Gesin v. Equifax Information Services Llc

Brief/Memorandum in Support

N.D. Tex.December 30, 2016

i UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION LISA L. GESIN, § § Plaintiff, § CIVIL CASE NO: 3:16-cv-03277-N § v. § § EQUIFAX INFORMATION SERVICES § LLC, § § Defendant. § DEFENDANT EQUIFAX INFORMATION SERVICES LLC’S MOTION TO DISMISS AND BRIEF IN SUPPORT OF THE MOTION Respectfully submitted by. Kendall W. Carter Texas Bar No. 24091777 kcarter@kslaw.com KING & SPALDING LLP 1180 Peachtree Street NE Atlanta, GA 30309 Tel (404) 572-2459 Daniel D. McGuire L.R. 83.10 Local Counsel Texas Bar No. 24081282 dmcguire@polsinelli.com POLSINELLI PC 2950 N. Harwood St., Suite 2100 Dallas, Texas 75201 Tel (214) 661-5580 Counsel for Equifax Information Services LLC Case 3:16-cv-03277-N Document 6 Filed 12/30/16 Page 1 of 16 PageID 24 ii TABLE OF CONTENTS STATEMENT OF THE ISSUES TO BE DECIDED BY THE COURTERROR! BOOKMARK NOT DE INTRODUCTION ................................................................................................................... 1 FACTUAL BACKGROUND .................................................................................................. 2 STANDARD OF REVIEW ..................................................................................................... 3 ARGUMENT ............................................................................................................................ 3 I. Plaintiff Fails To Adequately Allege An “Inaccuracy.” Error! Bookmark not defined. A. Plaintiff’s Claim Fails Under Both Standards Used to Assess Accuracy Under §§ 1681e(b) and 1681i(a). .............................................................................................4 B. Case Law and Regulatory Guidance Counsel in Favor of Dismissal. ..........................6 CONCLUSION ...................................................................................................................... 11 Case 3:16-cv-03277-N Document 6 Filed 12/30/16 Page 2 of 16 PageID 25 iii TABLE OF AUTHORITIES Page(s) Cases Ashcroft v. Iqbal, 556 U.S. 662 (2009) ...................................................................................................................3 Bailey v. Equifax Information Services LLC, No. 13-10377, 2013 WL 3305710 (E.D. Mich. July 1, 2013) ...............................................6, 7 Cahlin v. Gen. Motors Acceptance Corp., 936 F.2d 1151 (11th Cir. 1991) .......................................................................................5, 6, 10 DeAndrade v. Trans Union LLC, 523 F.3d 61 (1st Cir. 2008) ........................................................................................................4 Gen. Retail Servs., Inc. v. Wireless Toyz Franchise, LLC, 255 Fed.Appx. 775 (5th Cir. 2007) ............................................................................................2 Heupel v. Trans Union LLC, 193 F. Supp. 2d 1234 (N.D. Ala. 2002) .................................................................................6, 7 Isquith for & on Behalf of Isquith v. Middle S. Utilities, Inc., 847 F.2d 186 (5th Cir. 1988) .....................................................................................................2 Johnson v. Equifax, Inc., 510 F. Supp. 2d 638 (S.D. Ala. 2007)........................................................................................7 Norman v. Experian Info. Sols., Inc., No. 3:12-CV-128-B, 2013 WL 1774625 (N.D. Tex. Apr. 25, 2013) ..............................3, 4, 10 Oxford Asset Mgmt. v. Jaharis, 297 F.3d 1182 (11th Cir. 2002) .................................................................................................3 Pedro v. Equifax, Inc., No. 1:15-CV-3735-TWT, 2016 WL 2756217, at * 4 (N.D. Ga. May 11, 2016) ....................................................................................................................8 Sepulvado v. CSC Credit Servs., 158 F.3d 890 (5th Cir. 1998), cert. denied, 526 U.S. 1044 (1999) ..............................3, 4, 5, 10 Washington v. CSC Credit Services Inc., 199 F.3d 263 (5th Cir. 2000) .....................................................................................................3 Case 3:16-cv-03277-N Document 6 Filed 12/30/16 Page 3 of 16 PageID 26 iv Statutes Fair Credit Reporting Act (“FCRA”), 15 U.S.C. §§ 1681-1681x.......................................... passim 15 U.S.C. § 1681e(b) ............................................................................................................. passim 15 U.S.C. § 1681i ................................................................................................................... passim 