Himmelstein v. Comcast of the District, L.L.C.
2013 U.S. Dist. LEXIS 38178
| D.D.C. | 2013Background
- Himmelstein terminated Comcast service and an employee left a modem behind; a $220 unreturned-modem charge was assessed.
- CPA, as Comcast’s collection agent, pursued the $220 debt and reported it to credit bureaus in December 2010.
- Himmelstein later refinanced his home; his credit report reflected the Comcast debt, increasing his financing costs by about $26,000.
- Himmelstein alleged that CPA violated FCRA §1681s-2 and that CPA acted negligently; the court previously allowed both FCRA and negligence claims to proceed against CPA in part.
- Himmelstein alleges he returned the modem and that the refund was never issued; CPA acknowledged the error but did not correct the credit reports or notify bures.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Himmelstein states a valid FCRA §1681s-2(b) claim | Himmelstein alleges notice to the CRA and that CPA failed to investigate and correct. | CPA contends plaintiff must plead CRA-to-furnisher notice explicitly. | Count IV survives; notice presumed at pleading stage. |
| Whether Himmelstein's negligence claim is preempted by the FCRA | FCRA preemption does not bar common-law negligence in this context. | FCRA §1681t(b)(1)(F) preempts state-law claims against furnishers. | Count III dismissed as preempted by the FCRA. |
| Which preemption framework governs (temporal/statutory/total) | Statutory approach favored; seeks to limit preemption to statutes, not common law. | Total approach preferable to preempt all state claims against furnishers. | Court adopts the Seventh/Second Circuit approach (total preemption) as persuasive. |
| Impact of notice to CRA on FCRA §1681s-2(b) liability | Notifying the CRAs suffices and triggers furnishers’ duties. | Only direct notice to furnisher by the CRA establishes liability. | At pleading stage, presume CRA notified furnisher; liability depends on actual notice at summary judgment. |
Key Cases Cited
- Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47 (U.S. 2007) (establishes general FCRA purposes and duties of furnishers)
- Gorman v. Wolpoff & Abramson, LLP, 584 F.3d 1147 (9th Cir. 2009) (discusses §1681s-2(b) private right of action and notice requirement)
- Chiang v. Verizon New England, Inc., 595 F.3d 26 (1st Cir. 2010) (recognizes furnishers and duties under FCRA §1681s-2)
- Narog v. Certegy Check Servs., Inc., 759 F. Supp. 2d 1189 (N.D. Cal. 2011) (discusses pleading standard for 1681s-2(b) notice)
- Purcell v. Bank of Am., N.A., 659 F.3d 622 (7th Cir. 2011) (advances total preemption approach to FCRA preemption)
- Macpherson v. JPMorgan Chase Bank, N.A., 665 F.3d 45 (2d Cir. 2011) (adopts broad preemption understanding of §1681t(b)(1)(F))
- Bank of United States v. Dandridge, 25 U.S. 64 (1827) (presumption of regularity in performance of duties (historic principle cited))
- Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992) (illustrates breadth of express/no preemption language)