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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
JOHN ELZIE KINARD, JR.
)
Plaintiff,
)
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CASE NO.:
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v.
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JURY TRIAL DEMANDED
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LEXISNEXIS RISK SOLUTIONS, INC. )
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Defendant.
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John Elzie Kinard, Jr. (“Plaintiff” or “Mr. Kinard”), a living, breathing, 72 year-old
consumer, brings this Complaint against Defendant LexisNexis Risk Solutions, Inc. (“LexisNexis”
or “Defendant”), by and through his undersigned attorneys, and respectfully alleges as follows:
INTRODUCTION
1.
The computerization of our society has resulted in a revolutionary increase in the
accumulation and processing of data concerning individual American consumers. Data
technology, whether it is used by businesses, banks, the Internal Revenue Service or other
institutions, allows information concerning individual consumers to flow instantaneously to
requesting parties. Such timely information is intended to lead to faster and better decision-making
by its recipients and, in theory, all of society should ultimately benefit from the resulting
convenience and efficiency.
2.
However, unfortunately this information has also become readily available for, and
subject to, mishandling and misuse. Individual consumers can and do sustain substantial damage,
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both economically and emotionally, whenever inaccurate or fraudulent information is
disseminated and/or obtained about them. In fact, LexisNexis acknowledges this potential for
misuse and resulting damage every time it sells a consumer report regarding a given consumer.
3.
The ongoing technological advances in the area of data processing have resulted in
a boon for the companies that accumulate and sell data concerning individuals’ credit histories and
other personal information. Such companies are commonly known as consumer reporting agencies
(“CRAs”).
4.
These CRAs sell information to readily paying subscribers (i.e., retailers, landlords,
lenders, insurance companies, potential employers, and other similar interested parties), commonly
called “consumer reports,” concerning individuals who may be applying for retail credit, housing,
employment, insurance, or a car or mortgage loan.
5.
Since 1970, when Congress enacted the Fair Credit Reporting Act, 15 U.S.C.
§ 1681, et seq. (“FCRA”), federal law has required CRAs to implement and utilize reasonable
procedures “to assure maximum possible accuracy” of the personal, private, and financial
information that they compile and sell about individual consumers.
6.
One of the primary purposes in requiring CRAs to assure “maximum possible
accuracy” of consumer information is to ensure the stability of our banking system:
The banking system is dependent upon fair and accurate credit reporting. Inaccurate
credit reports directly impair the efficiency of the banking system, and unfair credit
reporting methods undermine the public confidence which is essential to the
continued functioning of the banking system.
See 15 U.S.C. § 1681(a)(1).
7.
To accomplish Congress’ goals, the FCRA contains a variety of requirements to
protect consumers, including § 1681e(b), which is one of the cornerstone provisions of the FCRA.
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Whenever a consumer reporting agency prepares a consumer report, § 1681e(b) requires the
consumer reporting agency to follow reasonable procedures to assure maximum possible accuracy
of the information concerning the individual about whom the report relates. 15 U.S.C. § 1681e(b).
This section imposes a high, and often disregarded, standard on consumer reporting agencies. See,
e.g., Burke v. Experian Info. Sols., Inc., 2011 WL 1085874, at *4 (E.D. Va. Mar. 18, 2011)
(breaking down the requirements of § 1681e(b), and explaining that “‘assure’ means ‘to make sure
or certain: put beyond all doubt,’” “‘[m]aximum’ means the ‘greatest in quantity or highest degree
attainable[,]’ and ‘possible’ means something ‘falling within the bounds of what may be done,
occur or be conceived.’” (quoting Webster’s Third New International Dictionary 133, 1396, 1771
(1993)).
8.
