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Gomez v. Kroll Factual Data, Inc.

United States District Court, D. Colorado

April 14, 2014

JOSEPH J. GOMEZ, on behalf of himself and all others similarly situated, Plaintiff,
v.
KROLL FACTUAL DATA, INC., Defendant.

ORDER DENYING PLAINTIFF'S MOTION FOR CLASS CERTIFICATION

WILLIAM J. MARTÍNEZ, District Judge.

Plaintiff Joseph J. Gomez ("Plaintiff") brings this consumer class action on behalf of himself and all other similarly situated against Defendant Kroll Factual Data, Inc. ("Defendant"), a consumer reporting agency, for negligent and willful violations of the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681. Before the Court is Plaintiff's Motion for Class Certification ("Motion"). (ECF No. 58.) For the reasons set forth below, the Motion is denied.

I. BACKGROUND

The Office of Foreign Assets Control ("OFAC") maintains a federal registry of individuals and entities that are prohibited by the U.S. Department of Treasury from doing business with the United States, which is called the Specifically Designated National and Blocked Persons list ("OFAC List"). (Compl. (ECF No. 76) ¶ 11.) Defendant sells OFAC information as part of its consumer reports. ( Id. ¶ 14.) Defendant has developed a product called "TruAlert" which is imbedded within one of the sections of its consumer reports. ( Id. ¶¶ 15, 16.) TruAlert notifies the purchaser of the credit report if the credit applicant's name is a match or "similar to" a name on the OFAC List. ( Id. ¶ 17.)

On or about January 17, 2012, Plaintiff applied for a home loan through the Waterstone Mortgage Corporation ("Waterstone"). ( Id. ¶ 47.) Waterstone ordered Plaintiff's Residential Merged Credit Report ("Consumer Report") from Defendant. ( Id. ¶ 48.) The Consumer Report included a TruAlert section stating that Plaintiff uses the "AKA" (alias) "Jose Gomez." ( Id. ¶ 51; ECF No. 15-2 at 3.) The TruAlert section of the Consumer Report also stated that Plaintiff's AKA record was "similar to" "Gabriel Gomez Chavez, " an individual on the OFAC List. (Compl. ¶ 52; ECF No. 15-2 at 2-3.)

On March 27, 2014, Plaintiff filed a Second Amended Complaint ("Complaint") against Defendant, on behalf of himself and all others similarly situated. (ECF No. 76.) Plaintiff alleges that Defendant negligently and willfully violated 15 U.S.C. § 1681e(b) by failing to maintain and follow reasonable procedures to assure the maximum possible accuracy of information in its consumer reports, particularly the section of the report that includes OFAC information. (Compl. ¶ 1.)

In addition to the claims asserted by the individual Plaintiff, the Complaint contains the following "Class Action Allegations":

71. Plaintiff brings this action on behalf of the following Class:
All legal residents of the United States of America for whom Kroll issued a Credit Report ("Report") after September 17, 2010, containing an "OFAC Compliance" section with the notice that "records are similar to the following record(s) in OFAC's SDN list, " where (1) there were three or more names from the OFAC SDN list displayed on the Report, (2) no more than two parts of the individual Class Member's name(s), including any "AKA(s), " were a match with any of the OFAC SDN names displayed on the Report, (3) the two matches were with only a part of two separate OFAC SDN names on the Report, (4) and there was no other matching data for the individual Class Member's data on the Report with information displayed on the Report from the OFAC SDN list, including place of residence, birthdate, Social Security number, and/or passport number.
72. Plaintiff brings this action on behalf of the following Subclasses:
(a) All persons residing in the United States and its Territories with the first name "Joseph" or "Jose" and the last name "Gomez" who had a consumer report sold about them by Defendant to any third party which included an OFAC record, during the period beginning two (2) years prior to the filing of this Complaint and continuing through the date of the resolution of this case; and/or
(b) All persons residing in the United States and its Territories about whom Defendant sold a consumer report to any third party which included a TruAlert entry for Gabriel Gomez Chavez, with a date of birth August 1962 and with a U.S. social security number ending in 9593, but excluding the Mexican national Gabriel Gomez Chavez, during the period beginning two (2) years prior to the filing of this Complaint and continuing through the date of the resolution of this case.

(Compl. ¶¶ 71-72.)

Plaintiff filed the instant Motion for Class Certification on November 18, 2013. (Motion (ECF No. 58).) Defendant filed its response on December 18, 2013. (ECF No. 64.) Plaintiff's filed a Reply on January 16, 2014. (ECF No. 69.) Although the Court initially granted Defendant's request for a hearing on the Motion (ECF No. 71), the Court subsequently determined that it could ...


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