Ramirez v. Trans Union, LLCRamirez v. Trans Union, LLC
- Reporters:
- , , ,
- Before:
- Corley
Re: Dkt. No. 122
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION TO CERTIFY CLASS
JACQUELINE SCOTT CORLEY, United States Magistrate JudgeThis lawsuit arises out of Defendant Trans Union, LLC’s identification of Plaintiff Sergio L. Ramirez as potentially matching the name of a person on the United States government’s list of terrorists, drag traffickers, and others with whom persons in the United States are prohibited from doing business. Plaintiff contends that Defendant, a credit reporting agency, violated federal and California fair credit reporting laws by failing to provide proper disclosures and to ensure “maximum possible accuracy” of its credit reports. Plaintiff seeks to recover statutory and punitive damages on behalf of himself and a putative nationwide class under federal law, and statutory punitive damages and in-junctive relief under California law for a California sub-class. Now pending before the Court is Plaintiffs motion for class certification. (Dkt. No. 122.) Upon consideration of the parties’ submissions and the arguments of counsel at the hearing held on May 29, 2014, as well as the parties’ post-hearing written submissions, Plaintiffs class certification motion is GRANTED as to the federal claims and denied as to the state claims seeking punitive damages.
FACTUAL BACKGROUND
I. The OFAC List
The United States Treasury Department’s Office of Foreign Assets Control (“OFAC”) “administers and enforces economic trade sanctions based on U.S. foreign policy and national security goals against threats to national security, foreign policy or economy of the United States.” Cortez v. Trans Union LLC, 617 F.3d 688, 696 (3d Cir.2010). OFAC directs those sanctions at, among others, “in*414dividuals thought to be terrorists, international narcotics traffickers, as well as persons involved in activities related to the proliferation of ‘weapons of mass destruction.’ ” Id. (citation omitted). To this end, OFAC publishes a list of individuals, such as terrorists and narcotics traffickers, who persons in the United States are generally prohibited from doing business with, including the extension of credit (“the OFAC List”). Id. at 696, 702 (citations omitted). A failure to comply with the OFAC restrictions, that is, doing business with a person on the OFAC List, “may result in civil as well as criminal penalties.” Id. at 701; see also
II. Trans Union’s OFAC Product
Trans Union is a consumer credit reporting agency that sells consumer credit reports to financial institutions, debt collectors, insurers, and others. To accommodate its customers’ need to avoid doing business with persons on the OFAC List, Trans Union offers a product variously known as an “OFAC Advisor,” “OFAC Alert,” or “OFAC Name Screen” as an add-on to traditional credit reports. Trans Union does not maintain the OFAC List data itself; instead, it contracts with a third party to provide the data. It then uses only the consumer’s first and last name to search the OFAC List data, even if Trans Union possesses additional identifying information, such as birth date or address.
When the computerized search logic returns a name match, Trans Union automatically places an OFAC Alert on the consumer report provided to the customer without any further investigation or confirmation. Trans Union advises its customers, however, that it “shall not deny or otherwise take any adverse action against any consumer based solely on Trans Union’s OFAC Advisor service.” (Dkt. No. 119-42 (internal quotation marks omitted).) Indeed, Trans Union’s OFAC terms of service provides:
Client further certifies that in the event that a consumer’s name matches a name contained in the information, it will contact the appropriate government agency for confirmation and instructions. Client understands that a “match” may or may not apply to the consumer whose eligibility is being considered by Client, and that in the event of a match, Client should not take any immediate adverse action in whole or in part until Client has made such further investigations as may be necessary (i.e., required by law) or appropriate (including consulting with its legal or other advisors regarding Client’s legal obligations).
(Dkt. No. 119-21 at 42.)
