to conduct a “roof survey.” (Pl. RSOF. ¶¶1–2.) Mrs. Droney told
O’Dell that her husband was not home, and she wanted to speak with him before any survey was
conducted. O’Dell then continued the conversation, connecting with Mrs. Droney’s interest in
social work by mentioning that “his wife was a social worker who worked with abused kids.” (Id.
¶¶3–4.) As the conversation ended, O’Dell asked Mrs. Droney to sign his iPad to give Atlantic
City Energy permission to conduct a roof survey. (Id. ¶6.) Mrs. Droney, seeing only a signature
box set against a blank screen on the iPad, signed with her finger, but clarified that she was not
signing anything on behalf of her husband, and that she still needed to speak with him before any

roof survey occurred. (Id. ¶¶7–9.) She states that O’Dell never mentioned that his visit was in
connection with the sale of solar panels, and never informed her that she was signing anything that
would result in her credit report being pulled. (Id. ¶¶11–15.)
Turning to Defendant’s version of events, Defendant claims that O’Dell never represented
to Mrs. Droney that he was affiliated with Atlantic City Energy, and that he also never represented
that his wife was a social worker. (Doc. 58-2 at 1–2.) Defendant also claims that, when O’Dell
presented Mrs. Droney with the iPad, the screen displayed several documents—a Prospective
Consumer Consent Form (“PCCF”) and Power Purchase Agreement (“PPA”)—for her to review
before signing, rather than simply a blank screen with a signature box, and that these forms
permitted Defendant to inquire into Mrs. Droney’s credit report. (Id. at 3; Def. SOF ¶7.) O’Dell
denies that he never mentioned to Mrs. Droney that he was selling solar panels. (Id. at 4.)
The day after O’Dell’s visit, Mrs. Droney received an alert that Defendant had pulled her
consumer credit report. (Pl. RSOF ¶23.) She similarly learned that Defendant inquired into her

husband’s consumer credit report. (Id.). Upon this information, Mrs. Droney filed a report with
the police, and filed related complaints with the Better Business Bureau, the Federal Trade
Commission, and Defendant itself. (Id. ¶¶26–27). She also called Atlantic City Electric, a
representative for which confirmed that O’Dell was not its employee. (Id. ¶28.) Some time after
receiving Plaintiffs’ complaint that their credit had been pulled without authorization, Defendant’s
representative sent letters to the relevant credit bureaus which asked them to remove any inquiry
into the Droneys’ credit reports. (Id. ¶¶31–33.)
Defendant claims that it pulled Plaintiffs’ credit reports because the forms that were
uploaded by O’Dell contained the electronic signatures of both Mr. and Mrs. Droney. (Def. SOF
¶¶2, 10–11.) Plaintiffs contend that Mr. Droney never provided his signature on any document, as

he was not home when O’Dell visited. Although the inquiries were ultimately removed from
Plaintiffs’ credit reports, Plaintiffs allege that the unauthorized inquiry into their credit caused a
great deal of stress and emotional difficulty. (Def. SOF ¶19; Pl. SOF ¶¶24–25.)
B. Procedural History
Plaintiffs filed their Complaint (Doc. 1) in this matter on January 20, 2018 and filed an
Amended Complaint (Doc. 11) on March 23, 2018. In the Amended Complaint, Plaintiffs each
allege a single count for violation of the Fair Credit Reporting Act. This count alleges that
Defendant violated the FCRA by willfully and/or negligently obtaining the Plaintiffs’ consumer
credit reports without a statutorily permissible purpose. (Doc. 11.) Plaintiffs allege that Defendant
“surreptitiously enrolled them into a bogus finance contract for solar services they never wanted,”
and that in doing so, Defendant accessed their consumer credit reports unlawfully and under false
pretenses. (Doc. 11 ¶¶2, 20, 70) The Droneys further allege that Defendant routinely engaged in
such unlawful business practices in order to obtain consumer reports. (Id. ¶38.)

