MEMORANDUM OPINION
This matter is before the Court on PLAINTIFF’S SECOND AMENDED MOTION FOR CLASS CERTIFICATION (Docket No. 205). For the reasons set forth below, the motion will be GRANTED.
BACKGROUND
A. Procedural Background
The present ease commenced when Plaintiff Donna K. Soutter (“Soutter” or “Plaintiff’) filed a Class Complaint against Defendant Equifax Information Services, LLC (“Equifax” or “Defendant”) for violations of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq. On October 29, 2010, Soutter filed a Motion for Class Certification, which this Court granted in Soutter v. Equifax Info. Servs., LLC (Soutter I), No. 3:10cv107,
As the Fourth Circuit predicted, Soutter proposed a revised class definition. This Court provided the parties a clean slate for their arguments and will conduct a fresh Rule 23 analysis. Although it is often the case that, “when a higher court reverses [on] one ground and remands a case without disturbing other determinations made by a lower court, the determinations not reversed continue to be the law of the case,” United
B. The Fair Credit Reporting Act
Soutter’s claim arises under the FCRA. 15 U.S.C. § 1681 et seq. “Congress enacted [the] FCRA in 1970 to ensure fair and accurate credit reporting, promote efficiency in the banking system, and protect consumer privacy.” Safeco Ins. Co. of Am. v. Burr,
To serve the twin needs of commerce and the consumer, the FCRA requires that consumer reporting agencies
One such duty is articulated in § 1681e(b), which provides that, “[w]henever a consumer reporting agency prepares a consumer report,
C. Equifax’s Information Collection Methods
Equifax is a CRA. Although the FCRA does not require that Equifax record court judgments on consumer credit reports, Equi-fax chooses to include that information. Equifax obtains this information by contracting with vendors that specialize in gathering information related to court filings. One such vendor—LexisNexis—has provided Virginia court records to Equifax since 2007. In Virginia, each county and independent city has a general district court with jurisdiction over small claims. In addition, there are 120 circuit courts of general jurisdiction. All state court records are managed by the Office of Executive Secretary (“OES”) of the Supreme Court of Virginia. The clerk of each court uses a uniform system for recording judgments, which feeds into a shared case management system operated by the OES.
In Soutter II, the Court of Appeals detailed the various collection methods used by LexisNexis to capture “court records”:
[LexisNexis] used in-person review for all circuit courts through independent contractors. These in-person reviews have some variety as well—some clerks provide a weekly summary printout to the reviewer, some let the reviewer'peruse paper records, and some permit the reviewer use of the computer and case management system. For the general district courts, the Supreme Court provided LexisNexis with bulk data feeds until May 2009. LexisNexis then used independent contractors to verify the bulk feeds in person. In May 2009, the Supreme Court stopped providing these feeds. LexisNexis then used a “web-scrape” program to grab the data from the Court’s website. This practice ended in December 2009 when the Virginia Supreme Court enacted new security measures, including a challenge-response test, that limited the ability of automated programs to access the public records. LexisNexis thus had to switch exclusively to in-person review from December 2009 to February 2010 for general district court records.
Indeed, the record now shows that, in Soutter I and Soutter II, Equifax blurred the critical difference between the manner in which it collects information about the entry of judgments and the manner in which it collects information about the disposition of judgments. The record now shows clearly that LexisNexis followed materially similar procedures for the automated collection of judgment disposition information through at least December 2009 and—unlike judgment entry information—did not require “runners” to manually collect disposition information from the courts in the first instance or for verification purposes prior to this time.
Under the terms of its contract with Equi-fax, LexisNexis was obligated to collect and provide all affirmative judgments (ie., the entry of judgments in the first instance). In contrast, LexisNexis was only obligated to collect judgment dispositions if it determined that it was “commercially reasonable” to do so. Equifax/LexisNexis Agreement, Exhibit A to Agreement, ¶ C.3.d (Docket No. 222). In addition, LexisNexis was required to “provide Equifax with its[] procedures for collecting dispositions” and provide changes to these procedures to Equifax “10 business days prior to implementation!!]” Id. For example, when LexisNexis lost its ability to purchase judgment disposition records in bulk, it advised Equifax via email. Pl.’s Reply at 3-4 (Docket No. 215). Further, at this stage of the proceedings, the record is sufficient to permit the inference that neither LexisNexis nor Equifax considered manual collection or verification of judgment disposition information “commercially reasonable.”
D. Donna Soutter’s Credit Report
In June 2007, Donna Soutter fell behind on her credit card payments to Virginia Credit Union (“Credit Union”). As a result, the Credit Union filed suit against her in the Richmond General District Court to recover $15,000 in unpaid credit card debt. After Soutter and the Credit Union entered into a payment plan, the Credit Union agreed to dismiss the suit. Unfortunately, that intention was not relayed to the General District Court, which entered a default judgment against Soutter. After the mistake came to light, the Credit Union moved to set aside the judgment, and on March 20, 2008, the General District Court set the judgment aside and dismissed the action without prejudice.
In order to forestall the mistake’s predictable contagion to her credit records, Soutter sent Equifax a letter explaining that the judgment had been entered in error and enclosing a copy of the order setting it aside and dismissing the case. On May 23, 2008, Equifax advised Soutter that the judgment was not yet in its file on her. By July 2008, however, Soutter alleges that Equifax was reporting the judgment as unpaid and not vacated.
E. The Proposed Class and Class Claim
Soutter claims that Equifax violated 15 U.S.C. § 1681e(b) by failing to establish or to follow reasonable procedures to assure maximum possible accuracy in the preparation of the consumer reports that it furnished regarding her and other class members. Sout-ter contends that Equifax’s violation of 15 U.S.C. § 1681e(b) was willful, rendering Equifax liable pursuant to 15 U.S.C. § 1681n.
In her second amended motion for class certification, Soutter defines the proposed class as follows:
All natural persons who meet every one of the following definitional requirements:
1. the computer database of the Executive Secretary of the Supreme Court of Virginia shows that the person was the defendant in a Virginia General District Court civil action or judgment;
2. the computer database of the Executive Secretary of the Supreme Court of Virginia shows that as of the date 20 days after the Court’s certification of this class, the civil action or judgment was dismissed, satisfied, appealed, or vacated on or before April 1, 2009 (“the disposition date”);
3. Equifax’s records note receipt of a communication or dispute from that person about the accuracy of Equifax’s reporting of that civil action or judgment status; and
*195 4. Equifax’s records note that a credit report regarding the person was furnished to a third party who requested the credit report, other than for an employment purpose: (1.) no earlier than February 17, 2008, (2.) no later than February 21, 2013, (3.) after the date that Equifax’s records note its receipt of the consumer dispute regarding the judgment status, and (4.) at least thirty (30) days after the disposition date but before the judgment notation was corrected by Equifax to report that it was satisfied, appealed or vacated.
