Iles v. Equifax Information Services, Llc et al

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM with Brief In Support

N.D. Ga.June 14, 2017

- 1 - IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION JOSHUA DALE ILES, Plaintiff, v. EQUIFAX INFORMATION SERVICES, LLC; EXPERIAN INFORMATION SOLUTIONS, INC. Defendants. ) ) ) ) ) ) ) ) ) ) ) CIVIL ACTION FILE NO. 1:17-cv-01415-TCB DEFENDANT EXPERIAN INFORMATION SOLUTIONS, INC.’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT COMES NOW Defendant Experian Information Solutions, Inc. (“Experian”), by and through counsel, and respectfully moves this Court to dismiss the Complaint (“Complaint”) filed by Plaintiff Joshua Dale Iles (“Plaintiff”), pursuant to Fed. R. Civ. P. 12(b)(6). In support thereof, Experian submits herewith its Memorandum of Law containing arguments and citations of authorities. WHEREFORE, Experian prays for the following relief: (a) That Plaintiff’s action be dismissed in its entirety with prejudice; and (b) For such other relief as this Court deems just and proper. Case 1:17-cv-01415-WSD-JKL Document 5 Filed 06/14/17 Page 1 of 4 - 2 - Dated: June 14, 2017 Respectfully submitted, /s/ William H. Rooks William H. Rooks Georgia Bar No. 906785 JONES DAY 1420 Peachtree Street, N.E., Suite 800 Atlanta, GA 30309-3053 Telephone: (404) 581-8891 Facsimile: (404) 581-8330 wrooks@jonesday.com Attorney for Defendant Experian Information Solutions, Inc. Case 1:17-cv-01415-WSD-JKL Document 5 Filed 06/14/17 Page 2 of 4 - 3 - The undersigned hereby certifies that the foregoing document has been prepared in accordance with the font type and margin requirements of Local Rule 5.1 of the Northern District of Georgia, using a font type of Times New Roman and a point size of 14. /s/ William H. Rooks William H. Rooks Attorney for Defendant Experian Information Solutions, Inc. Case 1:17-cv-01415-WSD-JKL Document 5 Filed 06/14/17 Page 3 of 4 - 4 - CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 14th day of June, 2017, I caused the foregoing to be electronically filed with the Clerk of the Court by using the CM/ECF system, which will send a notice of electronic filing to all counsel of record. /s/ William H. Rooks William H. Rooks Attorney for Defendant Experian Information Solutions, Inc. Case 1:17-cv-01415-WSD-JKL Document 5 Filed 06/14/17 Page 4 of 4 - 1 - IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION JOSHUA DALE ILES, Plaintiff, v. EQUIFAX INFORMATION SERVICES, LLC; EXPERIAN INFORMATION SOLUTIONS, INC. Defendants. ) ) ) ) ) ) ) ) ) ) ) CIVIL ACTION FILE NO. 1:17-cv-01415-TCB MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION TO DISMISS THE COMPLAINT Plaintiff’s Complaint is fundamentally flawed. Although Plaintiff purports to bring claims against Experian Information Solutions, Inc. (“Experian”) under Sections 1681e(b) and 1681(i) of the Fair Credit Reporting Act (“FCRA”), Plaintiff has not pleaded any cognizable inaccuracy. Plaintiff alleges that Experian’s reporting of his debt is inaccurate in light of his ongoing Chapter 13 bankruptcy, but the contingent nature of a Chapter 13 bankruptcy, which could be withdrawn, amended, converted to a Chapter 7, or dismissed at any moment, renders Plaintiff’s allegations specious and unsound. Plaintiff’s claims against Case 1:17-cv-01415-WSD-JKL Document 5-1 Filed 06/14/17 Page 1 of 20 - 2 - Experian fail as a matter of law, and this Court should grant Experian’s motion to dismiss. BACKGROUND I. THE FAIR CREDIT REPORTING ACT. The FCRA seeks “to ensure fair and accurate credit reporting, promote efficiency in the banking system, and protect consumer privacy.” Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 52 (2007). The statute requires credit bureaus (known as “consumer reporting agencies” or “CRAs”) to maintain “reasonable procedures to assure maximum possible accuracy” in preparing credit reports provided to third parties (called “consumer reports”), 15 U.S.C. § 1681e(b), and reasonably investigate consumer disputes about the accuracy of credit data with data furnishers, a process called “reinvestigation,” id. at § 1681i(a). The statute expressly governs the reporting of information about consumer bankruptcies. Id. at § 1681c(d)(1); see also Childress v. Experian Info. Sols., Inc., 790 F.3d 745 (7th Cir. 2015). II. PROCEDURAL HISTORY. Plaintiff filed his Complaint on April 21, 2017. Experian returned a waiver of service form on May 23, 2017. Experian now moves to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Case 1:17-cv-01415-WSD-JKL Document 5-1 Filed 06/14/17 Page 2 of 20 - 3 - III. FACTUAL ALLEGATIONS. A. The Parties. Plaintiff is a resident of Gwinnett County, Georgia and a consumer as defined by the FCRA. Compl. at ¶¶ 1–2. Defendant Experian is a “consumer reporting agency” under the FCRA. Id. at ¶¶ 6–7. Experian collects consumer credit information from various sources, organizes and stores the information, and then makes it available to authorized third parties, like lenders. Id. Co-defendant Equifax Information Services, LLC is also a “consumer reporting agency” under the FCRA. Id. at ¶¶ 4–5. B. Plaintiff’s Chapter 13 Bankruptcy Case. Plaintiff filed for Chapter 13 bankruptcy on March 25, 2015. Id. at ¶ 11; see also Joshua Dale Iles, No. 2:15-bk-55401-BEM (Bankr. N.D. Ga. 2015). Plaintiff’s original Schedule F of General Unsecured Creditors, filed with his bankruptcy petition, included a claim for $433 to Optimum Outcomes, Inc. (“Optimum”) in general unsecured debt. Id. at ¶ 12; see In re Iles, Case No. 15- 55401, Doc. 1 at 15. Plaintiff’s plan was confirmed on June 11, 2015. Compl. at ¶ 17; see In re Iles, Case No. 15-55401, Doc. 18. Plaintiff’s plan remains ongoing and his bankruptcy has not yet been discharged. Compl. at ¶ 19. Case 1:17-cv-01415-WSD-JKL Document 5-1 Filed 06/14/17 Page 3 of 20 - 4 - C. Experian’s Credit Reporting and Plaintiff’s Dispute. On or about March 30, 2016, Plaintiff obtained his Experian credit report, which showed the Optimum account as past due and in collections with a recent balance of $433. See Compl. at ¶¶ 59–60. This was allegedly inaccurate because “the Debt is included in Plaintiff’s Bankruptcy Case, and the payment terms permanently modified . . . .” Id. at ¶ 61. Six months later, on September 20, 2016, Plaintiff sent Experian a dispute letter. Id. at ¶ 63. Plaintiff alleged that Experian did not provide Optimum with timely information about Plaintiff’s dispute. Id. at ¶ 65. Following the dispute, Experian continued to report Plaintiff’s Optimum account as having a $433 recent balance. Id. at ¶¶ 67–68. IV. PLAINTIFF’S LEGAL CLAIMS AGAINST EXPERIAN. The Complaint alleges that Experian violated 15 U.S.C. § 1681e(b) (reasonable procedures) and 15 U.S.C. § 1681i (reasonable reinvestigation). Compl. ¶¶ 100–119. Plaintiff specifically alleges that Experian’s reporting of his Optimum account is inaccurate because it is reporting as past due with a balance of $433, even after the confirmation of his Chapter 13 bankruptcy plan modified terms of payment pursuant to 11 U.S.C. § 1327. Id. at ¶ 61. Case 1:17-cv-01415-WSD-JKL Document 5-1 Filed 06/14/17 Page 4 of 20 - 5 - LEGAL STANDARD Federal Rule of Civil Procedure 12(b)(6) requires the Court to dismiss a complaint if it fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice,” and the Court must reject mere legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Mamani v. Berzain, 654 F.3d 1148, 1153–54 (11th Cir. 2011). While courts must accept the well-pleaded facts in the complaint as true, “[w]here a complaint pleads facts that are merely consistent with a defendant’s liability, it stops short of the line between possibility and plausibility of entitlement to relief.” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007) (internal quotation marks omitted)). For a claim to be plausible, a plaintiff must put forth “enough fact[s] to raise a reasonable expectation that discovery will reveal evidence” of Experian’s liability. Twombly, 550 U.S. at 556. A district court may dismiss a complaint with prejudice where the plaintiff fails to allege any additional facts to support a cause of action, and leave to amend would be futile. See, e.g., Locke v. SunTrust Bank, 484 F.3d 1343, 1346 (11th Cir. 2007). Case 1:17-cv-01415-WSD-JKL Document 5-1 Filed 06/14/17 Page 5 of 20 - 6 - ARGUMENT Plaintiff’s claims against Experian are legally defective. His complaint fails to allege any plausible factual inaccuracy in Experian’s reporting, an element of liability under the FCRA. Plaintiff’s claims rest entirely on allegedly inaccurate information from the time period between confirmation of Plaintiff’s bankruptcy plan (the bankruptcy remains ongoing) and the filing of his complaint, but, as explained below, such information cannot give rise to liability under the FCRA. Plaintiff’s complaint against Experian should be dismissed under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. I. THE COMPLAINT SHOULD BE DISMISSED FOR FAILURE TO ALLEGE A FACTUAL INACCURACY. Plaintiff’s complaint against Experian should be dismissed for failure to state a cause of action because Plaintiff failed to plead the existence of an actionable inaccuracy under the FCRA, a required threshold element of Plaintiff’s causes of action under § 1681e(b) and § 1681i(a). A. Plaintiff’s Ongoing Chapter 13 Bankruptcy Does Not Render Experian’s Reporting Inaccurate. The existence of inaccurate information is an element of the prima facie case Plaintiff must allege to state a plausible claim under §§ 1681e(b) and 1681i(a). E.g., Ray v. Equifax Info. Servs., LLC, 327 F. App’x 819, 826 (11th Cir. 2009) Case 1:17-cv-01415-WSD-JKL Document 5-1 Filed 06/14/17 Page 6 of 20 - 7 - (referencing § 1681e(b)); Cahlin v. Gen. Motors Acceptance Corp., 936 F.2d 1151, 1156–60 (11th Cir. 1991) (referencing § 1681i). Plaintiff alleges that Experian inaccurately reported his Optimum account as “in collections, with a past due balance owed of $433.00.” Compl. at ¶ 59. This was allegedly inaccurate because the Optimum debt “is included in Plaintiff’s Bankruptcy Case, and the payment terms permanently modified . . . .” Compl. at ¶ 61. Following the dispute, Experian continued to report Plaintiff’s Optimum account as having a $433 recent balance. Id. at ¶¶ 67–68. Plaintiff does not allege that this reporting was inaccurate prior to the confirmation of Plaintiff’s Chapter 13 plan. See generally Compl. Rather, Plaintiff appears to imply that somehow because of the confirmation of his Chapter 13 plan, the “collection account” status and reporting that $433 was past due as of November 2013 allegedly became inaccurate. Compl. at ¶¶ 59–60. Plaintiff’s purported inaccuracies fail as a matter of law under 15 U.S.C. § 1681e(b). It is improper for Plaintiff to imply that he is current on his debt to Optimum. Plaintiff neither explains how he became current on his debt, nor alleges that he has actually paid Optimum anything on his debt.1 Furthermore, it 1 For instance, Plaintiff does not allege that he somehow made arrangements with Optimum outside the plan and thus has become current by actually paying the money owed on the debt. Nor could he, as such an arrangement would amount to Case 1:17-cv-01415-WSD-JKL Document 5-1 Filed 06/14/17 Page 7 of 20 - 8 - appears that the trustee is not paying Optimum anything from the remaining plan proceeds because Optimum did not file a proof of claim, even though the Plaintiff scheduled his Optimum debt in his bankruptcy plan. “An unsecured creditor . . . must file a proof of claim or interest for the claim or interest to be allowed.” Fed. R. Bankr. Proc. 3002(a). At best, Plaintiff may be implying that he is current on his debt because Optimum would no longer be able to recover from him if he completes his bankruptcy. If Plaintiff successfully completes his Chapter 13 plan, then the Optimum debt will be discharged and Optimum will no longer be able to recover from Plaintiff personally because Optimum never filed