The preservation of one’s good name and reputation is also at the heart of the
FCRA’s purposes:
[W]ith the trend toward computerization of billings and the establishment of all
sorts of computerized data banks, the individual is in great danger of having his life
and character reduced to impersonal “blips” and key-punch holes in a stolid and
unthinking machine which can literally ruin his reputation without cause, and make
him unemployable or uninsurable, as well as deny him the opportunity to obtain a
mortgage or buy a home. We are not nearly as much concerned over the possible
mistaken turn-down of a consumer for a luxury item as we are over the possible
destruction of his good name without his knowledge and without reason. * * * [A]s
Shakespeare said, the loss of one’s good name is beyond price and makes one poor
indeed (emphasis added).
Bryant v. TRW, Inc., 689 F.2d 72, 79 (6th Cir. 1982) [quoting 116 Cong. Rec. 36570
(1970)].
9.
In light of these important findings and purposes, Congress specifically noted “a
need to insure that [CRAs] exercise their grave responsibilities with fairness, impartiality, and
respect for the consumer’s right to privacy.” See 15 U.S.C. § 1681(a)(4).
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10.
LexisNexis is a consumer reporting agency that complies and maintains files on
consumers on a nationwide basis. As part of this process, LexisNexis uses a largely automated and
systematic procedure to assemble and merge consumers’ credit histories and credit scores from the
repositories of the national credit bureaus, Equifax, Experian, and Trans Union (hereinafter, the
“national credit bureaus”), into consumer reports, which LexisNexis sells to various users,
including insurance companies. However, LexisNexis does not have adequate procedures to ensure
that the credit information and scores it obtains from the national credit bureaus’ repositories, and
reports to users, is maximally accurate. For example, if one or more of the national credit bureaus’
repositories reports that a given consumer is “deceased” and has no credit score, LexisNexis has
no independent procedure to verify whether said consumer is, in fact, deceased and does, in fact,
not have a credit score. LexisNexis’s failure to implement and follow such a reasonable procedure
is a violation of 15 U.S.C. § 1681e(b) because LexisNexis has not implemented reasonable
procedures to assure the maximum possible accuracy of the consumer report that it furnished
regarding Plaintiff.
11.
This action seeks actual, statutory, and punitive damages and costs and attorneys’
fees for Plaintiff against LexisNexis for its willful and/or negligent violations of the FCRA, 15
U.S.C. §§ 1681, et seq., as described herein.
THE PARTIES
12.
Plaintiff John Elzie Kinard (“Plaintiff” or “Mr. Kinard”) is a natural person who
resides in the City of Stockbridge, State of Georgia, and is a “consumer” as that term is defined in
15 U.S.C. § 1681a(c).
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13.
Defendant LexisNexis Risk Solutions, Inc. (“LexisNexis” or “Defendant”) is a
corporation headquartered in Alpharetta, Georgia, and regularly conducts business within the State
of Georgia.
14.
LexisNexis is a “consumer reporting agency” as defined in 15 U.S.C. § 1681a(f).
LexisNexis is regularly engaged in the business of assembling, evaluating, and disseminating
information concerning consumers for the purpose of furnishing consumer reports, as defined in
15 U.S.C. § 1681a(d), to third parties.
15.
LexisNexis is also a “reseller” as defined at 15 U.S.C. § 1681a(u), which is a
“consumer reporting agency that—(1) assembles and merges information contained in the database
of another consumer reporting agency or multiple consumer reporting agencies concerning any
consumer for purposes of furnishing such information to any third party, to the extent of such
activities; and (2) does not maintain a database of the assembled or merged information from which
new consumer reports are produced.”
JURISDICTION AND VENUE
16.
This Court has jurisdiction over Plaintiff’s claims pursuant to 28 U.S.C. § 1331 and
15 U.S.C. § 1681p, which allows claims under the FCRA to be brought in any appropriate court
of competent jurisdiction.
17.
Venue is proper in this District pursuant to 28 U.S.C. § 1391(b)(2) because a
substantial part of the events or omissions giving rise to the claims occurred in this District and
because Defendant resides in this District.
FACTS
Defendant’s Practices Concerning the Sale of Reports on the “Deceased”
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18.
