Kevin Kelly v. RealPage Inc

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________________

No. 21-1672

________________

KEVIN JOSEPH KELLY; KARRIEM BEY,

On behalf of themselves and all others similarly situated,

Appellants

v.

REALPAGE INC., d/b/a ONSITE;

RP ON SITE, LLC.

________________

On Appeal from the District Court for the

Eastern District of Pennsylvania

(E.D. Pa. No. 2-19-cv-01706)

United States District Judge: Honorable Joshua D. Wolson

_______________

Argued December 15, 2021

Before: GREENAWAY, JR., KRAUSE, and PHIPPS, Circuit

Judges

(Opinion Filed: August 24, 2022)

Lauren K.W. Brennan

James A. Francis

John Soumilas [ARGUED]

Francis Mailman Soumilas

1600 Market Street

Suite 2510

Philadelphia, PA 19103

Counsel for Appellants

Ronald I. Raether, Jr.

Troutman Pepper

5 Park Plaza

Suite 1400

Irvine, CA 92614

Misha Tseytlin [ARGUED]

Troutman Pepper

227 West Monroe Street

Suite 3900

Chicago, IL 60606

Counsel for Appellees

Mark W. Mosier

Covington & Burling

850 10th Street, N.W.

One City Center

Washington, DC 20001

Counsel for Amici Curiae Consumer Data

Industry Association and Professional

Background Screening Association

2

Nicole A. Saharsky

Mayer Brown

1999 K Street, N.W.

Washington, DC 20006

Counsel for Amicus Curiae Chamber of

Commerce of the United States of America

_____________

OPINION

______________

KRAUSE, Circuit Judge.

In late 2018, Appellants Kevin Kelly and Karriem Bey

found themselves in just the sort of frustrating predicament the

Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq.,

was designed to avoid, see J.A. 5. Their rental applications

were denied based on inaccurate consumer reports generated

by a consumer reporting agency, RealPage, Inc. RealPage

would not correct the reports unless Appellants obtained proof

of the error from its sources; and the identity of RealPage’s

sources was not included in the disclosures to Appellants,

despite their requests for their files. So Appellants availed

themselves of the remedy Congress provided and sued

RealPage, claiming it had violated its obligation under the

FCRA to disclose on request “[a]ll information in the

consumer’s file at the time of the request” and “[t]he sources

of th[at] information.” 15 U.S.C. § 1681g(a). Appellants

sought damages and attorneys’ fees not only for themselves but

also on behalf of a purported class and subclass.

3

The class action did not get far. The District Court

denied Appellants’ motion for class certification on the

grounds that Appellants failed to satisfy Rule 23(b)(3)’s

predominance and superiority requirements and that their

proposed class and subclass were not, in any event,

ascertainable. For the reasons explained below, we disagree,

and because the Court based its predominance analysis on a

misinterpretation of Section 1681g(a) and erred in applying our

ascertainability precedent, we will vacate and remand.

I. FACTUAL AND PROCEDURAL BACKGROUND

To place the parties and their interactions in context, we

begin with a brief overview of the FCRA before recounting the

history of this case.

A. The Fair Credit Reporting Act

In the FCRA, Congress sought to address the problem

of “inaccurate or arbitrary information” in consumer reports by

requiring credit reporting agencies (“CRAs”) 1 to “utilize

accurate, relevant, and current information in a confidential

and responsible manner.” Cortez v. Trans Union, LLC, 617

F.3d 688, 706 (3d Cir. 2010) (quoting Guimond v. Trans Union

Credit Info. Co., 45 F.3d 1329, 1333 (9th Cir. 1995)); see also

Bibbs v. Trans Union LLC, — F.4th —, 2022 WL 3149216, at

*3 (3d Cir. 2022) (explaining that, in enacting the FCRA,

The FCRA defines a “consumer reporting agency” as

1

any individual or entity that regularly “assembl[es] or

evaluat[es] consumer credit information or other information

on consumers for the purpose of furnishing consumer reports

to third parties.” 15 U.S.C. § 1681a(f).

4

Congress intended to “protect consumers from the

transmission of inaccurate information about them” (quotation

omitted)). It defined a “consumer report” to encompass “any

. . . communication of any [consumer] information by a

consumer reporting agency . . . which is used or expected to be

used” to establish the consumer’s eligibility for credit,

employment, or another purpose. 15 U.S.C. § 1681a(d). Then,

to advance its “consumer oriented objectives,” Guimond, 45

F.3d at 1333, Congress specified the groups of third-party

“users” to whom CRAs could disclose consumer reports, e.g.,

id. §§ 1681b, 1681e(a), the different categories of information

that must be omitted from or included in consumer reports

procured by different users, e.g., id. §§ 1681c, 1681f, and the

responsibilities of such users once they procured those reports

from CRAs, e.g., id. § 1681e; 12 C.F.R. § 1022.137.

But the FCRA also sought to address another problem:

the consumer’s “lack of access to the information in [her] file

[and] the difficulty in correcting inaccurate information.”

Cortez, 617 F.3d at 706 (internal quotation marks omitted)

(quoting S. Rep. No. 91–517, at 3 (1969)). To that end, it

broadly defined “file” to mean “all of the information on th[e]

consumer recorded and retained by a consumer reporting

agency regardless of how the information is stored,” 15 U.S.C.

§ 1681a(g), and it required CRAs, upon request, to “clearly and

accurately disclose to the consumer” six enumerated categories

of information, including “[a]ll information in the consumer’s

file at the time of the request” and “[t]he sources of [that]

information.” 2 15 U.S.C. § 1681g(a)(1), (a)(2). In addition to

2

The six categories of information CRAs are required

to disclose to the consumer upon request are: (1) “[a]ll

information in the consumer’s file at the time of the request

5

specifying the “[c]onditions and form of disclosure to

consumers,” id. § 1681h, and the procedures for consumers to

dispute “the completeness or accuracy of any item of

information . . . in a consumer’s file” with a CRA, id. § 1681i,

Congress also gave consumers a powerful remedy to enforce

their rights by creating private causes of action, for both willful

and negligent violations of the FCRA, including statutory

damages and attorney’s fees. 15 U.S.C. §§ 1681n, 1681o; see

Long v. Se. Pa. Transp. Auth., 903 F.3d 312, 323 (3d Cir. 2018)

(“Congress granted the consumer a right to receive a copy of

his report before adverse action is taken, and provided for

statutory damages plus attorney’s fees for willful

noncompliance[.]”).

B. RealPage’s Rental Reports

RealPage is a CRA that specializes in providing

property managers with consumer reports, which it terms

“Rental Reports,” to help them evaluate their prospective

tenants. See 15 U.S.C. § 1681a(f); J.A. 3–4. To generate

. . .”; (2) “[t]he sources of the information . . .”;

(3) “[i]dentification of each person . . . that procured a

consumer report . . .”; (4) “[t]he dates, original payees, and

amounts of any checks upon which is based any adverse

characterization of the consumer, included in the file at the

time of the disclosure”; (5) “[a] record of all inquiries received

by the agency during the 1-year period preceding the request

that identified the consumer in connection with a credit or

insurance transaction that was not initiated by the consumer”;

and (6) “[i]f the consumer requests the credit file and not the

credit score, a statement that the consumer may request and

obtain a credit score.” 15 U.S.C. § 1681g(a).

6

Rental Reports for those clients over the Class Period,3

RealPage collected public-record information, including

criminal records and eviction filings, from third-party vendors

like LexisNexis and HygenicsData, stored that information in

its own databases, and compiled it to respond to client requests.

J.A. 3. A client procuring a Rental Report could also instruct

RealPage to make a courtesy copy of that report available to

the prospective tenant, who would then be notified of the

option to download the Rental Report from RealPage’s

website. J.A. 179.

Consistent with its obligations under the FCRA,

RealPage also disclosed information in response to consumers’

direct requests for their files, which could be submitted in two

ways. For one, a consumer could use a form on RealPage’s

website to request a “report and any of the disclosures required

by the federal Fair Credit Reporting Act.” Appellants’ Br. 23

(emphasis omitted); Appellees’ Br. 47. In that case, the form

would automatically generate an email sent to a dedicated

email inbox maintained by RealPage, and RealPage would

manually process the request. J.A. 80, 134, 180. Alternatively,

a consumer could personally contact a RealPage representative

by phone, letter, or email to request their information. J.A.

179–80.

As it turned out, however, regardless of whether a

consumer downloaded her courtesy copy of a Rental Report

requested by a property manager or initiated her own

independent request for her information on file, RealPage

provided the consumer with the exact same report, the Rental

The Class Period is September 26, 2017 through

3

November 30, 2019. J.A. 6.

7

Report—which did not disclose the third-party-vendor

“sources of the information.” 4 15 U.S.C. § 1681g(a)(2). J.A.

4, 117–18, 124.

