299 F. Supp. 3d 400
S.D. Ill.2017Background
- In 2014 Lindsey A. Kidd applied for a job with the Georgia Department of Public Health; GaDPH obtained a CLEAR report (Thomson Reuters' online research platform) that falsely indicated Kidd had a criminal conviction, and Kidd lost the job opportunity.
- CLEAR provides access to proprietary and public records and is marketed primarily to government and investigative users; access requires certification of permitted uses under GLBA, DPPA, and similar statutes.
- Thomson Reuters explicitly prohibits use of CLEAR for FCRA-regulated purposes, vets and certifies subscribers, trains employees, audits for misuse, and investigates/remediates suspected improper uses (46 investigations, 10 terminations, 24 re‑attestations during the relevant period).
- Kidd sued Thomson Reuters under the Fair Credit Reporting Act (FCRA), alleging CLEAR reports are "consumer reports" and Thomson Reuters is a "consumer reporting agency" (CRA); the court bifurcated discovery and addressed the CRA/consumer‑report threshold on summary judgment.
- The central legal question was whether Thomson Reuters subjectively intended to assemble consumer information for the purpose of furnishing consumer reports to third parties (a statutory element for CRA status); the court examined the totality of Thomson Reuters’ policies and practices.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Thomson Reuters is a "consumer reporting agency" under the FCRA | Kidd: CLEAR reports are used (and expected to be used) for FCRA purposes, so Thomson Reuters qualifies as a CRA regardless of its asserted intent | Thomson Reuters: statute requires the entity to assemble consumer info "for the purpose of" furnishing consumer reports; Thomson Reuters’ policies, restrictions, vetting, and remediation show no such intent | Court: Held Thomson Reuters is not a CRA; subjective purpose matters and record shows it did not intend to furnish consumer reports for FCRA ends |
| Whether CLEAR communications qualify as "consumer reports" independent of who furnishes them | Kidd: If reports are used for FCRA purposes, they are consumer reports | Thomson Reuters: A "consumer report" must be communicated "by a consumer reporting agency," so the supplier's status is threshold | Court: Held they are not consumer reports because Thomson Reuters is not a CRA, so the communications do not meet the statutory definition |
| Whether isolated instances of subscriber misuse establish "regular" furnishing for FCRA purposes | Kidd: Subscriber misuse (including Kidd’s case) shows expected use for employment screening | Thomson Reuters: Incidents are negligible relative to >80,000 subscribers and >100,000 searches/day; company investigated and remediated misuse | Court: Held isolated misuse insufficient to show regularity or company intent; remedial efforts support Thomson Reuters’ lack of intent |
Key Cases Cited
- Costello v. City of Burlington, 632 F.3d 41 (2d Cir. 2011) (standard for considering undisputed facts on summary judgment)
- Celotex Corp. v. Catrett, 477 U.S. 317 (U.S. 1986) (summary judgment burden-shifting)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (U.S. 1986) (definition of a genuine dispute of material fact)
- Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (U.S. 1986) (requiring more than metaphysical doubt to defeat summary judgment)
- Houghton v. N.J. Mfrs. Ins. Co., 795 F.2d 1144 (3d Cir. 1986) (no FCRA violation where no indication reporting was desired for FCRA purposes)
- Mangum v. Action Collection Serv., Inc., 575 F.3d 935 (9th Cir. 2009) (examining defendants’ subjective business purpose in CRA inquiry)
- United States v. DiCristina, 726 F.3d 92 (2d Cir. 2013) (statutory interpretation beginning with ordinary meaning of language)