15 U.S.C. § 1681s-2 .........................................................................................................................1 15 U.S.C. § 1691a ............................................................................................................................8 15 U.S.C. § 1691b ............................................................................................................................8 Other Authorities 12 C.F.R. § 1002.10 .....................................................................................................................8, 9 Robert B. Avery, Kenneth P. Brevoort & Glen B. Canner, Credit Where None is Due? Authorized User Account Status and “Piggybacking Credit” (Fed. Reserve Bd. Mar. 5, 2010) .........................................................................................................2 Federal Rule of Civil Procedure 12(b) .............................................................................................2 Case 3:16-cv-03277-N Document 6 Filed 12/30/16 Page 4 of 16 PageID 27 1 INTRODUCTION This case arises under the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. §§ 1681- 1681x. Plaintiff Lisa L. Gesin alleges that Equifax, a consumer reporting agency (“CRA”), willfully and/or negligently violated two sections of the FCRA. (Complaint, Doc. 1 at ¶ 27). First, Plaintiff alleges that Equifax violated the FCRA § 1681i(a) by failing to reasonably reinvestigate her dispute that reporting her Discover Bank account ******59741* (“Account”) was inaccurate. (Id. at ¶¶ 29, 35). Second, Plaintiff alleges that Equifax violated the FCRA § 1681e(b) by inaccurately reporting her Discover Bank account. (Id. at ¶ 36). Plaintiff expressly concedes that she was an authorized user of the Account, but nevertheless contends that because she was not financially responsible for the payments due on the Account, Equifax’s reporting of the Account was inaccurate. (Id. at ¶¶ 8, 11, 12). Plaintiff’s claim fails as a matter of law. As a threshold matter, Plaintiff must establish that Equifax’s reporting of the Discover Bank Account was inaccurate. Plaintiff admits that she was an authorized user on the Discover Bank Account, and the Account is delinquent. Plaintiff does not allege—because she cannot—that any of those facts are inaccurate. Instead, Plaintiff contends that reporting accurate information about authorized user accounts is somehow inaccurate. (Id. at ¶ 12). But §§ 1681i(a) and 1681e(b) require that CRAs use reasonable procedures to ensure accuracy in the reporting of information sent to them by furnishers.1 Plaintiff cannot state a claim that Equifax negligently or willfully failed to comply with that obligation. Case law from this Circuit and others, as well as guidance from the Consumer Financial Protection Bureau (“CFPB”), the regulatory agency that promulgates regulations governing the consumer credit market, permits the practice. For these reasons more fully set out 1 Under the Act, a “furnisher” is a person or company that provides consumer information to consumer reporting agencies. See 15 U.S.C. § 1681s-2. Case 3:16-cv-03277-N Document 6 Filed 12/30/16 Page 5 of 16 PageID 28 2 below, the Court should grant Equifax’s Motion to Dismiss the Complaint. Because the defects in the Complaint are fatal and cannot be cured by amendment, the dismissal should be with prejudice. FACTUAL BACKGROUND As Plaintiff expressly concedes, she is an authorized user of the Discover Bank Account. (Complaint, Doc. 1 at ¶¶ 8, 11, 12). On February 8, 2016, Plaintiff’s counsel sent a letter to Equifax disputing the accuracy of Equifax’s reporting of the Discover Bank Account. (Id. at ¶ 8, 9, 10, 14, 28, 31). In his February 8, 2016 dispute letter, Plaintiff’s counsel states: My client requests these Authorized User accounts be removed from her personal credit history. It is clear that Ms. Gesin is merely an Authorized User on the accounts and you clearly report her to be the Authorized User. (“February 8, 2016 Dispute Letter,” Appendix, p. 1 (emphasis added)).2 Plaintiff does not dispute that, consistent with industry practice, her consumer report indicated that she was an authorized user on the account. See Robert B. Avery, Kenneth P. Brevoort & Glen B. Canner, Credit Where None is Due? Authorized User Account Status and “Piggybacking Credit” at 4-5 (Fed. Reserve Bd. Mar. 5, 2010) (consumer credit records “indicate whether a person individually holds, jointly holds, or is an authorized user on each of the tradelines in her credit record”) (emphasis added). Plaintiff likewise does not dispute that