C. The Parties

Appellants Kevin Kelly and Karriem Bey are two

prospective tenants whose Rental Reports contained

inaccuracies and who therefore sought information from

RealPage to try to correct those errors. J.A. 5. After Kelly and

Bey submitted lease applications for apartments at different

properties, the respective property managers requested

Appellants’ consumer reports from RealPage. In response,

RealPage generated and sent their clients Appellants’ Rental

4

Specifically, Appellants allege that RealPage violated

§ 1681g(a)(2) by failing to disclose the identity of third-party

vendors who supplied it with public-record information.

Appellants’ Br. 7. RealPage counters that the statute only

requires it to disclose the original sources of the public records

included in its reports, e.g., the court that generated a given

criminal record, and that third-party vendors who simply

aggregate such public records, like LexisNexis and

HygenicsData, do not qualify as “sources” within the meaning

of the FCRA. See 15 U.S.C. § 1681g(a)(2); Appellee’s May

26, 2021 Supp. Ltr. Ex. A at 7. The merits of these arguments

are beyond the scope of this interlocutory appeal, and we

express no opinion on whether the term “sources” in

§ 1681g(a)(2) covers a CRA’s third-party vendors. See infra

note 8. For purposes of reviewing the District Court’s denial

of class certification, however, we will assume the correctness

of Appellants’ definition and will refer to third-party vendors

in this opinion as “sources.”

8

Reports, each of which contained inaccurate public record

information. Kelly’s report mistakenly included two DUI

convictions and a record of an outdated vehicle inspection tag,

the latter of which the report described as a misdemeanor

conviction rather than a non-criminal summary offense. J.A.

5, 34–43. Bey’s report incorrectly stated that a civil action for

possession was filed against him and included an erroneous

eviction filing. J.A. 5, 51–54. Not surprisingly, the property

managers turned down both Appellants, although in Kelly’s

case, the manager eventually relented. See J.A. 5, 199–200,

243 (testifying that the only apartment Bey could move into

was public housing in a different apartment building).

Upon learning of the inaccuracies in their reports, Kelly

and Bey contacted RealPage, hoping to determine the sources

of the errors and to correct them. Kelly made requests both

using the form on RealPage’s website that requested a “report

and any of the disclosures required by the federal Fair Credit

Reporting Act,” Appellants’ Br. 23 (emphasis omitted), and by

mailing a written request to RealPage for “a copy of all of the

information that [was] in [his] file.” J.A. 204, 144–45. Bey

called RealPage to “let [him] get [his] file” so that he could

“correct” the errors. J.A. 233–35. What both Appellants

received was simply the Rental Report that RealPage provided

to the property manager, J.A. 231–33, and neither Rental

Report identified the third-party vendors that sourced the

inaccurate records to RealPage. J.A. 33-43, 50-54. Yet

without proof from accurate records, RealPage refused to alter

the information on the Rental Reports, and without the identity

of the third-party vendors, neither Kelly nor Bey could obtain

that proof. See, e.g., J.A. 235–38.

Both Appellants attempted unsuccessfully to obtain

proof elsewhere and both suffered adverse consequences. Bey

9

attempted to obtain the records from a public source, but he

was denied access because those records had been sealed.

Kelly v. RealPage, Inc., No. 2:19-cv-1706, ECF #44-15 at ¶ 6

(“Bey Decl.”) (E.D. Pa. July 10, 2020); J.A. 235–38. As a

result of the inaccurate eviction record, he was only able to live

in public housing. J.A. 235–38, 241–43. Kelly also struggled

to locate court records of the crimes that had been wrongly

attributed to him because the case numbers listed in his Rental

Report were inaccurate, and the mislabeling of the inspection

violation as a misdemeanor is the type of error that could only

originate with the third-party vendor (or RealPage), not the

original source. Kelly Decl. ¶¶ 5–6; see J.A. 38, 80, 196–98.

Although Kelly was ultimately approved for the apartment, the

error “needlessly wasted [his] time” and caused him

“confus[ion]” and “unnecessary distress.” Kelly v. RealPage,

Inc., No. 2:19-cv-1706, ECF #44-14 at ¶ 8–9 (“Kelly Decl.”)

(E.D. Pa. July 10, 2020). In addition, without the source

information, neither Kelly nor Bey was able to get RealPage to

correct the errors. Id. at ¶ 9; see, e.g., J.A. 204–05, 215. 5

D. The Proceedings Below

In April 2019, Kelly and Bey initiated this putative class

action against RealPage, alleging, among other things, willful

and negligent violations of Section 1681g. See 15 U.S.C.

§§ 1681n, 1681o; Kelly v. RealPage, Inc., No. 2:19-cv-1706,

ECF #1 (E.D. Pa. Apr. 19, 2019). They sought to represent

consumers who received Rental Reports during the Class

5

RealPage declined either to admit that the inaccuracies

were caused by its own errors of attribution or to disclose

information on its sources to Kelly or Bey until after they

initiated this lawsuit. J.A. 60, 143, 218–20.

10

Period that included public-record information but failed to

name the third-party vendors who provided it to RealPage.

J.A. 6. In practice, any consumer whose report included public

records fit this description because, as RealPage has

acknowledged, none of the Rental Reports produced during the

Class Period identified third-party vendors, and RealPage

provided the same report to consumers, whether as a courtesy

copy of the Rental Report made available at the request of

RealPage’s client, or on direct request of the consumer for her

file. J.A. 126.

After RealPage answered the complaint, Kelly and Bey

moved to certify the following class and subclass:

• an “All Requests” class, including individuals

“who had a Rental Report sent or caused to be

sent to them by RealPage, Inc. through its On-

Site operation which did not include the name of

the private vendor source(s) from which public

record information in the file was obtained”

within the Class Period; and,

• a “Direct Requests” subclass consisting of

individuals in the All Requests class who

received a Rental Report “following a

documented direct request by the consumer” to

RealPage or On-Site.

J.A. 74–75.

These class definitions reflect the three different

methods by which putative class members could have received

their Rental Reports during the Class Period, i.e., as a courtesy

copy of the property manager’s report; through a consumer’s

11

direct request using the request form RealPage provided on its

website; or through a direct request by correspondence or

documented call. See J.A. 179–80. Approximately 2.2 million

consumers, comprising the All Requests class, received copies

of their Rental Reports through one or more of these methods

during the Class Period. J.A. 4. The Direct Requests subclass

includes only a subset of these consumers: the 16,659

consumers who obtained their Rental Reports using the

website form, J.A. 56, plus those who submitted requests via

documented calls, letters, or emails. 6

In deciding Appellants’ motion for class certification,

the District Court first addressed the issue of standing.

RealPage sought to have the motion denied and the complaint

dismissed on the ground that Appellants had failed to allege a

concrete injury. But the District Court rejected that argument,

holding that the deprivation of information to which

Appellants claimed to be legally entitled was a cognizable

injury for purposes of Article III standing. J.A. 10.

On the merits of the class certification motion, however,

the District Court sided with RealPage, declining to certify

either the All Requests class or the Direct Requests subclass.

Appellants, the Court recognized, had the burden to establish

“the four requirements of Rule 23(a) of the Federal Rules of

Civil Procedure,” i.e., “numerosity, commonality, typicality,

6

The All Requests class may be overinclusive because

consumers could have received their Rental Reports via

multiple methods. For example, Bey was presumably counted

twice because he received a copy of his Rental Report both as

a courtesy copy of the property manager’s request and through

a direct request via telephone. J.A. 231–35.

12

and adequacy,” as well as Rule 23(b)(3)’s “additional

requirements that ‘[common] questions of law or fact . . .

predominate over any questions affecting only individual

members’ and that ‘a class action [be] superior to other

available methods for fairly and efficiently adjudicating the

controversy.’” Gonzalez v. Corning, 885 F.3d 186, 192 (3d

Cir. 2018) (quoting Fed. R. Civ. P. 23(b)(3)). In addition, the

proposed class must be “ascertainable,” meaning it must be

“defined with reference to objective criteria,” and there must

be “a reliable and administratively feasible mechanism for

determining whether putative class members fall within the

class definition.” Byrd v. Aaron’s Inc., 784 F.3d 154, 163 (3d

Cir. 2015) (quoting Hayes v. Wal-Mart Stores, Inc., 725 F.3d

349, 355 (3d Cir. 2013)).

Here, the Court held that Appellants failed to establish

predominance and superiority and that neither class was

ascertainable. Fundamental to the District Court’s analysis

was its interpretation of Section 1681g(a) as imposing a

disclosure obligation on CRAs only when (1) the consumer

makes a direct request of the CRA, and (2) that consumer

specifically requests her “file” and not merely her “report.”

