Kevin Kelly v. RealPage Inc

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 21-1672
________________
KEVIN JOSEPH KELLY; KARRIEM BEY,
On behalf of themselves and all others similarly situated,
Appellants
v.
REALPAGE INC., d/b/a ONSITE;
RP ON SITE, LLC.
________________
On Appeal from the District Court for the
Eastern District of Pennsylvania
(E.D. Pa. No. 2-19-cv-01706)
United States District Judge: Honorable Joshua D. Wolson
_______________
Argued December 15, 2021
Before: GREENAWAY, JR., KRAUSE, and PHIPPS, Circuit
Judges
(Opinion Filed: August 24, 2022)
Lauren K.W. Brennan
James A. Francis
John Soumilas [ARGUED]
Francis Mailman Soumilas
1600 Market Street
Suite 2510
Philadelphia, PA 19103
Counsel for Appellants
Ronald I. Raether, Jr.
Troutman Pepper
5 Park Plaza
Suite 1400
Irvine, CA 92614
Misha Tseytlin [ARGUED]
Troutman Pepper
227 West Monroe Street
Suite 3900
Chicago, IL 60606
Counsel for Appellees
Mark W. Mosier
Covington & Burling
850 10th Street, N.W.
One City Center
Washington, DC 20001
Counsel for Amici Curiae Consumer Data
Industry Association and Professional
Background Screening Association
2
Nicole A. Saharsky
Mayer Brown
1999 K Street, N.W.
Washington, DC 20006
Counsel for Amicus Curiae Chamber of
Commerce of the United States of America
_____________
OPINION
______________
KRAUSE, Circuit Judge.
In late 2018, Appellants Kevin Kelly and Karriem Bey
found themselves in just the sort of frustrating predicament the
Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq.,
was designed to avoid, see J.A. 5. Their rental applications
were denied based on inaccurate consumer reports generated
by a consumer reporting agency, RealPage, Inc. RealPage
would not correct the reports unless Appellants obtained proof
of the error from its sources; and the identity of RealPage’s
sources was not included in the disclosures to Appellants,
despite their requests for their files. So Appellants availed
themselves of the remedy Congress provided and sued
RealPage, claiming it had violated its obligation under the
FCRA to disclose on request “[a]ll information in the
consumer’s file at the time of the request” and “[t]he sources
of th[at] information.” 15 U.S.C. § 1681g(a). Appellants
sought damages and attorneys’ fees not only for themselves but
also on behalf of a purported class and subclass.
3
The class action did not get far. The District Court
denied Appellants’ motion for class certification on the
grounds that Appellants failed to satisfy Rule 23(b)(3)’s
predominance and superiority requirements and that their
proposed class and subclass were not, in any event,
ascertainable. For the reasons explained below, we disagree,
and because the Court based its predominance analysis on a
misinterpretation of Section 1681g(a) and erred in applying our
ascertainability precedent, we will vacate and remand.
I. FACTUAL AND PROCEDURAL BACKGROUND
To place the parties and their interactions in context, we
begin with a brief overview of the FCRA before recounting the
history of this case.
A. The Fair Credit Reporting Act
In the FCRA, Congress sought to address the problem
of “inaccurate or arbitrary information” in consumer reports by
requiring credit reporting agencies (“CRAs”) 1 to “utilize
accurate, relevant, and current information in a confidential
and responsible manner.” Cortez v. Trans Union, LLC, 617
F.3d 688, 706 (3d Cir. 2010) (quoting Guimond v. Trans Union
Credit Info. Co., 45 F.3d 1329, 1333 (9th Cir. 1995)); see also
Bibbs v. Trans Union LLC, — F.4th —, 2022 WL 3149216, at
*3 (3d Cir. 2022) (explaining that, in enacting the FCRA,
The FCRA defines a “consumer reporting agency” as
1
any individual or entity that regularly “assembl[es] or
evaluat[es] consumer credit information or other information
on consumers for the purpose of furnishing consumer reports
to third parties.” 15 U.S.C. § 1681a(f).
4
Congress intended to “protect consumers from the
transmission of inaccurate information about them” (quotation
omitted)). It defined a “consumer report” to encompass “any
. . . communication of any [consumer] information by a
consumer reporting agency . . . which is used or expected to be
used” to establish the consumer’s eligibility for credit,
employment, or another purpose. 15 U.S.C. § 1681a(d). Then,
to advance its “consumer oriented objectives,” Guimond, 45
F.3d at 1333, Congress specified the groups of third-party
“users” to whom CRAs could disclose consumer reports, e.g.,
id. §§ 1681b, 1681e(a), the different categories of information
that must be omitted from or included in consumer reports
procured by different users, e.g., id. §§ 1681c, 1681f, and the
responsibilities of such users once they procured those reports
from CRAs, e.g., id. § 1681e; 12 C.F.R. § 1022.137.
But the FCRA also sought to address another problem:
the consumer’s “lack of access to the information in [her] file
[and] the difficulty in correcting inaccurate information.”
Cortez, 617 F.3d at 706 (internal quotation marks omitted)
(quoting S. Rep. No. 91–517, at 3 (1969)). To that end, it
broadly defined “file” to mean “all of the information on th[e]
consumer recorded and retained by a consumer reporting
agency regardless of how the information is stored,” 15 U.S.C.
§ 1681a(g), and it required CRAs, upon request, to “clearly and
accurately disclose to the consumer” six enumerated categories
of information, including “[a]ll information in the consumer’s
file at the time of the request” and “[t]he sources of [that]
information.” 2 15 U.S.C. § 1681g(a)(1), (a)(2). In addition to
2
The six categories of information CRAs are required
to disclose to the consumer upon request are: (1) “[a]ll
information in the consumer’s file at the time of the request
5
specifying the “[c]onditions and form of disclosure to
consumers,” id. § 1681h, and the procedures for consumers to
dispute “the completeness or accuracy of any item of
information . . . in a consumer’s file” with a CRA, id. § 1681i,
Congress also gave consumers a powerful remedy to enforce
their rights by creating private causes of action, for both willful
and negligent violations of the FCRA, including statutory
damages and attorney’s fees. 15 U.S.C. §§ 1681n, 1681o; see
Long v. Se. Pa. Transp. Auth., 903 F.3d 312, 323 (3d Cir. 2018)
(“Congress granted the consumer a right to receive a copy of
his report before adverse action is taken, and provided for
statutory damages plus attorney’s fees for willful
noncompliance[.]”).
B. RealPage’s Rental Reports
RealPage is a CRA that specializes in providing
property managers with consumer reports, which it terms
“Rental Reports,” to help them evaluate their prospective
tenants. See 15 U.S.C. § 1681a(f); J.A. 3–4. To generate
. . .”; (2) “[t]he sources of the information . . .”;
(3) “[i]dentification of each person . . . that procured a
consumer report . . .”; (4) “[t]he dates, original payees, and
amounts of any checks upon which is based any adverse
characterization of the consumer, included in the file at the
time of the disclosure”; (5) “[a] record of all inquiries received
by the agency during the 1-year period preceding the request
that identified the consumer in connection with a credit or
insurance transaction that was not initiated by the consumer”;
and (6) “[i]f the consumer requests the credit file and not the
credit score, a statement that the consumer may request and
obtain a credit score.” 15 U.S.C. § 1681g(a).
6
Rental Reports for those clients over the Class Period,3
RealPage collected public-record information, including
criminal records and eviction filings, from third-party vendors
like LexisNexis and HygenicsData, stored that information in
its own databases, and compiled it to respond to client requests.
J.A. 3. A client procuring a Rental Report could also instruct
RealPage to make a courtesy copy of that report available to
the prospective tenant, who would then be notified of the
option to download the Rental Report from RealPage’s
website. J.A. 179.
Consistent with its obligations under the FCRA,
RealPage also disclosed information in response to consumers’
direct requests for their files, which could be submitted in two
ways. For one, a consumer could use a form on RealPage’s
website to request a “report and any of the disclosures required
by the federal Fair Credit Reporting Act.” Appellants’ Br. 23
(emphasis omitted); Appellees’ Br. 47. In that case, the form
would automatically generate an email sent to a dedicated
email inbox maintained by RealPage, and RealPage would
manually process the request. J.A. 80, 134, 180. Alternatively,
a consumer could personally contact a RealPage representative
by phone, letter, or email to request their information. J.A.
179–80.
As it turned out, however, regardless of whether a
consumer downloaded her courtesy copy of a Rental Report
requested by a property manager or initiated her own
independent request for her information on file, RealPage
provided the consumer with the exact same report, the Rental
The Class Period is September 26, 2017 through
3
November 30, 2019. J.A. 6.
7
Report—which did not disclose the third-party-vendor
“sources of the information.” 4 15 U.S.C. § 1681g(a)(2). J.A.
4, 117–18, 124.