PL’s Mem. at 6 (Docket No. 206). The proposed definition, drawing guidance from Soutter II, narrows the applicable time period, excludes circuit court judgments, and limits the class to consumers who had notified Equifax of the disposition of a judgment before Equifax published an inaccurate report.
DISCUSSION
Class-action claims were designed to be “an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.” Califano v. Yamasaki,
Before harnessing these economies, Rule 23(a) demands that four prerequisites be met: “(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 representative’s claims or defenses are typical of those of the class; and (4) the representative will fairly and adequately represent the interests of the class.” See Broussard v. Meineke Disc. Muffler Shops, Inc.,
In conducting its analysis, the Court may face factual questions bearing on both class certification and the merits of the action. “A party seeking class certification must affirmatively demonstrate his compliance with the Rule—that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S.-,
I. Rule 23(a)
The purpose of Rule 23(a) is to “ensure[ ] that the named plaintiffs are appropriate representatives of the class whose claims they wish to litigate. The Rule’s four requirements—numerosity, commonality, typicality, and adequate representation-—effectively limit the class claims to those fairly encompassed by the named plaintiffs claims.” Wal-Mart,
In addition to the requirements of Rule 23(a), Rule 23(c) states that “[a]n order that certifies a class action must define the class and the class claims, issues, or defenses.” Fed.R.Civ.P. 23(c)(1)(B). This reflects the prior decisional law holding that “the definition of the class is an essential prerequisite to maintaining a class action.” Roman v. ESB, Inc.,
A. Ascertainability
In order to certify a class under Rule 23, a court must be able to “readily identify the class members in reference to objective criteria.” Id. Although the plaintiff “need not be able to identify every class member at the time of certification,” the plaintiff must demonstrate that class members will be identifiable “without extensive and individualized fact-finding or ‘mini-trials[.]’ ” Id.
Soutter proposes comparing data from two information sources in order to ascertain class members: (1) Equifax’s own records; and (2) the electronic copy of the OES database. The parties would use the OES database to identify each defendant in a Virginia General District Court civil action or judgment and obtain his or her name, address, and case number. That information would be used to locate the individual’s Equifax file, which would then be reviewed to determine: (1) whether the consumer provided notice contesting the judgment information; (2) when, if at all, Equifax updated the file’s judgment status; and (3) whether an inaccurate credit report was furnished to a third party after the consumer provided notice to Equifax.
Equifax contests the ascertainability of the class in three ways. First, Equifax argues that the class is not objectively determinable. Specifically, Equifax states that the approach proposed by Soutter involves several costly and time-consuming steps, requires some degree of manual review by Equifax employees, and misstates Equifax’s ability to ascertain the date of any “corrective updates” made to an individual consumer’s file. Because Equi-fax accesses archives of files through “frozen scans” reflecting the state of the file on a single day of each month, it says that is not possible by reviewing the frozen scans to determine on which day within the month a particular change took place.
Second, Equifax argues that Soutter’s definition imposes a requirement to report judgment dispositions within thirty days, and that the FCRA contains no such requirement. Soutter’s current class definition identifies class members whose credit reports were furnished “at least thirty (30) days after the disposition date but before the judgment notation was corrected.” Equifax argues that this definition engrafts a “bright-line” liability rule onto the FCRA.
Third, Equifax contends that Soutter is not even a member of the proposed class. Equi-
None of these arguments serve to defeat class certification. First, none of Equifax’s initial concerns reflect an inability to determine the members of the class by reference to objective criteria. The number of “steps” in the process and the time and effort required have no bearing on whether the individuals are or are not objectively ascertainable. See Dunnigan v. Metro. Life Ins. Co.,
Nor does this recourse to manual, member-by-member review render the inquiry “subjective.” Here, most of the determinations are readily discernible and almost always binary: an individual was either listed as subject to a judgment or was not; this judgment was either recorded by Equifax or was not; Equifax either received a communication from the individual or did not; and so on. And, while the language of some consumer communications may require a degree of interpretation, the ultimate question arising from that communication is whether Equifax was “on notice” or not. The individualized fact-finding giving rise to mini-trials that defeat ascertainability are those requiring determinations on the merits—not an administrative review to determine whether an objective element of a class definition is met. See In re Vitamin C Antitrust Litig.,
What Equifax is really arguing when it laments the burden imposed is manageability, not ascertainability. The difficulty and burden of such an undertaking are undoubtedly relevant to a manageability analysis under the superiority factor explored below. Unlike ascertainability, however, the manageability of adjudication by class is measured in relation to the manageability of adjudication by other means. See infra at 217-18. As such, manageability should only be used to deny certification “where the attention and resources which would have to be devoted strictly to administrative matters will overwhelm any relief ultimately accruing to the plaintiff class.” Brown v. Cameron-Brown Co.,
Equifax’s protests ring especially hollow in light of its own substantial capabilities. As Soutter noted, Equifax describes itself as a business that:
[C]reates and delivers unparalleled customized insights that enrich both the performance of businesses and the lives of consumers through the comprehensive and differentiated data it manages, the expertise in advanced analytics it provides, the state-of-the-industry solutions it develops, and the leading-edge proprietary technology through which the solutions are delivered. The company organizes, assimilates and analyzes data on more than 600 million consumers and more than 80 million businesses worldwide and its databases include more than 200 million employee files.
Pl.’s Reply at 12 (Docket No. 215) (citing http://www.equifax.com/about-equifax/ company-profile (last visited Oct. 22, 2014)). In short, Equifax’s very business model includes gathering and distilling information from a wide variety of sources in order to glean insights about individuals. The irony here presumably is not lost on Equifax, and certainly is not lost on the Court. In general, courts do not look favorably upon the argument that records a defendant treats as
Perhaps the closest Equifax comes to lodging a valid objective determinability argument is its contention that the “frozen scans” used for archival information do not reflect the exact date on which corrective updates were made to consumer files. In other words, if a corrective update is made to a consumer’s file and a credit report is furnished on that consumer within the same month, Equifax claims it will be unable to determine whether the correction preceded the publishing of the report, or vice versa. That argument is insufficient to defeat class certification. First, Equifax has constructed little more than a paper obstacle, offering no evidence that such a hypothetical situation even exists for this class. Moreover, such a precise accounting is not necessary at this stage. See EQT,
Second, Equifax’s contention that the class definition imposes a thirty-day disposition reporting requirement is misplaced and—based on the revision above—inapplicable. The class definition itself imposes no liability on Equifax. The Court today rules on a motion for class certification, not a motion for summary judgment. Equifax will be responsible for whatever liability, if any, is determined at trial. If the class definition cuts counter to those findings on the merits, a final motion to amend the class definition will be entertained. At this stage, however, Soutter is simply attempting to circumscribe a category of people for whom it is true that Equifax was on notice and furnished a report containing potentially inaccurate information despite this notice. The revised class definition accomplishes this aim and articulates an objectively determinable class.