J.A. 12–13. Applying that interpretation, the Court held that

individual questions regarding whether consumers’ requests

were direct or indirect and whether consumers requested their

“files” or “reports” would predominate over common

questions, preventing the class action from being superior to

individual actions. J.A. 19–23. The Court also concluded that

neither the class nor the subclass was ascertainable because

identifying class members would require determining which

Rental Reports contained public record information and thus

would require “[a] review of each individual file [which] is, of

course, not administratively feasible.” J.A. 15–16.

13

Appellants filed a Motion for Reconsideration, arguing

in relevant part that the District Court erred in its

ascertainability determination because the “presence or

absence of public records is objectively determinable from the

face of the reports.” J.A. 283. Appellants also pointed to

evidence in the existing record that RealPage retained copies

of the Rental Reports in a “searchable electronic format,” and

submitted additional testimony from RealPage—obtained after

the class certification briefing—that the data is “stored in a

database that can be queried to retrieve these reports.” Id. The

Court denied the motion, rejecting what it described as a “bald

assertion . . . as to how [Appellants] would conduct the

computer-aided administrative task” of identifying the

proposed class members and declining to consider Appellants’

explanation on the ground that it had only been raised in a

footnote, which it declined to consider pursuant to its

individual rules. J.A. 29, 31, 84.

Appellants also sought leave to redefine the subclass

and to file a renewed motion for class certification to address

the District Court’s ascertainability and predominance

concerns in light of the Court’s novel interpretation of

§ 1681g(a). J.A. 288–90. Construing that request as a motion

to amend the scheduling order, the District Court denied it for

lack of diligence, concluding that Appellants “had or could

have obtained all of the information on which they base their

reconsideration motion before the Court ruled on class

certification.” J.A. 30.

Appellants then filed a petition for interlocutory review

under Rule 23(f) of the Federal Rules of Civil Procedure,

which we granted. J.A. 1.

14

II. JURISDICTION AND STANDARD OF REVIEW

The District Court had jurisdiction under 28 U.S.C.

§ 1331 and 15 U.S.C. § 1681p because Appellants assert

claims under 15 U.S.C. § 1681g(a). We have jurisdiction to

review the District Court’s order denying class certification

under 28 U.S.C. § 1292(e) and Rule 23(f) of the Federal Rules

of Civil Procedure.

We review an order denying class certification “for

abuse of discretion, which occurs if the district court’s decision

rests upon a clearly erroneous finding of fact, an errant

conclusion of law or an improper application of law to fact.”

Marcus v. BMW of N. Am., LLC, 687 F.3d 583, 590 (3d Cir.

2012) (quoting In re Hydrogen Peroxide Antitrust Litig., 552

F.3d 305, 312 (3d Cir. 2009)). We review legal standards

applied by the District Court de novo. Byrd, 784 F.3d at 161;

see also McNair v. Synapse Grp. Inc., 672 F.3d 213, 222 n.9

(3d Cir. 2012) (standard of review for standing on Rule 23(f)

appeal is plenary).

III. DISCUSSION

RealPage argues that Appellants lack a sufficiently

concrete injury to satisfy the Supreme Court’s standing

requirements, while Appellants challenge the District Court’s

grounds for denying class certification. We first address

whether Appellants established standing before discussing the

District Court’s rulings on predominance and ascertainability.

15

A. Standing 7

The District Court held that RealPage’s failure to

disclose source information was cognizable as an

7

Our appellate jurisdiction on interlocutory review is

typically “confined to review of that order,” O’Hanlon v. Uber

Techs., Inc., 990 F.3d 757, 761 (3d Cir. 2021), but here, we can

and must consider RealPage’s challenge to Appellants’ Article

III standing because that is a “necessary threshold issue to our

review of an order denying class certification,” McNair, 672

F.3d at 223 n.10; cf. O’Hanlon, 990 F.3d at 763 (observing,

outside the class action context, that where a plaintiff is

determined to have standing by a district court, “‘our power to

adjudicate [the standing-to-sue] issue on an interlocutory basis

is limited’ to pendent appellate jurisdiction” (alteration in

O’Hanlon) (quoting Griswold v. Coventry First LLC, 762 F.3d

264, 269 (3d Cir. 2014)).

However, we will not accept RealPage’s request that we

address the District Court’s rulings on personal jurisdiction and

partial summary judgment, Appellee’s Br. 54–65; Appellee’s

May 26, 2021 Supp. Ltr. 1, because those two issues are

beyond the scope of “Rule 23(f) inquiries.” McKowan Lowe

& Co. v. Jasmine, Ltd., 295 F.3d 380, 390 (3d Cir. 2002). In

any event, RealPage’s personal jurisdiction argument,

premised on the Supreme Court’s recent decision in Bristol-

Myers Squibb Co. v. Superior Ct., 137 S. Ct. 1773 (2017), is

foreclosed by our recent decision in Fischer v. Fed. Express

Corp., — F.4th —, 2022 WL 2922359, at *5 (3d Cir. 2022)

(“[W]e agree with many of our colleagues across the appellate

and trial benches who [have held] that Bristol-Myers did not

16

“informational injury” that conferred standing on Appellants

under Spokeo, Inc. v. Robins, 578 U.S. 330 (2016). See J.A.

10–11, 21. Since then, however, the Supreme Court decided

TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021),

providing additional guidance regarding the concreteness

requirement and prompting RealPage to renew its standing

challenge on appeal. Appellees’ Br. 22–31.

To establish standing, a plaintiff—whether acting in her

individual capacity or as a putative class representative—bears

the burden of establishing: “(1) an injury-in-fact; (2) that is

fairly traceable to the defendant’s challenged conduct; and

(3) that is likely to be redressed by a favorable judicial

decision.” St. Pierre v. Retrieval-Masters Creditors Bureau,

Inc., 898 F.3d 351, 356 (3d Cir. 2018) (citing Lujan v. Defs. of

Wildlife, 504 U.S. 555, 590 (1992)); see also Spokeo, 578 U.S.

at 338 n.6. At issue here is the first element of injury-in-fact,

and specifically, the requirement that the alleged injury be

concrete—that is, “real” as opposed to “abstract,” TransUnion,

141 S. Ct. at 2204 (quoting Spokeo, 578 U.S. at 340), “even in

the context of a statutory violation,” Spokeo, 578 U.S. at 341.

We first consider what showing of concreteness is required

under the Supreme Court’s informational injury cases and then

address whether, under that case law, Appellants have

established such an injury.

a. The Informational Injury Doctrine

With the rapid onset of the Information Age, the

Supreme Court’s jurisprudence on standing to challenge the

change the personal jurisdiction question with respect to class

actions.” (collecting cases)).

17

denial of information subject to disclosure has evolved rapidly

as well. In this context, the Supreme Court has repeatedly

recognized that an “informational injury,” where a plaintiff

alleges that she “failed to receive . . . information” to which she

is legally entitled, is sufficiently concrete to confer standing.

TransUnion, 141 S. Ct. at 2204, 2214; see also Spokeo, 578

U.S. at 340–42; Fed. Election Comm’n v. Akins, 524 U.S. 11,

24–25 (1998); Public Citizen v. Dep’t of Justice, 491 U.S. 440,

449 (1989).

Drawing on the Court’s most recent pronouncements in

TransUnion, RealPage argues that Appellants fail to state an

informational injury because they allege only a “bare

procedural violation” and “identified no downstream

consequences” from the omitted source information,

Appellees’ Br. 26, 30 (quoting TransUnion, 141 S. Ct. at

2213–14). 8 RealPage would have us hold that Appellants

8

RealPage also argues that Appellants lack standing

because there is no historical analogue to their injury.

Appellees’ Br. 27–28. Although in TransUnion the Supreme

Court explained that certain other types of intangible harms

require “a ‘close relationship’ to [] harm[s] ‘traditionally’

recognized as providing a basis for a lawsuit in American

courts,” TransUnion, 141 S. Ct. at 2204 (quoting Spokeo, 578

U.S. at 341), we do not understand TransUnion’s passing

discussion of informational injury, nor any other informational

injury case, to import a historical analogue requirement into the

standing analysis for informational injury claims. See id. at

2214; Tailford v. Experian Info. Sols., Inc., 26 F.4th 1092,

1100 (9th Cir. 2022) (explaining that TransUnion does not

prevent determination that an allegation of nondisclosure in

violation of Section 1681g is sufficiently concrete); Trichell v.

18

failed to establish the requisite “downstream consequences”

because they did not act on the source information after

RealPage disclosed it in discovery. Appellees’ Br. 28–30. The

upshot is that RealPage’s interpretation of TransUnion would,

in essence, limit the informational injury doctrine to the facts

of the Court’s prior informational injury cases.

