WHITE v. IMPERIAL ADJUSTMENT CORP

KURT ENGELHARDT, District Judge

Counsel for the parties to this matter appeared in court on Friday, September 24, 2004, to dictate the terms and conditions of a settlement into the record. As recognized on that date, the proposed settlement and attorneys' fees award will require final approval by the Court. Preliminary approval, however, was given on September 24, 2004. All counsel signed a Release and Settlement Agreement on or about October 25, 2004.

On October 26, 2004, the Court received the Imperial Defendants and Equifax Information Services, L.L.C.'s Joint Motion for Determination of Survivability of Claims and Accrual of Actions Brought Under § 1681n of the Fair Credit Reporting Act (Rec. Doc. No. 246). Defendants' motion presents two questions:

1. Does a claim brought under 15 U.S.C. § 1681n survive the death of a consumer who predeceases full adjudication of such claim?

2. Does Section 1681n of the Fair Credit Reporting Act ("FCRA") afford a cause of action to a consumer who predeceases the allegedly impermissible access of his consumer report?

Regarding the first question, the Court agrees with Plaintiffs that the parties resolved this issue in the Release and Settlement Agreement, which is attached as Exhibit 1 to Plaintiff's Opposition. That document states, in Paragraph A(1)(b), page 4, that any person listed on Exhibit A who is now deceased, but was living at the time his or her credit report was obtained, shall be considered a Class Member, if that person's estate provides appropriate documentation of successorship to Plaintiffs' Attorneys by December 1, 2004. The Agreement additionally indicates that, if no documentation is provided, that person will not be a Class Member and his or her estate will not receive a Settlement Payment. Given this provision in the parties' agreement, which the Court finds to be reasonable and fair, no further ruling regarding this issue (except for final approval of the settlement in its entirety) is necessary.

Question No. 2

The second question is addressed, but not answered, in the Release and Settlement Agreement. Specifically, Paragraph A(1)(a), page 4, of that document provides that the issue shall be submitted to the Court. Then, if the Court finds that the persons identified on Exhibit A, who were deceased at the time their credit reports were obtained, to be Class Members, their respective estate representatives will receive the appropriate Settlement Payment, if appropriate and timely documentation of successorship is provided to Plaintiffs' Attorneys.

The Court has reviewed the Fair Credit Reporting Act, pertinent provisions of other consumer credit protection statutes found in Chapter 41 of Title 15 of the United States Code, the authorities cited by the parties, and other relevant jurisprudence. The statutory language does not unambiguously establish a private remedy under these circumstances. Nor has a binding or otherwise compelling jurisprudential interpretation of § 1681n favoring Plaintiffs' position been identified. Given the foregoing, the Court declines to recognize, for purposes of the settlement of this matter, the existence of a private cause of action for a consumer whose credit report was accessed subsequent to his or her death.

In reaching this conclusion, the Court does not determine or suggest that the release, access, or use of the credit reports in question was authorized by the Fair Credit Reporting Act. The Court likewise does not conclude that the relevant conduct could not be subject to administrative enforcement action. See 15 U.S.C. § 1681s.