Where a plaintiff proposes objective criteria capable of identifying those individuals described in the class definition, the aseer-tainability requirement is satisfied. Soutter has done just that. The fact that applying the criteria could take significant time and effort may be a relevant consideration for weighing the manageability of the class device against other options under Rule 23(b)(3), but it does not factor into the Court’s aseertainability determination. Holding otherwise would mean that defendants could defeat class certification when their conduct affects a large number of individuals and the class-action device can be most useful.
B. Numerosity
Rule 23(a)(1) provides that one of the requirements for a class action is that the class be “so numerous that joinder of all members is impracticable.” Fed.R.Civ.P. 23(a)(1). “No specified number is needed to maintain a class action under Fed.R.Civ.P. 23; application of the rule is to be considered in light of the particular circumstances of the case[.]” Cypress v. Newport News Gen. & Nonsectarian Hosp. Ass’n,
The parties have stipulated that the revised class would include roughly 1,000 persons. Deel. of Leonard Bennett, ¶ 7, Ex 1, Ex. 2 (Docket No. 206-7). Equifax does not contest that the numerosity requirement is satisfied in this instance. The Court agrees. See William B. Rubenstein, Newberg on Class Actions § 3:11 (5th ed.2013) [hereinafter “Newberg”] (“[J]oinder is generally deemed practicable in classes with fewer than 20 members and impracticable in classes with more than 40 members.”).
C. Commonality
Rule 23(a)(2) requires that there be questions of law or fact common to the class. Fed.R.Civ.P. 23(a)(2); Lienhart,
In discussing the typicality requirement in Soutter II, the Fourth Circuit invoked the lesson of Wal-Mart regarding commonality that “the members of a proposed class do not establish that ‘their claims can productively be litigated at once,’ merely by alleging a violation of the same legal provision by the same defendant.” M.D. ex rel. Stukenberg v. Perry,
In this observation, the Fourth Circuit did not tread new ground. It has always been the ease that typicality is meaningless where commonality is not first achieved. See New-berg § 3:26 (“In essence, typicality requires that the class representative’s claims share the common questions of law or fact that the class members’ claims share with each other.”). In order to be “typical,” Soutter’s claims must be advanced at the same level of generality—i.e., with the same type and degree of specificity—as the class’ alleged commonality, which itself must be specific enough to buttress the class claim.
This lesson is reiterated in WalrMart’s “one stroke” mandate. As Wal-Mart indicated, class claims “must depend upon a common contention ... of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Wal-Mart,
This does not mean, of course, that the entire case must be decided by a single issue. Wal-Mart does not, as Equifax seems to think, require that a common fact be one upon which the entire case be decided “in one stroke.” Such a requirement would render the predominance inquiry under Rule 23(b)(3) entirely meaningless. Rather, “[a] single common question will suffice [if] it [is] of such a nature that its determination ‘will resolve an issue that is central to the validity of each one of the claims in one stroke.’” EQT,
The Supreme Court has long observed that “[t]he commonality and typicality requirements of Rule 23(a) tend to merge.” Wal-Mart,
Both serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiffs claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence. Those requirements therefore also tend to merge with the adequacy-of-representation requirement, although the latter requirement also raises concerns about the competency of class counsel and conflicts of interest.
The Court finds four proposed “commonalities” that require rigorous analysis: the inaccuracy of the consumer reports, the reasonableness of the procedures alleged to cause these inaccuracies, whether Equifax’s conduct was willful, and the determination of statutory damages.
1. Inaccuracy
The inaccuracy of a consumer’s report is a necessary element of a § 1681e(b) claim. See Dalton,
As in Soutter I, the Plaintiff has shown that individualized proof will not be necessary, because the members of the class can all demonstrate the inaccuracy of their reports by reference to common evidence: the OES database. See
Equifax contends that this cannot be the case because “[i]naccuraey is an uncommon, individualized issue” and proving inaccuracy will require “consumer-specific proof’ such as “the judgment-related documents issued by ... the court.” Def.’s Resp. at 25, 26 (Docket No. 209). For support, Equifax cites to Farmer v. Phillips Agency, Inc., which held that “to determine whether the source of a particular consumer’s records was faulty or inaccurate ... will necessarily entail individualized inquiry for many reports....”
The Court does not believe that Farmer or Owner-Operator established categorical commonality rules regarding this element of § 1681e(b). In Farmer, for example, the court observed that the adverse information in each consumer’s report came from a multitude of different sources, which obtained information from a number of jurisdictions. See
The record here shows that an expert witness, or perhaps even a summary witness, could present this kind of evidence after a thorough study of the records kept by Equi-fax and the Supreme Court of Virginia. Equifax has advanced the unsupported argument of counsel as the predicate for its view that inaccuracy is an individual issue.
In short, Soutter has demonstrated that the inaccuracy element of the class claim is
2. Reasonableness of Procedures
To meet the second element of a § 1681e(b) claim, Soutter must demonstrate that “the reporting agency did not follow reasonable procedures to assure maximum possible accuracy.” Dalton,
Equifax reiterates that the procedures for collecting judgments varies between the 134 General District Courts and argues that what is reasonable for one may not be reasonable for others. Equifax contends that “reasonableness” will vary according to the circumstances presented and is “quintessentially a fact-specific, individualized inquiry.” This argument fails for three reasons.
First, a “reasonableness” determination regarding procedures is only “individualized” if the procedures in question actually varied by individual. See O’Sullivan v. Countrywide Home Loans, Inc.,
Second, Equifax’s argument fails because its repeated reference to the 134 General District Courts is simply irrelevant. That is because the evidence upon remand shows that, although the judgment collection methods varied by court and time period, the disposition collection method was uniform for the entirety of the class period, with the information drawn from a centralized source: the OES of the Virginia Supreme Court.
Equifax makes a similar argument in its discussion of Rule 23(b)(3), stating that what may be reasonable for consumers in rural Virginia is different than what is reasonable for consumers in urban areas. Thus, says, Equifax, reasonableness is an individual issue. Putting aside the fact that this argument bespeaks initial commonality, not final predominance, Equifax’s contention is at war with logic. Perhaps that is why Equifax cited no authority to support it. Equifax’s contention is based entirely on the now dis-proven notion that Equifax’s default procedures for collecting information about judgment dispositions varied from jurisdiction to jurisdiction. That simply is not true. Based on the current record, Equifax’s continued invocation of the varying judgment collection methods is a form of argumentation through obfuscation. And, it is rejected.