III. Plaintiffs Trans Union OFAC Alert
Plaintiff Ramirez and his wife visited a Nissan dealership on February 27, 2011 to purchase on car on credit. They completed a credit application with each’s name, address, social security number, and date of birth, among other identifying information. The dealer used the information to obtain a Trans Union consumer credit report for Plaintiff and his wife through a third-party vendor, Dealertrack. The report provided to the dealer included on the first page right underneath Plaintiffs identifying information the following:
SPECIAL MESSAGES
* * *OFAC ADVISOR ALERT — INPUT NAME MATCHES NAME ON THE OFAC
DATABASE:
UST 03 RAMIREZ AGUIRRE, SERGIO HUMBERTO C/O ADMINISTRADORA DE INMUEBLES VIDA, S.A DE C.V. TIJUANA, MEXICO AFF: SDNTK DOB: 11/22/1951 Original Source:* * *
* * *OFAC ADVISOR ALERT - INPUT NAME MATCHES NAME ON THE OFAC
DATABASE:
OFAC Original ID: 7176* * *
* * *OFAC ADVISOR ALERT — INPUT NAME MATCHES NAME ON THE OFAC
DATABASE:
*415UST 03 RAMIREZ AGUIRRE, SERGIO HUMBERTO C/O DISTRIBUIDORA IMPERIAL DE BAJA CALIFORNIA, SA. DE C.V. TIJUANA, MEXICO AFF: SDNTK DOB: 11/22/1951 Origina: * * *
* * *OFAC ADVISOR ALERT — INPUT NAME MATCHES NAME ON THE OFAC
DATABASE:
¡Source: OFAC OriginaliD: 7176 P ID: 13561* * *
* * *OFAC ADVISOR ALERT — INPUT NAME MATCHES NAME ON THE OFAC
DATABASE:
UST 03 RAMIREZ AGUIRRE, SERGIO HUMBERTO C/O FARMACIA VIDA SUPREMA, S.A DE C.V. TIJUANA, MEXICO AFF: SDNTK DOE: 11/22/1951 OriginalSource: OFAC Origin* * *
* * *OFAC ADVISOR ALERT — INPUT NAME MATCHES NAME ON THE OFAC
DATABASE:
aliD: 7176 P ID: 13561* * *
* * *OFAC ADVISOR ALERT — INPUT NAME MATCHES NAME ON THE OFAC
DATABASE:
UST 03 RAMIREZ RIVERA, SERGIO ALBERTO CEDULA NO: 16694220 (COLOMBIA) FOB: CALI, COLOMBIA CALI, COLOMBIA Passport noAF771317 AFF: SDNTDOB: 01/14/196* * *
* * *OFAC ADVISOR ALERT — INPUT NAME MATCHES NAME ON THE OFAC DA ASE:
4 OriginalSource: OFAC OriginaliD: 10438 POB: CALI, COLOMBIA Passpor-tissuedcountry: COLOMBIA CEDULA NO: 16694220 (COLOMBIA)* * *
(Dkt. No. 110-10.) Plaintiff, who has a different birth date than the two individuals identified as a “match,” is not on the OFAC List. Nonetheless, because of the Aert, the dealership recommended that Plaintiff and his wife purchase the car in her name alone since she qualified for the loan without her husband. They did so.
Plaintiff telephoned Trans Union the next day about the OFAC Aert. The Trans Union employee who spoke to Plaintiff told him that he did not have an OFAC Aert on his credit report.1 At Plaintiffs request, Defendant mailed Plaintiff a copy of his consumer file (credit report), dated February 28, 2011. The file did not include any OFAC information. A few days later, however, Plaintiff received a letter from Defendant, dated March 1,2011. The letter stated:
Our records show that you recently requested a disclosure of your TransUnion credit report. That report has been mailed to you separately. As a courtesy to you, we also want to make you aware that the name that appears on your TransUn-ion credit file “SERGIO L. RAMERIZ” is considered a potential match to information listed on the United States Department of Treasury’s Office of Foreign Asset Control (“OFAC”) Database.
(Dkt. No. 110-24.) The letter went on to explain the OFAC List and to provide the same OFAC Aert information that was included in the report provided to the Nissan dealer. (Id.) The letter ended: “If you have any additional questions or concerns, you can contact TransUnion at 1-855-525-5176 or via regular mail at: [an address].” (Id.)