a proof of claim. See 11 U.S.C. § 1328(a) (stating that upon plan completion “the court shall grant the debtor a discharge of all debts provided for by the plan”); In re Cody, 246 B.R. 597, 599 (Bankr. E.D. Ark. 1999). This implication is misleading because it does not affect how Experian should report a debt prior to discharge. Contrary to Plaintiff’s implied assertions, the bankruptcy proceedings have not eliminated Plaintiff’s past due obligation to Optimum because the proceedings are still ongoing and the debt will not be discriminating among his creditors, which is forbidden in Chapter 13. See 11 U.S.C. § 1322(a)(3) (“[I]f the plan classifies claims, [it] shall provide the same treatment for each claim within a particular class.”). Case 1:17-cv-01415-WSD-JKL Document 5-1 Filed 06/14/17 Page 8 of 20 - 9 - discharged if Plaintiff fails to complete his bankruptcy plan. The mere confirmation of a Chapter 13 plan does not change the legal status of the underlying debts because a Chapter 13 bankruptcy is generally a years-long process, which can fail to reach completion in any number of ways. Devincenzi v. Experian Info. Sols., Inc., No. 16-CV-04628-LHK, 2017 WL 86131, at *6 (N.D. Cal. Jan. 10, 2017) (“Confirmation of a payment plan is not sufficient to alter the legal status of a debt . . .”). If Plaintiff does not complete his plan, for any reason, he will not be granted a discharge and “the debt will be owed as if no petition for bankruptcy was filed.” Id. at *6; In re Irons, 173 B.R. 910, 910–11 (Bankr. E.D. Ark. 1994) (“Section 349 of the Bankruptcy Code states the effect of a dismissal of a bankruptcy case . . .[t]his section negates, as it was intended to, the consequences of the filing of the petition in bankruptcy where the case is dismissed without discharge. Parties are restored to their rights and positions as they existed prior to the filing of the bankruptcy case.” (citing In re Nash, 765 F.2d 1410, 1414 (9th Cir. 1985))). Given the contingent nature of Chapter 13 bankruptcies, it is accurate and appropriate for Experian to continue reporting Plaintiff’s Optimum account as in collection status during the pendency of his bankruptcy prior to discharge. Since Plaintiff is not paying Optimum anything through his plan (because Optimum did Case 1:17-cv-01415-WSD-JKL Document 5-1 Filed 06/14/17 Page 9 of 20 - 10 - not file a proof of claim), the $433 that was past due when he filed this case against Experian will still be past due if his Chapter 13 bankruptcy fails. See, e.g., Jaras v. Experian Info. Sols., Inc., No. 16-CV-03336-LHK, 2016 WL 7337540, at *3 (N.D. Cal. Dec. 19, 2016) (“If a debtor fails to comply with the Chapter 13 plan, the debtor’s bankruptcy petition may be dismissed and the debtor will then owe the entirety of the debt.”). As “a matter of law, it is not misleading or inaccurate to report delinquent debts during the pendency of a bankruptcy proceeding prior to the discharge of the debts.” Jaras, 2016 WL 7337540 at *3. This is because “[c]onfirmation of Plaintiff’s Chapter 13 bankruptcy plan is not equivalent to discharge of Plaintiff’s debts, and Plaintiff is not entitled to receive a discharge of debts . . . until Plaintiff has completed all payments provided for under the Chapter 13 bankruptcy plan.” Blakeney v. Experian Info. Sols., Inc., No. 15-CV-05544- LHK, 2016 WL 4270244, at *6 (N.D. Cal. Aug. 15, 2016); Doster v. Experian Info. Sols., Inc., No. 16-cv-04629 LHK, 2017 WL 264401, at *6 (N.D. Cal. Jan. 20, 2017) (“[T]he Court rejects Plaintiff’s argument that her credit report was misleading or inaccurate for reporting delinquent debt during the pendency of her Chapter 13 bankruptcy.”). Plaintiff’s attempt to shore up his claim by alleging that Experian failed to notify Optimum of Plaintiff’s dispute in a timely manner pursuant to 15 U.S.C. Case 1:17-cv-01415-WSD-JKL Document 5-1 Filed 06/14/17 Page 10 of 20 - 11 - § 1681i also must fail as a matter of law. Experian does not concede that it failed to