by reflecting her authorized user status, Equifax clearly disclosed to potential credit grantors that she was not financially responsible for the debt. See Avery, Brevoort & Canner, supra, at 1 2 The February 8, 2016 Dispute Letter is referenced in the Complaint no less than six times. It is a necessary part of Plaintiff’s claim under the FCRA § 1681i claim. Rule 12(b) gives a district court “complete discretion to determine whether or not to accept any material beyond the pleadings that is offered in conjunction with a Rule 12(b)(6) motion.” Isquith for & on Behalf of Isquith v. Middle S. Utilities, Inc., 847 F.2d 186, 194 (5th Cir. 1988) (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1366 (1969); accord Gen. Retail Servs., Inc. v. Wireless Toyz Franchise, LLC, 255 Fed.Appx. 775, 783 (5th Cir. 2007). Case 3:16-cv-03277-N Document 6 Filed 12/30/16 Page 6 of 16 PageID 29 3 (noting that “[a]n authorized user is a person who is permitted to use a[] [credit card] account without being legally liable for any charges incurred”). STANDARD OF REVIEW To survive a motion to dismiss, a complaint must allege “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In addition, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. Accordingly, “conclusory allegations, unwarranted deductions of facts or legal conclusions masquerading as facts will not prevent dismissal.” Oxford Asset Mgmt. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002). ARGUMENT Both sections of the FCRA at issue in this litigation require Plaintiff to prove that an account is inaccurately reporting as a threshold element in order to establish liability. Under Section 1681e(b) of the FCRA, to establish a prima facie case for failure to follow reasonable procedures under the FCRA § 1681e(b), Plaintiff must demonstrate: (i) that her consumer report contained inaccurate information; (ii) “that the inaccuracy was due to [the CRA’s] failure to follow reasonable procedures to assure maximum possible accuracy”; (iii) that Plaintiff suffered a cognizable injury; and (iv) that “his injury was caused by the inclusion of the inaccurate entry.” Norman v. Experian Info. Sols., Inc., No. 3:12-CV-128-B, 2013 WL 1774625, at *3 (N.D. Tex. Apr. 25, 2013). See also Sepulvado v. CSC Credit Servs., 158 F.3d 890, 895-96 (5th Cir. 1998), cert. denied, 526 U.S. 1044 (1999); 15 U.S.C. § 1681e(b). See also Washington v. CSC Credit Services Inc., 199 F.3d 263, 267 n. 3 (5th Cir. 2000) (“In order to pursue a cause of action based Case 3:16-cv-03277-N Document 6 Filed 12/30/16 Page 7 of 16 PageID 30 4 upon a willful or negligent violation of 15 U.S.C. § 1681e(b), the report sought to be attacked must be inaccurate.”); DeAndrade v. Trans Union LLC, 523 F.3d 61, 67 (1st Cir. 2008) (“[T]he weight of authority in other circuits indicates that without a showing that the reported information was in fact inaccurate, a claim brought under § 1681i must fail.”). Likewise, to establish a prima facie case for failure to conduct a reasonable reinvestigation under 15 U.S.C. § 1681i, Plaintiff must show that her consumer report: (i) contained inaccurate information; (ii) that she disputed the accuracy of information on his credit file directly with the CRA; (iii) that the CRA “did not reinvestigate free of charge and either record the current status of the disputed information or delete the item from the file in the manner prescribed by Section 1681i(a)(5) within the statutory period”; (iv) that the CRA’s “noncompliance was negligent or willful”; (v) that Plaintiff suffered injury; and (vi) that Plaintiff’s injury was caused by the CRA’s failure to reinvestigate. Norman, 2013 WL 1774625, at *3-4; see also 15 U.S.C. § 1681i(a). Here, Plaintiff has failed to plead that her consumer report contained any inaccuracy. A. Plaintiff Fails to Establish an Inaccuracy Under Either §§ 1681e(b) or 1681i(a). A credit entry may be “inaccurate” within the meaning of the statute either because it is patently incorrect, or because it is misleading in such a way and to such an extent that it can be expected to adversely affect credit decisions. Sepulvado, 158 F.3d at 895. In Sepulvado, the district court concluded that the CRA’s consumer report was incomplete because it did not reveal (1) that a third party was the original debtor on the assigned obligation, and (2) that the “assigned” debt dated back to a 1988 mortgage foreclosure. Id. at 896. The district court further concluded that the CRA’s failure to include these details about the assigned debt rendered the consumer report so misleading that it was “inaccurate” within the meaning of the statute. Id. Finally, the