C. The Parties
Appellants Kevin Kelly and Karriem Bey are two
prospective tenants whose Rental Reports contained
inaccuracies and who therefore sought information from
RealPage to try to correct those errors. J.A. 5. After Kelly and
Bey submitted lease applications for apartments at different
properties, the respective property managers requested
Appellants’ consumer reports from RealPage. In response,
RealPage generated and sent their clients Appellants’ Rental
4
Specifically, Appellants allege that RealPage violated
§ 1681g(a)(2) by failing to disclose the identity of third-party
vendors who supplied it with public-record information.
Appellants’ Br. 7. RealPage counters that the statute only
requires it to disclose the original sources of the public records
included in its reports, e.g., the court that generated a given
criminal record, and that third-party vendors who simply
aggregate such public records, like LexisNexis and
HygenicsData, do not qualify as “sources” within the meaning
of the FCRA. See 15 U.S.C. § 1681g(a)(2); Appellee’s May
26, 2021 Supp. Ltr. Ex. A at 7. The merits of these arguments
are beyond the scope of this interlocutory appeal, and we
express no opinion on whether the term “sources” in
§ 1681g(a)(2) covers a CRA’s third-party vendors. See infra
note 8. For purposes of reviewing the District Court’s denial
of class certification, however, we will assume the correctness
of Appellants’ definition and will refer to third-party vendors
in this opinion as “sources.”
8
Reports, each of which contained inaccurate public record
information. Kelly’s report mistakenly included two DUI
convictions and a record of an outdated vehicle inspection tag,
the latter of which the report described as a misdemeanor
conviction rather than a non-criminal summary offense. J.A.
5, 34–43. Bey’s report incorrectly stated that a civil action for
possession was filed against him and included an erroneous
eviction filing. J.A. 5, 51–54. Not surprisingly, the property
managers turned down both Appellants, although in Kelly’s
case, the manager eventually relented. See J.A. 5, 199–200,
243 (testifying that the only apartment Bey could move into
was public housing in a different apartment building).
Upon learning of the inaccuracies in their reports, Kelly
and Bey contacted RealPage, hoping to determine the sources
of the errors and to correct them. Kelly made requests both
using the form on RealPage’s website that requested a “report
and any of the disclosures required by the federal Fair Credit
Reporting Act,” Appellants’ Br. 23 (emphasis omitted), and by
mailing a written request to RealPage for “a copy of all of the
information that [was] in [his] file.” J.A. 204, 144–45. Bey
called RealPage to “let [him] get [his] file” so that he could
“correct” the errors. J.A. 233–35. What both Appellants
received was simply the Rental Report that RealPage provided
to the property manager, J.A. 231–33, and neither Rental
Report identified the third-party vendors that sourced the
inaccurate records to RealPage. J.A. 33-43, 50-54. Yet
without proof from accurate records, RealPage refused to alter
the information on the Rental Reports, and without the identity
of the third-party vendors, neither Kelly nor Bey could obtain
that proof. See, e.g., J.A. 235–38.
Both Appellants attempted unsuccessfully to obtain
proof elsewhere and both suffered adverse consequences. Bey
9
attempted to obtain the records from a public source, but he
was denied access because those records had been sealed.
Kelly v. RealPage, Inc., No. 2:19-cv-1706, ECF #44-15 at ¶ 6
(“Bey Decl.”) (E.D. Pa. July 10, 2020); J.A. 235–38. As a
result of the inaccurate eviction record, he was only able to live
in public housing. J.A. 235–38, 241–43. Kelly also struggled
to locate court records of the crimes that had been wrongly
attributed to him because the case numbers listed in his Rental
Report were inaccurate, and the mislabeling of the inspection
violation as a misdemeanor is the type of error that could only
originate with the third-party vendor (or RealPage), not the
original source. Kelly Decl. ¶¶ 5–6; see J.A. 38, 80, 196–98.
Although Kelly was ultimately approved for the apartment, the
error “needlessly wasted [his] time” and caused him
“confus[ion]” and “unnecessary distress.” Kelly v. RealPage,
Inc., No. 2:19-cv-1706, ECF #44-14 at ¶ 8–9 (“Kelly Decl.”)
(E.D. Pa. July 10, 2020). In addition, without the source
information, neither Kelly nor Bey was able to get RealPage to
correct the errors. Id. at ¶ 9; see, e.g., J.A. 204–05, 215. 5
D. The Proceedings Below
In April 2019, Kelly and Bey initiated this putative class
action against RealPage, alleging, among other things, willful
and negligent violations of Section 1681g. See 15 U.S.C.
§§ 1681n, 1681o; Kelly v. RealPage, Inc., No. 2:19-cv-1706,
ECF #1 (E.D. Pa. Apr. 19, 2019). They sought to represent
consumers who received Rental Reports during the Class
5
RealPage declined either to admit that the inaccuracies
were caused by its own errors of attribution or to disclose
information on its sources to Kelly or Bey until after they
initiated this lawsuit. J.A. 60, 143, 218–20.
10
Period that included public-record information but failed to
name the third-party vendors who provided it to RealPage.
J.A. 6. In practice, any consumer whose report included public
records fit this description because, as RealPage has
acknowledged, none of the Rental Reports produced during the
Class Period identified third-party vendors, and RealPage
provided the same report to consumers, whether as a courtesy
copy of the Rental Report made available at the request of
RealPage’s client, or on direct request of the consumer for her
file. J.A. 126.
After RealPage answered the complaint, Kelly and Bey
moved to certify the following class and subclass:
• an “All Requests” class, including individuals
“who had a Rental Report sent or caused to be
sent to them by RealPage, Inc. through its On-
Site operation which did not include the name of
the private vendor source(s) from which public
record information in the file was obtained”
within the Class Period; and,
• a “Direct Requests” subclass consisting of
individuals in the All Requests class who
received a Rental Report “following a
documented direct request by the consumer” to
RealPage or On-Site.
J.A. 74–75.
These class definitions reflect the three different
methods by which putative class members could have received
their Rental Reports during the Class Period, i.e., as a courtesy
copy of the property manager’s report; through a consumer’s
11
direct request using the request form RealPage provided on its
website; or through a direct request by correspondence or
documented call. See J.A. 179–80. Approximately 2.2 million
consumers, comprising the All Requests class, received copies
of their Rental Reports through one or more of these methods
during the Class Period. J.A. 4. The Direct Requests subclass
includes only a subset of these consumers: the 16,659
consumers who obtained their Rental Reports using the
website form, J.A. 56, plus those who submitted requests via
documented calls, letters, or emails. 6
In deciding Appellants’ motion for class certification,
the District Court first addressed the issue of standing.
RealPage sought to have the motion denied and the complaint
dismissed on the ground that Appellants had failed to allege a
concrete injury. But the District Court rejected that argument,
holding that the deprivation of information to which
Appellants claimed to be legally entitled was a cognizable
injury for purposes of Article III standing. J.A. 10.
On the merits of the class certification motion, however,
the District Court sided with RealPage, declining to certify
either the All Requests class or the Direct Requests subclass.
Appellants, the Court recognized, had the burden to establish
“the four requirements of Rule 23(a) of the Federal Rules of
Civil Procedure,” i.e., “numerosity, commonality, typicality,
6
The All Requests class may be overinclusive because
consumers could have received their Rental Reports via
multiple methods. For example, Bey was presumably counted
twice because he received a copy of his Rental Report both as
a courtesy copy of the property manager’s request and through
a direct request via telephone. J.A. 231–35.
12
and adequacy,” as well as Rule 23(b)(3)’s “additional
requirements that ‘[common] questions of law or fact . . .
predominate over any questions affecting only individual
members’ and that ‘a class action [be] superior to other
available methods for fairly and efficiently adjudicating the
controversy.’” Gonzalez v. Corning, 885 F.3d 186, 192 (3d
Cir. 2018) (quoting Fed. R. Civ. P. 23(b)(3)). In addition, the
proposed class must be “ascertainable,” meaning it must be
“defined with reference to objective criteria,” and there must
be “a reliable and administratively feasible mechanism for
determining whether putative class members fall within the
class definition.” Byrd v. Aaron’s Inc., 784 F.3d 154, 163 (3d
Cir. 2015) (quoting Hayes v. Wal-Mart Stores, Inc., 725 F.3d
349, 355 (3d Cir. 2013)).
Here, the Court held that Appellants failed to establish
predominance and superiority and that neither class was
ascertainable. Fundamental to the District Court’s analysis
was its interpretation of Section 1681g(a) as imposing a
disclosure obligation on CRAs only when (1) the consumer
makes a direct request of the CRA, and (2) that consumer
specifically requests her “file” and not merely her “report.”
