West Virginia District Court Certifies Rule 23(b)(3) Class Of Plaintiffs Alleging Violations Of Fair Credit Reporting Act Section 1681(g)

by Carlton Fields

The U.S. District Court for the Southern District of West Virginia certified a Rule 23(b)(3) class, holding that the class was sufficiently ascertainable and satisfied the requirements of Rule 23(b)(3).  Plaintiff’s class action complaint alleged that Quicken Loans violated section 1681g(g) of the Fair Credit Reporting Act by failing to provide credit score disclosures “as soon as reasonably practicable” after obtaining the plaintiff consumer’s credit report. Plaintiff sought to certify a nationwide class of persons whose credit scores were used by Quicken in connection with its evaluation of a loan application that was denied “and to whom the credit score disclosure notice was not provided to that person within 21 days after Quicken obtained the credit score.”

The court first held that the class was sufficiently ascertainable as required by Rule 23.  According to the court, the class definition allowed for class members to be identified through objective criteria: “consumers, between May 1, 2010 to May 1, 2012, who initiated a loan inquiry, whose scores were used by Quicken, who were denied a loan application, and who did not receive the credit score disclosure within twenty-one days after Quicken obtained the scores.”  Furthermore, the court found that Quicken’s electronically-searchable “data warehouse,” which contained the pertinent class variables, “enhance[d] the feasibility of class membership.”

Next, the court held that the class satisfied Rule 23(b)(3).  In finding that Rule 23(b)(3)’s predominance requirement was met, the court first concluded that, although Section 1681g(g)’s “as soon as reasonably practicable” standard may require individualized inquiries of reasonableness, Quicken’s conduct was uniform as to all class members, and, therefore, “the chance that this individualized inquiry will overwhelm common questions of liability is slight.”  Second, the court rejected defendant’s argument that individual actual damages inquiries will predominate because proving that class members purchased additional credit scores due to Quicken’s statutory violations “will not require complex proof.”  Third, the court found that statutory damage determinations did not preclude common issues from predominating because in order to prove that the defendant’s violation of the FCRA was willful, the jury must look to the conduct of the defendant and not each individual class member.  Furthermore, the court found that, “[a]s to the amount of damages, Quicken’s process of sorting and storing credit score information was uniform and thus the risk of harm, however it may be quantified, was similar.”

Finally, the court found that the proposed class action was superior to other methods of adjudication because the incentive to litigate an FCRA claim individually was insufficient and “the possibility of inconsistent judgments suggests that individual litigation is not superior.”  Accordingly, the court granted plaintiff’s motion to certify a Rule 23(b)(3) class.

Kingery v. Quicken Loans, Inc., No. 12-01353, slip op. (S.D. W.Va. May 21, 2014).


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Carlton Fields

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