# Vaiano v. Equifax Inc.

> District Court, D. Massachusetts · February 27, 2025

URL: https://www.frixlaw.com/law-library/cases/10813800

## Case

- **Court:** District Court, D. Massachusetts
- **Decided:** February 27, 2025
- **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/10813800

## How later opinions describe it (automated extraction)

- finding that to prevail on a claim under the FCRA, plaintiff must allege an inaccuracy in reporting
- concluding Ch. 93A implicated only by allegation of conduct that “is immoral, unethical, oppressive or unscrupulous” and is “generally . . . of an egregious, non-negligent nature”

## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
____________________________________
)
VINCENT VAIANO, )
)
Plaintiff, )
)
) Civil Action No. 24-CV-11332-AK
v. )
)
EQUIFAX, INC., )
JOHN DOES 1 THROUGH 5, )
JANE DOES 6 THROUGH 10, )
)
Defendants. )
)

MEMORANDUM AND ORDER ON MOTION TO DISMISS

A. KELLEY, D.J.
Plaintiff Vincent Vaiano (“Vaiano”) filed this suit against Equifax, Inc. (“Equifax”) and
several other unknown individuals who work for Equifax, alleging statutory and common-law
claims because of information included in his credit report, as well as general claims regarding
Equifax’s role in the credit reporting industry. For the following reasons, Equifax’s Motion to
Dismiss for Failure to State a Claim [Dkt. 12] is GRANTED and this matter is DISMISSED
WITH PREJUDICE.
I. BACKGROUND
In his Complaint, Vaiano makes several claims regarding Equifax and the credit reporting
industry at large. He argues that the credit reporting industry is collusive, harming consumers
and borrowers, while offering little benefit. Vaiano goes on to claim that the credit reporting
industry shares little information about their decision-making processes and considerations,
which has a large impact on everyday consumers’ credit reports, and operates in a way that
makes it nearly impossible for victims of the industry to challenge the impact of different actions
on their credit reports.
As to Vaiano specifically, he alleges that he contracted COVID-19 in 2021, which caused
him to be late on payments to his credit accounts. As a result, his credit score was lowered.
Vaiano claims that the lowering of his score, as well as the lack of information provided about

how Vaiano’s score would be impacted, the lack of care of the company, and the lack of concern
of its employees for his well-being, had distressing consequences on his life. In light of these
allegations, Vaiano made a total of 19 claims, including: violations of the Fair Credit Reporting
Act (“FCRA”) 15 U.S.C. § 1681 et seq., the Massachusetts Fair Credit Reporting Act
(“MFCRA”), the Federal Fair Debt Collection Practices Act (“FDCPA”), Massachusetts’ Unfair
Debt Collection Practices (“MDCPA”), negligent misrepresentation, false or misleading
representations under 15 U.S.C. § 1125(a) and state law, fraudulent concealment, invasion of
privacy, intentional and negligent infliction of emotional distress (“IIED” and “NIED”,
respectively), defamation, libel, slander, negligent hiring, negligent failure to provide adequate

training, negligent failure to provide adequate supervision, tortious interference with an
advantageous relationship, and violation of Massachusetts General Laws Ch. 93A.
In its Motion to Dismiss, Equifax moves to dismiss all 19 claims on several alternative
theories.
As a final note, Vaiano has filed at least 10 identical or similar lawsuits throughout 2024.
An identical complaint was filed by another litigant, who claims to have an address identical to
Vaiano’s, on the same day that Vaiano filed the instant case. Brown v. Equifax Inc., No. 24-CV-
11331-LTS (D. Mass. Sept 27, 2024). Brown’s complaint was dismissed after he failed to file an
opposition to the motion to dismiss. Id. [Dkt. 18]. Additionally, Vaiano filed an identical
complaint on his own behalf against Trans Union. Vaiano v. Trans Union LLC et al., No. 24-CV-
11294-MJJ (D. Mass Feb. 11, 2025). That case was dismissed in full, after briefing of Trans
Union’s motion to dismiss. Id. [Dkt. 18].
II. LEGAL STANDARD
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a

