Del LLano v. Vivint Solar Inc., 3:17-cv-01429

Background

Plaintiff Victor R. Del Llano received notice that his credit report had been accessed on March 27, 2017, and sued Vivint Solar, Inc. and Solar Mosaic, Inc. under the FCRA and California CCRAA.
Plaintiff alleges he never authorized the credit checks, never did business with defendants, and that any signature on Vivint’s Prospective Customer Consent Form (PCCF) was forged or doctored.
Vivint submitted declarations (sales rep testimony and electronic-record metadata) showing a Vivint sales representative met with Plaintiff, presented a PCCF on a tablet, and that the PCCF bearing Plaintiff’s signature was uploaded on March 27, 2017; Vivint’s systems allegedly make retroactive modification impossible.
Plaintiff’s declarations assert the rep misrepresented his affiliation, Plaintiff refused an immediate credit pull, and later discovered the credit inquiries; Plaintiff’s complaint did not allege meeting a Vivint rep or signing a form.
Vivint moved to compel arbitration and alternatively to dismiss for lack of Article III standing; Mosaic moved to compel arbitration. The court considered standing first.
The court dismissed the complaint with prejudice for lack of Article III standing, denied the arbitration motions as moot, and denied leave to amend as futile given defendants’ declarations.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Article III standing — injury in fact	Del Llano: unauthorized credit pull and invasion of privacy (psychological harm, credit-score drop, increased risk of data breach) suffice as concrete injury	Vivint: plaintiff pleads no concrete disclosure or tangible harm; declarations show PCCF was valid and no speculative risk; thus no standing	Court: No Article III standing; speculative data-breach risk and bare privacy allegations insufficient; alleged credit-score drop not pleaded with supporting facts
Sufficiency of invasion-of-privacy theory under FCRA	Del Llano: invasion of privacy traditionally recognized and Congress intended FCRA protections	Vivint: plaintiff did not allege disclosure to third parties or egregious breach; courts require more than procedural violation	Court: Invasion claim inadequately pled—no alleged disclosure or egregious breach—so it does not confer standing
Effect of defendants’ electronic records on plaintiff’s forgery allegation	Del Llano: signature on PCCF was forged/doctored; he never signed	Vivint: system metadata and technical declarations show PCCF uploaded same day and not modifiable; signature is plaintiff’s; forgery theory implausible	Court: Defendants’ sworn technical evidence makes plaintiff’s theory infeasible; plaintiff’s claim inconsistent with his complaint and declarations
Leave to amend after dismissal for lack of standing	Del Llano: requested discovery and chance to amend to test defendants’ assertions	Vivint: amendment would be futile; declarations show inevitability of defeat on summary judgment; prejudice if discovery allowed	Court: Denied leave to amend as futile given evidence; dismissed with prejudice

Key Cases Cited

Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) (clarifies concreteness requirement for statutory violations to establish injury in fact)
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (sets three-part Article III standing test)
Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013) (speculative future injury insufficient for standing)
Krottner v. Starbucks Corp., 628 F.3d 1139 (9th Cir. 2010) (data-theft allegations can support standing where theft/disclosure is plausible)
Diedrich v. Ocwen Loan Servicing, LLC, 839 F.3d 583 (7th Cir. 2016) (holding that alleged credit damage can constitute an injury for standing)
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility standard for pleadings)
Ashcroft v. Iqbal, 556 U.S. 662 (2009) (courts need not accept legal conclusions; plausibility standard)
United Steelworkers of Am. v. Am. Mfg. Co., 363 U.S. 564 (1960) (deference to arbitration awards and limited role of courts)