This case is brought by Robert H. Veno (“Veno”) against AT&T Corporation (“AT&T”) for repeatedly obtaining Veno’s credit report in violation of the federal Fair Credit Reporting Act, 15 U.S.C. § 1681 (“FCRA”), Massachusetts’ Credit Reporting Act, G.L. c. 214 § IB (“MCRA”), and Massachusetts General Laws chapter 93A. Veno was not a customer of AT&T at the time of any of the alleged incidents.
Before the Court presently are cross-motions for Summary Judgment. For the reasons set forth below, defendant’s motion for summary judgment [document # 16] is GRANTED in part and DENIED in part. Plaintiffs Count II is also DISMISSED on the Court’s own motion. Plaintiffs cross-motion for summary judgment [document # 20] is DENIED at this time. 1
I. FACTS
Plaintiff Veno is not now and has never been an AT&T customer. His father, Robert H. Veno, Sr., resides at the same address as plaintiff, and was an AT&T customer during the relevant time period. Veno contends — and AT&T does not present any evidence to contest — that five times between June 1996 and August 2000, AT&T obtained plaintiffs credit report.
2
According to AT&T, this is a simple case of an understandable mistake resulting in a nuisance suit. Defendant claims, and plaintiff does not disagree, that it was attempting to obtain plaintiffs father’s (“Veno Sr.”) credit report. Plaintiff claims AT&T obtained plaintiffs report accidentally because Veno and Veno Sr. have essentially the same name and the same address. AT&T contends that it only accessed Veno Sr.’s report, and the credit reporting agencies simply recorded the access on the wrong account. As stated above, however, defendant offers literally no evidentiary support for this theory. Defendant also claims Veno suffered virtually no injury as a result of the mistake.
Although plaintiff does not present evidence that the problem began as anything more than a mistake based on AT&T’s confusing Veno with his father, he alleges it quickly turned into a situation where his legally valid complaints to the company were ignored by defendant. According to Veno, when AT&T first accessed his credit report in June 1996 3 (through Equifax, Inc. (“Equifax”), a national credit reporting agency), he made numerous calls to defendant informing AT&T that it had no right to pull his report, and requesting that it not do so again. He spoke to numerous AT&T customer service representatives, but was offered no explanation. He was eventually told by Russell Ganner of AT&T’s “Chairman’s Executive Staff’ that notwithstanding Equifax’s records, AT&T had no record that it had even made the account review inquiry.
Despite this, on February 10, 1998, AT&T again accessed (through Experian Information Solutions, Inc. (“Experian”)) Veno’s credit report. Veno again called AT&T to complain and request an explanation or apology, but was provided neither. Instead, AT&T wrote to plaintiff on November 12, 1998, and asserted it had complied with the FCRA “regarding the AT&T inquiry made on your credit bureau report.” Plaintiff responded with a letter to AT&T on November 27, 1998, again notifying AT&T that it was violating his rights, and requesting a specific written response and acknowledgment that the practice would cease. AT&T did not respond.
After AT&T ignored (or at least appeared to) Veno’s November 27, 1998, letter, plaintiffs lawyer, Elizabeth Miller (“Miller”), wrote a letter to AT&T on June 14, 1999, pursuant to M.G.L. c. 93A, concerning the two accesses of Veno’s report which had occurred prior to that point. On September 2, 1999, AT&T responded, and for the first time conceded the access. It explained that in both cases AT&T intended to access the report of Veno’s father, but because AT&T did not have Veno Sr.’s social security number, Equifax and Experian provided Veno’s report.
In November 1999, Veno learned that AT&T had accessed his credit report a third time (in February 1999), through Trans Union, LLC, another national credit reporting agency. Miller wrote AT&T a follow-up letter regarding this third access, but received no response. This third im
By August 1999, Veno had placed countless phone calls complaining about the access, and between himself and his attorney had sent three letters to AT&T. Despite these efforts, AT&T’s response to these efforts might best be summarized by “Ernestine”, the telephone operator portrayed by Lily Tomlin on “Saturday Night Live”: “We don’t care. We don’t have to. We’re the phone company.” On August 5, 1999, AT&T accessed Veno’s report for a fourth time 4 , again via Equifax. This access— which occurred more than a month after Miller’s first letter and less than a month before AT&T’s mistake-admitting letter— was unknown to Veno until after Miller sent her second letter.