complaint must allege sufficient facts to state a claim for relief that is “plausible on its face” and
actionable as a matter of law. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Reading the complaint “as a whole,” the Court
must conduct a two-step, context-specific inquiry. García-Catalán v. United States, 734 F.3d
100, 103 (1st Cir. 2013). First, the Court must perform a close reading of the complaint to
distinguish factual allegations from conclusory legal statements. Id. Factual allegations must be
accepted as true, while legal conclusions are not entitled to credit. Id. A court may not disregard
properly pleaded factual allegations even if actual proof of those facts is improbable. Ocasio-
Hernández v. Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011). Second, the Court must determine

whether the factual allegations present a “reasonable inference that the defendant is liable for the
misconduct alleged.” Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011) (citation omitted).
Dismissal is appropriate when the complaint fails to allege a “plausible entitlement to relief.”
Rodriguez-Ortiz v. Margo Caribe, Inc., 490 F.3d 92, 95 (1st Cir. 2007) (quoting Twombly, 550
U.S. 544 at 559).
Complaints brought by pro se litigants, as is the case with this action, are subjected to a
lesser scrutiny than that of complaints drafted by attorneys. Ferranti v. Moran, 618 F.2d 888,
890 (1st Cir. 1980). Courts may “intuit the correct cause of action, even if [the complaint] was
imperfectly pled,” provided the complaint contains sufficient facts to do so. Ahmed v.
Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997). However, while pro se litigants are afforded more
latitude in this realm, this latitude “cannot be taken to mean that pro se complaints are held to no
standard at all.” Sergentakis v. Channell, 272 F. Supp. 3d 221, 224-25 (D. Mass. 2017) (internal
quotation marks and citation omitted). In other words, “pro se status does not insulate a party
from complying with procedural and substantive law.” Ahmed, 118 F.3d at 890.

III. DISCUSSION
Although this Court liberally construes Vaiano’s pleadings because he is proceeding pro
se, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972), this action is subject to dismissal because
the Complaint does not “comply[] with procedural and substantive law.” Ahmed, 118 F.3d at
890. The Complaint includes essentially no facts to support Vaiano’s claims. Id. (“The policy
behind affording pro se plaintiffs liberal interpretation is that if they present sufficient facts, the
court may intuit the correct cause of action, even if it was imperfectly pled. This is distinct from
the case at hand, in which the formal elements of the claim were stated without the requisite
supporting facts”). Each count is addressed in turn below.

A. Counts I and II (FCRA and MFCRA)
Counts I and II are dismissed because Vaiano has not plausibly alleged that any reported
information was inaccurate, let alone any facts to explain what reports or accounts were
inaccurate or why. DeAndrade v. Trans Union LLC, 523 F.3d 61, 66-68 (1st Cir. 2008) (finding
that to prevail on a claim under the FCRA, plaintiff must allege an inaccuracy in reporting). As a
result, Vaiano has failed to state a claim as a matter of law.
Further, even if Vaiano had alleged any relevant facts, his MFCRA claim is preempted by
the FCRA. Brown v. Wells Fargo Bank, N.A. et al., 24-CV-10952-LTS, at *5 (D. Mass. Oct. 16,
2024) (finding intentional infliction of emotional distress, negligent infliction of emotional
distress, and Ch. 93A claims preempted by the FCRA); Brown v. JPMorgan Chase & Co., 22-
CV-11298-FDS, 2023 WL 3511363, at *4-5 (D. Mass. May 17, 2023) (finding MCRA and Ch.
93A claims preempted by the FCRA); Kuppserstein v. Bank of Am., Nat’l Ass’n, No. 14-CV-
13766-GAO, 2015 WL 4601704, at *3 (D. Mass. July 31, 2015); Leet v. Cellco P’ship, 480 F.
Supp. 2d 422, 431, 433 (D. Mass. 2007) (finding negligence and MCRA claims preempted by