Defendant sells or resells consumer reports (often called “credit report,” “reports,”
“tri-merge reports,” or “CLUE report”) and credit scores to various markets, including but not
limited to the mortgage financing and lending industry and the insurance industry.
19.
Pursuant to 15 U.S.C. § 1681e(b), consumer reporting agencies, like Defendant, are
required “to follow reasonable procedures to assure maximum possible accuracy of the
information concerning the individual about whom the report relates.”
20.
Pursuant to 15 U.S.C. §§ 1681b and 1681e(a), consumer reporting agencies, like
Defendant, must maintain reasonable procedures to assure that reports are sold only for legitimate
“permissible purposes.”
21.
Defendant routinely places a “deceased” notation or marking on reports when it is
advised by any of its many data furnishing sources, such as banks, debt collectors, and the national
credit bureaus, that a given consumer is deceased.
22.
Defendant’s furnishing sources identify “deceased” consumers by marking the
“status” of such consumer’s responsibility for any subject account with an “X” code in the
“ECOA” field of an electronic data input format used in the credit reporting industry, known as
Metro or Metro 2, or by using other various codes to indicate a consumer is “deceased” and has
no reportable credit score.
23.
Defendant does not request or require a death certificate from any of its data
sources, which advise that a consumer is “deceased,” before placing a “deceased” mark in that
consumer’s consumer report.
24.
Defendant does not request or require any proof from any data source which advises
that a consumer is “deceased” showing that the consumer is, in fact, deceased before placing a
“deceased” mark on that consumer’s report.
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25.
Defendant does not independently verify with any source that a consumer is, in fact,
deceased before placing a “deceased” mark on that consumer’s report.
26.
In some cases, in order to assure accuracy, Defendant may send letters and/or other
communications to consumers when certain information that may be considered suspicious or
unreliable is furnished about said consumers to be placed in their LexisNexis credit files, such as
in cases where consumers have a freeze or fraud alert on their credit report, or in accordance with
certain state laws, such as the consumer laws of Colorado. Defendant has no procedure to notify
consumers (such as a next of kin or executor or administrator of the consumer’s estate) when an
“X” deceased code (or other code indicating a consumer is purportedly deceased) is furnished to
Defendant to be placed in said consumer’s consumer report.
27.
Defendant employs no procedures at all to assure that a consumer with a
“deceased” mark on his/her report is, in fact, actually deceased before placing the “deceased” mark
on that consumer’s report and selling that report for profit.
28.
Even in instances where other data on the face of the consumer’s report indicates
that he/she is not deceased, Defendant employs no procedures to assure that a consumer with a
“deceased” mark on his/her report is, in fact, actually deceased before placing the “deceased” mark
in that consumer’s report.
29.
Even in instances where the purportedly deceased consumer communicates directly
with Defendant, Defendant employs no procedures to assure that a consumer with a “deceased”
mark on his/her report is, in fact, actually deceased before placing the “deceased” mark on that
consumer’s report.
30.
Defendant knows that third party credit issuers require a credit score in order to
process a given credit application.
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31.
Defendant knows that consumers without credit scores are unable to secure any
credit from most credit issuers.
32.
Defendant knows that living consumers are routinely turned down for credit
specifically because Defendant is reporting them as “deceased” and without a credit score.
33.
Defendant has been put on notice for years through consumer disputes and lawsuits
that living, breathing consumers are turned down for credit specifically because Defendant is
reporting them as “deceased” and without a credit score.
34.
Defendant has received and documented many disputes from consumers
complaining that their LexisNexis consumer report had them erroneously marked as “deceased.”
35.
Defendant knows that thousands of consumers are erroneously marked as
“deceased” on their LexisNexis consumer reports via an erroneous furnishing of the “X” code (or
other code indicating a consumer is purportedly deceased), even when said consumers are, in fact,
alive.
36.
Nevertheless, Defendant employs no procedures to assure that a consumer marked
as “deceased” by one or more of the national credit bureaus’ repositories is, in fact, deceased.
37.
