PATTERN AND PRACTICE EVIDENCE: OTHER COMPLAINTS

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PATTERN AND PRACTICE EVIDENCE: OTHER COMPLAINTS

Postby Administrator » Sun Nov 09, 2014 1:50 pm

PATTERN AND PRACTICE EVIDENCE: OTHER COMPLAINTS

Plaintiff argues that the Safeco ruling does not eliminate the relevance of pattern and practice proof. The Court agrees. Proof of a pattern and practice is relevant and is one way to establish willfulness. See Dalton v. Capital Associated Indus., Inc., 257 F.3d 409, 418 (4th Cir.2001)(recognizing that evidence of “other consumers [who] lodged complaints similar to [plaintiff] can be relevant in attempting to prove willfulness under the FCRA).” In Boris v. Choicepoint Servs., Inc., 249 F.Supp.2d 851 (W.D.Ky.2003), the court allowed a plaintiff alleging FCRA violations to discover numerous complaints and questions from other consumers as well as introduce at trial a 684–page exhibit of the complaints or questions of other consumers. Id. at 863. In so doing, the court noted that the 684–page exhibit was “broadly relevant to show the types of complaints [defendant] received, how those complaints were processed and the [defendant's] knowledge of complaints generally.” Id.


[30] Headnote Citing References Willfulness under the FCRA is generally a question of fact for the jury. See Guimond v. Trans Union Credit Info. Co., 45 F.3d 1329, 1333 (9th Cir.1995)(“The reasonableness of the procedures and whether the agency followed them will be jury questions in the overwhelming majority of cases.”); Cahlin v. Gen. Motors Acceptance Corp., 936 F.2d 1151, 1156 (11th Cir.1991); Lenox v. Equifax Info. Servs. LLC, 2007 WL 1406914, *6 (D.Or. May 7, 2007)(“the determination as to whether defendant's action or inaction rises to the level of willfulness so as to violate the statutory obligations of the FCRA is also a question of fact”); Centuouri v. Experian Info. Solutions, Inc., 431 F.Supp.2d 1002, 1007 (D.Ariz.2006)(declining to enter summary judgment on the issue of wilfulness in a case involving the reasonableness of consumer protection procedures). To determine that willfulness does not present a jury question in this case, the Court would have to conclude that no reasonable jury could find that TeleCheck's conduct created a “risk [of FCRA violation] substantially greater than that which is necessary to make [its] conduct negligent.” See Safeco, 127 S.Ct. at 2215. This the Court cannot do based upon the record currently before it.


Drawing all inferences in favor of Holmes, the Court concludes that triable issues of fact remain regarding whether TeleCheck acted willfully. For example, a reasonable jury could conclude that TeleCheck failed adequately to train its employees on the requirements of the FCRA and that TeleCheck's procedures for handling and investigating consumer disputes posed an “unjustifiably high risk” that TeleCheck would violate the FCRA. Safeco, 127 S.Ct. at 2215. As in Boris, this is not a case where there are allegations of an isolated instance of human error which TeleCheck promptly cured, or where, upon discovery, TeleCheck quickly took ameliorative action. See 249 F.Supp.2d at 862 (finding that “there was ample evidence from which a reasonable person could find [defendant] “knowingly and intentionally *848 committed and act in conscious disregard for the rights of others.”). For instance, Plaintiff contends and provides evidence that she still has not received a complete copy of her TeleCheck file. In any event, there is certainly sufficient evidence, albeit disputed by the defendants, from which a reasonable jury could conclude that TeleCheck negligently or willfully violated the FCRA.

Holmes v. Telecheck Intern., Inc.
556 F.Supp.2d 819
M.D.Tenn.,2008.
January 10, 2008
David A. Szwak
Bodenheimer, Jones & Szwak, LLC
416 Travis Street, Suite 1404, Mid South Tower
Shreveport, Louisiana 71101
318-424-1400 / Fax 221-6555
President, Bossier Little League
Chairman, Consumer Protection Section, Louisiana State Bar Association

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Re: PATTERN AND PRACTICE EVIDENCE: OTHER COMPLAINTS

Postby Administrator » Sun Nov 09, 2014 1:53 pm

A showing of malice or evil motive is not required to prove willfulness under the Act. See, e.g., Stevenson v. TRW, Inc., 987 F.2d 288, 294 (5th Cir.1993); Yohay v. City of Alexandria Employees Credit Union, 827 F.2d 967, 972 (4th Cir.1987). The plaintiff must only show that the defendant “knowingly and intentionally committed an act in conscious disregard for the rights” of the consumer. Pinner v. Schmidt, 805 F.2d 1258, 1263 (5th Cir.1986). See also Stevenson, 987 F.2d at 294; Yohay, 827 F.2d at 972. Even though summary judgment is “seldom appropriate” on whether a party possessed a particular state of mind, evidence that CAI acted willfully is wholly lacking. See Magill v. Gulf & W. Indus., Inc., 736 F.2d 976, 979 (4th Cir.1984). Dalton has not shown, for example, that CAI was aware that its subvendors relied upon informal legal opinions from court clerks. There is no evidence that other consumers have lodged complaints similar to Dalton's against CAI. Indeed, CAI had used SafeHands for about a year and had found the firm to be reliable. Further, CAI corrected its mistake one day after Dalton challenged the accuracy of the report. Accordingly, no reasonable jury could conclude that CAI acted willfully in violating §§ 1681e(b) or 1681k. Nevertheless, a jury could properly conclude that CAI acted negligently. CAI had no procedures in place to instruct its subvendors on the appropriate sources for reliable information on criminal records. A reasonable jury could conclude that CAI's failure to have such procedures was a negligent violation of FCRA.

