751 F.3d 724
6th Cir.2014Background
- On Oct. 7, 2009 an American Satellite representative (a third-party Dish retailer) took a call from an imposter using the name “Gregina/Crgringrina Dickley” and a social security number belonging to plaintiff Gregory Bickley.
- The representative ran the name/SSN through a credit-agency “waterfall” (Equifax → Experian → TransUnion); TransUnion returned “Declined No Hit,” and the prospective sale was declined.
- Bickley later discovered a credit-report inquiry associated with “Dish” and received notice; Dish contacted Bickley and provided a recording of the fraudulent call.
- Bickley sued Dish under the Fair Credit Reporting Act (15 U.S.C. §1681) alleging Dish willfully and negligently obtained/used his "consumer report" without a permissible purpose; he also alleged intentional infliction of emotional distress.
- Dish counterclaimed for abuse of process and moved for summary judgment; the district court granted summary judgment to Dish on the FCRA claims and granted judgment on the pleadings dismissing Dish’s abuse-of-process counterclaim. Bickley appealed; Dish cross-appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a “consumer report” was obtained | Bickley: Equifax and internal records show Dish made an inquiry and received a consumer report (Decision Detail Report/Echostar Risk) | Dish: American Satellite used Dish’s interface; Dish did not actually receive or use a consumer report | Court: Genuine dispute over whether Dish received a consumer report (Decision Detail Report and Equifax admission create triable issue), so element satisfied for summary-judgment analysis |
| Whether Dish "used or obtained" the report | Bickley: Dish accessed/received the report on Oct. 7, 2009 | Dish: Disputes actual receipt/use; asserts American Satellite did the querying | Court: Treated as established for summary-judgment purposes; sufficient evidence to create a factual question but Dish did not contest on appeal |
| Whether Dish lacked a "permissible purpose" under §1681b(a)(3)(F) (legitimate business need & consumer-initiated transaction) | Bickley: Dish had no permissible purpose, and once agencies returned "Declined No Hit" any further access was unnecessary | Dish: Verifying identity/eligibility and preventing fraud is a legitimate business need in connection with a transaction initiated by the (purported) consumer | Court: Dish had a legitimate business need to verify identity/eligibility and reasonably believed transaction was consumer-initiated; obtaining report was a permissible purpose — FCRA claims fail |
| Whether district court erred in granting judgment on the pleadings for Dish’s abuse-of-process counterclaim | Dish: Counterclaim alleged Bickley sued in bad faith to extort settlement; this stated an ulterior purpose | Bickley: Moved for judgment on the pleadings; Dish’s counterclaim was conclusory | Court: Affirmed dismissal — Dish’s counterclaim was a bare, formulaic recitation of elements (Iqbal/Twombly standard) and failed to plead specific facts of ulterior purpose |
Key Cases Cited
- TRW Inc. v. Andrews, 534 U.S. 19 (2001) (describes FCRA’s dual goals of efficiency and consumer privacy)
- Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) (summary-judgment standard; inferences must favor nonmoving party)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) (standard for determining genuine issues of material fact at summary judgment)
- Estiverne v. Sak’s Fifth Avenue, 9 F.3d 1171 (5th Cir. 1993) (retailer had legitimate business need to request credit information to avoid fraud)
- TransUnion Corp. v. F.T.C., 8 F.3d 228 (D.C. Cir. 1993) (inferring consumer’s implicit waiver where business conduct aligns with FCRA goals)
- Smith v. Bob Smith Chevrolet, Inc., 275 F. Supp. 2d 808 (W.D. Ky. 2003) (Congress intended consumer reports for assessing eligibility)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading requires more than threadbare recitals of elements)
- Newell Rubbermaid, Inc. v. Raymond Corp., 676 F.3d 521 (6th Cir. 2012) (standard of review for summary judgment)
- Phillips v. Grendahl, 312 F.3d 357 (8th Cir. 2002) (elements for FCRA improper-use claim)
- Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47 (2007) (standards for willfulness under FCRA)