Defendant moved to compel arbitration of Plaintiffs’ claims, which this Court denied on
November 28, 2018. (Doc. 22.) After a period of discovery, on October 15, 2019, Defendant filed
its Motion for Summary Judgment. (Doc. 48.) Along with that motion, Defendant also filed a
motion to preclude the testimony of Plaintiffs’ expert, Evan Hendricks. (Doc. 49.)
On June 12, 2020, Judge Schneider denied in part and granted in part Defendant’s motion
to preclude expert testimony. (Doc. 72.) Judge Schneider determined that “Hendricks is qualified
to testify about the general areas of credit reporting and credit data privacy. However, Hendricks
is not qualified to testify about plaintiffs’ damages, emotional or physical, or damages expected to
flow from FCRA violations. The Court further finds Hendricks’ may testify about general privacy
issues.” (Doc. 72 at 24.)

On February 18, 2020, Plaintiffs filed a “Notice of Additional Disputed Material Facts in
Opposition to Defendant’s Motion for Summary Judgment.” (Doc. 59.) On March 3, 2020,
Defendant filed a Motion to Strike these additional facts. (Doc. 60.) As this motion necessarily
affects the Court’s analysis of Defendant’s motion for summary judgment, the Court addresses it
below as well.
II. LEGAL STANDARD
A. Motion for Summary Judgment
The court should grant a motion for summary judgment when the moving party “shows
that there is no genuine dispute as to any material fact and that the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). An issue is “material” to the dispute if it could alter the
outcome, and a dispute of a material fact is “genuine” if “a reasonable jury could return a verdict
for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Matsushida
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (“Where the record taken

as a whole could not lead a rational trier of fact to find for the non-moving party, there is no
‘genuine issue for trial.’”) (quoting First National Bank of Arizona v. Cities Service Co., 391 U.S.
253, 289 (1968)). In deciding whether there is any genuine issue for trial, the court is not to weigh
evidence or decide issues of fact. Anderson, 477 U.S. at 248. Because fact and credibility
determinations are for the jury, the non-moving party’s evidence is to be believed and ambiguities
construed in his favor. Id. at 255; Matsushida, 475 U.S. at 587.
Although the movant bears the burden of demonstrating that there is no genuine issue of
material fact, the non-movant likewise must present more than mere allegations or denials to
successfully oppose summary judgment. Anderson, 477 U.S. at 256. The nonmoving party must
at least present probative evidence from which a jury might return a verdict in his favor. Id. at 257.

The movant is entitled to summary judgment where the non-moving party fails to “make a showing
sufficient to establish the existence of an element essential to that party’s case, and on which that
party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
B. Motion to Strike
Under Federal Rule of Civil Procedure 12(f), a party may move to strike from a pleading
“an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” A court
has “considerable discretion” in deciding a Rule 12(f) motion. Tonka Corp. v. Rose Art Indus.,
Inc., 836 F. Supp. 200, 217 (D.N.J. 1993). Motions to strike usually will be denied “unless the
allegations have no possible relation to the controversy and may cause prejudice to one of the
parties, or if the allegations confuse the issues in the case.” River Road Dev. Corp. v. Carlson
Corp. Ne., No. 89–7037, 1990 WL 69085, at *3 (E.D. Pa. May 23, 1990).
III. DISCUSSION
A. Motion to Strike

The supplemental statement of disputed material fact that Plaintiffs filed in February 2018
seeks to add the following statements to the record:
108. 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.”

109. 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.

110. 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.

