DRONEY v. VIVINT SOLAR
1:18-cv-00849
D.N.J.Mar 19, 2021Background
- On January 21, 2016, Vivint door-to-door salesman Jeremy O’Dell visited the Droneys’ home; Mrs. Droney signed an iPad form but later stated she was not consenting on behalf of her husband and was not told the visit concerned solar sales or would trigger credit pulls.
- The next day Vivint pulled consumer credit reports for both Christine and Timothy Droney; Plaintiffs allege the signature of Mr. Droney was forged and the credit pulls were unauthorized.
- Plaintiffs filed an FCRA suit alleging Vivint willfully and/or negligently obtained their credit reports without a permissible purpose and suffered emotional distress; Vivint sought summary judgment and also moved to strike Plaintiffs’ supplemental facts.
- Plaintiffs attempted to rely on materials from a separate Brown/Cardona case (post-2016, 2017 evidence of systemic improper credit pulls) to show Vivint’s knowledge of similar misconduct; Vivint moved to strike those supplemental facts.
- The Court granted Vivint’s motion to strike the post-2016 Brown materials as not temporally relevant to the 2016 incident, but denied Vivint’s summary judgment motion because factual disputes remain (e.g., forgery, what O’Dell told Mrs. Droney) and agency/imputation questions for a jury.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Vivint had a permissible purpose to pull Plaintiffs’ credit under FCRA | Droneys: no permissible purpose; forms were procured by fraud and "reasonable belief" is not the correct standard | Vivint: had reason to believe PCCF/PPA were signed and thus permissibly obtained reports for credit or business transaction | Denied summary judgment — factual disputes about consent/forgery preclude resolving permissible-purpose question at summary judgment |
| Whether O’Dell’s knowledge/misconduct can be imputed to Vivint (agency / vicarious liability) | Droneys: O’Dell was Vivint’s agent; his knowledge that forms were procured fraudulently should be imputed to Vivint | Vivint: any forgery/misconduct was outside scope of employment and not imputable | Court: imputation/vicarious-liability questions are fact issues for a jury; imputation may apply because O’Dell’s acts were material to his job duties |
| Whether Plaintiffs can recover emotional-distress damages under the FCRA without corroborating medical evidence | Droneys: testimony about stress/emotional harm suffices to show damages | Vivint: Plaintiffs lack corroborating evidence of emotional distress | Court: Third Circuit law permits emotional-distress damages without corroboration; Plaintiffs can present such damages to a jury |
| Whether Plaintiffs’ reliance on Brown/Cardona (post-2016) materials is admissible on summary judgment | Droneys: materials show pattern/systemic problem and Vivint’s knowledge | Vivint: materials are from another case, protected/confidential, and temporally irrelevant | Court: granted Vivint’s motion to strike — post-2016 materials do not prove Vivint’s knowledge before the 2016 incident and are not considered on summary judgment |
Key Cases Cited
- Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47 (2007) (discusses FCRA purpose and mens rea considerations)
- Cortez v. Trans Union, LLC, 617 F.3d 688 (3d Cir. 2010) (permits emotional-distress damages under the FCRA without medical corroboration)
- Huston v. Procter & Gamble Paper Prods. Corp., 568 F.3d 100 (3d Cir. 2009) (agency rule for imputing an agent’s knowledge to a principal)
- Jones v. Federated Financial Reserve Corp., 144 F.3d 961 (6th Cir. 1998) (supports potential vicarious liability of employers under the FCRA)
- Costos v. Coconut Island Corp., 137 F.3d 46 (1st Cir. 1998) (framework for when an agent’s intentional tort may be imputed to principal)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) (summary-judgment standard regarding genuine issues of material fact)
- Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (movant’s and nonmovant’s burdens on summary judgment)
- Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) (summary-judgment standard when record taken as a whole cannot lead a rational trier of fact to find for the nonmoving party)