timely notify Optimum of Plaintiff’s dispute. But “even if a CRA fails to conduct a reasonable investigation or otherwise fails to fulfill its obligations under the FCRA, if a plaintiff cannot establish that a credit report contained an actual inaccuracy, then the plaintiff’s claims fail as a matter of law.” Conrad v. Experian Info. Solutions, Inc., No. 16-cv-04660 NC, 2017 WL 1739167, at *5 (N.D. Cal. May 4, 2017) (internal quotation marks and citation omitted). As stated above, it is neither inaccurate nor misleading for a CRA to report an account as being in a pre- bankruptcy status, delinquent, or past due if a Chapter 13 bankruptcy plan has been confirmed but not yet discharged. Mensah v. Experian Info. Sols., Inc., No. 16-cv- 05689 WHO, 2017 WL 1246892, at *9 (N.D. Cal. April 5, 2017) (dismissing complaint alleging that confirmation of a Chapter 13 plan rendered the account status inaccurate because it was not “an actionable inaccuracy”); Fair v. Experian Info. Sols., Inc., No. 16-cv-05712 CW, 2017 WL 1164225, at *3 (N.D. Cal. Mar. 29, 2017) (“[I]t is not misleading or inaccurate to report delinquent debts that have not been discharged.”); Mamisay v. Experian Info. Sols., Inc., No. 16-cv-05684- YGR, 2017 WL 1065170, at *4 (N.D. Cal. Mar. 21, 2017) (reporting missed payments during the pendency of a bankruptcy proceeding prior to discharge is not an “actual inaccuracy.”); Penney v. Experian Info. Sols, Inc., No. 16-cv-05695, Case 1:17-cv-01415-WSD-JKL Document 5-1 Filed 06/14/17 Page 11 of 20 - 12 - 2017 WL 1078649, at *4 (N.D. Cal. Mar. 15, 2017) (“[I]t was neither misleading nor inaccurate for Equifax and Experian to omit the terms of Plaintiff’s confirmation plan on his credit report.”). B. The FCRA Does Not Require Experian to Act As A Bankruptcy Tribunal Or Make Legal Determinations. The preceding discussion reveals a deeper flaw in Plaintiff’s case: even if Plaintiff’s legal conclusion that the provisions of his Chapter 13 plan superseded his original debt obligation with Optimum were correct, this sort of “legal inaccuracy” cannot support liability under the FCRA. Plaintiff’s claim is a dispute over the legal effects of his Chapter 13 bankruptcy proceedings as applied to the Optimum account. It is well settled that the FCRA governs factual accuracies, but does not extend to “legal inaccuracies.” See, e.g., Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 891 (9th Cir. 2010) (explaining credit bureaus “simply collect and report information” and are “not tribunals”); DeAndrade v. Trans Union LLC, 523 F.3d 61, 68 (1st Cir. 2008) (holding that an alleged inaccuracy arising from the legal validity of a mortgage loan “is not a factual inaccuracy . . . but rather a legal issue that a credit agency . . . is neither qualified nor obligated to resolve under the FCRA”); Wright v. Experian Info. Sols., Inc., 805 F.3d 1232, 1244 (10th Cir. 2015) (holding that CRAs have no duty to determine the validity of a tax lien because “[a] reasonable reinvestigation, however, does not require CRAs to resolve legal Case 1:17-cv-01415-WSD-JKL Document 5-1 Filed 06/14/17 Page 12 of 20 - 13 - disputes about the validity of the underlying debts they report”); Chiang v. Verizon New England Inc., 595 F.3d 26, 38 (1st Cir. 2010) (“[A] plaintiff’s required showing is factual inaccuracy, rather than the existence of disputed legal questions.”); Cahlin, 936 F.2d at 1160 (holding that “a [§ 1681i] claim is properly raised when a particular credit report contains a factual deficiency or error that could have been remedied by uncovering additional facts that provide a more accurate representation about a particular entry” (emphasis in original)). Plaintiff’s theory of inaccuracy would require Experian to determine the legal status of his debts based on the language of his Chapter 13 plan. Experian would have to pull Plaintiff’s bankruptcy petition and schedules, the claims register for his case, and his confirmed Chapter 13 plan. Then, Experian would have to