But TransUnion did not cast doubt on the broader

import of those decisions. In fact, the Court cited Public

Citizen and Akins with approval, reaffirming their continued

viability and putting TransUnion in context. See TransUnion,

141 S. Ct. at 2214. These earlier cases show that “a plaintiff

suffers an ‘injury in fact’ when [she] fails to obtain information

which must be publicly disclosed pursuant to a statute,” Akins,

524 U.S. at 21 (citing Public Citizen, 491 U.S. at 449), and that

an informational injury is sufficiently concrete where the

failure to disclose is “directly related to” to the purpose of the

statute, id. at 24–25. In those cases, the Court explained that,

as with documents wrongly withheld in response to a Freedom

of Information Act (“FOIA”) request, “those requesting

information under [the statute] need show [only] that they

sought and were denied specific agency records.” Public

Citizen, 491 U.S. at 449 (collecting cases). Thus, under Akins

and Public Citizen, a plaintiff need only allege that she was

Midland Credit Mgmt., Inc., 964 F.3d 990, 1004–05 (11th Cir.

2020) (rejecting the contention that plaintiffs had stated an

informational injury but not imposing a historical analogue

requirement); see also Laufer v. Arpan LLC, 29 F.4th 1268,

1273–74 (11th Cir. 2022) (finding intangible injury despite

lack of common law analogue where plaintiff pleaded concrete

stigmatic injury causing “frustration and humiliation” and a

“sense of isolation and segregation”).

19

denied information to which she was legally entitled, and that

the denial caused some adverse consequences related to the

purpose of the statute.

Spokeo, which immediately preceded TransUnion,

made a similar point. Like the Court in TransUnion, the

Spokeo Court cited Public Citizen and Akins with approval,

explaining that a plaintiff “need not allege any additional harm

beyond the one Congress has identified” in enacting the statute,

contrasting the situation where, for example, a consumer

reporting agency provided information that was “entirely

accurate” and merely “fail[ed] to provide the required notice to

a user of the agency’s consumer information.” 578 U.S. at 342.

That injury wouldn’t be sufficiently concrete because,

notwithstanding the CRA’s failure to give the proper notice,

the consumer’s alleged “injury” would not arise from the harm

Congress sought to prevent in the FCRA: namely, having

incorrect information disseminated without notice or consent.

Id.

In TransUnion, the Supreme Court applied this

framework to its passing analysis of informational injury. It

rejected an argument that the plaintiffs had suffered an

informational injury under Public Citizen and Akins when

TransUnion allegedly failed to provide them with required

disclosures in a format specified by the FCRA. 141 S. Ct. at

2214. Unlike their counterparts in its earlier informational

injury cases, the Court reasoned that the TransUnion plaintiffs

“did not allege that they failed to receive any required

information[, t]hey argued only that they received it in the

wrong format.” Id. Also in contrast to the Court’s earlier

cases, the TransUnion plaintiffs had not alleged “adverse

effects” such as “downstream consequences” of the omission.

Id. (quotation omitted). Thus, the Court did not amend the

20

informational injury doctrine in TransUnion; rather, it simply

applied its prior precedent and determined that two critical

requirements for establishing an informational injury were

lacking: (1) the denial of information and (2) some

consequence caused by that omission. 9

Whether framed as “adverse effects” or a “downstream

consequence[],” TransUnion, 141 S. Ct. at 2214, the upshot is

the same: a plaintiff seeking to assert an informational injury

must establish a nexus among the omitted information to which

she has entitlement, the purported harm actually caused by the

specific violation, and the “concrete interest” that Congress

identified as “deserving of protection” when it created the

disclosure requirement. Tailford v. Experian Info. Sols., Inc.,

26 F.4th 1092, 1100 (9th Cir. 2022); see also TransUnion, 141

S. Ct. at 2214. Notably, in none of these cases were the

plaintiffs required to allege or prove that they would do

anything with the information once disclosed, nor did

9

Similarly, the Court in TransUnion favorably cited

Trichell v. Midland Credit Management, where the Eleventh

Circuit distinguished Akins and Public Citizen on the grounds

that those cases involved statutes that created “substantive

entitlement to receive information” and plaintiffs who

“identified consequential harms from the failure to disclose the

contested information.” 964 F.3d at 1004. By contrast, the

Trichell plaintiffs complained “not that they sought and were

denied desired information” or that they were actively misled,

“but that they received unwanted communications that were

misleading and unfair” and these communications “had no

impact on them.” Id.

21

TransUnion suggest that a plaintiff’s failure to act on the

information, if disclosed, would be dispositive.

In the wake of TransUnion, other Courts of Appeals

have likewise concluded that “depriv[ation] of information to

which [one] is legally entitled” constitutes a sufficiently

concrete informational injury when that omission causes

“adverse effects” and the information has “some relevance” to

an interest of the litigant that the statute was intended to

protect. Laufer v. Looper, 22 F.4th 871, 880–81 & n.6 (10th

Cir. 2022) (quoting Griffin v. Dep’t of Lab. Fed. Credit Union,

912 F.3d 649, 654 (4th Cir. 2019)); see also Harty v. W. Point

Realty, Inc., 28 F.4th 435, 444 (2d Cir. 2022) (same); Laufer v.

Arpan LLC, 29 F.4th 1268, 1280–82 (11th Cir. 2022) (Jordan,

J., concurring) (describing Public Citizen and Akins as

requiring an omission of information and concomitant

“downstream consequences”). In the FCRA context in

particular, our sister circuits have found non-disclosure a

sufficiently concrete injury where it prevented the plaintiff

from receiving “fair and accurate reporting of their credit

information,” Tailford, 26 F.4th at 1100, or affected their

ability to “obtain the information [they] needed to cure [their]

credit issues, [or] ultimately resolve those issues,” Dreher v.

Experian Info. Sols., Inc., 856 F.3d 337, 347 (4th Cir. 2017).

In sum, rather than working a sea change to its

informational injury jurisprudence, the Supreme Court in

TransUnion simply reiterated the lessons of its prior cases:

namely, to state a cognizable informational injury a plaintiff

must allege that “they failed to receive . . . required

information,” and that the omission led to “adverse effects” or

other “downstream consequences,” TransUnion, 141 S. Ct. at

2214 (internal quotation omitted), and such consequences have

22

a nexus to the interest Congress sought to protect, Spokeo, 578

U.S. at 342.

b. Appellants Have Standing

Applying these precepts here, Appellants have standing

because they have made the requisite showing of (1) the

omission of information to which they claim entitlement,

(2) “adverse effects” that flow from the omission, and (3) the

requisite nexus to the “concrete interest” Congress intended to

protect.

As to the first requirement, the FCRA creates a

“substantive entitlement” to the disclosure of source

information, Trichell v. Midland Credit Mgmt., Inc., 964 F.3d

990, 1004 (11th Cir. 2020), in order to empower consumers to

avoid “being unjustly damaged because of inaccurate or

arbitrary information in [their] credit report[s],” Cortez, 617

F.3d at 706 (quoting S. Rep. No. 91–517, at 1 (1969)). And

unlike TransUnion where the plaintiffs alleged only a

“formatting violation,” 141 S. Ct. at 2214, or Trichell where

the plaintiffs alleged only that they “received unwanted

communications that were misleading and unfair,” 964 F.3d at

1004, Appellants here claim that they sought disclosure of

information “to which [they were] legally entitled,” Looper, 22

F.4th at 880, and that RealPage failed to disclose that

information. See J.A. 10–11. Specifically, Appellants

requested a file disclosure pursuant to 1681g(a), which requires

RealPage to disclose, among other things, “[t]he sources of the

information” contained in that file, 15 U.S.C. § 1681g(a)(2),

and RealPage produced the Rental Reports it generated for its

clients, which did not disclose the third-party vendors from

which it gathered its information.

23

Appellants also satisfy the second requirement by

alleging that the omission of this third-party vendor

information had “adverse effects.” TransUnion, 141 S. Ct. at

2214 (quoting Trichell, 964 F.3d at 1004). There were errors

in their files—Kelly’s report erroneously included two DUI

convictions and a misdemeanor conviction for an outdated

inspection tag, while Bey’s mistakenly included a civil action

for possession and an eviction filing, J.A. 5, 34–43, 51–54—

and the omission of RealPage’s sources allegedly impaired

their ability to correct these errors. See J.A. 204–05, 215, 235–

38, 241–43; Kelly Decl. ¶¶ 5–6, 8–9; Bey Decl. ¶ 5–6. Neither

Kelly nor Bey ever convinced RealPage to correct their reports;

both were denied the apartments for which they applied; the

error caused Kelly to “needlessly waste[] [his] time” and

caused him “confus[ion]” and “unnecessary distress,” Kelly

Decl. ¶ 9, and Bey, allegedly due to the error, has only been

able to secure public housing. See J.A. 204–05, 215, 235–38,

241–43. The omissions thus directly “affected [Appellants’]

conduct” by impairing their ability to “obtain the information

[they] needed to cure [their] credit issues, and ultimately

resolve those issues.” Dreher, 856 F.3d at 347.