district court concluded that the inaccuracy was caused by CRA’s failure to adopt Case 3:16-cv-03277-N Document 6 Filed 12/30/16 Page 8 of 16 PageID 31 5 reasonable procedures because the CRA could have easily eliminated any ambiguity by simply supplying additional information about the nature of the account. Id. The Fifth Circuit, however, disagreed and found that the reporting was neither misleading nor inaccurate as follows: [The consumer] report may have been incomplete, but it was not, as the district court found, facially misleading or inaccurate when prepared. CSC’s use of the term “assigned” (as compared to the phrase “open date” in ACT’s report) would have placed a creditor on notice that the obligation existed before the March 1994 assignment date. Id. The gravamen of Plaintiff’s Complaint is that Equifax violated §§ 1681e(b) and 1681i(a) because her consumer report included negative information concerning the Discover Bank Account on which she was an authorized user. (Complaint, Doc. 1 at ¶¶ 9-14). But Plaintiff expressly concedes that she was an authorized user on the Account. (Id.). And Plaintiff does not dispute that her consumer report accurately reflected that she was an authorized user. (February 8, 2016 Dispute Letter). Thus, Plaintiff cannot state a claim under §§ 1681e(b) or 1681i(a). Plaintiff’s consumer report clearly reports her to be an authorized user. (App., p. 1). Thus, like the consumer report at issue in Sepulvado, Plaintiff’s consumer report is neither facially misleading nor inaccurate because it “would have placed a creditor on notice” that she was not the owner of or liable for the account. See Sepulvado, 158 F.3d at 896. Plaintiff fails to state a claim under the “facial accuracy” approach because the information in her consumer report unquestionably was accurate on its face. Based on Plaintiff’s counsel’s February 8, 2016 Dispute Letter, her consumer report truthfully indicated that she was an authorized user, as opposed to the financially responsible party, on the Discover Bank Account. See, e.g., Cahlin v. Gen. Motors Acceptance Corp., 936 F.2d 1151, 1160 (11th Cir. Case 3:16-cv-03277-N Document 6 Filed 12/30/16 Page 9 of 16 PageID 32 6 1991) (rejecting § 1681e(b) claim where credit “report accurately reflected [the creditor’s] current characterization of the account and how it had been previously reported” by the creditor to the CRA). Plaintiff’s claim fares no better under the “misleading” standard. Plaintiff does not allege that Equifax “failed to report additional or explanatory information that would have corrected any misimpressions created by” her consumer report. Cahlin, 936 F.2d at 1157-58. Instead, she alleges that reporting any derogatory information about an authorized user account is inaccurate. (Complaint, Doc. 1 at ¶ 13). But Plaintiff’s credit records plainly indicated that she was an authorized user on the Discover Bank account, and thus was not financially responsible for the past-due debt. In reality, Plaintiff does not attempt to plead inaccuracy under either of these standards. Plaintiff contends, instead, that Equifax should not have included authorized user information in her consumer report at all, whether accurate or not, because an authorized user does not have any responsibility for payment of the debt. (See Complaint, Doc. 1 at ¶ 12). This is a policy argument—not a legally cognizable claim under § 1681e(b). As the court in Heupel v. Trans Union LLC, 193 F. Supp. 2d 1234, 1240 (N.D. Ala. 2002) reasoned, “the stated purpose of the Act is not to require reporting that is ‘fair and equitable to the consumer’ as the consumer or the court may see it, but ‘fair and equitable in accordance with the requirements of [the Act].’” (Quoting 15 U.S.C. § 1681(b)) (emphasis added). B. Case Law and Regulatory Guidance Counsel in Favor of Dismissal. Other cases decided under §§ 1681e(b) and 1681i(a), as well as regulatory guidance, confirm that dismissal is appropriate here. In Bailey v. Equifax Information Services LLC, No. 13-10377, 2013 WL 3305710 (E.D. Mich. July 1, 2013), for example, the court addressed the same question presented here: whether it is per se inaccurate, under § 1681e(b), to report Case 3:16-cv-03277-N Document 6 Filed 12/30/16 Page 10 of 16 PageID 33 7 authorized user tradeline information. In Bailey, plaintiff alleged that her Equifax “credit report falsely associate[d] a balance owed on [a credit card account with her] even though she is merely an authorized user on those accounts” and is “not the owner of or liable for the account.” Id. at *1, 5 (quoting plaintiff’s filings). The court rejected