Third, the record here shows that the procedures for collection of judgment dispositions themselves are but one set of procedures employed by Equifax that bear upon the inaccuracy alleged. Another, for example, is the method by which Equifax collects and synthesizes communications from customers placing Equifax on notice regarding the potential for erroneous information, which the Court will discuss below.
Equifax retorts that the EQT court rejected this line of argument by vacating class certification where “the district court placed an inordinate emphasis on the sheer number of uniform practices without considering whether those practices are relevant to assessing the defendants’ ultimate liability.”
In examining the evidence necessary to make a class certification decision, the Court finds at least three “procedures” supporting Soutter’s § 1681e(b) claim. Each procedure is common across the class and capable of classwide resolution based on jury findings.
First, the Court finds that the agreement between Equifax and LexisNexis structuring the terms of each party’s obligations distinguishes, on its face, between the collection standard for judgment information and the collection standard for disposition information. This contract establishes the overarching rules that govern LexisNexis’ collection practices and could reasonably be found to constitute part of Equifax’s procedures. Although LexisNexis was obligated to collect and provide all affirmative judgments (ie., entry of judgment in the first instance) to Equifax, it was only obligated to collect judgment dispositions if it determined that to do so was “commercially reasonable.” Equi-fax/LexisNexis Agreement, Exhibit A to Agreement, ¶ C.3.d (Docket No. 222). Also, the record shows that LexisNexis was contractually obligated to inform Equifax of the procedures being employed, permitting the inference that a less thorough standard was applied to the collection of judgment disposition information than to collection of judgment entry information. In other words, the record permits the inference that Equifax approved the widespread use of a procedure that was likely not to reveal that an entered judgment had been disposed of favorably to the consumer. A jury could reasonably find that structuring the contract in this manner was unreasonable given Equifax’s duty to adopt procedures to assure maximum possible accuracy.
Second, the Court finds that the procedures employed by LexisNexis for collecting disposition information were uniform across the class period. Because part of the factual predicate animating the appellate decision on this point was incorrect, the concerns raised by the Fourth Circuit on this point are inapplicable on remand. Contrary to Equifax’s representations on appeal, judgment and judgment dispositions were not collected in the same manner, and the method for collecting dispositions was uniform for the duration of the class period. Soutter has produced evidence from which a jury could determine that the procedures employed by Equifax were unreasonable; namely, that Equifax was aware that disposition information was not being collected, purchased, or incorporated into consumer files in a consistent, adequate, or timely manner. Weighing the credibility of the evidence and the reasonableness of the procedures is a responsibility reserved for jury. At this stage, it is sufficient to find, as a fact, that, throughout the class period, Equifax employed uniform procedures affecting the entire class, and that a
Third, Soutter has narrowed the class to include only those individuals who submitted some form of notice to Equifax about inaccuracies respecting an entered judgment before Equifax furnished information about the judgment in the form of a consumer report. Thus, the common question is whether Equifax’s procedures or policies for handling such inquiries and notice were reasonable. As the Seventh Circuit recognized in Henson v. CSC Credit Servs., prior consumer notice is an important consideration when weighing the reasonableness of a CRA’s approach to ensuring “maximum possible accuracy.” See
The Court finds that Equifax has a system in place whereby it uses codes to track customer inquiries and communications. See supra at 197-98. A jury can determine whether Equifax’s procedures for addressing or incorporating this information before producing a consumer report were reasonable.
In sum, the Court finds that Soutter has advanced three procedures applicable across class members that raise a common contention of reasonableness that can be resolved with common answers on a elasswide basis. Therefore, the commonality requirement of Rule 23(a)(2) is satisfied.
Before proceeding to the question of willfulness, the Court will address another “common question” posed by Soutter: “Did these procedures violate § 1681e(b)?” Pl.’s Mem. at 21 (Docket No. 206). Wal-Mart makes clear that the question whether a defendant violated the law does not satisfy Rule 23(a)(2). The Fourth Circuit agreed in Sout-ter II, holding that “members of a proposed class do not establish that ‘their claims can productively be litigated at once,’ merely by alleging a violation of the same legal provision by the same defendant.”
To the extent that this question reaches a scope different than that discussed above, however, Equifax’s “causality” concerns must now be addressed because the common procedures outlined above cannot constitute violations of § 1681e(b) if they did not cause the inaccuracies in the class members’ reports. See Soutter II,
3. Willfulness
In addition to the questions of inaccuracy and reasonableness, Soutter contends that the question of willfulness under 15 U.S.C. § 1681n is common to the class as well. The Supreme Court has interpreted the phrase “willfully fails to comply,” in 15 U.S.C. § 1681n(a), to reach both knowing and reckless violations of the FCRA. See Safeco,
Both Soutter and Equifax cite eases to demonstrate that “willfulness”—writ large— either is or isn’t a common issue. Both overstate the importance of their citations. Willfulness is not a common issue as a matter of law or an individualized issue as a matter of law; rather, it is the factual context of the case that will determine whether the defendant’s behavior was willful in a manner with individualized, discretionary impact or common, generally applicable impact.
Based upon the common procedures above, the question is whether Equifax adopted (or declined to adopt) those procedures conscious that doing so “ran a risk of violating the law substantially greater than the risk associated with a reading [of the law] that was merely careless.” Safeco,
Equifax responds that it is entitled to an individual review of each alleged dispute letter received from a putative class member to determine whether it is sufficient to place Equifax on such notice that its conduct could be determined to be willful. Equifax is sure
4. Statutory Damages
Lastly, the Court examines whether statutory damages constitute a common issue. Soutter did not explicitly raise this as a common contention, but both parties debated the commonality of statutory damages in their briefing.
As the Fourth Circuit observed in Soutter II, “statutory damages ... typically require an individualized inquiry.”
Even if statutory damages were based solely upon the number of inaccurate reports furnished, this question would still likely require resolution on a member-by-member basis. See, e.g., Stillmock,
Although Soutter has failed to demonstrate commonality based upon statutory damages, she has successfully displayed three common contentions capable of classwide resolution
D. Typicality
While the numerosity and commonality prerequisites focus on the characteristics of the class members in comparison to each other, the typicality prerequisite focuses on the general similarity of the named representative’s legal and remedial theories to those of the proposed class. See Jenkins v. Raymark Indus., Inc.,
The typicality requirement goes to the heart of a representative parties’ ability to represent a class, particularly as it tends to merge with the commonality and adequacy-of-representation requirements. The representative party’s interest in prosecuting his own case must simultaneously tend to advance the interests of the absent class members. For that essential reason, plaintiffs claim cannot be so different from the claims of absent class members that their claims will not be advanced by plaintiffs proof of his own individual claim. That is not to say that typicality requires that the plaintiffs claim and the claims of class members be perfectly identical or perfectly aligned. But when the variation in claims strikes at the heart of the respective causes of actions, we have readily denied class certification.
