Noye v. Yale Associates, Inc.

BRIEF IN SUPPORT re MOTION to Compel Discovery

M.D. Pa.April 26, 2017

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA T JASON NOYE, on behalf of himself and others similarly situated, Plaintiffs, v. YALE ASSOCIATES, INC. Defendant. Civil Action No. 1:15-cv-2253-YK (Hon. Yvette Kane) MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF’S MOTION TO COMPEL DISCOVERY James A. Francis John Soumilas David A. Searles FRANCIS & MAILMAN, P.C. Land Title Building, Suite 1902 100 South Broad Street Philadelphia, PA 19110 T. (215) 735-8600 Marielle Macher COMMUNITY JUSTICE PROJECT 118 Locust Street Harrisburg, PA 17101 717-236-9486, ext. 214 Attorneys for Plaintiff and Class Date: April 26, 2017 Case 1:15-cv-02253-YK Document 61 Filed 04/26/17 Page 1 of 10 1 I. SUMMARY OF ARGUMENT Yale’s responses to Interrogatories 1, 14, and 16 are incomplete, unresponsive, and evasive. Plaintiff thus respectfully seeks that this Court order Yale to supplement its responses pursuant to Federal Rules of Civil Procedure 26 and 37. II. FACTUAL AND PROCEDURAL BACKGROUND On November 24, 2015, Plaintiff T Jason Noye filed the instant nationwide class action lawsuit against Yale Associates, Inc. (“Yale”), alleging that Yale systemically violates the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681a et seq., by misreporting minor summary level offenses as more serious misdemeanors in consumer background reports and by failing to maintain reasonable procedures to insure that its consumer reports are correct. Compl. ¶ 3, Dkt. 1. Plaintiff’s Complaint raises claims under both 15 U.S.C. § 1681k(a) and 15 U.S.C. § 1681e(b) and seeks certification of two corresponding classes. Compl. ¶¶ 54-63. Plaintiff’s claim under § 1681k(a) alleges that Yale violates the FCRA by (1) failing to notify consumers contemporaneously of the fact that adverse public and criminal record information is being provided to employers or prospective employers, and (2) failing to maintain strict procedures to insure that the public record information it sells to employers is complete and up-to-date. Compl. ¶ 58. The corresponding class definition for Plaintiff’s claim under § 1681k(a) (the Case 1:15-cv-02253-YK Document 61 Filed 04/26/17 Page 2 of 10 2 “Section 1681k Class”) includes “[a]ll natural persons residing in the United States … who were the subject of a consumer report furnished to a third party by Yale … that contained at least one record of a criminal conviction or arrest, civil lien, bankruptcy or civil judgment” and to whom Yale did not send written notice that it was furnishing the report. Compl. ¶ 46. Plaintiff’s claim under § 1681e(b) alleges that Yale violates the FCRA by misreporting Pennsylvania summary offenses as misdemeanors or more serious offenses, thereby failing to follow reasonable procedures to assure the maximum possible accuracy of the information concerning the individuals about whom its consumer reports relate. Compl. ¶ 63. The corresponding class definition for this claim (the “Section 1681e(b) Class”) includes “[a]ll natural persons residing in the United States who … were the subjects of background reports prepared by Defendant Yale which disclosed a Pennsylvania summary offense as a misdemeanor or more serious offense.” Compl. ¶ 46. On January 7, 2016, Plaintiff’s counsel sent Yale’s counsel Plaintiff’s First Set of Interrogatories. See Plaintiff’s Interrogs., Ex. A.1 Interrogatory 1 requests the total number of natural persons residing in the United States and its Territories who were the subject of a consumer report furnished to a third party by Yale, that was furnished for an employment purpose, that contained at least one record of a 1 References to Exhibits herein are to those exhibits attached to the Declaration of James A. Francis filed simultaneously herewith. Case 1:15-cv-02253-YK Document 61 Filed 04/26/17 Page 3 of 10 3 criminal conviction or arrest, civil lien, bankruptcy or civil judgment, and that was prepared on or after November 24, 2010. Interrog. 1, Ex. A. Interrogatories 14 and 16 seek the number of persons that Yale reported as having a criminal case with the case code “CR,” i.e., the typical case code of a misdemeanor or felony, but wherein the person was in fact convicted of a summary offense. Interrogs. 