111. As of January 2017, Vivint was aware of between 87 and 152 such “incidents”
with Mosaic accounts in Florida alone.

(Doc. 59 at 1–2.) The exhibits that Plaintiffs attach in support of these statements consist
of material from another case, Brown v. Vivint Solar, No. 8:18-02838 (M.D. Fla.), in which
Defendant Vivint Solar and Plaintiffs’ counsel are involved. These exhibits purport to show that
one of Vivint’s employees—Phillip Chamberlain—had pulled the credit reports of numerous
consumers without their authorization, and that Vivint was or should have been aware of this issue
since as early as 2017. Plaintiffs argue that this material should be considered part of the record,
as it evinces a pattern of Defendant’s unauthorized credit screening. (Doc. 63 at 2.)
In moving to strike, Defendant argues that Plaintiffs’ supplemental notice violates Federal
Rule of Civil Procedure 56(c)(1)(A), as the exhibits Plaintiffs introduce in their notice are not part
of the record—in fact, they are part of the record of the Brown case in Florida—and thus cannot
be considered on a motion for summary judgment in this separate case. (Doc. 60-2 at 56.)

Defendant also argues that Plaintiffs’ notice violates the scope of permissible discovery, and
violates a confidentiality order entered by the court in Brown. (Id. at 7–12.)
A nearly identical issue was recently decided by Judge Hillman in a similar case before
this Court, Reilly v. Vivint Solar, 18-12356, 2020 WL 3046316 (D.N.J. June 8, 2020). In Reilly, a
plaintiff (represented by the Plaintiffs’ counsel in this case) sued Vivint Solar for violating the
FCRA, alleging that Vivint unlawfully accessed his credit report by using a PCCF with a
fraudulently obtained signature. Id. at *1. Vivint filed for summary judgment against the Reilly
plaintiff; opposing Vivint’s motion, the plaintiff filed a notice of supplemental facts that contained
four paragraphs identical to the Droneys’ supplemental fact statements here, which were also
supported by exhibits from the Brown case. Id. at *2–3. Vivint filed a motion to strike the

supplemental facts in Reilly, arguing the same points as it does in this case; further, the Reilly
plaintiff defended the supplemental facts in the same way as the Droneys do here, claiming that
the supplemental facts relate to Vivint’s knowledge of fraudulent practices. Id.
Judge Hillman granted Vivint’s motion to strike the supplemental facts in Reilly, finding
that “most of [the plaintiff’s] proffered factual statements refer to information first known to
[Vivint] in 2017, after Plaintiff filed this action and after the incident with Plaintiff occurred,” and
“[t]herefore, 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.” Reilly, 2020
WL 3046316 at *3. Thus, as “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,” Judge Hillman held that the supplement facts would
“not be considered by the Court in deciding Defendant’s motion for summary judgment and will

be stricken from the record.” Id.
Judge Hillman’s analysis in Reilly is equally applicable here. The incident underlying this
case—O’Dell’s visit and the subsequent credit pull—occurred in January 2016. Yet, in attempting
to show that Defendant knew of its employees’ fraudulent credit pulls at the time of the January
2016 incident, Plaintiffs seek to offer supplemental facts alleging that Defendant had such
information beginning in 2017. Therefore, as in Reilly, these supplemental materials “do not tend
to prove Defendant had knowledge of Chamberlain’s actions before the incident involving Plaintiff
occurred.” Reilly, 2020 WL 3046316 at *3. Accordingly, Defendant’s motion to strike will be
granted, and Plaintiff’s supplemental notice will not be considered when addressing Defendant’s
summary judgment motion below.2

B. Motion for Summary Judgment
Defendant argues that summary judgment should be granted on Plaintiffs’ FCRA claim
because: it had a reasonable belief that a permissible purpose existed to obtain Plaintiffs’ credit
reports; Plaintiffs cannot establish damages from the credit pulls; and, due to Defendant’s
reasonable belief, Plaintiffs cannot establish a willful violation of the FCRA. (Doc. 48-4.) In
response, Plaintiffs argue that: Defendant did not have a permissible purpose because “reasonable
belief” is not the correct standard to apply; they are entitled to damages for emotional distress; and