J.A. 12–13. Applying that interpretation, the Court held that
individual questions regarding whether consumers’ requests
were direct or indirect and whether consumers requested their
“files” or “reports” would predominate over common
questions, preventing the class action from being superior to
individual actions. J.A. 19–23. The Court also concluded that
neither the class nor the subclass was ascertainable because
identifying class members would require determining which
Rental Reports contained public record information and thus
would require “[a] review of each individual file [which] is, of
course, not administratively feasible.” J.A. 15–16.
13
Appellants filed a Motion for Reconsideration, arguing
in relevant part that the District Court erred in its
ascertainability determination because the “presence or
absence of public records is objectively determinable from the
face of the reports.” J.A. 283. Appellants also pointed to
evidence in the existing record that RealPage retained copies
of the Rental Reports in a “searchable electronic format,” and
submitted additional testimony from RealPage—obtained after
the class certification briefing—that the data is “stored in a
database that can be queried to retrieve these reports.” Id. The
Court denied the motion, rejecting what it described as a “bald
assertion . . . as to how [Appellants] would conduct the
computer-aided administrative task” of identifying the
proposed class members and declining to consider Appellants’
explanation on the ground that it had only been raised in a
footnote, which it declined to consider pursuant to its
individual rules. J.A. 29, 31, 84.
Appellants also sought leave to redefine the subclass
and to file a renewed motion for class certification to address
the District Court’s ascertainability and predominance
concerns in light of the Court’s novel interpretation of
§ 1681g(a). J.A. 288–90. Construing that request as a motion
to amend the scheduling order, the District Court denied it for
lack of diligence, concluding that Appellants “had or could
have obtained all of the information on which they base their
reconsideration motion before the Court ruled on class
certification.” J.A. 30.
Appellants then filed a petition for interlocutory review
under Rule 23(f) of the Federal Rules of Civil Procedure,
which we granted. J.A. 1.
14
II. JURISDICTION AND STANDARD OF REVIEW
The District Court had jurisdiction under 28 U.S.C.
§ 1331 and 15 U.S.C. § 1681p because Appellants assert
claims under 15 U.S.C. § 1681g(a). We have jurisdiction to
review the District Court’s order denying class certification
under 28 U.S.C. § 1292(e) and Rule 23(f) of the Federal Rules
of Civil Procedure.
We review an order denying class certification “for
abuse of discretion, which occurs if the district court’s decision
rests upon a clearly erroneous finding of fact, an errant
conclusion of law or an improper application of law to fact.”
Marcus v. BMW of N. Am., LLC, 687 F.3d 583, 590 (3d Cir.
2012) (quoting In re Hydrogen Peroxide Antitrust Litig., 552
F.3d 305, 312 (3d Cir. 2009)). We review legal standards
applied by the District Court de novo. Byrd, 784 F.3d at 161;
see also McNair v. Synapse Grp. Inc., 672 F.3d 213, 222 n.9
(3d Cir. 2012) (standard of review for standing on Rule 23(f)
appeal is plenary).
III. DISCUSSION
RealPage argues that Appellants lack a sufficiently
concrete injury to satisfy the Supreme Court’s standing
requirements, while Appellants challenge the District Court’s
grounds for denying class certification. We first address
whether Appellants established standing before discussing the
District Court’s rulings on predominance and ascertainability.
15
A. Standing 7
The District Court held that RealPage’s failure to
disclose source information was cognizable as an
7
Our appellate jurisdiction on interlocutory review is
typically “confined to review of that order,” O’Hanlon v. Uber
Techs., Inc., 990 F.3d 757, 761 (3d Cir. 2021), but here, we can
and must consider RealPage’s challenge to Appellants’ Article
III standing because that is a “necessary threshold issue to our
review of an order denying class certification,” McNair, 672
F.3d at 223 n.10; cf. O’Hanlon, 990 F.3d at 763 (observing,
outside the class action context, that where a plaintiff is
determined to have standing by a district court, “‘our power to
adjudicate [the standing-to-sue] issue on an interlocutory basis
is limited’ to pendent appellate jurisdiction” (alteration in
O’Hanlon) (quoting Griswold v. Coventry First LLC, 762 F.3d
264, 269 (3d Cir. 2014)).
However, we will not accept RealPage’s request that we
address the District Court’s rulings on personal jurisdiction and
partial summary judgment, Appellee’s Br. 54–65; Appellee’s
May 26, 2021 Supp. Ltr. 1, because those two issues are
beyond the scope of “Rule 23(f) inquiries.” McKowan Lowe
& Co. v. Jasmine, Ltd., 295 F.3d 380, 390 (3d Cir. 2002). In
any event, RealPage’s personal jurisdiction argument,
premised on the Supreme Court’s recent decision in Bristol-
Myers Squibb Co. v. Superior Ct., 137 S. Ct. 1773 (2017), is
foreclosed by our recent decision in Fischer v. Fed. Express
Corp., — F.4th —, 2022 WL 2922359, at *5 (3d Cir. 2022)
(“[W]e agree with many of our colleagues across the appellate
and trial benches who [have held] that Bristol-Myers did not
16
“informational injury” that conferred standing on Appellants
under Spokeo, Inc. v. Robins, 578 U.S. 330 (2016). See J.A.
10–11, 21. Since then, however, the Supreme Court decided
TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021),
providing additional guidance regarding the concreteness
requirement and prompting RealPage to renew its standing
challenge on appeal. Appellees’ Br. 22–31.
To establish standing, a plaintiff—whether acting in her
individual capacity or as a putative class representative—bears
the burden of establishing: “(1) an injury-in-fact; (2) that is
fairly traceable to the defendant’s challenged conduct; and
(3) that is likely to be redressed by a favorable judicial
decision.” St. Pierre v. Retrieval-Masters Creditors Bureau,
Inc., 898 F.3d 351, 356 (3d Cir. 2018) (citing Lujan v. Defs. of
Wildlife, 504 U.S. 555, 590 (1992)); see also Spokeo, 578 U.S.
at 338 n.6. At issue here is the first element of injury-in-fact,
and specifically, the requirement that the alleged injury be
concrete—that is, “real” as opposed to “abstract,” TransUnion,
141 S. Ct. at 2204 (quoting Spokeo, 578 U.S. at 340), “even in
the context of a statutory violation,” Spokeo, 578 U.S. at 341.
We first consider what showing of concreteness is required
under the Supreme Court’s informational injury cases and then
address whether, under that case law, Appellants have
established such an injury.
a. The Informational Injury Doctrine
With the rapid onset of the Information Age, the
Supreme Court’s jurisprudence on standing to challenge the
change the personal jurisdiction question with respect to class
actions.” (collecting cases)).
17
denial of information subject to disclosure has evolved rapidly
as well. In this context, the Supreme Court has repeatedly
recognized that an “informational injury,” where a plaintiff
alleges that she “failed to receive . . . information” to which she
is legally entitled, is sufficiently concrete to confer standing.
TransUnion, 141 S. Ct. at 2204, 2214; see also Spokeo, 578
U.S. at 340–42; Fed. Election Comm’n v. Akins, 524 U.S. 11,
24–25 (1998); Public Citizen v. Dep’t of Justice, 491 U.S. 440,
449 (1989).
Drawing on the Court’s most recent pronouncements in
TransUnion, RealPage argues that Appellants fail to state an
informational injury because they allege only a “bare
procedural violation” and “identified no downstream
consequences” from the omitted source information,
Appellees’ Br. 26, 30 (quoting TransUnion, 141 S. Ct. at
2213–14). 8 RealPage would have us hold that Appellants
8
RealPage also argues that Appellants lack standing
because there is no historical analogue to their injury.
Appellees’ Br. 27–28. Although in TransUnion the Supreme
Court explained that certain other types of intangible harms
require “a ‘close relationship’ to [] harm[s] ‘traditionally’
recognized as providing a basis for a lawsuit in American
courts,” TransUnion, 141 S. Ct. at 2204 (quoting Spokeo, 578
U.S. at 341), we do not understand TransUnion’s passing
discussion of informational injury, nor any other informational
injury case, to import a historical analogue requirement into the
standing analysis for informational injury claims. See id. at
2214; Tailford v. Experian Info. Sols., Inc., 26 F.4th 1092,
1100 (9th Cir. 2022) (explaining that TransUnion does not
prevent determination that an allegation of nondisclosure in
violation of Section 1681g is sufficiently concrete); Trichell v.
18
failed to establish the requisite “downstream consequences”
because they did not act on the source information after
RealPage disclosed it in discovery. Appellees’ Br. 28–30. The
upshot is that RealPage’s interpretation of TransUnion would,
in essence, limit the informational injury doctrine to the facts
of the Court’s prior informational injury cases.