14 and 16, Ex. A. Yale initially refused to respond to Interrogatories 1, 14, and 16 (and most other interrogatories) entirely. See Yale’s Initial Responses to Plaintiff’s Interrogatories, Ex. B. Eventually, Yale agreed to respond to Interrogatories 1, 14, and 16, but then provided incomplete, evasive, and non-responsive answers. With respect to Interrogatory 1, Yale responded only as to Pennsylvania consumers, even though the Interrogatory calls for the number of consumers nationwide. See Yale’s Supp. Answers & Objections to Pl.’s Interrogs., Response to Interrog. 1, Ex. C. This is not surprising, because Joseph A. Taylor, Yale’s chief operating officer, wrote to Monty Pennell, Yale’s third party vendor, stating that Yale’s strategy in this litigation was to “try and limit this to PA” and to convince this Court to “only authorize a review of 1 year worth of PA files.” Jan. 21, 2016 E- mail from J. Taylor to M. Pennell, Ex. D. Similarly, with respect to Interrogatories 14 and 16, Yale provided the total number of cases with the criminal case code “CR,” but refused to answer how many of these cases actually concerned summary offenses – the information that these Case 1:15-cv-02253-YK Document 61 Filed 04/26/17 Page 4 of 10 4 interrogatories in fact sought. See Yale’s Supp. Answers & Objections to Pl.’s Interrogs., Response to Interrogs. 14, 16, Ex. C. Plaintiff’s counsel conferred with Yale’s counsel on April 10, 2017 to attempt to resolve this discovery dispute, but Yale remains unwilling to provide complete responses to Interrogatories 1, 14, and 16. Accordingly, Plaintiff now respectfully seeks for this Court to compel Yale to respond fully to Interrogatories 1, 14, and 16. III. ARGUMENT Yale has provided evasive and incomplete responses to Interrogatories 1, 14, and 16. As Yale is unwilling to supplement its responses, this Court should compel Yale to respond in full. A. Interrogatory 1 Yale’s response to Interrogatory 1 is unresponsive because Yale unilaterally limits its response to Pennsylvania consumers rather than to all consumers in the class nationwide. As discussed in Section II supra, Plaintiff’s Section 1681k Class includes “[a]ll natural persons residing in the United States … who were the subject of a consumer report furnished to a third party by Yale … that contained at least one record of a criminal conviction or arrest, civil lien, bankruptcy or civil judgment” and to whom Yale did not send written notice that it was furnishing the report. Compl. ¶ 46 (emphasis added). Case 1:15-cv-02253-YK Document 61 Filed 04/26/17 Page 5 of 10 5 To determine the number of members in the Section 1681k Class, Plaintiff requested in Interrogatory 1 the total number of natural persons residing in the United States and its Territories who were the subject of a consumer report furnished to a third party by Yale, that was furnished for an employment purpose, that contained at least one record of a criminal conviction or arrest, civil lien, bankruptcy or civil judgment, and that was prepared on or after November 24, 2010. Interrog. 1, Ex. A (emphasis added). Yale’s response to Interrogatory 1, however, includes only Pennsylvania consumers. See Yale’s Supp. Answers & Objections to Pl.’s Interrogs., Response to Interrog. 1, Ex. C. Yale refuses to provide information regarding United States consumers nationwide – the actual information sought in Interrogatory 1. Yale’s attempt to unilaterally limit discovery as to the scope of the class cannot be allowed. Under § 1681k(a), credit reporting agencies like Yale must either (1) notify a consumer that information about the consumer is being published contemporaneously with the report, or (2) maintain strict procedures designed to insure that reported information is complete and up-to-date. As alleged in Plaintiff’s Complaint, Yale fails to adhere to § 1681k(a) on a nationwide basis. Compl. ¶¶ 3, 46. First, Yale concedes that it never sends notice to consumers contemporaneously with sending its reports to third parties. Yale Rule 30(b)(6) Dep. of Thomas Farley at 15:23-16:15, Ex. E. Case 1:15-cv-02253-YK Document 61 Filed 04/26/17 Page 6 of 10 6 Second, Yale fails to maintain strict procedures to insure that reported information is complete and up-to-date. Specifically, Yale contracts with third party vendors, such as Pennell, to obtain its criminal record information from the courts, but makes no attempt to ensure that its vendors obtain the complete record or to verify the information that