IV. Procedural History
Plaintiff subsequently filed this putative class action, bringing three causes of action under the Fair Credit Reporting Act (“FCRA”),
This lawsuit is one of several filed against Trans Union arising from its OFAC Alert product. In Cortez v. Trans Union, LLC, 617 F.3d 688 (3d Cir.2010), the court affirmed a jury verdict finding that Trans Union violated the FCRA when it erroneously identified a consumer as a “match” to the OFAC List. Following that decision, Trans Union modified its OFAC procedures; Plaintiff nonetheless contends that Trans Union’s response during at least the proposed class period was inadequate. Plaintiff now moves for class certification.
LEGAL STANDARD
To succeed on his motion for class certification, Plaintiff must satisfy the threshold requirements of
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the interests of the class.
DISCUSSION
I. Plaintiffs Claims and the Proposed Classes
Plaintiff brings two types of claims under federal and California law. The first type, which this Order will refer to as “disclosure claims,” is brought pursuant to the FCRA,
*417Pursuant to his FCRA claims, Plaintiff asks to represent a nationwide class of individuals to whom Trans Union sent a letter similar to the March 1, 2011 letter Plaintiff received regarding the OFAC Alert. He also seeks to represent a California subclass under the California claims. Trans Union mailed such letters from January 2011 through July 26, 2011 to 8,192 persons, of whom approximately 1,500 reside in California. Plaintiff explains that this class definition is more narrow than that pled in his Complaint because discovery has disclosed “(i) that Trans Union did not include any OFAC information in its disclosures to consumers from August 2010 to January 2011, (ii) that Trans Union used a separate letter like the one Ramirez received between January 2011 and July 26, 2011, and (iii) Trans Union included OFAC data as part of the same document for disclosures that it sent out after July 26, 2011.” (Dkt. No. 122 at 27-28). Because, according to Plaintiff, he is typical of the consumers who requested their files between January and June 2011, and Trans Union cannot readily identify the consumers who requested their files between August 2010 and January 2011, Plaintiff has narrowed the proposed classes to “focus[ ] on the consumers who requested and were sent file disclosures and separate letters regarding OFAC information during the January 2011-July 26,2011 period.” (Id. at 22.)
II. The FCRA Claims
A. The FCRA Claims Satisfy
1. Numerosity
A putative class satisfies the numerosity requirement if “the class is so numerous that joinder of all members is impracticable.”
2. Commonality
The Court must also find that “there are questions of law or fact common to the class.”
a. The FCRA disclosure claims
Plaintiff identifies the following as the common questions raised by his FCRA disclosure claims: “whether Trans Union violated the FCRA and CCRAA [1] by sending incomplete file disclosures and [2] by failing to include a summary of consumer rights and instructions on how to dispute inaccurate information when it disclosed the OFAC information to consumers during the class period.” (Dkt. No. 122 at 21:16-20.) In other words, the common questions are whether Trans Union violated the FCRA during the class period by not identifying the OFAC Alert in a consumer’s disclosed consumer file, but instead notifying the consumer of the OFAC Alert in a separate letter, and then again violated the FCRA by not explicitly stating in that separate letter how a consumer could dispute any inaccurate information.
Defendant contends that no common classwide conclusions are possible as to the disclosure claims because “[i]t cannot be determined on a common basis who in the proposed class read the main disclosure and *418the separate OFAC letter together as a single disclosure, and who did not.” (Dkt. No. 128 at 31:6-8.) The Court is not persuaded that whether each class member read the letters at the same time, or two hours apart, or two days apart is legally significant. It is Plaintiffs contention that even if the consumer read the file disclosure and separate letter at the same time, the failure to include the OFAC information in the disclosure of the file itself violated FCRA
b. The FCRA reasonable procedure claim
FCRA
A report is inaccurate for purposes of the FCRA if it is “patently incorrect or materially misleading.” Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 890-91 (9th Cir.2010); see also Cisneros v. U.D. Registry, Inc., 39 Cal.App.4th 548, 579-80, 46 Cal.Rptr.2d 233 (1995) (“Both CCRAA and FCRA require ‘maximum possible’ accuracy. This means that a report violates the statutes when it is misleading or incomplete, even if it is technically accurate.”) (citations omitted). Information on a credit report is “materially misleading” if it is “misleading in such a way and to such an extent that it can be expected to adversely affect credit decisions.” Carvalho, 629 F.3d at 890 (quoting Gorman v. Wolpoff & Abramson, LLP, 584 F.3d 1147, 1163 (9th Cir.2009)).