Dalton v. Capital Associated Industries, Inc.
257 F.3d 409
C.A.4 (N.C.),2001.
July 16, 2001
David A. Szwak
Bodenheimer, Jones & Szwak, LLC
416 Travis Street, Suite 1404, Mid South Tower
Shreveport, Louisiana 71101
318-424-1400 / Fax 221-6555
President, Bossier Little League
Chairman, Consumer Protection Section, Louisiana State Bar Association

Administrator
Site Admin
Posts: 11757
Joined: Tue Jul 26, 2005 4:15 am

Re: PATTERN AND PRACTICE EVIDENCE: OTHER COMPLAINTS

Postby Administrator » Sun Nov 09, 2014 1:57 pm

Additionally Choicepoint objected to the introduction of a 684–page exhibit of consumer complaints or questions, which Plaintiff introduced in its own proof. Once again, the parties and the Court discussed this issue various times at some length on the record. This Memorandum only amplifies that discussion.


[19] Headnote Citing References The exhibit was broadly relevant to show the types of complaints Choicepoint received, how those complaints were processed and Choicepoint's knowledge of complaints generally. The Court allowed the evidence because it was helpful to the jury's understanding of Choicepoint's otherwise ambiguous complaint process. During discussions, Choicepoint's counsel convinced the Court that the complaints could be easily explained. The Court conceived that the evidence might end up being helpful to Choicepoint, because most of the complaints were resolved and only a few, out of thousands, resulted in legal proceedings.


*864 The Court rejected Plaintiff's request to read an interrogatory which could have mischaracterized the documents. The Court also rejected Plaintiff's contention that the documents constituted a judicial admission. The Court did provide a brief explanation to the jury upon admission of the documents. The Court did make clear that the exhibit included all “complaints, inquiries, questions, in that vein, about inaccurate, misleading information or other questions that they had about the reports.” The documents were admitted “subject to later testimony and clarification.”


The reason that this exhibit may have proved damaging is that no Choicepoint witness adequately explained either the records or the complaint process. In fact, during its entire case, Choicepoint brought forth no witness who could provide a cogent explanation of the process. Most of the Choicepoint witnesses seemed to have no knowledge of the document or the process for resolving complaints. Thus, due to Choicepoint's apparent inability to adequately explain what Plaintiff's counsel proffered, the evidence may have been a lot more damaging than anticipated. Importantly, the failure of Choicepoint witnesses to properly explain the evidence or provide a defense does not make the evidence itself inadmissible.

Boris v. Choicepoint Services, Inc.
249 F.Supp.2d 851
W.D.Ky.,2003.
March 14, 2003
David A. Szwak
Bodenheimer, Jones & Szwak, LLC
416 Travis Street, Suite 1404, Mid South Tower
Shreveport, Louisiana 71101
318-424-1400 / Fax 221-6555
President, Bossier Little League
Chairman, Consumer Protection Section, Louisiana State Bar Association

Administrator
Site Admin
Posts: 11757
Joined: Tue Jul 26, 2005 4:15 am

Re: PATTERN AND PRACTICE EVIDENCE: OTHER COMPLAINTS

Postby Administrator » Sun Nov 09, 2014 2:06 pm

F.T.C. v. Home Assure, LLC,
Not Reported in F.Supp.2d, 2009 WL 1043956, M.D.Fla., April 16, 2009 (NO. 8;09-CV-547-T-23TBM)

...credit reports concerning any Named Defendant pursuant to Section 604(1) of the Fair Credit Reporting Act, 15 U.S.C. § 1681 b(1), and that, upon written request, any credit reporting agency from which such reports are requested shall provide them...

...38) is appropriately denied as moot. [ FN4.] Two additional motions were filed. As indicated at the hearing, Plaintiff's Motion in Limine to Exclude Evidence of Satisfied Customers (Doc. 33) and Defendants' Motion in Limine to Exclude Customer and Former Employees' Declarations and Unsworn Customer Complaints at the Hearing on the FTC's Injunction Motion (Doc. 45) are DENIED. B. At present, the FTC seeks the imposition......

==============

FN15. The Court's in limine Order stated:
Plaintiff's motion to preclude all references to Plaintiff's settled lawsuit against Experian Information Solutions, Inc., Equifax Information Service, LLC, and previous claims brought against Financial Recoveries is DENIED in so far as Defendant is permitted to discuss whether such lawsuits were pending at the same time as this suit, whether those lawsuits involved claims relating to credit, and whether those lawsuits affected Plaintiff's mental state.
Order ¶ 1, Feb. 8, 2011, ECF No. 84 (emphasis in original).

