Free Response - District Court of Connecticut - Connecticut

T if Rm;—_~ I se 3:03-cv-0025E-.l)BA Document 82 Filed O2/2@>O4 Page 1 Of 3
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UNITED STATES DISTRICT coq'RTL F D ,
T DISTRICT or CONNEC7fggZI}$` A} ~· »
T WIL AM SPECTOR T, Q M Jig Tit {Ut! T
T V. cAsELN°dTs?é‘2Tc0Z§TT,T§4i(JEA) T
T EQUI AX INFORMATION SERVICES, LLC February 24, 2004 T
T T T
T PLATNTTPETS REPLY IN SUPPORT or MOTION
FOR PARTIAL SUMMARY JUDGMENT AS TO LIABILITY
Defendant’s first line of defense to its violations ofthe FCRA, §l681 g and §l68lj(b)
was to eny that it ever received either of plaintiffs requests for disclosure of his credit file.
Defen·TT= t has recently located both requests. Its current defense is "mistake” (Def. Mem. at
2) but does not describe the circumstances constituting "mistake" with particularity as
manda d by Fed. R. Civ. P. 9(b).
efendanfs failure was deliberate. A mistake might occur once, but this “mistake"
happe d twice. In fact, it happened tive times. Its attorney’s Affidavits now admit that
Equifa also did not provide the disclosures on other occasions, even after specific and T
repeat notice that plaintiffs own requests had not been fulfilled. Equifax (through counsel)
consci sly disregarded notices of Jan 9, 2003, and Feb. 3, 2003, that plaintiff had requested
but not eceived his credit file in December. Equifax did not send plaintiff his credit file T
despite TT ose follow-up notices. Nor did Equifax send plaintiff his tile in response to a very
specifi equest (through counsel) of Feb. 13, 2003. Love Affs. Doc. No. 65 Ex. D {TTT 2, 5;
nee. T T3, 1T1T S, 6, 7. T
quifax did not send plaintiffs consumer disclosure to him despite his own two
request d counsel’s three follow—ups. Repeated violation of the FCRA is at least negligent T
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l per =i as asserted in the opening brief. Plaintiff now contends that it is indisputable that
l defen ant acted willfully within the FCRA.
First, the offline policy that resulted in the repeated violations was adopted
intent nally. Second, Equifax was repeatedly put on notice of the disclosure request (through
couns 1), and still did not provide the disclosures.
l Third, compounding its repeated failure to provide disclosures to plaintiff, Equifax
admit it willingly also would have violated the FCRA by sending the plaintiffs tile to his
couns ; I — even though plaintiffs counsel had no permissible purpose! Equifax’s attorney
claim that if plaintiffs counsel had responded to his Jan. 13 offer to send plaintiffs tile to l
his co sel, Equifax would have sent the disclosure to plaintiffs counsel. Love Aff Ex. D 1]
3 and E x. C thereto. There was and is no permissible basis for either Equifax’s or plaintiffs K
couns=| to receive a copy of plaintiff s disclosure, yet Equifax was willing to disregard the l
expre limitations of the FCRA, 15 U.S.C. § §l68lb (permissible purpose for disclosing
privat and confidential consumer files).
i Fourth, further compounding the violation is the attempt to cover up one of the
violati ns by claiming that counsel directed a response to the plaintiffs May request even
thoug the documents show that Equifax persistently denied even receiving the May request
(until cently). Finally, Equifax shrugs off its obligations by claiming that it makes no
differ ce that Equifax violated the law since plaintiff got a copy of his disclosure, even if for
some her reason. Def Mem. at 5.
l Equifax’s repeated failures show, at the very least, that its procedures are not i
reaso ble as a matter of law. Repeated failure to send plaintiff his credit report falls well i
below I e standards required by the FCRA. It rises to the level of reckless indifference for the
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C se 3:03-cv-OO25@}lBA Document 82 Filed O2/2¢&%OO4 Page 3 of 3 I
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purpo of punitive damages. McMillan v. Equifax Credit Inf Services, Inc., 170 F. Supp. 2d E
278 Conn. 2001); Dalton v. Capital Associated Industries, Inc., 257 F.3d 409, 418 (4th
Cir. 2 • 1) (defendant was on notice of error but disregarded it); Donovan v. Carls Drug Co.,
703 F. d 650, 652 (2d Cir. 1983) (an act is willful when the entity knows it is subject to a
statut r d its practices do not conform to the statute, except when Congress enacts a good
faith fense). I
l Damages. Plaintiff moved for summary judgment on liability alone, with no effort to
show I ¤ ages. Yet, Equifax claims that defendant did not show damages. Def Mem. at 2-5.
That ack is consistent with its indifference, demonstrated by this case, towards compliance
with t · FCRA. In effect, Equifax says, “So what if we didn’t comply?" Plaintiff had some
expen · — he sent the May request by certified mail since Equifax claimed that the December Z
reque had never arrived. That satisfies the economic damages requirement of the FRCA, and I
the " ertainable loss" requirement of CUTPA. No one can predict how the jury will value
plainti n s frustration at having his legal right to a copy of his report repeatedly flouted.
I Plaintiff submits that damages are a jury question. He believes that both negligence
and w I lfulness have been established as a matter of law.
CONCLUSION U
Summary judgment should enter for plaintiff on Equifax’s multiple violations of the
mand cry disclosure requirements of §§ 1681 g(a) and §1681j for both negligent and willful
violati ns. The amount of actual and punitive damages andthe reasonableness of the offline
p1`OC€•IN I`€ 81'€jL1l'y ql.1€SlL101’1S.
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