decipher exactly how these court documents impact the specifics of Plaintiff’s debt to Optimum, applying various principles of bankruptcy law along the way. But it is well settled that the FCRA does not require CRAs to monitor bankruptcy court dockets, review the proceedings, and interpret their meaning so there can be no general liability under § 1681e(b). This unreasonable burden is precisely what led the court in Hupfauer v. Citibank, N.A., et al to note that “[t]he only practical means to [determine whether a particular debt is discharged] is by Case 1:17-cv-01415-WSD-JKL Document 5-1 Filed 06/14/17 Page 13 of 20 - 14 - searching a consumer’s actual bankruptcy court file and scouring all the filings, requiring the third party to consult with an attorney to determine whether a certain account may fall into one of the many exceptions to discharge,” but “requiring a credit bureau to determine whether a specific account was discharged in Chapter 13 bankruptcy would impose an unfairly heavy burden on that party” and “is precisely the kind of legal question that credit reporting agencies are neither qualified nor obligated to answer.” 16-cv-00475, 2016 WL 4506798, at *7 (N.D. Ill. Aug. 19, 2016) (alterations in original) (internal quotation marks and citations omitted); see also George v. Chex Sys., Inc., No. 16-2450-JTM, 2017 WL 119590, at *3 (D. Kan. Jan 12, 2017) (holding that “the maximum possible accuracy” standard of § 1681e does not require a CRA to check PACER prior to preparing a report); Childress, 790 F.3d at 747 (holding that there was no duty to employ legally trained individuals to review and classify bankruptcy dismissals). There also can be no liability for Experian under § 1681i because no amount of factual reinvestigation could have resolved the dispute as to the legal effect of Plaintiff’s Chapter 13 bankruptcy on the reporting of the Optimum debt, which requires judicial determination about its scope and effects. See Cahlin, 936 F.2d at 1160. The FCRA does not require Experian to act as a de facto bankruptcy Case 1:17-cv-01415-WSD-JKL Document 5-1 Filed 06/14/17 Page 14 of 20 - 15 - tribunal by deciphering and applying complex issues of law, which would stretch the FCRA well beyond its limits. In short, FCRA litigation is “not the appropriate way” to resolve a dispute over the legal status of a debt. Johnson v. Trans Union, LLC, No. 10-cv-6960, 2012 WL 983793, at *7 (N.D. Ill., Mar. 22, 2012), aff’d, 524 F. App’x 268 (7th Cir. 2013). Instead, “[t]he FCRA expects consumers to dispute the validity of a debt with the furnisher of the information or append a note to their credit report to show the claim is disputed.” Wright, 805 F.3d at 1244. Plaintiff has not alleged any actionable inaccuracy here, and accordingly Plaintiff’s claims fail entirely and should be dismissed. II. PLAINTIFF’S INVOCATION OF INDUSTRY STANDARDS CANNOT SAVE HIS COMPLAINT. Plaintiff’s assertion that Experian’s reporting is inaccurate because it does not comport with industry standards embodied in the Consumer Data Industry’s Credit Resource Reporting Guide (the “CRRG”) must also fail. Despite repeatedly alluding to supposed violations of industry standards, Plaintiff does not state which specific provisions of the CRRG or other industry standard Experian allegedly violated. See Compl. ¶¶ 21–41, 70. Courts routinely dismiss claims like these founded on vague invocations of the purported industry standards embodied in the CRRG. See, e.g., Mortimer v. Bank of Am., N.A., No. 12-cv-01959 JCS, 2013 WL Case 1:17-cv-01415-WSD-JKL Document 5-1 Filed 06/14/17 Page 15 of 20 - 16 - 1501452, at *12 (N.D. Cal. Apr. 10, 2013) (“Defendant’s alleged noncompliance with the Metro 2 Format is an insufficient basis to state a claim under the FCRA.”); Mestayer v. Experian Info. Sols., Inc, No. 15-cv-03645-EMC, 2016 WL 631980, at *4 (N.D. Cal. Feb. 17, 2016) (same); Devincenzi, 2017 WL 86131 at *6 (holding that otherwise accurate reporting “is not rendered unlawful simply