Price v. Trans Union, L.L.C.
839 F.Supp.2d 785
E.D.Pa.,2012.
March 16, 2012

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David A. Szwak
Bodenheimer, Jones & Szwak, LLC
416 Travis Street, Suite 1404, Mid South Tower
Shreveport, Louisiana 71101
318-424-1400 / Fax 221-6555
President, Bossier Little League
Chairman, Consumer Protection Section, Louisiana State Bar Association

Administrator
Site Admin
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Joined: Tue Jul 26, 2005 4:15 am

Re: PATTERN AND PRACTICE EVIDENCE: OTHER COMPLAINTS

Postby Administrator » Sun Nov 09, 2014 5:59 pm

A. Past Complaints

As noted in the Order, Document Request No. 45 seeks all complaints in any litigation against Equifax in the last five years alleging that Equifax violated the FCRA by reporting an inaccurate balance on a consumer credit file, by failing to provide an accurate address or telephone number for the source of information reported on a consumer credit file, or violated 15 U.S.C. § 1681e(b), 15 U.S.C. 1681i(a) and 15 U.S.C. § 1681g(a). (Order at 24 [Doc. No. 123].) While Defendant objected on grounds of overbreadth, burden, and relevance, Magistrate Judge Mayeron found that information regarding past complaints as to § 1681 i(a) violations was relevant to the issue of whether Equifax's conduct against Plaintiff was willful. ( Id.) Because the only remaining claim is the § 1681 i(a) claim regarding the report of an inaccurate balance on a consumer credit file, the magistrate judge limited Defendant's production to complaints bearing on this claim. ( Id.)


*2 Equifax objects to Magistrate Judge Mayeron's ruling, arguing that the production of § 1681i complaints is unduly burdensome. (Def.'s Obj. at 4 [Doc. No. 125].) It estimates that over 2,000 consumer complaints have been filed against it in a five-year period and that it will be required to manually search through each and every pleading document in order to comply with this discovery request. ( Id.) While Defendant argues that this is a time-consuming and costly undertaking, it suggests that Plaintiff could search through public records using Westlaw or Pacer and obtain the same information himself. ( Id.)


The Court finds that Magistrate Judge Mayeron's ruling is neither clearly erroneous nor contrary to law. Defendant cites authority for the proposition that similar discovery requests have been denied on grounds of burden outweighing benefit. ( Id. at 5–6) (citing Mattingly v. Credit Mgmt., LP, No. Civ. A05CV00080 RPM MJW, 2005 WL 3271683, at *1 (D. Colo. June 7, 2005); Apodaca v. Discover Fin. Servs., No. 04–cv00717–MCA–WDS (D.N.M. Feb. 10, 2005) [Doc. No. 49].) Defendant also cites to authority in other contexts, in which courts have denied a motion to compel a corporate party to produce prior complaints. ( Id. at 8–10) (citations omitted). Plaintiff, however, cites contrary authority in which courts have found evidence of prior lawsuits relevant to assessing the question of willfulness, as Magistrate Judge Mayeron found here. (Pl.'s Resp. at 2 [Doc. No. 127] ) (citing Donnelly v. NCO Fin. Sys., Inc., 263 F.R.D. 500, 504–05 (N.D.Ill.2009)). The court in Donnelly noted that to be discoverable under Rule 26, the information need not itself be admissible, but must only be relevant and reasonably likely to lead to the discovery of admissible evidence. Donnelly, 263 F.R.D. at 505. The Donnelly court concluded that the information was relevant to the defendant's knowledge of the applicable statute and its actions in regard to the statute. Id. Finding that the likely benefit of the discovery outweighed the burden, the court granted the plaintiff's motion to compel. Id. Plaintiff also cites additional authority, in other contexts, in which corporate discovery of previous lawsuits or claim files has been ordered, despite the apparent burdensomeness of production. (Pl.'s Resp. at 3 [Doc. No. 127] ) (citations omitted).


As noted in the Donnelly opinion, Rule 26 contemplates a liberal scope of discovery regarding any non-privileged matter that is relevant to a party's claim or defense. Fed.R.Civ.P. 26(b). Discovery need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. Id. Should Defendant consider the evidence inadmissible at trial, Defendant is free to bring a motion in limine at that time. Finding Magistrate Judge Mayeron's ruling neither clearly erroneous nor contrary to law, the Court affirms the ruling and denies Defendant's appeal on this ground.

Edeh v. Equifax Information Services, LLC
Slip Copy, 2013 WL 1799006
D.Minn.,2013.
April 29, 2013
David A. Szwak
Bodenheimer, Jones & Szwak, LLC
416 Travis Street, Suite 1404, Mid South Tower
Shreveport, Louisiana 71101
318-424-1400 / Fax 221-6555
President, Bossier Little League
Chairman, Consumer Protection Section, Louisiana State Bar Association


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