part of the settlement, RealPage also agreed to only report on sex offender registries injurisdictions where an applicant has lived or currently resides. Id. at 9.Saylor demonstrates the importance of ensuring consumer reporting proceduresconform to the requirements of the FCRA. While automation is usually a blessing, in thecontext of class action certification it can be a curse. Credit reporting agencies must usesoftware and artificial intelligence (AI) in order to economically process data and createconsumer reports. However, the parameters software and AI use to match consumerswith publicly available must be continuously monitored in order to ensure that errors arenot amplified across a potential class of consumers.RealPage was the target of another FCRA class action in 2019, which alleged that thecompany violated section 1681(g)(a)(1) of the FCRA by refusing to name the third-partyvendors 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 plaintiffsin the Kelly case alleged that RealPage had issued incorrect tenant reports as part oftheir lease applications. Id. at 207. The plaintiffs used an automated form onRealPage’s website to request a report “report and any of the disclosures required bythe federal Fair Credit Reporting Act.” Id. However, RealPage only sent the plaintiffs therental report originally provided to the property manager, and the company refused toname the vendors that had provided the allegedly inaccurate records to RealPage. Id. at208. The plaintiffs sought class certification of several classes, including: (i) individualswho had a Rental Report sent or caused to be sent to them by RealPage which did notinclude the name of the private vendor sources from which public record information inthe file was obtained; and (ii) individuals in the first class who received a Rental Reportfollowing a documented direct request to RealPage. Id. at 208-09. The district courtdenied certification of this class and sub-class on the grounds that the plaintiffs hadfailed 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 determinewhether putative class members fall within the class definition, because it would have toconduct individualized inquiries into whether consumers had requested their “files” or“reports” from RealPage. Id. According to the district court, only consumers who hadrequested “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 wouldnot 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 whohad requested their “files” and consumers who had requested their “reports,” insteadfinding that the FCRA use the terms “consumer report” and “file” interchangeably. Id. at220. Thus, the Third Circuit held that “any generalized ‘request’ by a consumer for theCRA'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 proposedclass was not ascertainable. The Third Circuit disagreed with the district court that areview of each individual file would not be “administratively feasible.” Id. at 223. Whilethe volume consumer files in this case would be high, the Third Circuit found that the211© Duane Morris LLP 2023Duane Morris Class Action Review – 2023
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