This is the very reason that the Fourth Circuit emphasized that a plaintiffs arguments cannot be made at an “unacceptably general level.” Soutter II,
It is not enough that these concepts overlap. If the claims follow the same legal theories with markedly different degrees of specificity, than a “substantial gap” in necessary evidence might persist and the concepts will fail to merge. Only when commonality and typicality merge both in legal theory and level of generality will the evidence proffered to advance the representative’s claim serve to adequately advance the class claim. Without this nexus, the purposes of representation by class cannot be served.
Thus, the Court’s typicality analysis “must involve a comparison of the plaintiffs’ claims or defenses with those of the absent class members ... beginning] with a review of the elements of plaintiffs’ prima facie case and the facts on which the plaintiff would necessarily rely to prove it.” Deiter,
One of the elements in Soutter’s prima facie case is the inaccuracy of her consumer report. See Dalton,
2. Reasonableness of Procedures
Proving Soutter’s ease will also require her to demonstrate that Equifax “did not follow reasonable procedures to assure maximum possible accuracy.” Dalton,
With respect to the Equifax/LexisNexis Agreement, Soutter has already produced the contract governing the collection of her judgment and disposition information. This same contract governed the procedure for collection of judgment and disposition information for every other class member.
With respect to LexisNexis’ procedures for collecting the judgment disposition information and Equifax’s decisions and procedures regarding the purchasing and incorporation of this information into consumer files, Sout-ter has shown that such information was collected by a uniform method. On remand, Soutter has debunked the notion that the collection procedures for disposition of judgments varied in any meaningful way and has tailored her class to a narrower time period and set of courts to further ensure that her claim is typical of the class claim. Simply stated, the record shows that disposition data was collected using a method that was uniform in all material respects for the duration of the class period. Equifax’s decisions and procedures regarding the collection, purchase, and incorporation of this data were therefore applicable to all class members. On the other side, Equifax has made no showing that its pertinent policies and procedures respecting collection of judgment disposition information have varied over the class period.
Finally, Soutter’s evidence about Equifax’s treatment of her own notice will focus on the reasonableness of Equifax’s policies and procedures for handling notices of inaccuracy in general. By eliciting and presenting proof about the reasonableness of Equifax’s procedures for synthesizing and harmonizing conflicting consumer and data inputs, Soutter’s evidence will advance the claims of each class member.
Here, it seems, is where Equifax’s misplaced “ascertainability” argument belongs. Equifax argues that Soutter is not even a member of the class, because at the time of her May 2008 inquiry, the anticipated error had not yet reached her file, but that, after her December 2008 inquiry, the error was removed within two days and no reports were furnished in the intervening time. According to Equifax, there was simply “no action for Equifax to take” in May 2008 because Equifax could not remove a judgment that wasn’t reporting in the first place. Def.’s Resp. at 20 (Docket No. 209).
Equifax’s argument that Soutter is not a part of the class as defined, raises an interesting, but ultimately unsuccessful, point. Although it is apparent from Soutter’s briefing that the class is meant to reach both individuals who provided anticipatory notice and disputes, it is not at all clear that Soutter’s actual class definition so provides. For example, Soutter’s third “definitional requirement” for the class is that “Equifax’s records note receipt of a communication or dispute from that person about the accuracy of Equi-fax’s reporting of that civil action or judgment status.” PL’s Mem. at 6 (Docket No. 206). Similarly, Soutter’s fourth definitional requirement refers to “the consumer dispute” laid out above. Id.
At the time that Soutter first gave notice to Equifax, however, Equifax did not have the judgment information on file and was not reporting the judgment. Because Soutter did not contact Equifax regarding “the accuracy of Equifax’s reporting,” she simply would not be part of the class as it is now defined.
But the inartful word choice in proposing a class definition does not forfeit what is otherwise a legitimate class claim. Based on the rather obvious intent as expressed in the briefing and argument, the Court will replace Soutter’s third definitional requirement to read: “Equifax’s records note receipt of a communication or dispute from that person about the status of a civil action or judgment that was dismissed, satisfied, appealed or vacated.” In addition, the Court will substitute the phrase “communication or dispute” for the word “dispute” in Soutter’s fourth definitional requirement. Quite clearly, Soutter fits within that definition of the class.
Relatedly, Equifax argues that, “if the class definition can be expanded to include not just ‘disputes’ as that term is formally used in the FCRA but to include this type of ‘notice’ as Plaintiff uses that term, then Plaintiff has traded one problem for another, i.e., she has added yet another individualized issue.” Def.’s Resp. at 22 n. 7 (Docket No. 209). That is not so because the test, and the issue to be decided here, is “typicality,” not “identically.” Typicality does not require “that the plaintiffs claim and the claims of class members be perfectly identical or perfectly aligned.” Deiter,
3. Willfulness
Because Soutter alleges that Equifax’s violation of the FCRA was willful, she will also be required to put forth evidence of willfulness. See 15 U.S.C. § 1681n. To prove willfulness, Soutter must show that Equifax acted either knowingly or “recklessly” (i.e., that Equifax “knowingly and intentionally committed an act in conscious disregard for the rights of the consumer”). See Dalton,
The question then is whether, as to the common procedures outlined above, Soutter’s evidence will help demonstrate that Equifax was conscious that its procedures (or lack thereof) “ran a risk of violating the law substantially greater than the risk associated with a reading [of the law] that was merely careless.” Safeco,
With respect to the LexisNexis-Equifax contract, a jury could find that Equifax’s decision to categorically subject the collection of information about the disposition of judgments to a different collection standard than that which applied to collection of judgment information prioritized adverse information over accurate information and invited inaccuracies of the type alleged to be in violation of § 1681e(b). Soutter has put forth the contract that governed the collection of her information as well as that of her peers. Deposition testimony is to the same effect. It is clear that her evidence is the class’ evidence as well.
Similarly, a jury could find that Equifax fully understood the risks associated with the procedure that it elected to use for the collection of information about the disposition of judgments, its purchasing of services, and its integration procedures and decisions and that Equifax knowingly “ran a risk of violating the law substantially greater than the risk associated with a reading of the law that was merely careless.” This information was collected in an essentially uniform fashion and the evidence put forth by Soutter will reflect Equifax’s overarching procedures and decisions affecting the class as a whole. As such, Soutter’s evidence will advance her own cause while serving to prove the case for the class at large.
Finally, a jury could find that Equifax’s policies or procedures regarding consumer notices—as evidenced by Equifax’s handling of Soutter’s letter and subsequent consumer reports—ran just such a risk as well. As noted above, evidence of how Soutter’s inquiries were handled will elucidate the procedure/policy (or lack thereof) that was applied to all class members. If the decision to use this procedure posed an unjustifiably high risk of harm that was either known or so obvious that it should have been known, then Soutter will be able to demonstrate that the procedure was willfully unreasonable and that that willfulness applied across class members.