the FCRA); Islam v. Option One Mortg. Corp., 432 F. Supp. 2d 181, 188-89 (D. Mass. 2006)
(dismissing § 54A(g) counts as preempted by the FCRA); Gibbs v. SLM Corp., 336 F. Supp. 2d
1, 13 (D. Mass. 2004) (“Where, as here, the FCRA does not exempt the state law provision
expressly authorizing a private cause of action, such private causes of action remain
preempted.”).
As a result, Counts I and II are dismissed.
B. Counts III and IV (FDCPA and MDCPA)
Counts III and IV are dismissed because Vaiano has not plausibly alleged that Equifax is
a debt collector, as required by the FDCPA and MDCPA. See Witt v. U.S. Dept. of Ed., 23-CV-

00562-MEG-KAD, 2024 WL 889250, at *6 (D. Conn. Jan. 23, 2024) (“It is well-settled that a
credit reporting agency such as . . . Equifax . . . [is] not a ‘debt collector’ under the
FDCPA”), report and recommendation adopted, 23-CV-00562-MEG-KAD (D. Conn. Feb. 15,
2024); see also Swainson v. Lendingclub Corp., No. 21-CV-5379-GHW-SLC, 2022 WL
2704629, at *9-10 (S.D.N.Y. June 24, 2022), report and recommendation adopted, No. 21-CV-
5379-GHW-SLC, 2022 WL 2704486 (S.D.N.Y. July 12, 2022) (citing Perez v. Experian, No. 20-
CV-9119-PAE-JLC, 2021 WL 4784280, at *13 (S.D.N.Y. Oct. 14, 2021)), report and
recommendation adopted, No. 20-CV-9119-PAE-JLC, 2021 WL 5088036 (S.D.N.Y. Nov. 2,
2021) (“Equifax, Experian, and [Trans Union] are credit reporting agencies that do not collect
debts, and therefore do not fall within the meaning of ‘debt collector’ under the FDCPA, but
instead under the term ‘credit reporting agency’ as defined in § 1681a(f).”); Pottetti v. Educ.
Credit Mgmt. Corp., No. 19-CV-4479-PKC-SMG, 2020 WL 5645194, at *5 (E.D.N.Y. Sept. 22,
2020) (dismissing plaintiff’s FDCPA claims where, “[p]laintiff does not set forth a factual basis
for legally categorizing [d]efendant as a statutorily-defined ‘debt collector’ under the FDCPA”

(quoting 15 U.S.C.A. § 1692a(6))).
As a result, Vaiano has failed to state a claim as a matter of law under both the FDCPA
and the MDCPA.
C. Counts V, IX, XII, XIII, XIV, XV, XVI, XVII (Negligent Misrepresentation,
Invasion of Privacy, Defamation, Libel, Slander, Negligent Hiring, Negligent
Failure to Provide Adequate Training, Negligent Failure to Provide
Adequate Supervision)
Counts V, IX, XII, XIII, XIV, XV, XVI, and XVII are dismissed both because Vaiano
failed to state a claim and the actions are preempted by the FCRA.
As an initial matter, none of the claims made by Vaiano are supported by any well-pled
facts. See Ashcroft v. Iqbal, 556 U.S. 662, 687 (2009) (“Rule 8 does not empower respondent to
plead the bare elements of his cause of action, affix the label ‘general allegation,’ and expect his
complaint to survive a motion to dismiss”); Maldonado v. Fontanes, 568 F.3d 263, 268 (1st Cir.
2009) (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice”). Vaiano simply makes general claims about the credit reporting
industry and states that his credit score was lowered after he missed payments on his credit
accounts after he contracted COVID-19. There is no plausible claim to be crafted from such
facts.
As a separate matter, even if Vaiano could point to certain facts to support any one of
these counts, each claim is preempted by the FCRA. The FCRA states: “No consumer may bring
an action or proceeding in the nature of defamation, invasion of privacy, or negligence with
respect to the reporting of information against any consumer reporting agency . . . based on
information disclosed pursuant to section 1681g, 1681h, or 1681m of this title, . . . except as to
false information furnished with malice or willful intent to injure such consumer.” 15 U.S.C. §
1681h(e). Each of these counts is a common-law claim centered on either “defamation, invasion