2 Because the motion to strike is granted on this basis, the Court declines to consider the parties’ arguments regarding
confidentiality.
Defendant willfully violated the FCRA because it purposefully ignored its salesperson’s fraudulent
tactics. (Doc. 54.)
All of the parties’ arguments in this case were also made in Reilly, in which Judge Hillman
analyzed the legal sufficiency—or lack thereof—of each. As such, the reasoning in Reilly will be

considered when analyzing each of the parties’ respective arguments.
i. Applicable Standard for FCRA Violations
“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
America v. Burr, 511 U.S. 47, 53 (2007) (citing 15 U.S.C. § 1681). In furtherance of those aims,
the FCRA provides that consumer credit reports may only be obtained for a permissible purpose.
It sets out a limited number of circumstances constituting a permissible purpose, two of which are
relevant to this action: first, a consumer credit report may be obtained “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.’” Reilly, 2020 WL
3046316 at *5 (citing 15 U.S.C. § 1681b(a)(3)(F)).
A plaintiff may bring an 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.” Reilly,
2020 WL 3046316 at *5 (citing 15 U.S.C. §§ 1681n(a), 1681o(a)). In order “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, and that the violation was either willful or negligent.”
Id. (citing 15 U.S.C. §§ 1681b(f), 1681n, 1681o).
Here, Defendant argues that it pulled the Droneys’ credit reports in connection with the
two aforementioned permissible purposes. (Doc. 48-4 at 13.) It argues that, because O’Dell had
uploaded PCCF documents that appeared to be signed by Mr. and Mrs. Droney, it had a “reason
to believe” that it had Plaintiffs’ permission to pull credit for those two uses. (Id. at 16.) In

opposition, Plaintiffs argue that “reasonable belief” is an incorrect standard to apply in this context.
(Doc. 54 at 18.)
In Reilly, Vivint proffered this same “reasonable belief” standard for credit pulls in
connection with 15 U.S.C. §§ 1681b(a)(3)(A) and (F); as here, it argued that it reasonably believed
that the signed forms uploaded by its employee were obtained legitimately. There, Judge Hillman
disagreed with Vivint’s proposed definition of “reasonable belief,” and instead found that the
question of whether a user had a “reasonable belief” that it had a permissible purpose to obtain a
credit report was simply “an alternative way of describing the intent requirement inherent in the
FCRA.” Reilly, 2020 WL 3046316 at *6. “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.” Id. Thus, Judge Hillman found
that the applicable standard for FCRA claims in this context is 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.” Id. The Court agrees with this
interpretation, and applies it in conducting the below analysis.
Defendant claims that it “had a reasonable basis to believe that it had Plaintiffs’ permission
to pull credit for (1) a possible extension of credit, and/or (2) a business transaction in which it had
a legitimate business need for the information.” (Doc. 48-4 at 15.) Defendant thus argues that a
‘permissible purpose’ existed for its request under § 1681b(a)(3)(A), because it believed that the
signed forms uploaded by O’Dell indicated that Plaintiffs wished to apply for credit, and that a
permissible purpose existed under § 1681b(a)(3)(F), because it believed that Plaintiffs were
initiating a business transaction for the purchase of solar panels. (Id.)
Noting Ms. Droney’s inference that O’Dell admitted to wrongfully obtaining and