As discussed above, the fact of notice itself also stands as evidence of willfulness insofar as Equifax furnished consumer reports notwithstanding having prior notification of a potential inaccuracy. In this regard, Soutter is typical of all the class members who, by definition, provided Equifax with notice regarding the status of their judgment before a report was issued.
4. Statutory Damages
As the Court discussed above, there can be no typicality where commonality is lacking. Newberg § 3:31 (“[A] finding of typicality logically presupposes a finding of commonality.”). Where a contention is not itself amenable to classwide resolution by common answer, the plaintiffs evidence can serve only her claim alone.
Even if statutory damages were to vary only by the number of reports furnished, the
E. Adequacy
The adequacy prerequisite requires the Court to be satisfied that “the representative parties will fairly and adequately protect the interests of the class,” Fed.R.Civ.P. 23(a)(4), and that “class counsel [will] fairly and adequately represent the interests of the class,” Fed.R.Civ.P. 23(g)(4). Rule 23(a)(4) seeks to ensure that the named plaintiff will protect the class in matters germane to the claims in the litigation, and it also looks to the personal characteristics of the named plaintiff to see whether he or she is a fit representative. See Amchem Prods., Inc. v. Windsor,
Rule 23(g), on the other hand, examines the adequacy of class counsel. “Although questions concerning the adequacy of class counsel were traditionally analyzed under the aegis of the adequate representation requirement of Rule 23(a)(4) of the Federal Rules of Civil Procedure, those questions have, since 2003, been governed by Rule 23(g).” See Sheinberg v. Sorensen,
With respect to the adequacy of class counsel, this Court found in Soutter I that “Soutter’s counsel is qualified, experienced, and able to conduct this litigation. Counsel is experienced in class action work, as well as consumer protection issues, and has been approved by this Court and others as class counsel in numerous cases.” Soutter I,
As to the adequacy of the class representative, Equifax renews its contention that Soutter is in conflict with the class because she has waived any claims to actual damages. Because Soutter has testified to sustaining actual damages but excludes such damages from her claim, Equifax calls it “inconceivable” that she could be deemed adequate. Def.’s Resp. at 35 (Docket No. 209). But, to put it plainly, “that dog won’t hunt.”
“For a conflict of interest to defeat the adequacy requirement, ‘that conflict
This Court has subjected each Rule 23 factor to a new rigorous analysis, but here the outcome remains the same. “The Court can discern no fundamental conflict between Soutter and putative class members who may wish to assert actual damages based on this record.” Soutter I,
Equifax argues that “Plaintiff cites no case that has approved such a result.” Def.’s Resp. at 35 (Docket No. 209). Of course, Equifax cites no case that disapproves such a result, save a passing, unexplained, and irrelevant reference to Wal-Mart. But Wal-Mart does not help Equifax’s position. Wal-Mart stands for the proposition that the class must contain a single common contention capable of class-wide resolution; it does not stand for the proposition that the class claim must be common in every single respect or that the plaintiffs claim be typical in every single respect. Even the predominance inquiry under Rule 23(b)(3) does not go so far. Moreover, while commonality and typicality reflect and serve the values underlying adequacy, the adequacy inquiry itself focuses on conflicts of interest. To the extent that adequacy incorporates the dictates of commonality and typicality, it is clear that Soutter has satisfied those requirements above.
For the reasons set out above, Soutter has satisfied each of the Rule 23(a) prerequisites for class certification.
II. Rule 23(b)
In order to justify certification of a class, Soutter must also satisfy one of the Rule 23(b) tests. “If a lawsuit meets these requirements, certification as a class action serves important public purposes. In addition to promoting judicial economy and efficiency, class actions also ‘afford aggrieved persons a remedy if it is not economically feasible to obtain relief through the traditional framework of multiple individual damage actions.’ ” Gunnells,
Soutter moves for certification under Rule 23(b)(3). Rule 23(b)(3) is intended to cover eases “in which a class action would achieve economies of time, effort, and expense, and promote ... uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results.” Amchem,
A. Predominance
Under Rule 23(b)(3), the common questions found under Rule 23(a)(2) “must predominate over any questions affecting
If the “qualitatively overarching issue” in the litigation is common, a class may be certified notwithstanding the need to resolve individualized issues. See Ealy,
Equifax advances no discernible arguments distinguishing between the commonality and predominance inquiries. Rather than arguing that individualized issues would predominate even if the Court found some common issues, Equifax merely asserts that because Rule 23(b)(3) poses a higher bar than Rule 23(a)(2), then, a fortiori, Soutter must fail. In other words, Equifax is addressing predominance by doubling down on its commonality arguments. That strategy does not work.
Soutter observes that questions of law or fact common to the members of the class predominate over individual issues because “the most significant issues in the case all pertain to uniform conduct by Equifax—its uniform credit reporting procedures^] its knowledge and notice of the defects in its systems; the willfulness of its conduct.” Pl.’s Mem. at 30 (Docket No. 206). The Court examines each of the common and individualized questions below to weigh the quality and complexity of each issue.
1. Inaccuracy
Determining inaccuracy constitutes a common question. See supra at 200-01. Inaccuracy is a principal element of the class claim and its commonality weighs in favor of class certification under the predominance inquiry.
Even if this element failed to form part of the common basis for the claim, however, common questions would still predominate since any conceivable individualization of the inaccuracy inquiry would be qualitatively insignificant. Although the existence of individualized inquiries are considered a negative factor in the analysis, the weight upon the scale is greatly influenced by the difficulty of the inquiry. “Common issues will predominate if ‘individual factual determinations can be accomplished using computer records, clerical assistance, and objective criteria— thus rendering unnecessary an evidentiary hearing on each claim.’ ” Newberg § 4:50. Where, as here, the evaluation regards a single variable that is inaccurate, in a common manner across the class and is easily
Nor do Equifax’s examples of “contrary” holdings convince the Court otherwise. First, the Court has found that the inaccuracy inquiry here is a common question to begin with for the reasons stated above. See supra at 200-01. That alone renders those cases inapplicable. Second, the Court must avoid drawing superficial similarities between cases or adopting categorical shortcuts in its rigorous analysis. Even if the inaccuracy inquiry in this ease constituted an individualized question as it did in Owner-Operator, Farmer, and Gomez, it would not overwhelm the questions common to the class. Far from it. The Court has reviewed those eases and finds meaningful distinctions in each.
