Kevin Kelly v. RealPage Inc
47 F.4th 202
3rd Cir.2022Background
- RealPage, a consumer reporting agency, produced "Rental Reports" to property managers that included public-record data from third-party vendors but did not identify those vendors in reports provided to consumers.
- Kevin Kelly and Karriem Bey received inaccurate Rental Reports (criminal charges, eviction records, miscoded offenses), requested their files from RealPage, and received only the same Rental Report without vendor-source identification.
- They sued under the FCRA § 1681g(a) (failure to disclose all information in the file and the sources), seeking class treatment: an All Requests class (≈2.2M) and a Direct Requests subclass (consumers who directly requested reports via RealPage’s website or documented contacts).
- The district court denied class certification, reasoning § 1681g(a) is triggered only by direct requests from consumers (not third-party courtesy copies) and only when the consumer requests a “file” (not merely a “report”), and found the class not ascertainable.
- The Third Circuit (panel opinion) affirmed standing (informational injury) but held: § 1681g(a) applies only to direct consumer requests (so the All Requests class fails), yet a consumer’s request for a “report” suffices to trigger § 1681g(a) (so the Direct Requests subclass denial on predominance/ascertainability was erroneous); it vacated and remanded certification of the Direct Requests subclass.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing (informational injury) | Plaintiffs were denied information (§1681g(a) sources), which caused concrete downstream harms (inability to correct errors; rental denials). | Defendant argued post-TransUnion that plaintiffs alleged only a bare procedural violation without downstream consequences. | Plaintiffs have standing: omission of required info + adverse effects + nexus to FCRA’s protective purpose satisfies TransUnion/Spokeo framework. |
| Does §1681g(a) require a direct consumer request to trigger disclosure? | Plaintiffs: §1681g(a) does not specify requester; indirect (courtesy) delivery should trigger same obligations. | RealPage: §1681g(a) applies only to requests made by the consumer directly; courtesy copies arise under other FCRA provisions. | Court: "request" in §1681g(a) refers to direct consumer requests; courtesy copies fall under other sections (e.g., §1681e(c)); All Requests class fails predominance on this ground. |
| Must a consumer expressly request a "file" (vs. "report") to trigger §1681g(a)? | Plaintiffs: no magic words required; a request for a consumer report effectively invokes §1681g(a) disclosures including sources. | RealPage: plaintiffs must specifically request their "file" to obtain full disclosures (distinguish "report" from "file"). | Court: consumer need not use the word "file"; a consumer's request for a report or general request for information triggers §1681g(a). |
| Ascertainability of Direct Requests subclass | Plaintiffs: class members can be identified from RealPage’s records and facial review of Rental Reports; computerized matching is feasible. | RealPage: identifying which reports are direct requests and which contain public records would require infeasible individualized review and cross-database matching. | Court: Direct Requests subclass is ascertainable—records exist and facial, binary review of reports (public-record present or not) is administratively feasible; district court misapplied ascertainability precedent. |
Key Cases Cited
- Spokeo, Inc. v. Robins, 578 U.S. 330 (2016) (informational injury requires concreteness analysis)
- TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021) (informational-injury framework: omission + downstream consequences)
- Public Citizen v. Department of Justice, 491 U.S. 440 (1989) (denial of statutorily required information can constitute injury)
- Federal Election Comm’n v. Akins, 524 U.S. 11 (1998) (statutory disclosure right supports standing when denial frustrates statute’s purpose)
- Cortez v. Trans Union, 617 F.3d 688 (3d Cir. 2010) (FCRA construed liberally for consumer-protective purpose)
- Marcus v. BMW of N. Am., LLC, 687 F.3d 583 (3d Cir. 2012) (ascertainability: cannot require extensive individualized fact-finding)
- Hayes v. Wal-Mart Stores, Inc., 725 F.3d 349 (3d Cir. 2013) (ascertainability requires objective criteria and administrable identification)
- Byrd v. Aaron’s Inc., 784 F.3d 154 (3d Cir. 2015) (ascertainability permits some level of record matching; plaintiffs need not identify every member at certification)
- Hargrove v. Sleepy’s LLC, 974 F.3d 467 (3d Cir. 2020) (ascertainability satisfied by cross-referencing voluminous records and affidavits)
- City Select Auto Sales Inc. v. BMW of N. Am. Inc., 867 F.3d 434 (3d Cir. 2017) (affidavits plus records can render class ascertainable)