of privacy, or negligence,” and is thus preempted. Vaiano has not alleged any facts in support of
“malice or willful intent” that would save any of these claims from the FCRA’s preemption
provision.
As a result, Vaiano has both failed to state a claim, and each claim is preempted by the
FCRA, as to Counts V, IX, XII, XIII, XIV, XV, XVI, and XVII. These counts are dismissed.
D. Counts X, XI, XIX (IIED, NIED, and Ch. 93A)
Counts X, XI, and XIX are dismissed both because Vaiano fails to state a claim and the
actions are preempted by the FCRA.
To prevail ON a claim for IIED, a plaintiff must establish: “(1) that [the defendant],

knew, or should have known that his conduct would cause emotional distress; (2) that the
conduct was extreme and outrageous; (3) that the conduct caused emotional distress; and (4) that
the emotional distress was severe.” Polay v. McMahon, 10 N.E.3d 1122, 1128 (Mass. 2014).
“The standard for making a claim of intentional infliction of emotional distress is very high.”
Id.; see also Galvin v. U.S. Bank, N.A., 852 F.3d 146, 161 (1st Cir. 2017). Qualifying conduct
must “go beyond all possible bounds of decency, and . . . be regarded as atrocious, and utterly
intolerable in a civilized community.” Roman v. Trs. of Tufts Coll., 964 N.E.2d 331, 341 (Mass.
2012). The Court may grant a motion to dismiss where the conduct alleged in the complaint
does not rise to this level. Polay, 10 N.E.3d at 1128-29. Vaiano alleges that Equifax provided to
others a lower credit score without explanation as a result of Vaiano’s late payments. This does
not support any element of an IIED claim. Further, although there are no claims that any of the
information provided was inaccurate, even if it was, courts have held that a financial institution’s
failure to correct inaccurate information in a credit report was not sufficiently extreme and
outrageous conduct to support a claim of intentional infliction of emotional distress, absent

evidence that the institution acted with the intention of inflicting distress. Harrington v. CACV
of Colo., LLC, 508 F. Supp. 2d 128, 141 (D. Mass. 2007) (concluding that an “honestly
mistaken” or inaccurate report could not support an emotional distress claim); Richardson v.
Fleet Bank of Mass., 190 F. Supp. 2d 81, 90 (D. Mass. 2001). Thus, Vaiano has failed to state an
IIED claim.
Vaiano also brings an NIED claim against Equifax. This claim requires allegations of:
“(1) negligence; (2) emotional distress; (3) causation; (4) physical harm manifested by objective
symptomatology; and (5) that a reasonable person would have suffered emotional distress under
the circumstances of the case.” Lockwood v. Madeiros, No. 18-CV-40143-DHH, 2018 WL

4087938, at *8 (D. Mass. Aug. 27, 2018). Vaiano fails to advance a plausible allegation of
physical harm, nor would the facts described in the Complaint cause a reasonable person to
suffer emotional distress. There is only a recitation of the elements. As a result, Vaiano has
failed to state an NIED claim.
Vaiano also brings a claim under Chapter 93A. To establish entitlement to Chapter 93A
relief, the complaint must “allege facts sufficient to establish[:] first, that the defendant has
committed an unfair or deceptive act or practice; second, that the unfair or deceptive act or
practice occurred ‘in the conduct of any trade or commerce;’ third, that the plaintiff suffered an
injury; and fourth, that the defendant’s unfair or deceptive act was a cause of the injury.”
Rafferty v. Merck & Co., Inc., 92 N.E.3d 1205, 1222 (Mass. 2018) (citing Herman v. Admit One
Ticket Agency LLC, 454 Mass. 611, 615-16 (2009). Just as Vaiano’s factual allegations fail to
support an IIED or NIED claim, the conduct he attributes to Equifax is not the sort of
unconscionable, conscience shocking behavior necessary to support a Chapter 93A claim. See
Tomasella v. Nestle USA, Inc., 962 F.3d 60, 70-71 (1st Cir. 2020) (concluding Ch. 93A