In Owner-Operator, the plaintiffs alleged that the defendant company violated the FCRA when it disseminated their employment histories with inaccurate information. See
Similarly, in Farmer, the court observed that the adverse information in each consumer’s report came from a multitude of different sources, which obtained information from a number of jurisdictions. See
Finally, in Gomez, the court declined to weigh the quality or complexity of the individualized inaccuracy determinations altogether, citing the outcomes in Owner-Operator and Farmer as precedent without any further analysis. See
As the Gomez court itself observed, a plaintiff does not fail the predominance inquiry simply based on the existence of some individualized issues or factual inquiries. See
2. Reasonableness of Procedures
The most qualitatively significant question of Soutter’s § 1681e(b) claim is whether Equifax’s procedures were reasonable. For the reasons previously explained, the reasonableness of the procedures Equifax has chosen to employ to satisfy its duty to assure maximum possible accuracy is a common issue across the class.
A similar result obtains for the question of “whether these procedures violate § 1681e(b)?” It is true that causality may be easier to prove for some procedures (such as Equifax’s procedures for handling notice or purchasing and incorporating disposition data) over others (such as Equifax’s decision to adopt tiered collection thresholds in its contract with LexisNexis). It is also true that Equifax may wish to challenge causality in more elaborate and individualized ways at trial. None of this changes the fact that there will be sufficient common evidence at the moment inaccuracy is proven for the plaintiff to circumstantially demonstrate causality without resorting to additional complex or individualized proof. Perhaps this will not be enough for Soutter to prevail at trial. But, the question at class certification is not whether Soutter is likely to win; the question is whether the quality of the questions common to the class predominate over the quality of any individualized issues. They undoubtedly do.
Because certification of the class would easily “achieve economies of time, effort, and expense, and promote ... uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results,” Gunnells,
3. Willfulness
Willfulness—another common issue—is a similarly weighty qualitative question. As the Fourth Circuit observed in Stillmock, “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 Rule 23(b)(3).”
The Court does not believe that the contrary decision in Gomez serves as proper guidance. The Gomez court found willfulness to be an individualized issue. See
As a predictable consequence of the analysis above, the Court finds that the question of statutory damages may be individualized but is minimally influential in the predominance analysis. As in Stillmock, where each receipt issued constituted a violation, here each report furnished constitutes a violation. Stillmock,
“Rule 23 contains no suggestion that the necessity for individual damage determinations destroys commonality, typicality, or predominance, or otherwise forecloses class certification. In fact, Rule 23 explicitly envisions class actions with such individualized damage determinations.” Gunnells,
Resolution of the common issues of fact and law in this case in a single proceeding will not only promote the efficient adjudication of these matters, it will dispose of the case’s most complex questions entirely. As suggested above, the most significant issues in the case pertain to uniform conduct by Equifax—its uniform credit reporting procedures; its knowledge and notice of the defects in its systems; and the willfulness of its conduct. In contrast, the individual inquiry into statutory damages pales in comparison to the more significant, common contentions. Even if inaccuracy could be deemed individualized—which this Court does not so hold— the questions would become quantitatively close, but the answer would remain qualitatively clear.
B. Superiority
The superiority requirement necessitates a finding that use of a class action be “superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed.R.Civ.P. 23(b)(3). Superiority “depends greatly on the circumstances surrounding each case,” but “requires the court to find that the objectives of the class-action procedure really will be achieved.” Stillmock,
The analysis under this facet of Rule 23(b)(3) is a comparative one. The court must first “consider what other procedures, if any, exist for disposing of the dispute before it.” Id. Next, the court must “compare the possible alternatives to determine whether Rule 23 is sufficiently effective to justify the expenditure of the judicial time and energy that is necessary to adjudicate a class action and to assume the risk of prejudice to the rights of those who are not directly before the court.” Id. In determining whether the class mechanism is truly superi-
Soutter argues that the statutory damage and fee-shifting provisions in the FCRA are insufficient to support any meaningful number of individual suits. Pl.’s Mem. At 31-33 (Docket No. 206). Moreover, Soutter claims that the vast majority of individuals affected by Equifax’s practices are unlikely to know that their rights have been violated at all. Id. Even if a number of claims were to arise, Soutter says, they would inefficiently relitigate the common questions before the Court and risk generating inconsistent outcomes on the same essential facts. Id. at 34. Equifax responds that the existence of a fee-shifting mechanism in the FCRA “precludes” a finding of superiority. Def.’s Resp. at 38-39 (Docket No. 209). In addition, Equifax suggests that courts should not certify “novel” claims absent a “track record” of trials. Id. at 39.
Soutter’s view is correct. The Stillmock court squarely and unambiguously addressed the issue of statutory damages and attorney’s fees under the FCRA:
[The Defendant’s] argument is without merit. First, the low amount of statutory damages available means no big punitive damages award on the horizon, thus making an individual action unattractive from a plaintiffs perspective. Second, there is no reasoned basis to conclude that the fact that an individual plaintiff can recover attorney’s fees in addition to statutory damages of up to $1,000 will result in enforcement of FCRA by individual actions of a scale comparable to the potential enforcement by way of class action.
Soutter is additionally correct to point out that “there is a strong presumption in favor of a finding of superiority” where, as here, “the alternative to a class action is likely to be no action at all for the majority of class members.” Cavin v. Home Loan Ctr., Inc.,
The interest in consistent and efficient adjudication favors class certification as well because class certification will “promote[] consistency of results, giving [Equifax] the benefit of finality and repose.” Stillmock,
In closing its superiority argument, Equi-fax fires one last parting shot, arguing that “the novelty” of Soutter’s legal theory “forecloses any finding of superiority.” Def.’s Resp. at 39 (Docket No. 209). This court has engaged in just the kind of “searching inquiry into the viability of [the] theory” required in such situations, In re New Motor Vehicles Canadian Exp. Antitrust Litig.,
Compared to any available alternatives, the facts of Soutter’s case demonstrate that the class-action mechanism constitutes a superior means of adjudicating the claims before the Court. Therefore, having satisfied each of the four Rule 23(a) prerequisites and both prongs of the Rule 23(b)(3) test, Soutter has affirmatively demonstrated that the proposed class complies with the requirements necessary for this Court to certify her class.
CONCLUSION
For the foregoing reasons, PLAINTIFF’S SECOND AMENDED MOTION FOR CLASS CERTIFICATION (Docket No. 205) will be GRANTED. The Court appoints Leonard Anthony Bennett as class counsel and certifies a class meeting the following definition:
All natural persons who meet every one of the following definitional requirements:
1. the computer database of the Executive Secretary of the Supreme Court of Virginia shows that the person was the defendant in a Virginia General District Court civil action or judgment;
2. the computer database of the Executive Secretary of the Supreme Court of Virginia shows that as of the date 20 days after the Court’s certification of this class, the civil action or judgment was dismissed, satisfied, appealed, or vacated on or before April 1, 2009 (“the disposition date”);
3. Equifax’s records note receipt of a communication or dispute from that person about the status of a civil action or judgment that was dismissed, satisfied, appealed or vacated; and
4. Equifax’s records note that a credit report regarding the person was furnished to a third party who requested the credit report, other than for an employment purpose: (1) no earlier than February 17, 2008, (2) no later than February 21, 2013, (3) after the date that Equifax’s records note its receipt of the consumer communication or dispute regarding the judgment status, and (4) after the disposition date and at least thirty (30) days before the judgment notation was corrected (if it has been corrected) by Equifax to report that it was dismissed, satisfied, appealed or vacated.