Trans Union maintains that whether the OFAC Alert was accurate as to each putative class member cannot be determined through common proof. Plaintiff counters that accuracy is a common question because “there is no evidence whatsoever that its OFAC alerts have ever been accurate.” (Dkt. No. 125 at 13.) The question under 23(a)(2), however, is not the predominance of common questions, but rather whether there is at least one common question that will generate a common answer “apt to drive the resolution of the litigation.” Wal-Mart, 131 S.Ct. at 1225 (internal quotation marks and citation omitted); see also Wang, 737 F.3d at 544 (“[s]o long as there is even a single common question, a would-be class can satisfy the commonality requirement of
3. Typicality
“The test of typicality ‘is whether other members have the same or similar injury, whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by the same course of conduct.’ ” Evon v. Law Offices of Sidney Mickell, 688 F.3d 1015, 1030 (9th Cir.2012) (internal quotation marks and citation omitted). “Typicality refers to the nature of the claim or defense of the class representative, and not to the specific facts from which it arose or the relief sought.” Ellis v. Costco Wholesale Corp., 657 F.3d 970, 984 (9th Cir.2011) (internal quotation marks and citation omitted).
Plaintiffs disclosure claims pursuant to
Defendant insists that Plaintiffs claims are not sufficiently typical because of a litany of unique facts involved with his claims:
(1) a reseller, and not Trans Union, provided the credit report to the Nissan Dealer,
(2) Plaintiff requested a copy of his file from Trans Union,
(3) Plaintiff disputed the OFAC information connected to his file,
(4) the Nissan Dealer breached its contractual obligation to determine whether a credit applicant is in fact on the OFAC List before refusing credit.
(5) Plaintiffs wife was able to obtain the loan to purchase the car the same day in just her own name.
While these facts are potentially unique, they are not material to Plaintiffs claims. Plaintiff is not seeking any actual damages for what happened at the Nissan Dealer; indeed, Plaintiff would have the same claims even if he had never visited the Nissan Dealer or been denied credit. His disclosure claims are based on what was in — or more precisely, what was not in-the consumer file Trans Union disclosed to Plaintiff along with the separate letter. None of the above “unique facts” makes Plaintiff atypical for the reasonable procedures claim either. Again, Plaintiff, just as every other class member, received a file disclosure without any OFAC information and then a separate letter identifying himself as a “potential match” to a person on the OFAC List. And as Plaintiff is seeking statutory damages and not actual damages, whether he was actually denied credit or received inferior credit terms because of Trans Union’s name-only matching logic is not at issue. The Court is also not persuaded that Plaintiffs Spanish surname, and in particular, the convention with maternal and paternal surnames, makes him atypical such that certification is inappropriate.
Trans Union also insists that it has unique defenses to Plaintiffs claims that make Plaintiff inappropriate to represent the class. First, it contends that Plaintiff made a misrepresentation on his Nissan Dealer credit application about never having had a vehicle repossessed. But Trans Union never explains how such fact, if proved, matters. The Court is not aware of any caselaw, and Trans Union has not cited any, that holds that a credit reporting agency is excused from compliance with the FCRA, and therefore immune from statutory damages, because a *420consumer would not have qualified for credit from a particular lender in any event.
Next, Trans Union contends that because the reseller that provided Plaintiffs Trans Union credit report to the Nissan Dealer failed to include the word “potential” to modify the notification of the name match Trans Union has a unique defense to Plaintiffs claim. Trans Union represents, and the Court accepts, that no credit report of any other class member during the class period identified the class member as a “match” rather than a “potential match.” But, again, this unique fact does not matter. Plaintiffs contention is that identifying a consumer as a “potential match” runs afoul of the FCRA.