But TransUnion did not cast doubt on the broader
import of those decisions. In fact, the Court cited Public
Citizen and Akins with approval, reaffirming their continued
viability and putting TransUnion in context. See TransUnion,
141 S. Ct. at 2214. These earlier cases show that “a plaintiff
suffers an ‘injury in fact’ when [she] fails to obtain information
which must be publicly disclosed pursuant to a statute,” Akins,
524 U.S. at 21 (citing Public Citizen, 491 U.S. at 449), and that
an informational injury is sufficiently concrete where the
failure to disclose is “directly related to” to the purpose of the
statute, id. at 24–25. In those cases, the Court explained that,
as with documents wrongly withheld in response to a Freedom
of Information Act (“FOIA”) request, “those requesting
information under [the statute] need show [only] that they
sought and were denied specific agency records.” Public
Citizen, 491 U.S. at 449 (collecting cases). Thus, under Akins
and Public Citizen, a plaintiff need only allege that she was
Midland Credit Mgmt., Inc., 964 F.3d 990, 1004–05 (11th Cir.
2020) (rejecting the contention that plaintiffs had stated an
informational injury but not imposing a historical analogue
requirement); see also Laufer v. Arpan LLC, 29 F.4th 1268,
1273–74 (11th Cir. 2022) (finding intangible injury despite
lack of common law analogue where plaintiff pleaded concrete
stigmatic injury causing “frustration and humiliation” and a
“sense of isolation and segregation”).
19
denied information to which she was legally entitled, and that
the denial caused some adverse consequences related to the
purpose of the statute.
Spokeo, which immediately preceded TransUnion,
made a similar point. Like the Court in TransUnion, the
Spokeo Court cited Public Citizen and Akins with approval,
explaining that a plaintiff “need not allege any additional harm
beyond the one Congress has identified” in enacting the statute,
contrasting the situation where, for example, a consumer
reporting agency provided information that was “entirely
accurate” and merely “fail[ed] to provide the required notice to
a user of the agency’s consumer information.” 578 U.S. at 342.
That injury wouldn’t be sufficiently concrete because,
notwithstanding the CRA’s failure to give the proper notice,
the consumer’s alleged “injury” would not arise from the harm
Congress sought to prevent in the FCRA: namely, having
incorrect information disseminated without notice or consent.
Id.
In TransUnion, the Supreme Court applied this
framework to its passing analysis of informational injury. It
rejected an argument that the plaintiffs had suffered an
informational injury under Public Citizen and Akins when
TransUnion allegedly failed to provide them with required
disclosures in a format specified by the FCRA. 141 S. Ct. at
2214. Unlike their counterparts in its earlier informational
injury cases, the Court reasoned that the TransUnion plaintiffs
“did not allege that they failed to receive any required
information[, t]hey argued only that they received it in the
wrong format.” Id. Also in contrast to the Court’s earlier
cases, the TransUnion plaintiffs had not alleged “adverse
effects” such as “downstream consequences” of the omission.
Id. (quotation omitted). Thus, the Court did not amend the
20
informational injury doctrine in TransUnion; rather, it simply
applied its prior precedent and determined that two critical
requirements for establishing an informational injury were
lacking: (1) the denial of information and (2) some
consequence caused by that omission. 9
Whether framed as “adverse effects” or a “downstream
consequence[],” TransUnion, 141 S. Ct. at 2214, the upshot is
the same: a plaintiff seeking to assert an informational injury
must establish a nexus among the omitted information to which
she has entitlement, the purported harm actually caused by the
specific violation, and the “concrete interest” that Congress
identified as “deserving of protection” when it created the
disclosure requirement. Tailford v. Experian Info. Sols., Inc.,
26 F.4th 1092, 1100 (9th Cir. 2022); see also TransUnion, 141
S. Ct. at 2214. Notably, in none of these cases were the
plaintiffs required to allege or prove that they would do
anything with the information once disclosed, nor did
9
Similarly, the Court in TransUnion favorably cited
Trichell v. Midland Credit Management, where the Eleventh
Circuit distinguished Akins and Public Citizen on the grounds
that those cases involved statutes that created “substantive
entitlement to receive information” and plaintiffs who
“identified consequential harms from the failure to disclose the
contested information.” 964 F.3d at 1004. By contrast, the
Trichell plaintiffs complained “not that they sought and were
denied desired information” or that they were actively misled,
“but that they received unwanted communications that were
misleading and unfair” and these communications “had no
impact on them.” Id.
21
TransUnion suggest that a plaintiff’s failure to act on the
information, if disclosed, would be dispositive.
In the wake of TransUnion, other Courts of Appeals
have likewise concluded that “depriv[ation] of information to
which [one] is legally entitled” constitutes a sufficiently
concrete informational injury when that omission causes
“adverse effects” and the information has “some relevance” to
an interest of the litigant that the statute was intended to
protect. Laufer v. Looper, 22 F.4th 871, 880–81 & n.6 (10th
Cir. 2022) (quoting Griffin v. Dep’t of Lab. Fed. Credit Union,
912 F.3d 649, 654 (4th Cir. 2019)); see also Harty v. W. Point
Realty, Inc., 28 F.4th 435, 444 (2d Cir. 2022) (same); Laufer v.
Arpan LLC, 29 F.4th 1268, 1280–82 (11th Cir. 2022) (Jordan,
J., concurring) (describing Public Citizen and Akins as
requiring an omission of information and concomitant
“downstream consequences”). In the FCRA context in
particular, our sister circuits have found non-disclosure a
sufficiently concrete injury where it prevented the plaintiff
from receiving “fair and accurate reporting of their credit
information,” Tailford, 26 F.4th at 1100, or affected their
ability to “obtain the information [they] needed to cure [their]
credit issues, [or] ultimately resolve those issues,” Dreher v.
Experian Info. Sols., Inc., 856 F.3d 337, 347 (4th Cir. 2017).
In sum, rather than working a sea change to its
informational injury jurisprudence, the Supreme Court in
TransUnion simply reiterated the lessons of its prior cases:
namely, to state a cognizable informational injury a plaintiff
must allege that “they failed to receive . . . required
information,” and that the omission led to “adverse effects” or
other “downstream consequences,” TransUnion, 141 S. Ct. at
2214 (internal quotation omitted), and such consequences have
22
a nexus to the interest Congress sought to protect, Spokeo, 578
U.S. at 342.
b. Appellants Have Standing
Applying these precepts here, Appellants have standing
because they have made the requisite showing of (1) the
omission of information to which they claim entitlement,
(2) “adverse effects” that flow from the omission, and (3) the
requisite nexus to the “concrete interest” Congress intended to
protect.
As to the first requirement, the FCRA creates a
“substantive entitlement” to the disclosure of source
information, Trichell v. Midland Credit Mgmt., Inc., 964 F.3d
990, 1004 (11th Cir. 2020), in order to empower consumers to
avoid “being unjustly damaged because of inaccurate or
arbitrary information in [their] credit report[s],” Cortez, 617
F.3d at 706 (quoting S. Rep. No. 91–517, at 1 (1969)). And
unlike TransUnion where the plaintiffs alleged only a
“formatting violation,” 141 S. Ct. at 2214, or Trichell where
the plaintiffs alleged only that they “received unwanted
communications that were misleading and unfair,” 964 F.3d at
1004, Appellants here claim that they sought disclosure of
information “to which [they were] legally entitled,” Looper, 22
F.4th at 880, and that RealPage failed to disclose that
information. See J.A. 10–11. Specifically, Appellants
requested a file disclosure pursuant to 1681g(a), which requires
RealPage to disclose, among other things, “[t]he sources of the
information” contained in that file, 15 U.S.C. § 1681g(a)(2),
and RealPage produced the Rental Reports it generated for its
clients, which did not disclose the third-party vendors from
which it gathered its information.
23
Appellants also satisfy the second requirement by
alleging that the omission of this third-party vendor
information had “adverse effects.” TransUnion, 141 S. Ct. at
2214 (quoting Trichell, 964 F.3d at 1004). There were errors
in their files—Kelly’s report erroneously included two DUI
convictions and a misdemeanor conviction for an outdated
inspection tag, while Bey’s mistakenly included a civil action
for possession and an eviction filing, J.A. 5, 34–43, 51–54—
and the omission of RealPage’s sources allegedly impaired
their ability to correct these errors. See J.A. 204–05, 215, 235–
38, 241–43; Kelly Decl. ¶¶ 5–6, 8–9; Bey Decl. ¶ 5–6. Neither
Kelly nor Bey ever convinced RealPage to correct their reports;
both were denied the apartments for which they applied; the
error caused Kelly to “needlessly waste[] [his] time” and
caused him “confus[ion]” and “unnecessary distress,” Kelly
Decl. ¶ 9, and Bey, allegedly due to the error, has only been
able to secure public housing. See J.A. 204–05, 215, 235–38,
241–43. The omissions thus directly “affected [Appellants’]
conduct” by impairing their ability to “obtain the information
[they] needed to cure [their] credit issues, and ultimately
resolve those issues.” Dreher, 856 F.3d at 347.