Even consumers who dispute the erroneous “deceased” status on their LexisNexis
consumer reports continue to be erroneously marked as deceased unless the furnishing source
which provided the erroneous “X” code (or other code indicating a consumer is purportedly
deceased) in the first instance decides to change its respective coding.
38.
Defendant has no independent procedure to change an erroneous deceased status
on its own and will merely parrot its furnishing source in the case of a reinvestigation into the
accuracy of the deceased status upon a consumer’s report, a reinvestigation which is triggered by
a consumer dispute.
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39.
Nor does Defendant employ any procedures to limit or stop the furnishing of reports
to third parties for consumers that it has marked as “deceased” under any circumstances.
40.
Defendant charges third parties a fee for reports with a mark that a consumer is
deceased (“reports on the deceased”) as it would for any other report.
41.
Defendant profits from the sale of reports on deceased consumers.
42.
Defendant knows that truly deceased consumers do not apply for credit.
43.
Defendant knows that the credit information and reports of truly deceased persons
are used by criminals to commit identity theft or credit fraud. Indeed, identity theft using the
personal identifying information of deceased consumers is known to Defendant to be a common
and major source of identity theft.
44.
Defendant knows that identity theft and credit fraud are serious and widespread
problems in our society.
45.
Defendant warns the relatives of truly deceased consumers that identity theft can
be committed using the credit reports and information of the deceased and require relatives to
provide a death certificate or executorship papers, among other forms of proof, before accessing
the deceased consumer’s credit information or report.
46.
Defendant has no similar death certificate, executorship paper, or any other proof
requirements for their data sources, which report a consumer as deceased or for the purchasers of
its reports who access the purportedly deceased consumer’s information.
47.
Defendant sells reports on supposedly deceased consumers to third parties in an
automated fashion and without any specific or general certification that could reasonably explain
a “permissible purpose” for purchasing or using a purportedly deceased consumer’s credit history
and/or report.
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48.
For consumers who are deceased, there rarely, if ever, exists a permissible purpose
under the FCRA for Defendant to sell his or her consumer report, absent a court order.
49.
Defendant knows that such reports contain a vast amount of personal identifying
and credit account information on the purportedly deceased consumer, information that can be
used to commit identity theft or for other fraudulent purposes.
State Farm Insurance Denies Plaintiff’s Credit Application to Obtain Automobile
Insurance in May 2019
50.
In or about May 2019, Mr. Kinard attempted to obtain automobile insurance
through State Farm Insurance (“State Farm”) in Atlanta, Georgia, and submitted a credit
application.
51.
Mr. Kinard was shocked when the State Farm insurance agent mentioned that there
was a “problem” with his credit reports.
52.
Mr. Kinard takes great pride in his good name and established credit rating, and he
works hard to ensure that his bills are paid in-full and on-time every month. He believes and
understands that his credit record with all of his creditors is excellent, so Mr. Kinard could not
imagine what the problem could be.
53.
Much to Mr. Kinard’s shock and dismay, the State Farm insurance agent informed
him that his insurance application was halted by State Farm because his LexisNexis consumer
report indicated that he was “deceased” and had no credit score.
54.
While confused about how such a mistake could happen, and also fearful of what
it meant to his ultimate ability to secure automobile insurance and future credit opportunities, Mr.
Kinard genuinely believed that such an obvious error would have to be fairly easily corrected. He
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kept his fingers crossed that after providing whatever proof State Farm needed to override this
mistake he could proceed with obtaining the automobile insurance policy.
55.
Accordingly, Mr. Kinard provided copies of his current driver’s license and his
Social Security card in an effort to prove that he was, in fact, alive. Nevertheless, the State Farm
insurance agent advised that it could not approve him for insurance because of the “deceased”
notation appearing on his LexisNexis consumer report.
Plaintiff’s First Telephonic Dispute with LexisNexis in June 2019
56.