Trans Union’s reliance on Soutter v. Equifax Info. Servs., LLC, 498 Fed.Appx. 260, 264 (4th Cir.2012), is misplaced. There the court found that the plaintiffs claim was not typical because there were “ ‘meaningful differences’” between her claim and the class claims. Specifically, the process the defendant used to verify the allegedly inaccurate judgment reported on the plaintiffs credit report was different from the processes employed to verify the judgments of many of the other class members. Id. at 265. Thus, resolution of whether the process used for the plaintiffs judgment was reasonable would not “advance the ease” as to the absent class members. Id. Here, in contrast, the record shows that Trans Union utilized the exact same name-only matching logic to identify plaintiff and the class members as a “potential match” to a person on the OFAC List. If that process is reasonable, it is likely reasonable for all and vice versa. Further, in Soutter, the plaintiffs willfulness showing for damages depended on Plaintiff having sent two letters to the defendant, conduct not engaged in by all class members and thus made the plaintiff atypical. Id. Here, while Plaintiff did have a somewhat unique interaction with Trans Union, that experience is not the basis for his claim; rather, the willfulness comes from Defendant’s conduct even after losing the Cortez case.
4. Adequacy
To determine whether Plaintiff “will fairly and adequately protect the interests of the class” under
The Court finds no reason Plaintiff will be unable to “fairly and adequately protect the interests of the class” under
Based on the foregoing, the Court finds that Plaintiffs proposed FCRA class satisfies the prerequisites of
B. The FCRA Claims Satisfy
Plaintiff must also meet one of the provisions of
1. Predominance
To meet the predominance requirement of
a. The FCRA disclosure claims
The same common questions the Court identified in its analysis of the
Defendant’s emphasis on the timing of when a class member read the disclosure does not, at least on the present record, destroy commonality. As explained above, Plaintiffs contention is the same regardless of whether a class member read the claim file and the separate letter one right after the other, or vice versa, or several days apart. Plaintiff contends, rightly or wrongly, that under the FCRA Trans Union was required to include the OFAC information in the disclosed claims file.
Trans Union then turns to damages, or perhaps more precisely, injury, and contends that even though Plaintiff is seeking statutory damages for the disclosure claims individualized issues still predominate. In particular, it argues that whether Plaintiff or any class member was actually harmed by the failure to include the OFAC information in the claim file as opposed to the separate letter, or by the separate letter’s alleged failure to adequately inform the consumer of its right to dispute the OFAC information, is an individualized question that predominates. To support its argument, it cites evidence that the volume of OFAC reinvestigation requests was generally higher when the OFAC information was sent in a separate letter.
The Court agrees that whether a class member was actually injured by the pui-ported nondisclosure is an individualized question. It is not, however, a question that predominates because it is not an element of the disclosure claims or statutory damages. Under the law of the Ninth Circuit, an FCRA claim for statutory damages “does not require a showing of actual harm when a plaintiff sues for willful violations.” Robins v. Spokeo, Inc., 742 F.3d 409, 412 (9th Cir.2014). The court reasoned that when, as with the FCRA, “the statutory cause of action does not require proof of actual damages, a plaintiff can suffer a violation of the statutory right without suffering actual damages.” Id. at 413; see also
b. The
Although a closer question than with the disclosure claims, the Court finds that common questions also predominate on Plaintiffs failure to use reasonable procedures claim. The overriding common question on this claim is whether Trans Union’s name-only matching logic is a reasonable procedure to assure maximum possible accuracy.
Trans Union contends that the individual questions of whether the credit report of each class member was “accurate,” and, if not, and Trans Union failed to utilize reasonable procedures to ensure accuracy, whether Trans Union’s conduct was “willful” predominate making class certification inappropriate. The Court disagrees.
1. Accuracy
To succeed on his 1681 e(b) claim, Plaintiff must show that Trans Union prepared a report that contained inaccurate information. Guimond v. Trans Union Credit Information Co., 45 F.3d 1329, 1333 (9th Cir.1995). His burden is to prove that the report contained “patently incorrect or materially misleading information.” Prianto v. Experian Information Solutions, Inc., 2014 WL 3381578, at *3 (N.D.Cal. July 10, 2014).