Finally, RealPage’s failure to disclose the third-party

vendor information satisfied the third requirement by

preventing Appellants from obtaining “fair and accurate

reporting of their credit information,” Tailford, 26 F.4th at

1100, frustrating Congress’s goal of empowering consumers to

“correct[] inaccurate information” in their credit files and

preventing them “from being unjustly damaged because of

inaccurate or arbitrary information in [their] credit report[s],”

Cortez, 617 F.3d at 706 (internal quotations omitted).

And contrary to RealPage’s contention, whether

Appellants would have taken action on the third-party vendor

24

information if disclosed is irrelevant. 10 A consumer cannot

know ex ante the source of a potential error in their file,

whether an underlying source of the CRA itself is responsible

for the error, or what may be required to obtain a correction.

That is the very purpose of the disclosure requirement. See

Cortez, 617 F.3d at 706. It is therefore enough for standing

purposes for plaintiffs to allege that, as a result of an omission,

they experienced the adverse effects of being “unable to . . .

ensure fair and accurate reporting of their credit information.”

Tailford, 26 F.4th at 1100.

Appellants have made those allegations here, so we

uphold the District Court’s determination that Appellants have

standing.

B. Class Certification

Though we agree with the District Court’s standing

analysis, we disagree, at least in part, with its bases for denying

class certification, predominance, and ascertainability.

a. Predominance 11

We begin with predominance. To determine whether

this requirement is satisfied, a court must engage in a “rigorous

10

To be clear, it was not until Appellants initiated this

lawsuit that RealPage disclosed the missing information or

admitted fault for the errors, which remain uncorrected. J.A.

60, 143, 218–20.

11

The District Court determined that the “superiority

analysis and the predominance inquiry are bound together.”

J.A. 22. Having concluded that “trial of this case [would]

25

assessment” of whether common evidence may be used to

prove “the essential elements of the claims brought by a

putative class.” Gonzalez, 885 F.3d at 195 (citing In re

Hydrogen Peroxide, 552 F.3d at 311–12). Here, the District

Court identified two essential elements that it concluded could

not be proven with common evidence, each of which we

address below: (1) that the request triggering the obligation

was a direct request from the consumer, and not the property

manager’s request that the consumer be sent a courtesy copy

of a Rental Report; and (2) that the consumer expressly

requested her “file,” and not for example, her “report” or her

“information.” J.A. 19, 20–21.

require substantial individual inquiry,” the Court held that a

“class action [would] not [be] a superior method of resolving

[the case] because the individual nature of the inquiries would

be time-consuming and inefficient.” J.A. 22–23. We agree

that there is substantial overlap in the superiority and

predominance inquiries. Indeed, they have been described as

the “twin requirements” of Rule 23(b)(3), which were both

“adopted ‘to cover cases in which a class action would achieve

economies of time, effort, and expense . . . without sacrificing

procedural fairness.’” Newton v. Merrill Lynch, Pierce,

Fenner & Smith, Inc., 259 F.3d 154, 186 (3d Cir. 2001)

(quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 615

(1997)). And, because the District Court grounded its analysis

of superiority in its finding that predominance had not been

satisfied, we will leave it to the District Court on remand to

reconsider superiority in light of this discussion.

26

1. Does Section 1681g(a) Require a Direct Request

from a Consumer to Trigger Disclosure

Obligations?

Section 1681g, entitled “Disclosures to consumers,”

delineates the six categories of disclosures a CRA must make

to the consumer “upon request,” but it does not state explicitly

that this request must be made by the consumer. 15 U.S.C.

§ 1681g(a). That omission, Appellants contend, shows that

“Congress . . . contemplate[d] [that] indirect requests as well

[as direct requests]” would trigger a CRA’s disclosure

obligation under § 1681g(a). Appellants’ Br. 16. As applied

here, Appellants posit that RealPage’s disclosure of a courtesy

copy of its client’s Rental Report “upon request” of the client

requires the same file and source disclosures as a consumer’s

direct request for her file, so the District Court erred in

concluding that the identity of the requesting party was an

individualized issue that would predominate. See id.; Reply

Br. 14.

We have never addressed the question whether

§ 1681g(a)’s disclosure obligations may be triggered by an

indirect request from a third party as well as by a direct request

by the consumer. Nor, to our knowledge, has any other federal

court, though several have assumed that § 1681g(a) only

applies when consumers request their files directly. 12 We do

12

See, e.g., Nunnally v. Equifax Info. Servs., LLC, 451

F.3d 768, 774 (11th Cir. 2006) (“Under subsection (a)(1), a

consumer reporting agency must disclose ‘all information in

the consumer’s file’ upon a consumer’s request.” (emphasis

added)); Neclerio v. Trans Union, LLC, 983 F. Supp. 2d 199,

209 (D. Conn. 2013) (“[S]ection 1681g allows a consumer to

27

so today, however, and conclude that Appellants’ reading is

wrong as a matter of law. “[R]equest” in § 1681g(a) does refer

exclusively to direct requests from consumers, and thus, the All

Requests class cannot satisfy predominance.

The text of the FCRA makes this clear in a number of

ways. First and foremost, it appears that property managers’

requests that Appellants receive courtesy copies do not

implicate § 1681g at all. Rather, entirely different sections of

the FCRA authorize a “user” of a consumer report to request a

consumer report, § 1681b; see also Bibbs, — F.4th at — , 2022

WL 3149216, at *5 (examining the “range of permissible

users” under the FCRA), and to “disclos[e] the contents of the

report to the consumer,” at least if an adverse action has been

taken by the user based “on the report,” § 1681e(c). 13 And for

review the contents of their file by requiring a consumer

reporting agency to ‘clearly and accurately disclose to the

consumer,’ upon the consumer’s request” (emphasis added));

Slyzko v. Equifax Info. Servs. LLC, 2020 WL 1433518, at *3

(D. Nev. Mar. 23, 2020) (“FCRA § 1681g(a) requires a

consumer reporting agency to, ‘upon [the] request’ of a

consumer who furnishes proper identification, ‘clearly and

accurately’ disclose six categories of information.” (emphasis

added)); see also Cisneros v. U.D. Registry, Inc., 46 Cal. Rptr.

2d 233, 249 (Cal. Ct. App. 1995) (holding that “requests for

disclosure [must] come from the consumer personally rather

than from his or her representative,” including an attorney

authorized to make the request).

13

In full, Section 1681e(c) provides that “[a] consumer

reporting agency may not prohibit a user of a consumer report

furnished by the agency on a consumer from disclosing the

28

today, we need not decide whether a “user” may only disclose

a report to the consumer after “an adverse action” has been

taken against that consumer, nor whether § 1681e(c) allows a

“user” to not only disclose a copy but also to cause it to be

disclosed, as the property managers did here through their

instructions to RealPage. J.A. 179–180. It is sufficient for our

purposes that Congress made clear when a third party like a

property manager could request and disclose a “courtesy copy”

of the report to the consumer, and it made no such provision in

§ 1681g(a). See Gallardo ex rel. Vassallo v. Marstiller, 142 S.

Ct. 1751, 1759 (2022) (“[W]e must give effect to, not nullify,

Congress’ choice to include [] language in some [statutory]

provisions, but not others” (citing Russello v. United States,

464 U.S. 16, 23 (1983)). Thus, when property managers asked

RealPage to send consumers courtesy copies of their Rental

Reports, those requests fell within the ambit of § 1681e(c),

rather than § 1681g.

The text of § 1681g confirms it relates only to direct

requests of consumers. Subsection (a), for example, expressly

states that a CRA’s disclosure to a consumer is made “subject

to section 1681h(a)(1),” which provides that, upon receiving a

“request,” a CRA must require “the consumer [to] furnish

proper identification” before turning over her file. 15 U.S.C.

§ 1681h(a)(1). A third-party requester would be incapable of

compliance with this prerequisite for disclosure. Section

1681g thus outlines a process by which the consumer, and the

contents of the report to the consumer, if adverse action against

the consumer has been taken by the user based in whole or in

part on the report.” 15 U.S.C. § 1681e(c).

29

consumer alone, can make a request and trigger the CRA’s

specified disclosure obligations.

The enumerated categories of information that CRAs

must “clearly and accurately disclose” upon request reinforce

that reading, as several make provision for particular

preferences of the requesting consumer. Id. § 1681g(a). For

example, the first category covers “[a]ll information in the

consumer’s file . . . except that . . . if the consumer to whom

the file relates requests that the first 5 digits of [her] social

security number . . . not be included in the disclosure . . . the

[CRA] shall so truncate [the] number,” upon “appropriate

proof of the identity of the requester.” Id. § 1681g(a)(1)(A)

(emphasis added). The third category is the identity of each

person who procured a report and “upon request of the

consumer, the address and telephone number of [such]

person.” Id. § 1681g(a)(3)(A)–(B). And the last category—a

“statement that the consumer may . . . obtain a credit score”—

is triggered only “[i]f the consumer requests [a] credit file and

not the credit score.” Id. § 1681g(a)(6). The plain language of

each of these § 1681g(a) disclosures indicates that the

requester and the consumer are one and the same.