implicated only by allegation of conduct that “is immoral, unethical, oppressive or unscrupulous”
and is “generally . . . of an egregious, non-negligent nature”).
Finally, even if there was an argument to be made that there are sufficient facts to state a
claim, Vaiano’s IIED, NIED, and Ch. 93A claims are also subject to dismissal for a second,
independent reason: They are preempted by the FCRA. See Brown v. JPMorgan Chase & Co.,
22-CV-11298-FDS, 2023 WL 3511363, at *4-5 (D. Mass. May 17, 2023) (finding Ch. 93A
claims preempted by the FCRA); Brown v. Wells Fargo Bank, N.A. et al., 24-CV-10952-LTS, at
*5 (D. Mass. Oct. 16, 2024) (finding intentional infliction of emotional distress, negligent
infliction of emotional distress, and Ch. 93A claims preempted by the FCRA); see also Leet v.

Cellco P’ship, 480 F. Supp. 2d 422, 431, 433 (D. Mass. 2007) (finding negligence and MCRA
claims preempted by the FCRA). Vaiano bases his IIED and NIED claims on the assertion that
he has suffered because Equifax “does not let you know how certain incidents effect Plaintiff’s
credit score.” His Ch. 93A claim arises from his assertion that Equifax lowered his credit score
without explanation. All three claims challenge conduct that falls squarely within the bounds of
the FCRA’s preemption provisions. As a result, even if Vaiano successfully stated a claim, they
would be preempted by the FCRA.
In sum, Counts X, XI, and XIX of Vaiano’s Complaint are dismissed.
E. Counts VI and VIII (False or Misleading Representations under the Lanham
Act and the Massachusetts Equivalent)
Counts VI and VIII are dismissed because Vaiano has not alleged any actions by Equifax
that are sufficient to state claims for false or misleading representations. To state a false
advertising claim under the Lanham Act, 15 U.S.C. § 1125, the plaintiff must offer facts that
show: “(1) [t]he defendant made a false or misleading description of fact or representation of fact
in a commercial advertisement about his own or another’s product; (2) the misrepresentation is
material, in that it is likely to influence the purchasing decision; (3) the misrepresentation
actually deceives or has the tendency to deceive a substantial segment of its audience; (4) the
defendant placed the false or misleading statement in interstate commerce; and (5) the plaintiff
has been or is likely to be injured as a result of the misrepresentation, either by direct diversion
of sales or by a lessening of goodwill associated with its products.” Riverdale Mills Corp. v.

Cavatorta N. Am., Inc., 146 F. Supp. 3d 356, 361 (D. Mass. 2015). Vaiano did not allege a
single fact to support any of the above elements.
As to the state equivalent, although it is unclear from the original complaint, both Equifax
and this Court assume Vaiano intended to make a claim under Mass. Gen. Laws ch. 93A § 2,
which governs “unfair or deceptive acts or practices in the conduct of any trade or commerce.”
Again, Vaiano did not allege a single fact to support such a claim. Further, if Vaiano believes he
has made a claim under a different section of Massachusetts law, while the Court must liberally
construe a pro se plaintiff’s complaint, it cannot fashion claims for him. Ateek v. Massachusetts,
No. 11-CV-11566-DPW, 2011 WL 4529393, at *3 n.7 (D. Mass. Sept. 27, 2011). As a result, the
count must be dismissed.