The fifth — and from our perspective most important 5 — access took place in September 2000, again via Equifax under the designation “base score project.” This impermissible access clearly came well after the multiple letters from Veno and Miller, and the mistake-admitting letter from AT&T.
On June 20, 2001, Miller, acting on behalf of Veno, sent AT&T a demand for relief pursuant to M.G.L. c. 93A, offering to settle the matter without litigation. AT&T responded by claiming that its investigation produced no indication that it had made any of the five inquiries described above, despite the fact that AT&T had previously admitted in the September 1999 letter that it had made the 1996 and 1998 inquiries. Miller wrote follow-up letters in August and September 2001, enclosing redacted copies of the actual credit reports disclosing the last three inquiries (August 1999, November 1999, and September 2000). On October 30, 2001, AT&T formally responded to the M.G.L. c. 93A letter by refusing to offer any amount in settlement.
Veno filed this action in March 2002, alleging that AT&T: violated the FCRA by obtaining his report through the use of false pretenses (Count I), knowingly obtaining his report without a permissible purpose (Count II), and willfully obtaining a consumer report without a permissible purpose (Count III); violated the MCRA and Massachusetts General Law Chapter 214B, § IB, invasion of financial privacy (Count IV); and violated Massachusetts General Law Chapter 93A (Count V). Counts I — III potentially allow punitive damages.
II. LEGAL ANALYSIS
The FCRA imposes civil liability on “any consumer reporting agency or user” which is either negligent, 15 U.S.C. § 1681o, or willful, 15 U.S.C. § 1681n, in failing to comply with any requirement imposed under the FCRA. Veno alleges that AT&T violated 15 U.S.C. § 1681b(f), which provides an extensive list of the limited circumstances under which a user of credit reports may utilize a consumer report. It is undisputed that AT&T accessed Veno’s credit report, and that under 15 U.S.C. § 1681b it must have a valid purpose, as listed in the statute.
Under Federal Rule of Civil Procedure 56, summary judgment appropriately disposes of a claim when the pleadings, depositions, interrogatory responses, admissions and affidavits on file suggest that there is no genuine issue of material fact and the movant is entitled to judgment on the claim as a matter of law. Fed.R.Civ.P. 56(c). It is incumbent upon a court confronted with a summary judgment motion to view the facts in the light most favorable to the nonmovant, and all reasonable inferences from these facts are to be drawn in its favor.
Thomas v. Eastman Kodak Co.,
A. AT& T’s Motion for Summary Judgmént
1. Defendant’s Conduct Under the FCRA
AT&T’s motion for summary judgment [document # 16] argues that as a matter of law AT&T did not obtain Veno’s consumer report knowingly, willfully, or under false pretenses. ■
a. Willful Violation
Plaintiff makes serious allegations in this case, many of which are supported by the undisputed facts. Veno represents, and AT&T does not present evidence to dispute, that defendant obtained Veno’s credit report five times over a period of 50 months. At no point during that time did AT&T have a relationship with Veno that would have allowed them to access his report under the specific guidelines set out in the FCRA. AT&T apparently did this despite tireless efforts by Veno, his mother, and his lawyer, both by- phone and by letter, to inform defendant of the violations, and get them to cease.
The viability of Count III hinges on whether AT&T
willfully
obtained Veno’s report without a permissible purpose. Under the FCRA, “[t]o constitute willful noncompliance, a party must have ‘knowingly and intentionally committed an act in conscious disregard for the rights of others.’ ”
Stevenson v. TRW, Inc.,
In fact, the only question is where AT&T’s conduct fits on a continuum from negligence in failing to respond to Veno’s complaints, to willfully ignoring them. There is at the very least a triable issue on whether AT&T’s conduct meets the “willful” standard required under FCRA, 15 U.S.C. § 1681n.
b. Use of False Pretenses
Count I of plaintiffs complaint alleges a violation of 15 U.S.C. § 1681q for obtaining a consumer report by use of false pretenses. A court is to determine whether a request for a consumer report has been made under “false pretenses” by looking at the permissible purposes for which consumer reports may be obtained under 15 U.S.C. § 1681b of the FCRA.