Our construction of § 1681g(a) is also supported by

contextual clues from surrounding sections. For example, in

specifying the range of prices a CRA may charge for § 1681g

disclosures, the statute is explicit that such disclosures are

initiated at the request of the consumer. Compare id.

§ 1681j(a)(1) (explaining that the subset of CRAs classified as

“[n]ationwide consumer reporting agencies” must make

“disclosures pursuant to section 1681g” for free at least “once

during any 12-month period upon request of the consumer”

(emphasis added)), and id. § 1681j(b)–(d) (identifying

particular instances when all other CRAs must make § 1681g

30

disclosures for free “[u]pon the request of the consumer” or

when the “the consumer makes a request” (emphasis added)),

with id. § 1681j(f) (explaining that CRAs may “impose a

reasonable charge on [the] consumer” in connection with a

Section 1681g disclosure “[i]n the case of a request from a

consumer” that does not fit into one of the aforementioned

categories (emphasis added)).

Likewise, the FCRA allows consumers to choose

whether the § 1681g(a) disclosures are made in writing and

whether they are delivered in person, by telephone, by

electronic means, or by any other reasonable means available

to the CRA. Id. § 1681h(b). There is no analogous provision

for third-party requesters to designate the method of delivering

to the consumer, see Nken v. Holder, 556 U.S. 418, 430 (2009)

(“[W]here Congress includes particular language in one

section of a statute but omits it in another section . . . it is

generally presumed that Congress acts intentionally and

purposely in the disparate inclusion or exclusion.” (quoting

INS v. Cardoza-Fonseca, 480 U.S. 421, 432, (1987))), and in

view of § 1681h(b), a CRA in receipt of a § 1681g(a) request

from a third party would be unable to effect delivery on the

consumer without the consumer’s request in any event.

The sharp constraint on third parties’ participation in the

§ 1681g disclosure process provides additional evidence that

the FCRA does not empower such parties to cause the

disclosure of a consumer’s file to the consumer. Even when a

consumer opts to review her file “accompanied by one other

person of [her] choosing,” that person “shall furnish reasonable

identification,” and the consumer may be required to “furnish

a written statement granting permission to the [CRA] to discuss

the consumer’s file in such person’s presence.” 15 U.S.C.

§ 1681h(d). Such strictures on third-party involvement, even

31

in the consumer’s presence, belie Appellants’ contention that

third parties have an unrestricted right to request that

§ 1681g(a) disclosures be made to the consumer. 14 See

Appellants’ Br. 16.

Finally, a comparison of § 1681g(a) with the FCRA

sections dealing with disclosures to third-party users solidifies

our conclusion. Section 1681g is entitled “Disclosures to

consumers,” and for the reasons we have explained, anticipates

that the recipient is also the requesting party. So too do the

sections governing disclosures to users. See, e.g., id.

§ 1681b(b)(2) (covering disclosures to employers, providing

that “a person may not procure a consumer report” for

employment purposes without meeting certain conditions and

having the consumer’s “authoriz[ation] in writing”); id.

§ 1681b(a)(4) (disclosures to “the head of a State or local child

support enforcement agency”); id. § 1681b(b)(4)(A)

(disclosures to “an agency or department of the United States

Government which seeks to obtain and use a consumer report”

for employment purposes); id. § 1681f (explaining when “a

consumer reporting agency may furnish identifying

information respecting any consumer . . . to a governmental

14

As amici helpfully note, construing § 1681g(a) to

allow third parties to “control the entire request process” would

also frustrate Congress’s goal of protecting consumer privacy

by making “the third party [] a key intermediary between the

CRA and [the] consumer.” Br. of Amici Curiae Consumer

Data Indus. Ass’n and Pro. Background Screening Ass’n at 24.

That goal is evidenced, in part, by “the lengths [] Congress

went” toward safeguarding privacy concerns, including

through § 1681h(a)(1) and § 1681h(d). Id. at 23.

32

agency”); id. § 1681u (“Disclosures to FBI for

counterintelligence purposes”).

It is also telling that these other sections specify when

the consumer’s authorization is needed and when the consumer

may request disclosure to third parties, whereas § 1681g makes

no similar express provision for third parties to request

disclosures of information. See, e.g., id. § 1681b(a)(2)

(providing that a CRA may “furnish a consumer report . . . [i]n

accordance with the written instructions of the consumer to

whom it relates”); id. § 1681b(c) (explaining that a CRA “may

furnish a consumer report relating to [a] consumer . . . in

connection with . . . [a] transaction that is not initiated by the

consumer only if . . . the consumer authorizes the agency to

provide such report to such person”).

Notably, the disclosures that can be requested by third-

party users are also far more circumscribed than those provided

under § 1681g(a). Compare id. § 1681g(a)(1) (requiring

disclosure of “[a]ll information in the consumer’s file”), with

id. § 1681b(a) (governing the provision of “consumer

report[s],” which need not convey the full contents of the

consumer’s “file”). That makes it all the more implausible that

Congress intended § 1681g(a) to dramatically expand third

parties’ disclosure authority by triggering a CRA’s obligations

simply “upon [a user’s] request,” particularly without saying

so explicitly.

In sum, the text, context, and structure of the FCRA

provide that the District Court was right to distinguish between

consumers who made direct requests under § 1681g and

consumers who received courtesy copies of the property

managers’ Rental Reports (presumably under § 1681e(c)).

Only the former were entitled to the disclosure of all the

33

information in the consumers’ files and the “sources” of that

information. The All Requests class, however, consists of both

types of consumers, so the District Court correctly concluded

that the “essential element” of who made the request,

Gonzalez, 885 F.3d at 196, could not be established “with

common, as opposed to individualized, evidence,” Hayes, 725

F.3d at 359 (citation omitted), and that certification of the All

Requests class should therefore be denied.

2. Is Section 1681g(a)’s Disclosure Obligation

Triggered Only by a Request for a “File”?

We next consider RealPage’s argument that CRAs are

relieved of their obligation to disclose their sources under

Section 1681g(a) whenever a consumer uses a term other than

“file” to make her request. The District Court concluded that

was the case, reasoning that, by requiring a CRA to disclose

“[a]ll information in the consumer’s file at the time of the

request,” 15 U.S.C. § 1681g(a)(1), the statute makes a

“distinction between a request for a file and a request for a

consumer report,” J.A. 13. The Court then denied class

certification of even the Direct Requests subclass on the

ground that the “individual issue [of] whether consumers

wanted a complete file disclosure or just the disclosure of the

consumer report that [RealPage] sent to a potential landlord”

would predominate over class-wide issues because it would

require individual “examin[ation] [of] each class member to

determine what he or she intended to request.” J.A. 21.

We read the statute differently. No doubt, the statute

defines the terms, “file” and “consumer report” and gives them

different meanings. Compare 15 U.S.C. § 1681a(g) (defining

a “file” as containing “all of the information” that a CRA has

“recorded and retained” about a consumer, “regardless of how

34

the information is stored”), with id. § 1681a(d)(1) (defining a

“consumer report” as “any written, oral, or other

communication of any information by a [CRA] bearing on a

consumer’s credit worthiness”). But the defining characteristic

of § 1681g is not whether the consumer uses the word “file” or

“consumer report,” or even “records” or “information”; it is

that the consumer is the one who makes the request. As a

matter of common sense, a consumer’s request for “my

consumer report” effectively requests all the information the

CRA is authorized to disclose under the statute, and under

§ 1681g(a), that includes among other things, all of the

information in the consumer’s file and the sources of that

information. Nothing in the statute’s text, context, purpose, or

history indicates that any magic words are required for a

consumer to effect a “request” under § 1681g(a) or that a

consumer’s request for “my consumer report” is any less

effective at triggering the CRA’s disclosure obligations than a

request for “my file.”

We begin with the statutory text, which—at least in the

context of describing disclosures—does not specify that the

subject of the request even be the “file.” To the contrary,

§ 1681g(a) merely provides that a CRA must disclose six

categories of information “upon request,” with the term,

“request” preceding all six enumerated categories. The most

natural reading of this provision is, thus, that a single

generalized “request” under § 1681g(a) entitles the consumer

to all categories of information outlined in § 1681g(a)(1)–(6),

only the first of which is the “file,” and none of which, notably,

provides for a separate disclosure of a “report.” The text offers

no support for the District Court’s alternative reading, which

would presumably require a consumer to make specific

discrete requests for each of the six categories of disclosure,

35

limiting the CRA’s disclosure obligation to the particular

category expressly requested.