Vaiano has failed to state a claim as to Counts VI and VIII.
F. Counts VII (Fraudulent Concealment)
Counts VII is dismissed because Vaiano has failed to assert facts necessary to state a
claim that Equifax has fraudulently concealed the existence of a cause of action. In
Massachusetts, fraudulent concealment generally requires an affirmative act of fraud. Maggio v.
Gerard Freezer & Ice Co., 824 F.2d 123, 130 (1st Cir. 1987). A plaintiff must plead the “time,

place, and content” of any fraudulent concealment. Broderick v. PNC Fin. Servs. Grp., Inc., 919
F. Supp. 2d 178, 182 (D. Mass. 2013), aff’d, 554 F. App’x 27 (1st Cir. 2014). Vaiano has failed
to allege any affirmative act of fraud.
The exception to this rule is that a fiduciary’s breach of a duty of disclosure may also
constitute fraudulent concealment. Id. at 182 n.31 (citing Maggio, 824 F.2d at 130-31). Vaiano,
however, has not alleged a fiduciary relationship nor sufficient facts from which this Court can
reasonably infer a fiduciary relationship between himself and Equifax. See Broderick, 919 F.
Supp. 2d at 182 (citing Frappier v. Countrywide Home Loans, Inc., 645 F.3d 51, 59 (1st Cir.
2011); Superior Glass Co., Inc. v. First Bristol Cnty. Nat’l Bank, 380 Mass. 829, 832 (1980)).

Additionally, fraudulent concealment requires not only that the defendant concealed
crucial facts, but also that the plaintiff lacked the means to uncover these facts. Id. Again,
Vaiano has failed to assert any facts that would support such a claim.
As a result, Vaiano has failed to state a claim as to Counts VII, thus, it is dismissed.
G. Count XVIII (Tortious Interference with a Contractual Relationship)
Count XVIII is dismissed because Vaiano failed to state a claim. To prevail in a claim
for tortious interference with a contractual relationship, “[t]he plaintiff must prove that (1) he had
a contract with a third party; (2) the defendant knowingly interfered with that contract [by
inhibiting the third party’s or the plaintiff’s performance thereof depending on the theory]; (3)
the defendant’s interference, in addition to being intentional, was improper in motive or means;
and (4) the plaintiff was harmed by the defendant’s actions.” ITyX Sols., AG v. Kodak Alaris
Inc., No. 16-CV-10250-ADB, 2018 WL 2392004, at *13 (D. Mass. May 25, 2018), aff’d, 952
F.3d 1 (1st Cir. 2020) (quoting Harrison v. NetCentric Corp., 744 N.E.2d 622, 632 (Mass.
2001)). Vaiano has not alleged any facts concerning a specific contract with a third party, the

nature of the “false statements” of Equifax that interfered with said contract, if that interference
was intentional with an improper motive or means, or how Vaiano was harmed. Thus, Vaiano
has failed to state a tortious interference claim and the count is dismissed.
H. Amendment and Prejudice
Though Vaiano has not asked for leave to amend his pleading, the Court has considered
whether to afford him such an opportunity. In the circumstances presented, the Court declines to
do so. As mentioned above, this is not the first time that Vaiano has brought identical or similar
claims like the ones discussed here against a financial institution he believes has wronged him.
This is also not the first time a defendant has removed such an action to federal court, nor is it

the first time a session of this Court has dismissed such claims based on pleading defects and/or
preemption. Given this background, that Vaiano has not requested leave to amend, and
exceptional circumstances do not compel this Court to offer Vaiano leave, Hochendoner v.
Genzyme Corp., 823 F.3d 724, 735-36 (1st Cir. 2016), this matter is dismissed with prejudice.
IV. CONCLUSION
For the foregoing reasons, Equifax’s Motion to Dismiss for Failure to State a Claim [Dkt.
12] is GRANTED and this matter is DISMISSED WITH PREJUDICE.
SO ORDERED.
Dated: February 27, 2025 /s/ Angel Kelley
Hon. Angel Kelley
United States District Judge

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10813800. Public record. Not legal advice.