submitting the PCCF, Plaintiffs argue that Defendant “knew there was no consent [for the credit
pull] because O’Dell knew there was no consent.” (Doc. 54 at 23.) Plaintiffs argue that, because
“O’Dell was Vivint’s agent acting in the course of his agency,” and knew there was no permissible
purpose, Defendant was therefore acting negligently or willfully when it pulled their credit reports
without a permissible purpose. (Doc. 54 at 23.) Defendant argues in response that it is not
vicariously liable for any wrongful acts committed by O’Dell. (Doc. 58 at 7.) It contends that any
forgery or misconduct by O’Dell occurred outside the scope of his employment, and thus his
wrongdoing cannot be imputed to Defendant. (Doc. 58 at 7–8.)
The parties’ arguments on this point are closely related, but nonetheless separate: Plaintiffs
are arguing the concept of imputed knowledge, while Defendant focuses on 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.” Reilly, 2020 WL 3046316, at *7.
As of now, the Third Circuit has not “yet opined on whether an employer can be held
vicariously liable for actions of an employee or agent under the FCRA.” Reilly, 2020 WL 3046316,
at *7. However, “a growing number of courts agree that traditional agency principles apply in the
FCRA context, which may result in the creation of vicarious liability.” Id. Applying agency
principles in this context is logical and perhaps necessary: “[b]ecause 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.” Jones v. Federated Financial Reserve Corp., 144 F.3d 961, 966 (6th Cir. 1998).
“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.” Reilly, 2020 WL 3046316, at *7 (quoting In re WL Homes, LLC, 534 F. App’x. 165, 169
(3d Cir. 2013)). In this context, when O’Dell visited the Droneys’ home on behalf of Defendant,
there can be no dispute—and Defendant does not seem to contest—that O’Dell was acting as
Defendant’s agent.
“For purposes of determining a principal’s legal relations with a third party, 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 Prod. Corp.,
568 F.3d 100, 106 (3d Cir. 2009); see also Reilly, 2020 WL 3046316 at *7 (“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.”) Information is “material” for agency purposes when an “employee uses that

knowledge in the performance of the employee’s duties to the employer.” Huston, 568 F.3d at 106-
07.
If the jury determines that O’Dell forged the documents, the question thus becomes
whether O’Dell’s knowledge that the signed forms were procured fraudulently —and that no
permission in fact existed—can be imputed to the principal, Defendant. O’Dell’s actions in this
case, which included approaching potential customers to complete these forms in connection with
the sale of Defendant’s solar panels, were certainly material to his job duties. If the jury determines
that O’Dell used trickery to perform his mandated job duties, this would not sever the agency
relationship: while O’Dell’s specific methods used in uploading the forms “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.” Reilly, 2020 WL 3046316 at *7.
Applying a standard created by the First Circuit, the court in Reilly asked whether the
worker who procured fraudulent forms for Vivint “was (1) the defendant’s agent, (2) was armed

with information only available through his employment role, (3) had access to the [place] where
the intentional tort occurred through his employment role, and (4) used that access to commit the
act.” 2020 WL 3046316 at *7 (citing Costos v. Coconut Island Corp., 137 F.3d 46, 50 (1st Cir.
1998)). Applying this standard here, a jury could find that (1) O’Dell was Vivint’s agent; (2)
O’Dell received information about and from the Droneys that he used to complete the PCCF forms
only because of his role as Vivint’s agent; (3) O’Dell had access to the Droneys’ house in his role
as Vivint’s agent; and (4) O’Dell used that access to commit the wrongful act of fraudulently
procuring and completing the signed forms. Thus, just as the Reilly court found, “an intentionally
harmful act by [O’Dell] does not necessarily immunize Defendant from vicarious liability or
imputation of [O’Dell’s] knowledge,” as leaving “victims of an agent’s actions without recourse

for intentional acts committed while under the employ of a master” would be “inconsistent with
Congressional intent in enacting the FCRA, namely, to protect consumers from unauthorized
access to consumer reports.”3 Id. (citing Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 52 (2007)).

3 Defendant’s heavy reliance on Kennedy v. Victoria’s Secret Stores, Inc., Civ. No. 03-2691, 2004 WL 2186613 (E.D.
La. Sept. 29, 2004) is inappropriate here for the same reasons articulated in Reilly. There, Judge Hillman found that
“the Kennedy court does not appear to have thoroughly applied or analyzed the issue of vicarious liability or imputed
knowledge,” and noted that, if Kennedy stood for Defendant’s proposition that an agent’s act cannot be imputed to a
principal under the FCRA, then “corporate entities could essentially escape FCRA liability by hiding behind an agent’s
or employee’s inappropriate actions.” Reilly, 2020 WL 3046316 at *8. Judge Hillman further found that applying
Kennedy in Defendant’s proposed manner would contradict the decision in Jones: “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.” Id.
Because it would not be inappropriate to impute O’Dell’s knowledge to Defendant, and
because questions of fact remain—namely, whether Mr. Droney’s signature was actually forged,
since he was purportedly not home at the time of O’Dell’s visit, and whether Mrs. Droney or
O’Dell provided the correct version of events as to what exactly transpired at the Droneys’ house—