Trans Union argues that the question of whether the OFAC Alert for each class member was accurate is an individual question that renders certification inappropriate. The record before the Court does not support Trans Union’s argument. Trans Union is unable to identify any instance in which a person it identified as a “potential match” was in fact a match. Indeed, it has not identified a single instance in which the birth date of the person on the OFAC List and the “potential match” matched, or even the address matched; in other words, in which there is something other than the person’s name to suggest the person is on the OFAC List. This record supports a finding that not one of the members of the class is in fact on the OFAC List. Meyer v. Portfolio Recovery Associates, LLC, 707 F.3d 1036 (9th Cir.2012), is instructive. There, in an action under the Telephone Consumer Protection Act, the defendant argued that individual issues of class members having consented to be contacted on their cellular phone-a defense to the claim — precluded a commonality finding. The Ninth Circuit disagreed: “[the defendant] did not show a single instance where express consent was given before the call was placed.” Id. at 1042. Similarly, here, Trans Union has not identified a single class member whose personal information matches the OFAC List “potential match” in any way other than name. That means that the other information, birthdate, address, social security — to the extent available — does not match, thus supporting the inference that the consumer is not, in fact, the “potential match” on the OFAC List.
The eases cited by Trans Union do not persuade the Court otherwise. Although the circumstances in Gomez v. Kroll Factual Data, Inc., No. 13-CV-0445, 2014 WL 1456530, at *3 (D.Colo. Apr. 14, 2014), are similar to those here, and the court reached a different conclusion, the decision does not explain the court’s reasoning; instead, the court simply cited cases that are not from the Ninth Circuit in which the accuracy question involved individualized questions that predominated. Id. at *3. But even those eases do not hold that the issue of accuracy in a FCRA claim always defeats certification. See, e.g., Owner-Operator Independent Drivers Ass’n, Inc. v. USIS Commercial Services, Inc., 537 F.3d 1184, 1194 (10th Cir.2008) (“whether a report is accurate may involve an individualized inquiry”) (emphasis added). Farmer v. Phillips Agency, Inc., 285 F.R.D. 688 (N.D.Ga.2012), involved a challenge to inaccurate and incomplete criminal background reports prepared by the defendant. Id. at 690. The predominating individual inquiries for each consumer putative class member included the source of the adverse records and an evaluation of the quality of that source. Id. at 702-03. Such inquiries are not required here. In Harper v. Trans Union, LLC, 2006 WL 3762035 (E.D.Pa. Dec. 20, 2006), the court held that the plaintiff would have to prove actual injury to succeed on his 1681e(b) claim. Id. at *9 (“I refuse to hold that a willful and/or negligent violation of the FCRA exposes CRAs to liability with *423no factual inquiry into whether the absent class members were injured by the violation.”). As explained above, the Ninth Circuit has held otherwise. See Robins, 742 F.3d at 412-13.
The Court agrees with Trans Union that the question of accuracy in a
2. Willfulness and statutory damages
Nor does the requirement that Plaintiff and the class prove Trans Union’s violations were willful mean individualized questions predominate. Again, Trans Union relies on Gomez, which held that the willfulness inquiry requires an individualized inquiry without giving any reasoning other than to cite to two Fourth Circuit cases. Gomez v. Kroll Factual Data, Inc., 2014 WL 1456530, at *4. In the first ease, Soutter, the plaintiffs theory of willfulness rested on her having sent letters to the credit reporting agency — a unique factual circumstances not common to the class. Soutter v. Equifax Info. Servs., LLC, 498 Fed.Appx. 260, 265 (4th Cir.2012). Here, in contrast, Plaintiffs theory of willfulness is based on Trans Union’s alleged failure to adequately modify their OFAC Alert procedures in response to the Cortez ruling.
