Duane Morris Class Action Review - 2023 - Report - Page 212
part of the settlement, RealPage also agreed to only report on sex offender registries in
jurisdictions where an applicant has lived or currently resides. Id. at 9.
Saylor demonstrates the importance of ensuring consumer reporting procedures
conform to the requirements of the FCRA. While automation is usually a blessing, in the
context of class action certification it can be a curse. Credit reporting agencies must use
software and artificial intelligence (AI) in order to economically process data and create
consumer reports. However, the parameters software and AI use to match consumers
with publicly available must be continuously monitored in order to ensure that errors are
not amplified across a potential class of consumers.
RealPage was the target of another FCRA class action in 2019, which alleged that the
company violated section 1681(g)(a)(1) of the FCRA by refusing to name the third-party
vendors it used to obtain information for its consumer reports. The case is Kelly, et al. v.
RealPage Inc., 47 F.4th 202 (3d Cir. 2022). As in the Saylor case, the named plaintiffs
in the Kelly case alleged that RealPage had issued incorrect tenant reports as part of
their lease applications. Id. at 207. The plaintiffs used an automated form on
RealPage’s website to request a report “report and any of the disclosures required by
the federal Fair Credit Reporting Act.” Id. However, RealPage only sent the plaintiffs the
rental report originally provided to the property manager, and the company refused to
name the vendors that had provided the allegedly inaccurate records to RealPage. Id. at
208. The plaintiffs sought class certification of several classes, including: (i) individuals
who had a Rental Report sent or caused to be sent to them by RealPage which did not
include the name of the private vendor sources from which public record information in
the file was obtained; and (ii) individuals in the first class who received a Rental Report
following a documented direct request to RealPage. Id. at 208-09. The district court
denied certification of this class and sub-class on the grounds that the plaintiffs had
failed to establish predominance and superiority and that the class was ascertainable.
Id. at 209. The district court specifically found that it would be difficult for it to determine
whether putative class members fall within the class definition, because it would have to
conduct individualized inquiries into whether consumers had requested their “files” or
“reports” from RealPage. Id. According to the district court, only consumers who had
requested “reports” from RealPage would be entitled to third party vendor disclosures.
Id. The district court also found that the class was not ascertainable because it would
not be “administratively feasible” to review each individuals file in the proposed class. Id.
at 210.
On appeal, the Third Circuit vacated the district court’s order denying class certification.
The Third Circuit disagreed with the district court’s distinction between consumers who
had requested their “files” and consumers who had requested their “reports,” instead
finding that the FCRA use the terms “consumer report” and “file” interchangeably. Id. at
220. Thus, the Third Circuit held that “any generalized ‘request’ by a consumer for the
CRA's information about her triggers the CRA's disclosure obligation under § 1681g(a).”
Id. at 221. The Third Circuit also rejected the district court’s finding that the proposed
class was not ascertainable. The Third Circuit disagreed with the district court that a
review of each individual file would not be “administratively feasible.” Id. at 223. While
the volume consumer files in this case would be high, the Third Circuit found that the
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Duane Morris Class Action Review – 2023