Finally, RealPage’s failure to disclose the third-party
vendor information satisfied the third requirement by
preventing Appellants from obtaining “fair and accurate
reporting of their credit information,” Tailford, 26 F.4th at
1100, frustrating Congress’s goal of empowering consumers to
“correct[] inaccurate information” in their credit files and
preventing them “from being unjustly damaged because of
inaccurate or arbitrary information in [their] credit report[s],”
Cortez, 617 F.3d at 706 (internal quotations omitted).
And contrary to RealPage’s contention, whether
Appellants would have taken action on the third-party vendor
24
information if disclosed is irrelevant. 10 A consumer cannot
know ex ante the source of a potential error in their file,
whether an underlying source of the CRA itself is responsible
for the error, or what may be required to obtain a correction.
That is the very purpose of the disclosure requirement. See
Cortez, 617 F.3d at 706. It is therefore enough for standing
purposes for plaintiffs to allege that, as a result of an omission,
they experienced the adverse effects of being “unable to . . .
ensure fair and accurate reporting of their credit information.”
Tailford, 26 F.4th at 1100.
Appellants have made those allegations here, so we
uphold the District Court’s determination that Appellants have
standing.
B. Class Certification
Though we agree with the District Court’s standing
analysis, we disagree, at least in part, with its bases for denying
class certification, predominance, and ascertainability.
a. Predominance 11
We begin with predominance. To determine whether
this requirement is satisfied, a court must engage in a “rigorous
10
To be clear, it was not until Appellants initiated this
lawsuit that RealPage disclosed the missing information or
admitted fault for the errors, which remain uncorrected. J.A.
60, 143, 218–20.
11
The District Court determined that the “superiority
analysis and the predominance inquiry are bound together.”
J.A. 22. Having concluded that “trial of this case [would]
25
assessment” of whether common evidence may be used to
prove “the essential elements of the claims brought by a
putative class.” Gonzalez, 885 F.3d at 195 (citing In re
Hydrogen Peroxide, 552 F.3d at 311–12). Here, the District
Court identified two essential elements that it concluded could
not be proven with common evidence, each of which we
address below: (1) that the request triggering the obligation
was a direct request from the consumer, and not the property
manager’s request that the consumer be sent a courtesy copy
of a Rental Report; and (2) that the consumer expressly
requested her “file,” and not for example, her “report” or her
“information.” J.A. 19, 20–21.
require substantial individual inquiry,” the Court held that a
“class action [would] not [be] a superior method of resolving
[the case] because the individual nature of the inquiries would
be time-consuming and inefficient.” J.A. 22–23. We agree
that there is substantial overlap in the superiority and
predominance inquiries. Indeed, they have been described as
the “twin requirements” of Rule 23(b)(3), which were both
“adopted ‘to cover cases in which a class action would achieve
economies of time, effort, and expense . . . without sacrificing
procedural fairness.’” Newton v. Merrill Lynch, Pierce,
Fenner & Smith, Inc., 259 F.3d 154, 186 (3d Cir. 2001)
(quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 615
(1997)). And, because the District Court grounded its analysis
of superiority in its finding that predominance had not been
satisfied, we will leave it to the District Court on remand to
reconsider superiority in light of this discussion.
26
1. Does Section 1681g(a) Require a Direct Request
from a Consumer to Trigger Disclosure
Obligations?
Section 1681g, entitled “Disclosures to consumers,”
delineates the six categories of disclosures a CRA must make
to the consumer “upon request,” but it does not state explicitly
that this request must be made by the consumer. 15 U.S.C.
§ 1681g(a). That omission, Appellants contend, shows that
“Congress . . . contemplate[d] [that] indirect requests as well
[as direct requests]” would trigger a CRA’s disclosure
obligation under § 1681g(a). Appellants’ Br. 16. As applied
here, Appellants posit that RealPage’s disclosure of a courtesy
copy of its client’s Rental Report “upon request” of the client
requires the same file and source disclosures as a consumer’s
direct request for her file, so the District Court erred in
concluding that the identity of the requesting party was an
individualized issue that would predominate. See id.; Reply
Br. 14.
We have never addressed the question whether
§ 1681g(a)’s disclosure obligations may be triggered by an
indirect request from a third party as well as by a direct request
by the consumer. Nor, to our knowledge, has any other federal
court, though several have assumed that § 1681g(a) only
applies when consumers request their files directly. 12 We do
12
See, e.g., Nunnally v. Equifax Info. Servs., LLC, 451
F.3d 768, 774 (11th Cir. 2006) (“Under subsection (a)(1), a
consumer reporting agency must disclose ‘all information in
the consumer’s file’ upon a consumer’s request.” (emphasis
added)); Neclerio v. Trans Union, LLC, 983 F. Supp. 2d 199,
209 (D. Conn. 2013) (“[S]ection 1681g allows a consumer to
27
so today, however, and conclude that Appellants’ reading is
wrong as a matter of law. “[R]equest” in § 1681g(a) does refer
exclusively to direct requests from consumers, and thus, the All
Requests class cannot satisfy predominance.
The text of the FCRA makes this clear in a number of
ways. First and foremost, it appears that property managers’
requests that Appellants receive courtesy copies do not
implicate § 1681g at all. Rather, entirely different sections of
the FCRA authorize a “user” of a consumer report to request a
consumer report, § 1681b; see also Bibbs, — F.4th at — , 2022
WL 3149216, at *5 (examining the “range of permissible
users” under the FCRA), and to “disclos[e] the contents of the
report to the consumer,” at least if an adverse action has been
taken by the user based “on the report,” § 1681e(c). 13 And for
review the contents of their file by requiring a consumer
reporting agency to ‘clearly and accurately disclose to the
consumer,’ upon the consumer’s request” (emphasis added));
Slyzko v. Equifax Info. Servs. LLC, 2020 WL 1433518, at *3
(D. Nev. Mar. 23, 2020) (“FCRA § 1681g(a) requires a
consumer reporting agency to, ‘upon [the] request’ of a
consumer who furnishes proper identification, ‘clearly and
accurately’ disclose six categories of information.” (emphasis
added)); see also Cisneros v. U.D. Registry, Inc., 46 Cal. Rptr.
2d 233, 249 (Cal. Ct. App. 1995) (holding that “requests for
disclosure [must] come from the consumer personally rather
than from his or her representative,” including an attorney
authorized to make the request).
13
In full, Section 1681e(c) provides that “[a] consumer
reporting agency may not prohibit a user of a consumer report
furnished by the agency on a consumer from disclosing the
28
today, we need not decide whether a “user” may only disclose
a report to the consumer after “an adverse action” has been
taken against that consumer, nor whether § 1681e(c) allows a
“user” to not only disclose a copy but also to cause it to be
disclosed, as the property managers did here through their
instructions to RealPage. J.A. 179–180. It is sufficient for our
purposes that Congress made clear when a third party like a
property manager could request and disclose a “courtesy copy”
of the report to the consumer, and it made no such provision in
§ 1681g(a). See Gallardo ex rel. Vassallo v. Marstiller, 142 S.
Ct. 1751, 1759 (2022) (“[W]e must give effect to, not nullify,
Congress’ choice to include [] language in some [statutory]
provisions, but not others” (citing Russello v. United States,
464 U.S. 16, 23 (1983)). Thus, when property managers asked
RealPage to send consumers courtesy copies of their Rental
Reports, those requests fell within the ambit of § 1681e(c),
rather than § 1681g.
The text of § 1681g confirms it relates only to direct
requests of consumers. Subsection (a), for example, expressly
states that a CRA’s disclosure to a consumer is made “subject
to section 1681h(a)(1),” which provides that, upon receiving a
“request,” a CRA must require “the consumer [to] furnish
proper identification” before turning over her file. 15 U.S.C.
§ 1681h(a)(1). A third-party requester would be incapable of
compliance with this prerequisite for disclosure. Section
1681g thus outlines a process by which the consumer, and the
contents of the report to the consumer, if adverse action against
the consumer has been taken by the user based in whole or in
part on the report.” 15 U.S.C. § 1681e(c).
29
consumer alone, can make a request and trigger the CRA’s
specified disclosure obligations.
The enumerated categories of information that CRAs
must “clearly and accurately disclose” upon request reinforce
that reading, as several make provision for particular
preferences of the requesting consumer. Id. § 1681g(a). For
example, the first category covers “[a]ll information in the
consumer’s file . . . except that . . . if the consumer to whom
the file relates requests that the first 5 digits of [her] social
security number . . . not be included in the disclosure . . . the
[CRA] shall so truncate [the] number,” upon “appropriate
proof of the identity of the requester.” Id. § 1681g(a)(1)(A)
(emphasis added). The third category is the identity of each
person who procured a report and “upon request of the
consumer, the address and telephone number of [such]
person.” Id. § 1681g(a)(3)(A)–(B). And the last category—a
“statement that the consumer may . . . obtain a credit score”—
is triggered only “[i]f the consumer requests [a] credit file and
not the credit score.” Id. § 1681g(a)(6). The plain language of
each of these § 1681g(a) disclosures indicates that the
requester and the consumer are one and the same.