In the second Fourth Circuit opinion, Stillmock v. Weis Markets, Inc., 385 Fed.Appx. 267 (4th Cir.2010), the court reversed the denial of class certification in a ease seeking statutory damages under the Fair and Accurate Credit Transactions Act of 2003, which amended the FCRA to prohibit businesses from printing more than the last 5 digits of a consumer’s credit card. Id. at 275. The district court had denied class certification on the ground that the question of what statutory damage (between $100 and $1000) to award each class member required an individualized inquiry that predominated. The Fourth Circuit rejected this reasoning and held that “where, as here, the qualitatively overarching issue by far is the liability issue of the defendant’s willfulness, and the purported class members were exposed to the same risk of harm every time the defendant violated the statute in the identical manner, the individual statutory damages issues are insufficient to defeat class certification under
2. Superiority
Factors relevant to the superiority requirement include:
(A) the class members’ interests in individually controlling the prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy already begun by or against class members;
(C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and
(D) the likely difficulties in managing a class action.
With respect to the first factor, however, Defendant contends that class members with actual damages will be forced to abandon their high-value actual damages claims to pursue statutory damages as part of the class, while at same time noting that no evidence exists that any potential class member has suffered any actual damages. Given that Trans Union contends that no class member has suffered any large actual damages, and that any potential class member with significant damages could simply opt out of the class, Defendant’s argument is unfounded. At the same time, Defendant asserts that because no other Plaintiffs have come forward with similar claims indicates that a class action is unnecessary. Surely, thousands of people need not attempt to bring suit or join existing suits to demon*424strate interest in their claims or the feasibility of a class action. Indeed, as Plaintiff notes, many class members might be unaware of their rights under the FCRA and CCRAA and/or unaware of the alleged violations. Even if the potential class members are aware of the alleged violations, many would probably have little interest or motivation to bring an individual suit if they had not experienced any actual damages.
Defendant also attempts to refute superiority on the ground that attorneys’ fees for Plaintiffs claims are recoverable, and the economies of class action are therefore unnecessary. This objection is misplaced for two reasons. First, even if each class member were to bring a separate suit, the costs and fees of each separate action would exceed those of a class action. It is more efficient to adjudicate the claims as a class action rather than thousands of individual actions. Moreover,
Finally, at oral argument Trans Union complained that granting class certification of statutory damages claims places unfair economic pressure on the defendant and forces the defendant to settle even if it believes it has a meritorious defense and the class was never actually harmed. Judge Wilkinson raised this concern in his concurrence in Stillmock, 385 Fed.Appx. at 281 (“[0]nee a class is certified, a statutory damages defendant faces a bet-the-company proposition and likely will settle rather than risk shareholder reaction to theoretical billions in exposure even if the company believes that the claim lacks merit.”) (internal quotation marks and citation omitted). The problem with Trans Union’s argument, however is that it has effectively been rejected by the Ninth Circuit. In Bateman v. American Multi-Cinema, Inc., 623 F.3d 708 (9th Cir.2010), the court held it was improper for a district court to find that a class action was not superior because the potential statutory damages class action award was so disproportionate to actual harm. Id. at 719. Bateman involved a related statute, the Fair and Accurate Credit Transactions Act (“FACTA”), which incorporates the FCRA statutory damages provision, id. at 711, so its reasoning applies equally to statutory damages under the FCRA; namely, that Congress is aware of the concern about potentially enormous liability of defendants in statutory damage class actions and has amended statutes to address such problems when it has the votes to do so. Id. at 720-21 (noting that Congress added a provision to the Truth In Lending Act (“TILA”) to limited aggregate statutory damages). The Ninth Circuit held: “[i]n the absence of ... affirmative steps to limit liability, we must assume that Congress intended FACTA’s remedial scheme to operate as it was written.” Id. at 722-23. The same is true for FCRA.
III. The California CCRAA Claims
Next, the Court must decide whether to certify the California subclass. For the same reasons Plaintiff has demonstrated that
Thus, to the extent Plaintiff is seeking certification of his state law claims pursuant to
Plaintiff, however, also seeks certification of his CCRAA reasonable procedures claim for injunctive relief pursuant to
There is, however, an issue as to Plaintiffs adequacy to represent the California subclass on and injunctive relief claim given the evidence in the record suggesting that the OFAC Alert was removed from his file. Plaintiff counters that he does have standing to pursue injunctive relief because Trans Union continues to use the name-only matching logic and thus the risk remains that the OFAC Alert will reappear. Plaintiff emphasizes that in the Cortez matter, the plaintiff likewise engaged Trans Union’s dispute resolution process to have the OFAC alert removed from her file, but discovered that it was still there when she subsequently obtained another credit report. Cortez, 617 F.3d at 700.