In or about May 2019, still frustrated that State Farm had denied him insurance
because of his LexisNexis consumer report, Mr. Kinard telephoned LexisNexis and spoke to a
representative. Mr. Kinard explained his issue in great detail and informed the representative that
LexisNexis had been reporting him as “deceased” on his consumer report and that he was recently
denied insurance as a result of its inaccurate reporting. Mr. Kinard stated that he was disputing the
“deceased” notation on his LexisNexis consumer report and asked that it be corrected as soon as
possible.
57.
LexisNexis failed to conduct a reasonable reinvestigation to determine whether the
disputed information was inaccurate and record the current status of the disputed information, or
delete the disputed information, before the end of the 30-day period beginning on the date on which
it received the notice of dispute from Mr. Kinard.
LexisNexis’s Response to Plaintiff’s May 2019 Dispute
58.
On or about June 11, 2019, Mr. Kinard received mail correspondence from
LexisNexis, which indicated that LexisNexis forwarded Plaintiff’s dispute of the inaccurate
deceased indicator appearing on his LexisNexis consumer report to non-party, Equifax.
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59.
LexisNexis admitted in this mail correspondence that it did not participate in the
dispute resolution process other than to initiate and forward Plaintiff’s dispute to Equifax.
60.
LexisNexis’s written correspondence included dispute results from Equifax, dated
June 6, 2019, indicating that an Automobile Acceptance Corp tradeline appearing on Plaintiff’s
Equifax credit report with a “Deceased” indicator had been reinvestigated by Equifax and verified
as accurate and belonging to Plaintiff.
61.
LexisNexis failed to conduct a reasonable reinvestigation to determine whether the
disputed information was inaccurate and record the current status of the disputed information, or
delete the disputed information, before the end of the 30-day period beginning on the date on which
it received the notice of dispute from Mr. Kinard, in violation of 15 U.S.C. § 1681i.
62.
LexisNexis failed to heed Mr. Kinard’s actual notice of the erroneous “deceased”
notation and continued to report him as deceased.
63.
As a result of the “deceased” annotation, Defendant made it practically impossible
for Mr. Kinard to obtain insurance.
64.
At all times pertinent hereto, Defendant was acting by and through its agents,
servants, and/or employees who were acting within the course and scope of their agency or
employment, and under the direct supervision and control of the Defendant herein.
65.
At all times pertinent hereto, the conduct of the Defendant, as well as that of its
agents, servants, and/or employees, was intentional, willful, reckless, and in grossly negligent
disregard for federal law and the rights of Mr. Kinard herein.
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CLAIMS FOR RELIEF
COUNT I
15 U.S.C. § 1681e(b)
Failure to Follow Reasonable Procedures to Assure Maximum Possible Accuracy
66.
Plaintiff re-alleges and incorporates the allegations set forth in Paragraphs 1-65 as
if fully stated herein.
67.
The FCRA mandates that “[w]henever a consumer reporting agency prepares a
consumer report it shall follow reasonable procedures to assure maximum possible accuracy of the
information concerning the individual about whom the report relates.” 15 U.S.C. § 1681e(b).
68.
On at least one occasion, Defendant assembled, merged, and resold a patently false
consumer report concerning Plaintiff.
69.
Despite actual and implied knowledge that Plaintiff is not dead, Defendant readily
sold such false consumer report to one or more third party, thereby misrepresenting Plaintiff, and
ultimately, Plaintiff’s creditworthiness.
70.
Defendant violated 15 U.S.C. § 1681e(b) by failing to establish or to follow
reasonable procedures to assure maximum possible accuracy in the preparation of the consumer
reports and credit files it published and maintains concerning Plaintiff.
71.
As a result of Defendant’s conduct, action, and inaction, Plaintiff suffered damage
by loss of credit/insurance; loss of the ability to purchase and benefit from his credit; the
expenditure of time and money disputing and trying to correct the inaccurate credit reporting; and
emotional distress including the mental and emotional pain, anguish, humiliation, and
embarrassment of credit/insurance denials.
72.