because a Plaintiff alleges that the reporting, though accurate, was inconsistent with industry standards”). In those rare instances where courts have held that a violation of the CDIA’s guidelines can state a claim, it is usually where a furnisher, not a CRA, allegedly violated express industry standards directly tied to the alleged inaccuracy. See, e.g., Nissou-Rabban v. Capital One Bank (USA), N.A., No. 15-cv-1675 JLS (DHB), 2016 WL 4508241, at *5 (S.D. Cal. June 6, 2016) (denying data furnisher’s motion to dismiss where plaintiff specifically alleged that Metro-2 standards required reporting “no data” instead of the charge-off that was reported). Indeed, courts have repeatedly declined to follow Nissou-Rabban, reaffirming that “allegations that a credit report deviated from the Metro 2 format [are] insufficient, without more, to state a claim under the FCRA.” Mensah, 2017 WL 1246892 at *8 (disagreeing with Nissou-Rabban and holding that “deviation from industry standards by itself is insufficient to allege inaccurate or misleading reporting”); Case 1:17-cv-01415-WSD-JKL Document 5-1 Filed 06/14/17 Page 16 of 20 - 17 - Rodriguez v. Experian Info. Sols., Inc., No. 16-cv-04668-BLF, 2017 WL 1354764, at *7 (N.D. Cal. Apr. 13, 2017). Here, Plaintiff does not allege how Experian failed to follow the CDIA guidelines. To the extent Experian can decipher a specific alleged violation, it is the implication found in Plaintiff’s allegations that the CDIA guidelines require monthly reporting. See Compl. at ¶ 31. But this misses the mark. This implied theory rests on the same improper assumption that the reporting of Plaintiff’s Optimum account was rendered inaccurate as a result of confirmation of the Chapter 13 Plan, but the reporting was not inaccurate for the reasons discussed above. Furthermore, at most Plaintiff has pleaded that the CDIA requires furnishers, not CRAs, to report data each month. See Compl. at ¶ 26 (“. . . . CDIA publishes Metro 2 (‘Metro 2’) reporting standards to assist furnishers with their compliance requirements under the FCRA.”). Plaintiff has not pleaded that the CDIA somehow requires Experian to force a data furnisher to report such information to CRAs. In sum, Plaintiff has failed to allege any inaccurate data or a plausible link between that data and any industry standard. Accordingly, Plaintiff’s attempt to bolster his Complaint with allusions to industry standards cannot save his claims against Experian, which should be dismissed. Case 1:17-cv-01415-WSD-JKL Document 5-1 Filed 06/14/17 Page 17 of 20 - 18 - CONCLUSION For the foregoing reasons, Experian respectfully requests that this Court grant its Motion to Dismiss the claims against Experian in Plaintiff’s Complaint in their entirety, with prejudice. Dated: June 14, 2017 Respectfully submitted, /s/ William H. Rooks William H. Rooks Georgia Bar No. 906785 JONES DAY 1420 Peachtree Street, N.E., Suite 800 Atlanta, GA 30309-3053 Telephone: (404) 581-8891 Facsimile: (404) 581-8330 wrook@jonesday.com Attorney for Defendant Experian Information Solutions, Inc. Case 1:17-cv-01415-WSD-JKL Document 5-1 Filed 06/14/17 Page 18 of 20 - 19 - The undersigned hereby certifies that the foregoing document has been prepared in accordance with the font type and margin requirements of Local Rule 5.1 of the Northern District of Georgia, using a font type of Times New Roman and a point size of 14. /s/ William H. Rooks William H. Rooks Attorney for Defendant Experian Information Solutions, Inc. Case 1:17-cv-01415-WSD-JKL Document 5-1 Filed 06/14/17 Page 19 of 20 - 20 - CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 14th day of June, 2017, I caused the foregoing to be electronically filed with the Clerk of the Court by using the CM/ECF system, which will send a notice of electronic filing to all counsel of record. /s/ William H. Rooks William H. Rooks Attorney for Defendant Experian Information Solutions, Inc. Case 1:17-cv-01415-WSD-JKL Document 5-1 Filed 06/14/17 Page 20 of 20