It is so ORDERED.
Notes
. In oral argument on the motion to strike resolved by Soutter III, Equifax represented that it no longer relied upon the 2010 affidavit in its opposition to class certification. See Soutter III,
. “The term 'consumer reporting agency' means any person which, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties, and which uses any means or facility of interstate commerce for the purpose of preparing or furnishing consumer reports." 15 U.S.C. § 1681 a(f).
. "The term ‘consumer report' means any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer’s credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living which is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer's eligibility for (A) credit or insurance to be used primarily for personal, family, or household purposes; (B) employment purposes; or (C) any other purpose authorized under section 1681b of this title.” 15 U.S.C. § 1681a(d)(1).
. LexisNexis collected disposition information in automated fashion from one source—the OES database—until at least December 2009 when the Virginia Supreme Court introduced a "captcha” test. Whether this uniform collection of centralized data was conducted by bulk feed or web-scrape prior to December 2009 is an immaterial distinction for certification purposes. Regardless, Soutter's revised definition now limits the class period to the bulk feed timeframe.
. Technically, Soutter's judgment was set aside and dismissed, not vacated.
. For example, counsel argue that accuracy necessitates a look at each underlying court record, but has not explained why this is so.
. Although the uniformity of the procedures are evidence that the contention may be resolved "in one stroke,” it may be possible that evidence of procedural variation itself could prove a basis for the "unreasonableness” of the procedures. In other words, Equifax cannot rely upon this opinion as support for the notion that it can insulate itself from liability under the FCRA by intentionally complicating its collection methods through a multitude of contracting co-parties or processes because a jury conceptually could find such an approach itself "unreasonable."
. It is indeed troubling that Equifax continues to make arguments regarding its collection of "court records” generally, when the collection of disposition information is the legally relevant question.
. The Court recognizes that this decision is at odds, to some extent, with the holdings in Swoager v. Credit Bureau of Greater St. Petersburg,
Second, the purpose of § 1681e(b) is to prevent the disclosure of an inaccurate consumer report. A "consumer report” is "any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer’s credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living[.]” 15 USCA § 1681a(d)(l). The purpose of § 1681 i, on the other hand, is to set forth dispute resolution procedures and reinvestigation duties after a consumer challenges the accuracy of his or her file. A "file” means "all of the information on that consumer recorded and retained by a consumer reporting agency regardless of how the information is stored.” 15 USCA § 1681a(g). Although the Swoager court uses these terms interchangeably, the "file” actually represents the latent information stored by the CRA, whereas the "report” represents the prepared document furnished to a third party. As the Swoager court observed, "the standard of conduct imposed under § 16811 is lower than the standard of conduct imposed under § 1681e(b).”
Third, the Swoager court believed that § 1681e(b) applied to the accuracy of the "initial compiled consumer credit report” before any dispute and found the higher standard of conduct appropriate because "where the only information available to the creditor is that initially compiled by the credit bureau, it is essential that the compilation procedures utilized ensure maximum possible accuracy.” Id. As the court in Lazarre v. JPMorgan Chase Bank, N.A. noted, “the plain language of section 1681e(b) applies the maximum possible accuracy standard to every consumer report issued by a CRA,” not just the first report.
This Court, like the Lazarre court, also observes that the Swoager court hedged its position:
Assuming arguendo a contrary result on the § 1681e(b) issue as to reinvestigation procedures, the Court would reach this same result. As set forth above, the Court views the standard of conduct under § 1681i to be slightly lower than under § 168 le(b). It necessarily follows that the failure to correct inaccuracies upon reinvestigation also constitutes a failure to follow reasonable procedures to assure maximum possible accuracy.
Swoager,
. Equifax circuitously cites to Soutter II for the proposition that "each class member must show willfulness, which 'typically require[s] an individualized inquiry.’ " Gomez v. Kroll Factual Data, Inc., No. 13-CV-445,
In addition, to recover statutory damages, Soutter must show willfulness. Proof that Equifax's conduct was willful toward Soutter*206 because she sent letters in advance informing Equifax that the case against her was dismissed will not advance the claims of other class members. These problems are exacerbated because Soutter is claiming only statutory damages, which typically require an individualized inquiry.
Soutter II,
The Fourth Circuit also observed that Soutter’s letters would not advance the claims of other class members with respect to willfulness in Soutter II because such notice was not part of the prior class definition. Nothing in Soutter II conveys the idea that willfulness, as a general concept, is typically "individualized.”
. The questions facing the jury with respect to the reasonableness of the procedures and the presence of willfulness are closely related. If the jury finds that any of the procedures were "unreasonable,” the question then shifts to whether Equifax's adoption or use of those procedures was "objectively unreasonable" in light of its statutory obligations. See Safeco,
. The class definition ties this threshold to Equi-fax’s own dispute code records. In other words, Equifax is said to be "on notice” if its "records note receipt of a communication or dispute” about the civil action or judgment. If Equifax would like to contest the accuracy of its own dispute code records and internal determinations, it is entitled to do so. But this will only result in class members being excluded entirely because failure to provide notice would remove them from the class definition altogether. The question in this case is not whether an individual Equifax employee entrusted with some level of discretion willfully disregarded “dispute” information from any specific customer, but rather what Equifax does and knows once it receives such a communication.
. It is worth noting that this holding would remain undisturbed even if individualized evidence were necessary to prove inaccuracy and, as a result, provide the circumstantial causal evidence necessary to show a violation under 1681e(b). This is because the question "Was Equifax's behavior willful?” can be answered on a classwide basis, even if the question "Is Equi-fax liable under § 1681n?" cannot. The latter depends upon a violation of § 1681e(b). The former simply requires showing that “Equifax’s procedures—or again, lack thereof—entailed 'an unjustifiably high risk of harm that is either known or so obvious that it should be known [.]’ " Soutter II,
. Equifax has proffered occasional instances of LexisNexis "runners” receiving disposition information alongside judgment information, but this does not alter the inquiry into the reasonableness of Equifax’s procedures or the fact that Soutter's evidence will advance this inquiry for the class.
. See Lienhart,
. Counsel has identified and investigated the possible claims; counsel is experienced in handling cases of this sort in this Court and across the country; counsel is highly knowledgeable in the applicable law and about CRAs generally and how they work; and counsel has devoted the necessary resources to this and other like cases.