Yesterday, the Sixth Circuit issued the latest opinion by a federal court refusing to let the Fair Credit Reporting Act (FCRA) be used as an opportunistic “gotcha” provision. In Bickley v. Dish Network, a credit imposter used the plaintiff’s social security number in an attempt to sign up for satellite television. In order to verify whether the imposter’s name and the plaintiff’s social security number matched, the vendor ran a diligence check with the three credit reporting agencies (Equifax, Experian, and TransUnion). When the vendor’s diligence came back negative, the imposter was turned down for service. Despite the fact that the vendor saved him from becoming the victim of identity theft, Plaintiff sued Dish Network for accessing his credit report without a “permissible purpose” under the FCRA. Interestingly, Plaintiff neglected to mention the attempted identity theft anywhere in his complaint or his briefs.
The FCRA provides a private right of action against businesses that willfully or negligently access a consumer’s credit information without a “permissible purpose” as defined in the statute. One such “permissible purpose” is when there is “a legitimate business need for the information . . . in connection with a business transaction that is initiated by the consumer.” Plaintiff argued that he did not “initiate” the transaction and therefore Dish Network transgressed the statute. In an opinion written by Judge McKeague, the Sixth Circuit called that argument “hollow” and noted that there was no case law to support it. The Court found that Dish Network’s alleged conduct was consistent with the underlying purpose of the statute and that Plaintiff “blithely ignores that a consumer did initiate the transaction, and that Dish believed in good faith that [he] was ‘the consumer.’”
Also of note was Dish Network’s counterclaim for abuse of process. While the Sixth Circuit evinced some sympathy for the merits of the claim—and went out of its way to make clear that its decision did not address the possibility of Rule 11 sanctions—the Court upheld its dismissal for failure to satisfy the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure, once againdemonstrating that the pleading requirements matter.