plaintiff’s allegations and granted the defendant’s motion to dismiss, because plaintiff in fact “ha[d] the authorization to use a second person’s account [and] that second person had a balance on” the account. Id. at *6. Thus, “the information provided [by Equifax] was accurate,” precluding plaintiff’s § 1681e(b) claim. Id. So too here. Because Plaintiff’s consumer report correctly indicated that she was an authorized user on the Discover Bank account—and because that account was in fact delinquent—Plaintiff cannot state a claim under §§ 1681e(b) or 1681i(a). Similarly, in Heupel, plaintiff asserted a claim under §§ 1681e(b) and 1681i because her consumer report indicated that a credit account on which she was a “joint obligor” had been “subject to Chapter 13 bankruptcy.” 193 F. Supp. 2d at 1237, 1240. Plaintiff claimed that including this information on her consumer report was actionable under § 1681e(b) because, although her co-obligor had indeed declared bankruptcy, the consumer report inaccurately suggested that plaintiff herself had filed for bankruptcy. See id. at 1240. The Court rejected plaintiff’s claim. Because the account had been included in bankruptcy—and because plaintiff was indeed a joint obligor on that account—TransUnion’s consumer report was “accurate within the meaning of section 1681e(b) 3 and . . . provide[d] plaintiff no basis of relief.” Id. at 1241; see also Johnson v. Equifax, Inc., 510 F. Supp. 2d 638, 646 (S.D. Ala. 2007) (holding that defendant’s “reporting of [a credit] account with the ‘included in bankruptcy’ comment was 3 Her § 1681i(a) claim was withdrawn at oral argument. Id. Case 3:16-cv-03277-N Document 6 Filed 12/30/16 Page 11 of 16 PageID 34 8 accurate,” as “[i]t [wa]s undisputed that the . . . account was included in [plaintiff’s co-obligor’s] bankruptcy,” even though plaintiff herself had not filed for bankruptcy). The decisions in Heupel and Johnson directly support dismissing Plaintiff’s Complaint, but this case is even more straightforward. In those cases, plaintiffs’ consumer reports simply indicated that the accounts in question had been “included in bankruptcy,” but did not make clear that plaintiffs’ co-obligors—rather than plaintiffs—had filed for bankruptcy. Even so, both plaintiffs’ claims were dismissed because the reported information was accurate within the meaning of the FCRA. Here, Plaintiff’s consumer report was even clearer: it did not simply list the Discover Bank Account, but instead accurately reflected that Plaintiff was only an authorized user on that account. For this reason, the Northern District of Georgia recently granted a motion to dismiss a class action lawsuit against Equifax, finding that Plaintiff could not establish that reporting an accurate authorized user account constituted a willful violation of the FCRA. See Pedro v. Equifax, Inc., No. 1:15-CV-3735-TWT, 2016 WL 2756217, at * 4 (N.D. Ga. May 11, 2016). Plaintiff’s claim that it is improper to report authorized user information also contradicts regulatory guidance promulgated under the Equal Credit Opportunity Act (“ECOA”). The ECOA prohibits credit discrimination on various bases, including marital status. See 15 U.S.C. § 1691a. To effect that broad mandate, Congress authorized the Consumer Financial Protection Bureau (“CFPB”) to promulgate regulations governing the consumer credit market. See 15 U.S.C. § 1691b. One such regulation—“Regulation B”—addresses the issue in this case. Regulation B provides that credit accounts held by married persons must be considered in a way that “reflect[s] the participation of both” the primary account-holder and his or her spouse if the spouse “is permitted to use or is contractually liable on the account.” 12 C.F.R. § 1002.10 Case 3:16-cv-03277-N Document 6 Filed 12/30/16 Page 12 of 16 PageID 35 9 (emphasis added). And, where a person is an authorized user on his or her spouse’s credit account, Regulation B requires that information concerning the account be included in the user’s credit records. See id. (“If a creditor furnishes credit information to a consumer reporting agency concerning an account designated to reflect the participation of both spouses, the creditor shall furnish the information in a manner that will enable the agency to provide access to the information in the name of each spouse.”). Indeed, reporting authorized user tradeline information often increases such users’ creditworthiness, as it enables them to build credit history without taking on debt. See Avery, Brevoort & Canner, supra, at 1-4. The Complaint does not clarify whether Plaintiff was the spouse of the accountholder; nevertheless, the regulatory guidance issued under Regulation B also addresses the situation here—where a non-spouse is designated as an authorized user. The Official Staff Commentary to Regulation B provides that “a creditor has the option to designate . . . all accounts with an authorized user[] to reflect the participation of both parties, whether or not the accounts are held by persons married to each other.” 