See Graziano v. TRW, Inc.,
In Graziano, the plaintiff similarly alleged name confusion and that the defendant had obtained his report when it intended to obtain someone else’s. 6 Although it was undisputed that the bank had made the error, and that it did not have the right to obtain Graziano’s report, the Court held that a false pretenses cause of action under § 1681q did not apply because it was not a case of the bank having a secret impermissible purpose or intentionally misleading the consumer reporting agencies. Id.
Veno has not presented even the hint of any evidence that AT&T’s true purpose was anything other than to obtain a credit report for Veno Sr. While the extent to which they knew, should have known, or did not care that they were wrongfully obtaining Veno’s report might create liability under other sections of the FCRA, the facts here clearly do not describe a violation of 15 U.S.C. § 1681q.
c. Knowing Violation
In addition, Veno’s Count II alleges that AT&T “knowingly” obtained his report without a permissible purpose, thus triggering 15 U.S.C. § 1681n, while Count III alleges that AT&T “willfully” obtained his report without a permissible purpose. Either Veno’s claims are redundant, or he is misinterpreting the statute. Only conduct which is willful is covered under 15 U.S.C. § 1681n. If Veno is using “knowingly” to mean, “knowingly and intentionally committed an act in conscious disregard” of Veno’s rights, then the second count is unnecessary, because such conduct is will
2. Plaintiff’s Allegations of Actual Damages
AT&T also argues that summary judgment should be granted as to plaintiffs claim for actual damages because he does not allege that he suffered actual damages as a result of AT&T’s accessing of his credit report.
Under § 1681, humiliation, embarrassment, and mental distress can constitute actual damages.
Casella v. Equifax Credit Information Serv.,
Significantly, the cases defendant cites were not suits alleging violation of the disclosure provision of the FCRA. As plaintiff correctly points out, in such suits, like this one, the Act’s purpose of protecting consumer confidentiality is implicated.
See Myers v. Bennett Law Offices,
In any event, there is harm here beyond emotional distress. Plaintiff alleges that he was actually denied credit — the overdraft protection on his checking account. Defendant’s first argument — that there was no concrete harm, and emotional distress damages cannot stand alone — consequently fails.
Defendant’s second argument — that plaintiff did not suffer emotional stress damages sufficiently real and separate enough from those stemming from other sources, notably the episode of identity theft — may be more convincing, but the factual record is insufficient at this time to determine whether Veno meets the standards for actual damages.
B. Veno’s Cross-Motion for Summary Judgment
Veno’s cross-motion for summary judgment [document # 20] argues that AT&T’s conduct amounted to negligence as a mat
1. Defendant’s Negligent Violation of the FCRA
The Court cannot grant Veno’s first request because Veno has not as of this time sued under the negligence provision of the FCRA — the complaint references only the higher “willful” or “false pretense” standards 7 . Plaintiff is free to amend the complaint to reflect this claim.
2. Violations of M.G.L. c. 93A and M.G.L. c. 214 § IB
Veno’s memorandum in support of the cross-motion for summary judgment fails to explain in any detail the legal basis for the state law claims. Instead, plaintiff does little more than describe the facts and the legal basis for the FCRA claim, and then states in conclusory fashion that these same facts constitute violations of the Massachusetts statutes as a matter of law. 8 The legal record in this case is thus insufficient for a ruling on this issue.
III. CONCLUSION
AT&T’s motion for summary judgment as to plaintiffs Count I is GRANTED, and DENIED in all other respects. Plaintiffs Count II is DISMISSED on the Court’s own motion. Veno’s cross-motion for summary judgment is DENIED at this time. Plaintiff is free to renew the motion regarding defendant’s negligent violation of the FCRA if the complaint is amended to allege a negligence count under the FCRA, 15 U.S.C. § 1681o.