Our construction of § 1681g(a) is also supported by
contextual clues from surrounding sections. For example, in
specifying the range of prices a CRA may charge for § 1681g
disclosures, the statute is explicit that such disclosures are
initiated at the request of the consumer. Compare id.
§ 1681j(a)(1) (explaining that the subset of CRAs classified as
“[n]ationwide consumer reporting agencies” must make
“disclosures pursuant to section 1681g” for free at least “once
during any 12-month period upon request of the consumer”
(emphasis added)), and id. § 1681j(b)–(d) (identifying
particular instances when all other CRAs must make § 1681g
30
disclosures for free “[u]pon the request of the consumer” or
when the “the consumer makes a request” (emphasis added)),
with id. § 1681j(f) (explaining that CRAs may “impose a
reasonable charge on [the] consumer” in connection with a
Section 1681g disclosure “[i]n the case of a request from a
consumer” that does not fit into one of the aforementioned
categories (emphasis added)).
Likewise, the FCRA allows consumers to choose
whether the § 1681g(a) disclosures are made in writing and
whether they are delivered in person, by telephone, by
electronic means, or by any other reasonable means available
to the CRA. Id. § 1681h(b). There is no analogous provision
for third-party requesters to designate the method of delivering
to the consumer, see Nken v. Holder, 556 U.S. 418, 430 (2009)
(“[W]here Congress includes particular language in one
section of a statute but omits it in another section . . . it is
generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion.” (quoting
INS v. Cardoza-Fonseca, 480 U.S. 421, 432, (1987))), and in
view of § 1681h(b), a CRA in receipt of a § 1681g(a) request
from a third party would be unable to effect delivery on the
consumer without the consumer’s request in any event.
The sharp constraint on third parties’ participation in the
§ 1681g disclosure process provides additional evidence that
the FCRA does not empower such parties to cause the
disclosure of a consumer’s file to the consumer. Even when a
consumer opts to review her file “accompanied by one other
person of [her] choosing,” that person “shall furnish reasonable
identification,” and the consumer may be required to “furnish
a written statement granting permission to the [CRA] to discuss
the consumer’s file in such person’s presence.” 15 U.S.C.
§ 1681h(d). Such strictures on third-party involvement, even
31
in the consumer’s presence, belie Appellants’ contention that
third parties have an unrestricted right to request that
§ 1681g(a) disclosures be made to the consumer. 14 See
Appellants’ Br. 16.
Finally, a comparison of § 1681g(a) with the FCRA
sections dealing with disclosures to third-party users solidifies
our conclusion. Section 1681g is entitled “Disclosures to
consumers,” and for the reasons we have explained, anticipates
that the recipient is also the requesting party. So too do the
sections governing disclosures to users. See, e.g., id.
§ 1681b(b)(2) (covering disclosures to employers, providing
that “a person may not procure a consumer report” for
employment purposes without meeting certain conditions and
having the consumer’s “authoriz[ation] in writing”); id.
§ 1681b(a)(4) (disclosures to “the head of a State or local child
support enforcement agency”); id. § 1681b(b)(4)(A)
(disclosures to “an agency or department of the United States
Government which seeks to obtain and use a consumer report”
for employment purposes); id. § 1681f (explaining when “a
consumer reporting agency may furnish identifying
information respecting any consumer . . . to a governmental
14
As amici helpfully note, construing § 1681g(a) to
allow third parties to “control the entire request process” would
also frustrate Congress’s goal of protecting consumer privacy
by making “the third party [] a key intermediary between the
CRA and [the] consumer.” Br. of Amici Curiae Consumer
Data Indus. Ass’n and Pro. Background Screening Ass’n at 24.
That goal is evidenced, in part, by “the lengths [] Congress
went” toward safeguarding privacy concerns, including
through § 1681h(a)(1) and § 1681h(d). Id. at 23.
32
agency”); id. § 1681u (“Disclosures to FBI for
counterintelligence purposes”).
It is also telling that these other sections specify when
the consumer’s authorization is needed and when the consumer
may request disclosure to third parties, whereas § 1681g makes
no similar express provision for third parties to request
disclosures of information. See, e.g., id. § 1681b(a)(2)
(providing that a CRA may “furnish a consumer report . . . [i]n
accordance with the written instructions of the consumer to
whom it relates”); id. § 1681b(c) (explaining that a CRA “may
furnish a consumer report relating to [a] consumer . . . in
connection with . . . [a] transaction that is not initiated by the
consumer only if . . . the consumer authorizes the agency to
provide such report to such person”).
Notably, the disclosures that can be requested by third-
party users are also far more circumscribed than those provided
under § 1681g(a). Compare id. § 1681g(a)(1) (requiring
disclosure of “[a]ll information in the consumer’s file”), with
id. § 1681b(a) (governing the provision of “consumer
report[s],” which need not convey the full contents of the
consumer’s “file”). That makes it all the more implausible that
Congress intended § 1681g(a) to dramatically expand third
parties’ disclosure authority by triggering a CRA’s obligations
simply “upon [a user’s] request,” particularly without saying
so explicitly.
In sum, the text, context, and structure of the FCRA
provide that the District Court was right to distinguish between
consumers who made direct requests under § 1681g and
consumers who received courtesy copies of the property
managers’ Rental Reports (presumably under § 1681e(c)).
Only the former were entitled to the disclosure of all the
33
information in the consumers’ files and the “sources” of that
information. The All Requests class, however, consists of both
types of consumers, so the District Court correctly concluded
that the “essential element” of who made the request,
Gonzalez, 885 F.3d at 196, could not be established “with
common, as opposed to individualized, evidence,” Hayes, 725
F.3d at 359 (citation omitted), and that certification of the All
Requests class should therefore be denied.
2. Is Section 1681g(a)’s Disclosure Obligation
Triggered Only by a Request for a “File”?
We next consider RealPage’s argument that CRAs are
relieved of their obligation to disclose their sources under
Section 1681g(a) whenever a consumer uses a term other than
“file” to make her request. The District Court concluded that
was the case, reasoning that, by requiring a CRA to disclose
“[a]ll information in the consumer’s file at the time of the
request,” 15 U.S.C. § 1681g(a)(1), the statute makes a
“distinction between a request for a file and a request for a
consumer report,” J.A. 13. The Court then denied class
certification of even the Direct Requests subclass on the
ground that the “individual issue [of] whether consumers
wanted a complete file disclosure or just the disclosure of the
consumer report that [RealPage] sent to a potential landlord”
would predominate over class-wide issues because it would
require individual “examin[ation] [of] each class member to
determine what he or she intended to request.” J.A. 21.
We read the statute differently. No doubt, the statute
defines the terms, “file” and “consumer report” and gives them
different meanings. Compare 15 U.S.C. § 1681a(g) (defining
a “file” as containing “all of the information” that a CRA has
“recorded and retained” about a consumer, “regardless of how
34
the information is stored”), with id. § 1681a(d)(1) (defining a
“consumer report” as “any written, oral, or other
communication of any information by a [CRA] bearing on a
consumer’s credit worthiness”). But the defining characteristic
of § 1681g is not whether the consumer uses the word “file” or
“consumer report,” or even “records” or “information”; it is
that the consumer is the one who makes the request. As a
matter of common sense, a consumer’s request for “my
consumer report” effectively requests all the information the
CRA is authorized to disclose under the statute, and under
§ 1681g(a), that includes among other things, all of the
information in the consumer’s file and the sources of that
information. Nothing in the statute’s text, context, purpose, or
history indicates that any magic words are required for a
consumer to effect a “request” under § 1681g(a) or that a
consumer’s request for “my consumer report” is any less
effective at triggering the CRA’s disclosure obligations than a
request for “my file.”
We begin with the statutory text, which—at least in the
context of describing disclosures—does not specify that the
subject of the request even be the “file.” To the contrary,
§ 1681g(a) merely provides that a CRA must disclose six
categories of information “upon request,” with the term,
“request” preceding all six enumerated categories. The most
natural reading of this provision is, thus, that a single
generalized “request” under § 1681g(a) entitles the consumer
to all categories of information outlined in § 1681g(a)(1)–(6),
only the first of which is the “file,” and none of which, notably,
provides for a separate disclosure of a “report.” The text offers
no support for the District Court’s alternative reading, which
would presumably require a consumer to make specific
discrete requests for each of the six categories of disclosure,
35
limiting the CRA’s disclosure obligation to the particular
category expressly requested.