12 C.F.R. Pt. 1002, Supp. I, § 1002.10 (emphasis added). The CFPB thus has expressly authorized creditors to send Equifax authorized user tradeline information for inclusion in the consumer reports of spousal and non-spousal authorized users alike. Consistent with this guidance, “creditors generally have followed a practice of furnishing to credit bureaus information about all authorized users, whether or not the authorized user is a spouse.” Avery, Brevoort & Canner, supra, at 1. This Court should interpret and apply the Act in harmony with the regulations, regulatory guidance, and industry practice relating to the ECOA. Given the foregoing case law, regulatory guidance, and industry practice, all of which firmly support the practice of reporting authorized user information, and the lack of any contrary Case 3:16-cv-03277-N Document 6 Filed 12/30/16 Page 13 of 16 PageID 36 10 authority, Plaintiff cannot establish a negligent or willful violation of the FCRA. Prohibiting consumer reporting agencies from reporting authorized user information would, moreover, conflict with the congressional goals underlying the Act. “Congress enacted FCRA in 1970 to ensure fair and accurate credit reporting, promote efficiency in the banking system, and protect consumer privacy.” Safeco, 551 U.S. at 52. Elaborating on these congressional policies, the Eleventh Circuit has observed: Although a credit reporting agency has a duty to make a reasonable effort to report “accurate” information on a consumer’s credit history, it has no duty to report only that information which is favorable or beneficial to the consumer. Congress enacted FCRA with the goals of ensuring that such agencies imposed procedures that were not only ‘fair and equitable to the consumer,’ but that also met the ‘needs of commerce’ for accurate credit reporting. Indeed, the very economic purpose for credit reporting companies would be significantly vitiated if they shaded every credit history in their files in the best possible light for the consumer. Thus, the standard of accuracy embodied in [§ 1681e(b)] is an objective measure that should be interpreted in an evenhanded manner toward the interests of both consumers and potential creditors in fair and accurate credit reporting. Cahlin, 936 F.2d at 1158. In keeping with these policies, there are good reasons to report authorized user tradeline information even where doing so may not be favorable to the consumer. For example, an authorized user of a credit card is “legally permitted to run up charges on the account.” Avery, Brevoort & Canner, supra, at 2 n.5. As a result, authorized user tradeline information may well be relevant in evaluating the user’s creditworthiness, as it could bear on how responsibly he or she uses credit. See id. At bottom, though, it is not up to Plaintiff to challenge the wisdom or fairness of reporting authorized user information. So long as the information a consumer reporting agency reports is “accurate”—and it is here—the agency cannot be held liable under §§ 1681e(b) or 1891i(a). See Norman, 2013 WL 1774625 at *3; Sepulvado, 158 F.3d at 895-96 Case 3:16-cv-03277-N Document 6 Filed 12/30/16 Page 14 of 16 PageID 37 11 CONCLUSION For these reasons, the Court should dismiss the Complaint. Because the defects in the Complaint cannot be cured with amendment, the dismissal should be with prejudice. Respectfully submitted: December 30, 2016. /s/ Kendall W. Carter Texas Bar No. 24091777 kcarter@kslaw.com KING & SPALDING LLP 1180 Peachtree Street NE Atlanta, GA 30309 Tel (404) 572-2459 /s/ Daniel D. McGuire L.R. 83.10 Local Counsel Texas Bar No. 24081282 dmcguire@polsinelli.com POLSINELLI PC 2950 N. Harwood St., Suite 2100 Dallas, Texas 75201 Tel (214) 661-5580 Counsel for Equifax Information Services LLC Case 3:16-cv-03277-N Document 6 Filed 12/30/16 Page 15 of 16 PageID 38 12 CERTIFICATE OF SERVICE This is to certify that I have this day filed a true and correct copy of the foregoing with the Court via ECF, which will send notification of such filing to the following: Dennis McCarty McCarty Law Firm PO Box 111070 Carrollton, TX 75011 Dated: December 30, 2016. /s/ Kendall W. Carter Case 3:16-cv-03277-N Document 6 Filed 12/30/16 Page 16 of 16 PageID 39