Defendant’s conduct, action, and inaction was willful, rendering it liable for actual
or statutory damages, and punitive damages in an amount to be determined by the Court pursuant
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to 15 U.S.C. § 1681n. In the alternative, it was negligent, entitling Plaintiff to recover under 15
U.S.C. § 1681o.
73.
Plaintiff is entitled to recover attorneys’ fees and costs from Defendant in an
amount to be determined by the Court pursuant to 15 U.S.C. § 1681n and/or § 1681o.
COUNT II
15 U.S.C. § 1681i
Failure to Perform Reasonable Reinvestigation
74.
Plaintiff re-alleges and incorporates the allegations set forth in Paragraphs 1-65 as
if fully stated herein.
75.
The FCRA mandates that a CRA conduct an investigation of the accuracy of
information “[i]f the completeness or accuracy of any item of information contained in a
consumer’s file” is disputed by the consumer. See 15 U.S.C. § 1681i(a)(1). The Act imposed a 30-
day time limitation for the completion of such an investigation. Id.
76.
The FCRA provides that if a CRA conducts an investigation of disputed
information and confirms that the information is in fact, inaccurate, or is unable to verify the
accuracy of the disputed information, the CRA is required to delete that item of information from
the consumer’s file. See 15 U.S.C. § 1681i(a)(5)(A).
77.
In 2019, Plaintiff initiated a telephonic dispute with Defendant that it correct and/or
delete a specific item in his consumer report that is patently inaccurate, misleading, and highly
damaging to him, namely, references to him being “deceased” and having no credit score.
78.
Either Defendant conducted no investigation of Plaintiff’s dispute, or such
investigation was so shoddy as to allow patently false and highly damaging information to remain
in Plaintiff’s consumer report.
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79.
Defendant violated 15 U.S.C. § 1681i by failing to conduct a reasonable
reinvestigation to determine whether the disputed information was inaccurate and record the
current status of the disputed information, or delete the disputed information, before the end of the
30-day period beginning on the date on which it received the notice of dispute from Plaintiff; and
by failing to maintain reasonable procedures with which to filter and verify disputed information
in Plaintiff’s consumer report.
80.
As a result of Defendant’s conduct, action, and inaction, Plaintiff suffered damage
by loss of credit/insurance; loss of the ability to purchase and benefit from his credit; the
expenditure of time and money disputing and trying to correct the inaccurate credit reporting; and
emotional distress including the mental and emotional pain, anguish, humiliation, and
embarrassment of credit/insurance denials.
81.
Defendant‘s conduct, action, and inaction was willful, rendering it liable for actual
or statutory damages, and punitive damages in an amount to be determined by the Court pursuant
to 15 U.S.C. § 1681n. In the alternative, it was negligent, entitling Plaintiff to recover under 15
U.S.C. § 1681o.
82.
Plaintiff is entitled to recover attorneys’ fees and costs from Defendant in an
amount to be determined by the Court pursuant to 15 U.S.C. § 1681n and/or § 1681o.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays for relief as follows:
a)
Determining that Defendant negligently and/or willfully violated the FCRA;
b)
Awarding Plaintiff actual damages, statutory, and punitive damages as provided by
the FCRA;
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c)
Awarding Plaintiff reasonable attorneys’ fees and costs as provided by the FCRA;
and
d)
Granting further relief, in law or equity, as this Court may deem appropriate and
just.
DEMAND FOR JURY TRIAL
83.
Plaintiff demands a trial by jury.
Dated: May 13, 2021
JOSEPH P. MCCLELLAND, LLC
/s/Joseph P. McClelland
Joseph P. McClelland, Esq.
Attorney I.D. #483407
545 N. McDonough Street, Suite 210
Decatur, Georgia 30030
Telephone: (770) 775-0938
Hans W. Lodge*
hlodge@bm.net
BERGER MONTAGUE PC
43 SE Main Street, Suite 505
Minneapolis, MN 55414
Telephone: (612) 607-7794
Fax: (612) 584-4470
*Pro hac vice forthcoming
ATTORNEYS FOR PLAINTIFF
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