SO ORDERED.
JUDGMENT
For the reasons set forth in the accompanying Memorandum and Order, AT&T’s motion for summary judgment as to plaintiffs Count I is GRANTED, and DENIED in all other respects. Plaintiffs Count II is DISMISSED on the Court’s own motion. Veno’s cross-motion for summary judgment is DENIED at this time. Plaintiff is free to renew the motion regarding defendant’s negligent violation of the FCRA if the complaint is amended to allege a negligence count under the FCRA, 15 U.S.C. § 1681o.
SO ORDERED.
Notes
. The Court notes that plaintiff may refile this motion if he chooses to file an amended complaint.
. In its response to Veno's statement of material facts [document # 30], filed in opposition to Veno’s cross-motion for summary judgment [document # 20], AT&T for the first time explicitly denies ever having accessed Veno's account, intentionally or unintentionally. Defendant makes this blanket statement without presenting any evidence — without citing to a single affidavit, deposition testimony, or anything else.
Defendant does this despite the fact that Veno has presented print-outs from various credit reporting agencies which on their face indicate that AT&T did exactly what he claims it did, and despite the fact that AT&T is clearly in a superior position to Veno in terms of its ability to secure evidence concerning the communications between AT&T and the credit reporting agencies. In addition, Veno has presented a letter from Joseph Priddy ("Prid-dy”), a senior attorney at AT&T, admitting to Veno's lawyer that defendant had accessed Veno's account on at least two occasions, and explaining that it was an accident [document #25, exhibit M]. (Priddy expressed a more ambivalent position in a letter to Veno's attorney two months later [document # 25, exhibit V.]) In the one piece of deposition testimony AT&T has presented from one of its employees, district manager Gary Craig ("Craig”) [document #17, exhibit 5], Craig agreed that the print-outs Veno presents indicate that AT&T requested and should have received Veno's credit report. Craig did not deny that AT&T did so, saying only that he did not have first-hand knowledge that the requested report was received.
In the absence of any contrary evidence, Veno is entitled to the fair inference which is apparent from the face of the business records he presents. AT&T must do more to place facts in dispute than suggest an alternative theory in its response to a statement of material facts. Veno's allegation that AT&T accessed his credit report will thus be considered not in dispute for the purpose of the summary judgment motions currently before this Court.
In addition, AT&T's conduct in this litigation — choosing, until now, not to litigate or investigate Veno's claims that they accessed his credit report five times in violation of the FCRA — has demonstrated extreme arrogance. While AT&T's filings to this point have never challenged Veno's allegation that the account accessing occurred, it appears to believe it can avoid summary judgment simply by submitting a statement of material facts denying the relevant acts. In effect, Veno is saying, "You accessed my account and here’s the proof.” AT&T responds with, "No, we did not,” and nothing else. AT&T’s tactics in this litigation, even aside from the allegedly impermissible accessing of Veno’s report, cer
. At approximately the same time, Veno was a victim of identity theft. The individual who used Veno's identity opened at least eight fraudulent accounts and ran up unlawful charges on those accounts. Veno did not pay any of the charges, and his name was ultimately cleared with each of his creditors. Veno also settled a number of lawsuits he brought arising out of that identity theft.
. The report was accessed this time by an undisclosed entity under the stated purpose of "base score project.” Veno alleges, however, that the entity was AT&T, and defendant does not deny that allegation.
. This is the only access which falls within the two-year statute of limitations under § 1681p, as Veno filed his complaint on March 6, 2002.
. While the mistakes in Graziano and this case had similar causes, the cases are otherwise quite different. The allegation that AT&T’s inquiries continued after numerous complaints from Veno (a factual situation absent from Graziano) significantly separates the two cases as far as analysis of other sections of the FCRA.
. As discussed below, and contrary to plaintiffs assertions, a finding of negligence does not create a per se violation M.G.L. c. 93A.
. Plaintiff argues that the violation of the FCRA constitutes a per se violation of M.G.L. c. 93A, pointing to the Office of the Attorney General’s Code of Massachusetts Regulations,