summary judgment is inappropriate here. It is properly the role of a jury to determine whether
Defendant knew that Plaintiffs did not authorize it to pull their credit or whether Plaintiffs indicated
to O’Dell any desire to purchase solar panels. Anderson, 477 U.S. at 248. Accordingly, because
Plaintiffs have “identified facts from which a jury could find that Defendant did not have a
permissible purpose for obtaining Plaintiffs’ credit report, and because Plaintiff[s] ha[ve] also
identified facts from which a jury could determine Defendant acted negligently or willfully,
summary judgment must be denied.”4 Reilly, 2020 WL 3046316, at *6.
ii. Damages
Defendant also argues that, even if it could be found to have violated the FCRA, summary
judgment is nonetheless warranted because Plaintiffs cannot establish any damages for the

violation. (Doc. 48-4 at 17–23.) Plaintiffs argue that they are entitled to actual damages for
emotional distress, and that their testimony as to the extent of their emotional distress constitutes
evidence even without corroborative medical evidence. (Doc. 54 at 24–25.)
The Third Circuit addressed the matter of emotional distress damages for violations of the
FCRA in Cortez v. Trans Union, LLC, 617 F.3d 688 (3d Cir. 2010). It stated that “psychological
and stress-related suffering . . . is the very kind of injury that would be expected to result” from a
violation of the FCRA, and that, “[i]n allowing suits for damages, Congress certainly intended to

4 The Court does not separately analyze Defendant’s argument that Plaintiffs cannot establish that it acted willfully.
(Doc. 48-4 at 23–25.) As explained above, Plaintiffs have introduced evidence that would allow a jury to find that
Defendant acted negligently or willfully in overlooking O’Dell’s misconduct; accordingly, a separate discussion as to
willfulness is unnecessary here.
allow compensation for the very kind of harm that the FCRA was intended to prevent.” Id. at 719.
It held in no uncertain terms that “damages for violations of the FCRA allow recovery for
humiliation and embarrassment or mental distress even if the plaintiff has suffered no out-of-
pocket losses.” Id. The Third Circuit also squarely rejected the idea that there must be

“corroborating testimony or medical or psychological evidence in support of the damage award,”
holding that “[s]uch corroboration goes only to the weight of evidence of injury, not the existence
of it.” Id. at 720. It stated that, “[i]f a jury accepts testimony of a plaintiff that establishes an injury
without corroboration, the plaintiff should be allowed to recover under the FCRA. The fact that
the plaintiff's injuries relate to the stress and anxiety caused by the defendant's conduct does not
change that.” Id.
Thus, under the clear rule set out by the Third Circuit, Defendant’s argument that Plaintiffs’
emotional distress is insufficient to show damages resulting from a violation of the FCRA is
unavailing.5 Summary judgment is not warranted on this basis.
IV. CONCLUSION

For the reasons expressed above, Defendant’s Motion to Strike (Doc. 60) is GRANTED,
and Defendant’s Motion for Summary Judgment (Doc. 48) is DENIED. An accompanying Order
shall issue.

Dated: 3/19/2021 /s Robert B. Kugler
ROBERT B. KUGLER
United States District Judge

5 Because the Third Circuit does not require corroborating evidence as to emotional distress claims, Defendant’s
arguments are also unsuccessful to the extent that they are based on the exclusion of the damages testimony of
Plaintiffs’ expert, Evan Hendricks. (Doc. 48-4 at 12–13.)

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10270526. Public record. Not legal advice.