To the contrary, it is apparent that Congress used the
terms “consumer report” and “file” interchangeably in
§ 1681g. For example, § 1681g(c)(2)(A) requires CRAs to
provide a “summary of rights” in “each written disclosure . . .
to the consumer.” That summary must include a description of
“the right of a consumer to obtain a copy of a consumer report
under [Section 1681g(a)].” 15 U.S.C. § 1681g(c)(1)(B)(i),
(c)(2)(A) (emphasis added). So, even within § 1681g,
Congress described the contents of a Section 1681g(a)
disclosure as a “consumer report,” rather than a “file.”
Similarly, in mandating that “[n]ationwide consumer reporting
agencies” make one § 1681g disclosure per year for free, the
statute provides that the agency “shall provide [the] consumer
report . . . not later than 15 days after the date on which the
request [was] received.” Id. § 1681j(a)(2) (emphasis added).
We will not countenance a reading of § 1681g(a) that requires
consumers to speak with greater heed to the FCRA’s technical
definitions than the statute’s own drafters.
Regulations promulgated under the FCRA concerning
CRAs’ disclosure obligations likewise use the terms “file” and
“report” without drawing a distinction between them. See, e.g.,
12 C.F.R. § 1022.138 (defining “[f]ree credit report” as “a file
disclosure prepared by or obtained from . . . a nationwide
consumer reporting agency”); id. § 1022.136 (requiring CRAs
to maintain a “centralized source” for “consumers to request
annual file disclosures” pursuant to § 1681g that includes,
among other things, a statement that the source is intended for
the “ordering [of] free annual credit reports as required by
Federal law”); see also Consumer Fin. Prot. Bureau, CFPB
Bulletin 2012-09, at 1 (Nov. 29, 2012) (explaining that the
36
“[FCRA] requires nationwide specialty consumer reporting
agencies . . . to provide, upon request of a consumer, a free
annual disclosure of the consumer’s file, commonly known as
a consumer report.”).
RealPage’s construction is also at odds with the
statutory goals identified by Congress. See 15 U.S.C.
§ 1681(b) (identifying the “purpose of th[e] subchapter” as to
require “consumer reporting agencies [to] adopt reasonable
procedures,” which are “fair and equitable to the consumer,
with regard to the confidentiality, accuracy, relevancy, and
proper utilization of . . . information”). We have explained that
those “consumer oriented objectives support a liberal
construction of the FCRA” requiring “any interpretation of this
remedial statute [to] reflect those objectives.” Cortez, 617 F.3d
at 706 (quotation omitted). Under RealPage’s reading, on the
other hand, consumers could only access their files pursuant to
§ 1681g(a) if they are familiar with the esoteric distinction
between “files” and “consumer reports” in the Definitions
section of the FCRA. Construing Section 1681g(a) in this way
would severely limit consumers’ “access to . . . information in
[their] file” and frustrate their ability to know when they are
“being damaged by an adverse credit report,” or to “correct[]
inaccurate information” in their report. Id. (quoting S. Rep.
No. 91–517, at 3 (1969)). 15
15
For whatever relevance it may carry, § 1681g’s
history supports the same conclusion. See Unicolors, Inc. v.
H&M Hennes & Mauritz, L.P., 142 S. Ct. 941, 948 (2022)
(noting that “legislative history” may be “persuasive”
regarding Congressional intent). In amending § 1681g(a) to
include the phrase, “all information in the consumer’s file,” the
37
In short, when read as a whole, the statute is
unambiguous in providing that any generalized “request” by a
consumer for the CRA’s information about her triggers the
CRA’s disclose obligation under § 1681g(a). 16 Indeed, despite
Senate Banking, Housing and Urban Affairs Committee made
clear that it “intend[ed] this language to ensure that a consumer
will receive a copy of that consumer’s report.” S. Rep. No.
104–185 at *41 (Dec. 14, 1995) (emphasis added). Prior to the
amendment, CRAs had often complied with disclosure
requests for consumers’ files by “furnishing consumers with
summaries of their reports,” which the Committee worried did
“not provide consumers sufficient access to their reports.” Id.
(emphasis added). This suggests that the FCRA’s drafters
viewed the disclosure of consumers’ files as a means of
providing them with complete copies of reports that had been
requested by third parties, and while they defined the terms
separately, they did not draw a conceptual bright line between
files and consumer reports requested directly by the
consumers. In light of that fact, a CRA should reasonably
understand a request for either a report or a file to implicate
Section 1681g(a)’s disclosure obligations.
16
There may be instances when a consumer expressly
requests only a particular piece of information in a CRA’s
possession, and in those circumstances, some courts have
found it would be “nonsensical . . . to require a consumer
reporting agency to disclose the entire file.” Taylor v.
Screening Reports, Inc., 294 F.R.D. 680, 686 (N.D. Ga. 2013)
(citing Campos v. ChoicePoint, Inc., 237 F.R.D. 478, 484 n.15
(N.D. Ga. 2006). We need not address this scenario in light of
Appellants’ request that we remand to the District Court to
reconsider—with the benefit of our guidance regarding the
38
the legal arguments it now raises to the contrary, RealPage
itself has conformed its conduct to that understanding of the
statute. Throughout the Class Period, whether a consumer
directly requested her Rental Report or her “file,” RealPage
disclosed to her the exact same document. J.A. 4, 117–18, 124.
Nor did RealPage provide for alternative disclosures for the
16,659 consumers who made direct requests on its website;
they were instructed only that a request via the website would
yield a “report and any of the disclosures required by the
federal Fair Credit Reporting Act.” Appellants’ Br. 23
(emphasis omitted). 17 Appellee’s Br. 46; Reply Br. 17.
proper construction of § 1681g(a)—Appellants’ motion to
redefine the subclass as encompassing only the 16,659
consumers who requested their Rental Reports through
RealPage’s website. See Oral Argument 53:10—54:37. We
therefore leave for the District Court to address, if necessary,
whether the hypothetical existence of narrower requests for
information poses an ascertainability or predominance
problem for the proposed class.
17
The District Court also found that reviewing each
individual file to determine whether the file contained public
record information (and was therefore missing third-party
vendor information) would defeat predominance. J.A. 20. For
the reasons we explain below, however, this issue is more
properly addressed under our ascertainability rubric. Although
“ascertainability problems spill into the predominance
inquiry,” Marcus, 687 F.3d at 594 n.3, they serve distinct
purposes. Ascertainability addresses “whether individuals
fitting the class definition may be identified without resort to
mini-trials,” while predominance addresses “whether essential
39
Because the District Court erroneously concluded that
individualized proof would be needed to distinguish requests
for “reports” from those for “files,” it found predominance
lacking on that basis. And as that decision rested on “an errant
conclusion of law,” Hayes, 725 F.3d at 354 (quoting In re
Hydrogen Peroxide Antitrust Litig., 552 F.3d at 312), we will
vacate and remand for the District Court to consider whether
Rule 23(b)(3)’s predominance and superiority requirements
are satisfied with respect to the subclass. 18
elements of the class’s claims can be proven at trial with
common, as opposed to individualized, evidence.” Hayes, 725
F.3d at 359 (citations omitted). As in Hayes, the inquiry into
the existence vel non of public record information in Rental
Reports “focus[es] on whether putative class members fit the
class definition,” and as such we will “analyze[] [this
objection] under the ascertainability framework [rather] than
the predominance framework.” Id.
18
The District Court’s interpretation of the statute also
informed two other rulings that must be revisited in view of our
decision today: Appellants’ request for leave to file a renewed
motion for class certification, which would have allowed
Appellants to redefine the subclass to encompass only
consumers who requested their Rental Reports through
RealPage’s website, see J.A. 30, 288–90, and Appellants’
motion for reconsideration. The Court denied the latter motion
on the ground that Appellants suggested the possibility of
“computer-aided administrative” review only in a footnote,
while the District Court’s individual rules treat substantive
arguments raised in footnotes as waived. J.A. 29. We
recognize that a district court has the “inherent authority to
40
b. Ascertainability
In considering whether to certify a class, a court must
perform a two-pronged “rigorous analysis” to determine
whether ascertainability and Rule 23(b)(3)’s requirements are
satisfied. In re Hydrogen Peroxide, 552 F.3d at 309 (citation
omitted). In determining whether the ascertainability
requirement is satisfied, it must determine that the plaintiff has
(1) “defined [the class] with reference to objective criteria,”
and (2) identified a “reliable and administratively feasible
mechanism for determining whether putative class members
fall within the class definition.” Byrd, 784 F.3d at 163 (quoting
Hayes, 725 F.3d at 355). 19
control its docket,” Knoll v. City of Allentown, 707 F.3d 406,
409 (3d Cir. 2013), and the promulgation and enforcement of
its individual rules falls within this broad power, see, e.g., Lyda
v. CBS Corp., 838 F.3d 1331, 1341 (Fed. Cir. 2016).