To the contrary, it is apparent that Congress used the

terms “consumer report” and “file” interchangeably in

§ 1681g. For example, § 1681g(c)(2)(A) requires CRAs to

provide a “summary of rights” in “each written disclosure . . .

to the consumer.” That summary must include a description of

“the right of a consumer to obtain a copy of a consumer report

under [Section 1681g(a)].” 15 U.S.C. § 1681g(c)(1)(B)(i),

(c)(2)(A) (emphasis added). So, even within § 1681g,

Congress described the contents of a Section 1681g(a)

disclosure as a “consumer report,” rather than a “file.”

Similarly, in mandating that “[n]ationwide consumer reporting

agencies” make one § 1681g disclosure per year for free, the

statute provides that the agency “shall provide [the] consumer

report . . . not later than 15 days after the date on which the

request [was] received.” Id. § 1681j(a)(2) (emphasis added).

We will not countenance a reading of § 1681g(a) that requires

consumers to speak with greater heed to the FCRA’s technical

definitions than the statute’s own drafters.

Regulations promulgated under the FCRA concerning

CRAs’ disclosure obligations likewise use the terms “file” and

“report” without drawing a distinction between them. See, e.g.,

12 C.F.R. § 1022.138 (defining “[f]ree credit report” as “a file

disclosure prepared by or obtained from . . . a nationwide

consumer reporting agency”); id. § 1022.136 (requiring CRAs

to maintain a “centralized source” for “consumers to request

annual file disclosures” pursuant to § 1681g that includes,

among other things, a statement that the source is intended for

the “ordering [of] free annual credit reports as required by

Federal law”); see also Consumer Fin. Prot. Bureau, CFPB

Bulletin 2012-09, at 1 (Nov. 29, 2012) (explaining that the

36

“[FCRA] requires nationwide specialty consumer reporting

agencies . . . to provide, upon request of a consumer, a free

annual disclosure of the consumer’s file, commonly known as

a consumer report.”).

RealPage’s construction is also at odds with the

statutory goals identified by Congress. See 15 U.S.C.

§ 1681(b) (identifying the “purpose of th[e] subchapter” as to

require “consumer reporting agencies [to] adopt reasonable

procedures,” which are “fair and equitable to the consumer,

with regard to the confidentiality, accuracy, relevancy, and

proper utilization of . . . information”). We have explained that

those “consumer oriented objectives support a liberal

construction of the FCRA” requiring “any interpretation of this

remedial statute [to] reflect those objectives.” Cortez, 617 F.3d

at 706 (quotation omitted). Under RealPage’s reading, on the

other hand, consumers could only access their files pursuant to

§ 1681g(a) if they are familiar with the esoteric distinction

between “files” and “consumer reports” in the Definitions

section of the FCRA. Construing Section 1681g(a) in this way

would severely limit consumers’ “access to . . . information in

[their] file” and frustrate their ability to know when they are

“being damaged by an adverse credit report,” or to “correct[]

inaccurate information” in their report. Id. (quoting S. Rep.

No. 91–517, at 3 (1969)). 15

15

For whatever relevance it may carry, § 1681g’s

history supports the same conclusion. See Unicolors, Inc. v.

H&M Hennes & Mauritz, L.P., 142 S. Ct. 941, 948 (2022)

(noting that “legislative history” may be “persuasive”

regarding Congressional intent). In amending § 1681g(a) to

include the phrase, “all information in the consumer’s file,” the

37

In short, when read as a whole, the statute is

unambiguous in providing that any generalized “request” by a

consumer for the CRA’s information about her triggers the

CRA’s disclose obligation under § 1681g(a). 16 Indeed, despite

Senate Banking, Housing and Urban Affairs Committee made

clear that it “intend[ed] this language to ensure that a consumer

will receive a copy of that consumer’s report.” S. Rep. No.

104–185 at *41 (Dec. 14, 1995) (emphasis added). Prior to the

amendment, CRAs had often complied with disclosure

requests for consumers’ files by “furnishing consumers with

summaries of their reports,” which the Committee worried did

“not provide consumers sufficient access to their reports.” Id.

(emphasis added). This suggests that the FCRA’s drafters

viewed the disclosure of consumers’ files as a means of

providing them with complete copies of reports that had been

requested by third parties, and while they defined the terms

separately, they did not draw a conceptual bright line between

files and consumer reports requested directly by the

consumers. In light of that fact, a CRA should reasonably

understand a request for either a report or a file to implicate

Section 1681g(a)’s disclosure obligations.

16

There may be instances when a consumer expressly

requests only a particular piece of information in a CRA’s

possession, and in those circumstances, some courts have

found it would be “nonsensical . . . to require a consumer

reporting agency to disclose the entire file.” Taylor v.

Screening Reports, Inc., 294 F.R.D. 680, 686 (N.D. Ga. 2013)

(citing Campos v. ChoicePoint, Inc., 237 F.R.D. 478, 484 n.15

(N.D. Ga. 2006). We need not address this scenario in light of

Appellants’ request that we remand to the District Court to

reconsider—with the benefit of our guidance regarding the

38

the legal arguments it now raises to the contrary, RealPage

itself has conformed its conduct to that understanding of the

statute. Throughout the Class Period, whether a consumer

directly requested her Rental Report or her “file,” RealPage

disclosed to her the exact same document. J.A. 4, 117–18, 124.

Nor did RealPage provide for alternative disclosures for the

16,659 consumers who made direct requests on its website;

they were instructed only that a request via the website would

yield a “report and any of the disclosures required by the

federal Fair Credit Reporting Act.” Appellants’ Br. 23

(emphasis omitted). 17 Appellee’s Br. 46; Reply Br. 17.

proper construction of § 1681g(a)—Appellants’ motion to

redefine the subclass as encompassing only the 16,659

consumers who requested their Rental Reports through

RealPage’s website. See Oral Argument 53:10—54:37. We

therefore leave for the District Court to address, if necessary,

whether the hypothetical existence of narrower requests for

information poses an ascertainability or predominance

problem for the proposed class.

17

The District Court also found that reviewing each

individual file to determine whether the file contained public

record information (and was therefore missing third-party

vendor information) would defeat predominance. J.A. 20. For

the reasons we explain below, however, this issue is more

properly addressed under our ascertainability rubric. Although

“ascertainability problems spill into the predominance

inquiry,” Marcus, 687 F.3d at 594 n.3, they serve distinct

purposes. Ascertainability addresses “whether individuals

fitting the class definition may be identified without resort to

mini-trials,” while predominance addresses “whether essential

39

Because the District Court erroneously concluded that

individualized proof would be needed to distinguish requests

for “reports” from those for “files,” it found predominance

lacking on that basis. And as that decision rested on “an errant

conclusion of law,” Hayes, 725 F.3d at 354 (quoting In re

Hydrogen Peroxide Antitrust Litig., 552 F.3d at 312), we will

vacate and remand for the District Court to consider whether

Rule 23(b)(3)’s predominance and superiority requirements

are satisfied with respect to the subclass. 18

elements of the class’s claims can be proven at trial with

common, as opposed to individualized, evidence.” Hayes, 725

F.3d at 359 (citations omitted). As in Hayes, the inquiry into

the existence vel non of public record information in Rental

Reports “focus[es] on whether putative class members fit the

class definition,” and as such we will “analyze[] [this

objection] under the ascertainability framework [rather] than

the predominance framework.” Id.

18

The District Court’s interpretation of the statute also

informed two other rulings that must be revisited in view of our

decision today: Appellants’ request for leave to file a renewed

motion for class certification, which would have allowed

Appellants to redefine the subclass to encompass only

consumers who requested their Rental Reports through

RealPage’s website, see J.A. 30, 288–90, and Appellants’

motion for reconsideration. The Court denied the latter motion

on the ground that Appellants suggested the possibility of

“computer-aided administrative” review only in a footnote,

while the District Court’s individual rules treat substantive

arguments raised in footnotes as waived. J.A. 29. We

recognize that a district court has the “inherent authority to

40

b. Ascertainability

In considering whether to certify a class, a court must

perform a two-pronged “rigorous analysis” to determine

whether ascertainability and Rule 23(b)(3)’s requirements are

satisfied. In re Hydrogen Peroxide, 552 F.3d at 309 (citation

omitted). In determining whether the ascertainability

requirement is satisfied, it must determine that the plaintiff has

(1) “defined [the class] with reference to objective criteria,”

and (2) identified a “reliable and administratively feasible

mechanism for determining whether putative class members

fall within the class definition.” Byrd, 784 F.3d at 163 (quoting

Hayes, 725 F.3d at 355). 19

control its docket,” Knoll v. City of Allentown, 707 F.3d 406,

409 (3d Cir. 2013), and the promulgation and enforcement of

its individual rules falls within this broad power, see, e.g., Lyda

v. CBS Corp., 838 F.3d 1331, 1341 (Fed. Cir. 2016).