the vendors gather. Rule 30(b)(6) Dep. of Joseph Taylor at 51:3-52:3, 64: 9-21, Ex. F. In fact, at least with respect to vendor Pennell, Yale does not even have a written contract mandating that it follow any particular procedures or protocols for gathering criminal record information. Dep. of M. Pennell at 16:17-24, Ex. G. Moreover, Yale is thoroughly unaware of how Pennell gathers its criminal record information. Rule 30(b)(6) Dep. of Joseph Taylor at 53:11-22, 54:9-22, 84:6-85:10, Ex. F (failing to answer basic questions about Yale’s practices). Yale’s refusal to take any meaningful action to ensure that the information its vendors gather is accurate plainly constitutes a failure to maintain strict procedures under § 1681k(a). See, e.g., Moody v. Ascenda USA Inc., 193 F. Supp. 3d 1347, 1351 (S.D. Fla. 2016); Legrand v. Intellicorp Records, Inc., No. 1: 15 CV 2091, 2016 WL 1161817, at *5-6 (N.D. Ohio Mar. 24, 2016). Because Yale fails to comply with § 1681k(a), all individuals nationwide who were the subject of a report prepared by Yale furnished for an employment purpose containing a criminal conviction or arrest or other adverse information are members of the Section 1681k Class. There is nothing limiting either discovery or the Section Case 1:15-cv-02253-YK Document 61 Filed 04/26/17 Page 7 of 10 7 1681k Class to Pennsylvania consumers. Indeed, to the contrary, courts have regularly certified nationwide classes alleging similar violations. See, e.g., Henderson v. Trans Union LLC, No. 3:14-CV-00679-JAG, 2016 WL 2344786, at *6 (E.D. Va. May 3, 2016); Hawkins v. S2Verify, No. C 15-03502 WHA, 2016 WL 3999458, at *6 (N.D. Cal. July 26, 2016). Accordingly, Yale has no basis for restricting its response to Interrogatory 1 to Pennsylvania consumers, and it must thus be ordered to respond to Interrogatory 1 in full. B. Interrogatories 14 and 16 Yale’s responses to Interrogatories 14 and 16 are evasive to the point that they are meaningless. As discussed in Section II supra, Plaintiff’s Section 1681e(b) Class includes “[a]ll natural persons residing in the United States who … were the subjects of background reports prepared by Defendant Yale which disclosed a Pennsylvania summary offense as a misdemeanor or more serious offense.” Compl. ¶ 46. To determine the number of class members in the Section 1681e(b) Class, Plaintiffs requested in Interrogatory 14 the number of Pennsylvania criminal cases with a case code of “CR,” i.e., the case code ordinarily associated with misdemeanor and felony cases, in which the person was actually convicted of or pled guilty to a summary offense. Interrog. 14, Ex. A. Likewise, to determine the number of such cases that were misreported, Plaintiff requested in Interrogatory 16 the number of cases reported in Interrogatory 14 that Yale reported as felonies. Interrog. 16, Ex. A. Case 1:15-cv-02253-YK Document 61 Filed 04/26/17 Page 8 of 10 8 Yale, however, simply provided the total number of reports containing the case code “CR.” See Yale’s Supp. Answers & Objections to Pl.’s Interrogs., Response to Interrogs. 14, 16, Ex. C. Yale refuses to sort out the cases that pertain to summary offenses. The total number of reports containing the case code “CR” is unresponsive and useless to Plaintiff without any information about which ones may have been misreported. Accordingly, Plaintiff respectfully requests that Yale supplement its response to Interrogatories 14 and 16 so as to provide the number of reports containing the case code “CR” that were in fact summary offenses. IV. CONCLUSION Yale’s responses to Interrogatories 1, 14, and 16 are incomplete and unresponsive. Yale thus must be ordered to supplement its responses. Dated: April 26, 2017 Respectfully submitted, By: s/ James A. Francis James A. Francis John Soumilas David A. Searles FRANCIS & MAILMAN, P.C. 100 South Broad Street, Suite 1902 Philadelphia, PA 19110 T. (215) 735-8600 Marielle Macher Megan Lovett COMMUNITY JUSTICE PROJECT 118 Locust Street Harrisburg, PA 17101 T. (717) 236-9486, ext. 214 Attorneys for Plaintiff and Class Case 1:15-cv-02253-YK Document 61 Filed 04/26/17 Page 9 of 10 9 CERTIFICATE OF SERVICE I hereby certify that on April 26, 2017, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to counsel or parties of record electronically by CM/ECF. s/ James A. Francis James A. Francis Case 1:15-cv-02253-YK Document 61 Filed 04/26/17 Page 10 of 10