To establish standing, a plaintiff must show that:
(1) the plaintiff has suffered an injury in fact that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.
Robins, 742 F.3d at 412 (internal citations and quotation marks omitted). When seeking prospective injunctive relief, a plaintiff must show that he has suffered or is threatened with a “concrete and particularized” legal harm, Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), coupled with “a sufficient likelihood that he will again be wronged in a similar way.” City of Los Angeles v. Lyons, 461 U.S. 95, 111, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). The second prong requires a “real and immediate threat of repeated injury,” which can be demonstrated through past wrongs. O’Shea v. Littleton, 414 U.S. 488, 496, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974). Finally, “[plaintiffs need not demonstrate that there is a ‘guarantee’ that their injuries will be redressed by a favorable decision” but *426“only that a favorable decision is likely to redress” their injuries. Graham v. Fed. Emergency Mgmt. Agency, 149 F.3d 997, 1003 (9th Cir.1998).
Here, Defendant contends that there is sufficient evidence in the record that the Plaintiffs Alert has been removed based on generalized evidence regarding what its process is when a dispute is received and the absence of evidence that the process was not followed for Plaintiff. Plaintiff, however, makes a compelling argument that because the name-only matching procedure is still utilized, he could again be subject to an OFAC Alert. While it is difficult to quantify this risk, the record presents a sufficient likelihood that Plaintiff will be harmed again in a similar way in light of the absence of any evidence in the record that shows that Trans Union took some sort of concrete step, beyond merely removing the flag from Plaintiffs file, which would preclude his file from again being flagged based on a name-only match. Accordingly, the Court will certify the reasonable procedure CCRAA claim for injunctive relief.
CONCLUSION
For the reasons explained above, the Court GRANTS Plaintiffs Motion to Certify (Dkt. No. 122) in part. The Court certifies a class, defined as “all natural persons in the United States and its Territories to whom Trans Union sent a letter similar in form to the Mai’ch 1, 2011 letter Trans Union sent to Plaintiff regarding “OFAC (Office of Foreign Assets Control) Database” from January 1, 2011-July 26, 2011” for Plaintiffs FCRA claims. The Court also certifies a California sub-class on Plaintiffs CCRAA reasonable procedure claim for injunctive relief. The Court appoints Plaintiff Sergio L. Ramirez as class representative, and appoints Plaintiffs counsel to serve as class counsel.
The parties shall appear for a further Case Management Conference on August 21, 2014 at 1:30 p.m. in Courtroom F, 450 Golden Gate Ave., San Francisco, California. Counsel may contact Court Call at 1-888-882-6878 to make arrangements to appear by telephone.
IT IS SO ORDERED.
Notes
. The deposition transcript portion cited by Plaintiff in support of this fact is not included in the record. See Dkt. No. 122 at 13:20 (citing Plaintiff‘s Dep. at 36:22-37:6.) This fact is not disputed, however, and, in any event, is not material to the Court’s class certification ruling.
. Plaintiff does not actually specify which provision of
. Trujillo‘s holding applies equally to traditional punitive damages claims under section 17835.31(c): “reading subdivision (c) as superseding the actual damage requirement would take all teeth out of subdivision (a), absurdly breathing life into any CCRAA complaint seeking punitive damages, even those filed by uninjured plaintiffs-i.e., by anyone.” 157 Cal.App.4th at 638, 68 Cal.Rptr.3d 732. Thus, the outcome would be the same even were Plaintiff to seek punitive damages under section (c) rather than subsection (a)(2)(B).
. Plaintiff concedes that he is not entitled to injunctive relief under his CCRAA disclosure claims because Trans Union has discontinued the practice upon which the claims are based; namely, it has discontinued disclosing the OFAC information in a separate letter rather than the consumer’s file. (Dkt. No. 125 at 12.)