Nonetheless, individual rules should not be interpreted so
rigidly as to disregard controlling law simply because a party
points it out in a technically incorrect format. Here,
Appellants’ substantive argument—that the District Court
erred in failing to apply our precedent, holding that a class is
ascertainable where membership can be determined from the
face of the document—was raised in the text of the motion. See
J.A. 283. That the peripheral point—that computerized
assistance may be available to expedite that facial review—
was raised in a footnote hardly seems reason to deem the
argument waived.
19
At class certification, plaintiffs must prove
ascertainability by a preponderance of the evidence, Hayes,
41
Here, the District Court held that, although Appellants
satisfied the first prong by utilizing “objective criteria” to
define the Direct Request subclass, they foundered at the
second prong because identifying putative class members
would require “[a] review of each individual file,” which, “of
course,” was “not administratively feasible.” J.A. 15–16. In
view of our case law, however, we are hard pressed to
understand why that would be so.
Most of the facts relevant to ascertainability are
undisputed: RealPage concedes that it has records of the
relevant files, J.A. 131–32, 141, 154–55, 285–86; see
Appellants’ Br. 21; Appellees’ Br. 49–54, that it produced only
Rental Reports to consumers in response to consumers’ direct
requests, J.A. 4, 117–18, 124, and that it always omitted third-
party vendor information from Rental Reports that contained
public information during the Class Period, J.A. 126, 131–32.
All that remains to ascertain is: (1) which consumers directly
requested their files, and (2) of the files directly requested,
which contained public record information.
As for the first task, RealPage argues that because the
records are kept in separate databases with no “unique
identifier” used across both systems, it would be difficult to
match its records on requests received via its website with its
records on Rental Reports sent out in response to those
requests. Appellees’ Br. 51. Yet, that matching of records is
precisely the sort of exercise we have found sufficiently
725 F.3d at 354, and must establish only that the proposed class
members can be identified; they need not definitively identify
all class members at the certification stage, Byrd, 784 F.3d at
163.
42
administrable to satisfy ascertainability in other cases. See,
e.g., Byrd, 784 F.3d at 169–71 (holding ascertainability
satisfied by the prospect of matching addresses from multiple
as-of-yet unknown sources); Hargrove v. Sleepy’s LLC, 974
F.3d 467, 480 (3d Cir. 2020) (holding ascertainability satisfied
by the prospect of cross-referencing a defendant’s voluminous
records with affidavits from putative class members); City
Select Auto Sales Inc. v. BMW of N. Am. Inc., 867 F.3d 434,
442 (3d Cir. 2017) (same). And to arguments like RealPage’s,
i.e., that a unique identifier, such as a customer number or
social security number, is required to render a simple matching
exercise administrable, we have responded that “where [a
defendant’s] lack of records makes it more difficult to ascertain
members of an otherwise objectively verifiable class, the
[individuals] who make up that class should not bear the cost
of the [defendant’s] faulty record keeping.” Hargrove, 974
F.3d at 470. That is also our answer today: we will not allow
defendants to defeat ascertainability with a strategic decision
to house records across multiple sources or databases. 20
20
To the extent the Direct Requests subclass as
currently defined includes putative class members who
obtained their reports by directly calling or writing to
RealPage, Appellants would also need to establish an
administrable way to identify those consumers who directly
requested a copy of their file but who did not do so using the
form on RealPage’s website. However, RealPage represents
that it lacks the records to determine which consumers received
their reports in response to written or telephonic requests. On
remand, we leave to Appellants whether they wish to propose
an alternative subclass definition, and to the District Court to
43
But what of the second task? Is it administrable to
identify which files contain public record information where
that is clear from the face of each file but would require a file-
by-file review? The District Court apparently took from our
precedent a per se rule that “[a] review of each individual file
is . . . not administratively feasible.” J.A. 16. But that is not
the case, so we take this opportunity to clarify what our case
law requires.
We first adopted the ascertainability requirement in
Marcus v. BMW of North America, LLC, where we held a class
is not ascertainable where “class members are impossible to
identify without extensive and individualized fact-finding or
‘mini-trials.’” 687 F.3d at 593. And in Marcus and our next
two ascertainability cases, Hayes v. Wal-Mart Stores, Inc. and
Carrera v. Bayer Corp., we explained that putative classes are
not ascertainable where either a defendant’s records do not
contain the information needed to ascertain the class or the
records do not exist at all, leading to the “mini-trials” that we
disapproved of in Marcus. See Hayes, 725 F.3d at 355;
Carrera v. Bayer Corp., 727 F.3d 300, 307–08 (3d Cir. 2013).
But, as we qualified in Byrd v. Aaron’s Inc., ascertainability
does not mean that “no level of inquiry as to the identity of
class members can ever be undertaken,” because that would
make Rule 23(b)(3) class certification all but impossible. 784
F.3d at 171 (emphasis in original). We also cautioned that “the
size of a potential class and the need to review individual files
to identify its members are not reasons to deny class
determine, in view of this opinion, whether any putative
subclass as amended is ascertainable.
44
certification.” Id. (quoting Young v. Nationwide Mut. Ins. Co.,
693 F.3d 532, 539–40 (6th Cir. 2012)).
We confirmed these parameters in Hargrove v. Sleepy’s
LLC, where we held that affidavits in combination with
“thousands of pages of contracts, driver rosters, security gate
logs, and pay statements” sufficed to ascertain a class of full-
time drivers for Sleepy’s, despite gaps in the records and the
work required to synthesize “several distinct data sets.” 974
F.3d at 470, 480. Similarly, in City Select Auto Sales Inc. v.
BMW of North America we held that “[a]ffidavits, in
combination with records or other reliable and administratively
feasible means,” could satisfy our ascertainability standard,
867 F.3d at 441, remanding to determine whether there were
any gaps in a database not produced below that could make
identifying putative class members unadministrable, id. at 442
& n.5.
Together, Byrd, Hargrove, and City Select instruct that
a straightforward “yes-or-no” review of existing records to
identify class members is administratively feasible even if it
requires review of individual records with cross-referencing of
voluminous data from multiple sources. And that is precisely
what we have here. Verifying whether there is public record
information in the file requires only an examination of the face
of Rental Reports that are indisputably in RealPage’s
possession, J.A. 131–32, 141, 154–55, 285–86, and does not
require the sort of mini-trial or individualized fact finding at
issue in Marcus, Hayes, and Carrera. Indeed, the review
required here is even more straightforward than in Byrd,
Hargrove, and City Select, as Appellants have already
identified the records they require, demonstrated they are in
45
RealPage’s possession, and explained how those records can
be used to verify putative subclass members. 21
To the extent RealPage’s objection is to the number of
records that must be individually reviewed, that is essentially
an objection to the size of the class, which we stated explicitly
in Byrd is not a reason to deny class certification. 784 F.3d at
171. To hold otherwise would be to categorically preclude
class actions where defendants purportedly harmed too many
people, which would “seriously undermine the purpose” of a
class action to “vindicate meritorious individual claims in an
21
While there is no conveniently marked subsection of
a Rental Report entitled “public records,” that does not render
the class unascertainable. A review of the face of each file
would still answer the binary question of whether the file
contains public records, and the categories of information that
qualify as “public records” are readily identifiable. The
appellate record does not specify which types of public records
appear in Rental Reports. The FCRA identifies several types
of public records that are subject to certain accuracy
requirements: “record[s] . . . that relate[] to an arrest,
indictment, conviction, civil judicial action,”—which we
understand to include records from the civil eviction actions,
like the filing contained in Bey’s file—“tax lien, or outstanding
judgment,” 15 U.S.C. § 1681d(d)(3); see also id. § 1681k(a)(2)
(“record[s] relating to arrests, indictments, convictions, suits,
tax liens, and outstanding judgments”), and so we limit our
ascertainability analysis to considering whether these classes
of public records are present. We take no position on whether
the identification of other kinds of public records in a
consumer’s file could, in some other case, pose an
ascertainability problem.
46
efficient manner.” Id. So long as the review is for information
apparent on the face of the document, the number of files does
not preclude ascertainability. See id. at 170 (“There will
always be some level of inquiry required to verify that a person
is a member of a class . . . . Such a process of identification
does not require a ‘mini-trial,’ nor does it amount to
‘individualized fact-finding[.]’” (quoting Carrera, 727 F.3d at
307)).
In sum, the District Court misapprehended our case law
and therefore erred in denying certification of the Direct
Requests subclass on the basis of ascertainability, as well as
predominance.
IV. CONCLUSION
For the foregoing reasons, we will vacate the District
Court’s order denying class certification of the Direct Requests
subclass and remand for the Court’s reconsideration in light of
this opinion.
47