Nonetheless, individual rules should not be interpreted so

rigidly as to disregard controlling law simply because a party

points it out in a technically incorrect format. Here,

Appellants’ substantive argument—that the District Court

erred in failing to apply our precedent, holding that a class is

ascertainable where membership can be determined from the

face of the document—was raised in the text of the motion. See

J.A. 283. That the peripheral point—that computerized

assistance may be available to expedite that facial review—

was raised in a footnote hardly seems reason to deem the

argument waived.

19

At class certification, plaintiffs must prove

ascertainability by a preponderance of the evidence, Hayes,

41

Here, the District Court held that, although Appellants

satisfied the first prong by utilizing “objective criteria” to

define the Direct Request subclass, they foundered at the

second prong because identifying putative class members

would require “[a] review of each individual file,” which, “of

course,” was “not administratively feasible.” J.A. 15–16. In

view of our case law, however, we are hard pressed to

understand why that would be so.

Most of the facts relevant to ascertainability are

undisputed: RealPage concedes that it has records of the

relevant files, J.A. 131–32, 141, 154–55, 285–86; see

Appellants’ Br. 21; Appellees’ Br. 49–54, that it produced only

Rental Reports to consumers in response to consumers’ direct

requests, J.A. 4, 117–18, 124, and that it always omitted third-

party vendor information from Rental Reports that contained

public information during the Class Period, J.A. 126, 131–32.

All that remains to ascertain is: (1) which consumers directly

requested their files, and (2) of the files directly requested,

which contained public record information.

As for the first task, RealPage argues that because the

records are kept in separate databases with no “unique

identifier” used across both systems, it would be difficult to

match its records on requests received via its website with its

records on Rental Reports sent out in response to those

requests. Appellees’ Br. 51. Yet, that matching of records is

precisely the sort of exercise we have found sufficiently

725 F.3d at 354, and must establish only that the proposed class

members can be identified; they need not definitively identify

all class members at the certification stage, Byrd, 784 F.3d at

163.

42

administrable to satisfy ascertainability in other cases. See,

e.g., Byrd, 784 F.3d at 169–71 (holding ascertainability

satisfied by the prospect of matching addresses from multiple

as-of-yet unknown sources); Hargrove v. Sleepy’s LLC, 974

F.3d 467, 480 (3d Cir. 2020) (holding ascertainability satisfied

by the prospect of cross-referencing a defendant’s voluminous

records with affidavits from putative class members); City

Select Auto Sales Inc. v. BMW of N. Am. Inc., 867 F.3d 434,

442 (3d Cir. 2017) (same). And to arguments like RealPage’s,

i.e., that a unique identifier, such as a customer number or

social security number, is required to render a simple matching

exercise administrable, we have responded that “where [a

defendant’s] lack of records makes it more difficult to ascertain

members of an otherwise objectively verifiable class, the

[individuals] who make up that class should not bear the cost

of the [defendant’s] faulty record keeping.” Hargrove, 974

F.3d at 470. That is also our answer today: we will not allow

defendants to defeat ascertainability with a strategic decision

to house records across multiple sources or databases. 20

20

To the extent the Direct Requests subclass as

currently defined includes putative class members who

obtained their reports by directly calling or writing to

RealPage, Appellants would also need to establish an

administrable way to identify those consumers who directly

requested a copy of their file but who did not do so using the

form on RealPage’s website. However, RealPage represents

that it lacks the records to determine which consumers received

their reports in response to written or telephonic requests. On

remand, we leave to Appellants whether they wish to propose

an alternative subclass definition, and to the District Court to

43

But what of the second task? Is it administrable to

identify which files contain public record information where

that is clear from the face of each file but would require a file-

by-file review? The District Court apparently took from our

precedent a per se rule that “[a] review of each individual file

is . . . not administratively feasible.” J.A. 16. But that is not

the case, so we take this opportunity to clarify what our case

law requires.

We first adopted the ascertainability requirement in

Marcus v. BMW of North America, LLC, where we held a class

is not ascertainable where “class members are impossible to

identify without extensive and individualized fact-finding or

‘mini-trials.’” 687 F.3d at 593. And in Marcus and our next

two ascertainability cases, Hayes v. Wal-Mart Stores, Inc. and

Carrera v. Bayer Corp., we explained that putative classes are

not ascertainable where either a defendant’s records do not

contain the information needed to ascertain the class or the

records do not exist at all, leading to the “mini-trials” that we

disapproved of in Marcus. See Hayes, 725 F.3d at 355;

Carrera v. Bayer Corp., 727 F.3d 300, 307–08 (3d Cir. 2013).

But, as we qualified in Byrd v. Aaron’s Inc., ascertainability

does not mean that “no level of inquiry as to the identity of

class members can ever be undertaken,” because that would

make Rule 23(b)(3) class certification all but impossible. 784

F.3d at 171 (emphasis in original). We also cautioned that “the

size of a potential class and the need to review individual files

to identify its members are not reasons to deny class

determine, in view of this opinion, whether any putative

subclass as amended is ascertainable.

44

certification.” Id. (quoting Young v. Nationwide Mut. Ins. Co.,

693 F.3d 532, 539–40 (6th Cir. 2012)).

We confirmed these parameters in Hargrove v. Sleepy’s

LLC, where we held that affidavits in combination with

“thousands of pages of contracts, driver rosters, security gate

logs, and pay statements” sufficed to ascertain a class of full-

time drivers for Sleepy’s, despite gaps in the records and the

work required to synthesize “several distinct data sets.” 974

F.3d at 470, 480. Similarly, in City Select Auto Sales Inc. v.

BMW of North America we held that “[a]ffidavits, in

combination with records or other reliable and administratively

feasible means,” could satisfy our ascertainability standard,

867 F.3d at 441, remanding to determine whether there were

any gaps in a database not produced below that could make

identifying putative class members unadministrable, id. at 442

& n.5.

Together, Byrd, Hargrove, and City Select instruct that

a straightforward “yes-or-no” review of existing records to

identify class members is administratively feasible even if it

requires review of individual records with cross-referencing of

voluminous data from multiple sources. And that is precisely

what we have here. Verifying whether there is public record

information in the file requires only an examination of the face

of Rental Reports that are indisputably in RealPage’s

possession, J.A. 131–32, 141, 154–55, 285–86, and does not

require the sort of mini-trial or individualized fact finding at

issue in Marcus, Hayes, and Carrera. Indeed, the review

required here is even more straightforward than in Byrd,

Hargrove, and City Select, as Appellants have already

identified the records they require, demonstrated they are in

45

RealPage’s possession, and explained how those records can

be used to verify putative subclass members. 21

To the extent RealPage’s objection is to the number of

records that must be individually reviewed, that is essentially

an objection to the size of the class, which we stated explicitly

in Byrd is not a reason to deny class certification. 784 F.3d at

171. To hold otherwise would be to categorically preclude

class actions where defendants purportedly harmed too many

people, which would “seriously undermine the purpose” of a

class action to “vindicate meritorious individual claims in an

21

While there is no conveniently marked subsection of

a Rental Report entitled “public records,” that does not render

the class unascertainable. A review of the face of each file

would still answer the binary question of whether the file

contains public records, and the categories of information that

qualify as “public records” are readily identifiable. The

appellate record does not specify which types of public records

appear in Rental Reports. The FCRA identifies several types

of public records that are subject to certain accuracy

requirements: “record[s] . . . that relate[] to an arrest,

indictment, conviction, civil judicial action,”—which we

understand to include records from the civil eviction actions,

like the filing contained in Bey’s file—“tax lien, or outstanding

judgment,” 15 U.S.C. § 1681d(d)(3); see also id. § 1681k(a)(2)

(“record[s] relating to arrests, indictments, convictions, suits,

tax liens, and outstanding judgments”), and so we limit our

ascertainability analysis to considering whether these classes

of public records are present. We take no position on whether

the identification of other kinds of public records in a

consumer’s file could, in some other case, pose an

ascertainability problem.

46

efficient manner.” Id. So long as the review is for information

apparent on the face of the document, the number of files does

not preclude ascertainability. See id. at 170 (“There will

always be some level of inquiry required to verify that a person

is a member of a class . . . . Such a process of identification

does not require a ‘mini-trial,’ nor does it amount to

‘individualized fact-finding[.]’” (quoting Carrera, 727 F.3d at

307)).

In sum, the District Court misapprehended our case law

and therefore erred in denying certification of the Direct

Requests subclass on the basis of ascertainability, as well as

predominance.

IV. CONCLUSION

For the foregoing reasons, we will vacate the District

Court’s order denying class certification of the Direct Requests

subclass and remand for the Court’s reconsideration in light of

this opinion.

47