Proposed Order Statement of Uncontroverted Facts and Conclusions of Law On LexisNexis Defendant's Motion For Summary Judgement Doc 491-2

Case 8:11-cv-00485-AG-AJW Document 491-2 Filed 04/04/12 Page 1 of 26 Page ID #:12001
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JAMES F. McCABE (CA SBN 104686) JMcCabe@mofo.com MORRISON & FOERSTER LLP 425 Market Street San Francisco, California 94105-2482 Telephone: 415.268.7000 Facsimile: 415.268.7522 MICHAEL B. MILLER (Pro Hac Vice) MBMiller@mofo.com MORRISON & FOERSTER LLP 1290 Avenue of the Americas New York, New York 10104-0050 Telephone: 212.468.8009 Facsimile: 212.468.7900 Attorneys for Reed Elsevier Inc., LexisNexis Risk and Information Analytics Group Inc., LexisNexis, Inc., LexisNexis Risk Solutions, Inc., LexisNexis ChoicePoint, Inc., LexisNexis Seisint, Inc., d/b/a Accurint, and LexisNexis Group Inc.
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA SOUTHERN DIVISION LISA LIBERI, et al., Plaintiffs, v. ORLY TAITZ, et al., Defendants. Case No. 8:11-cv-00485-AG-AJW [PROPOSED] STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW ON LEXISNEXIS DEFENDANTS MOTION FOR SUMMARY JUDGMENT Honorable Judge Andrew J. Guilford Date: May 14, 2012 Time: 10:00 a.m. Dept: 10 D
[PROPOSED] STMT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW CV 09-3319 MMC sf-3128010
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Under Local Rule 56-1, the LexisNexis Defendants hereby submit the following [Proposed] Statement of Uncontroverted Facts and Conclusions of Law in support of their Motion for Summary Judgment. STATEMENT OF UNCONTROVERTED FACTS UNCONTROVERTED FACTS Subsidiaries of Reed Elsevier Inc. are leading providers of global information driven services and solutions bearing the LexisNexis brand. One of the entities that Plaintiffs named as a Defendant in this case is LexisNexis Seisint, Inc. d/b/a Accurint. There is no corporation known as LexisNexis Seisint, Inc., d/b/a Accurint. Simmons Decl. 2; Declaration of Lisa Policastro In Support Of LexisNexis Defendants Motion for Summary Judgment (Policastro Decl.) 2. However, a company then known as Simmons Decl. 2; Policastro Decl. Seisint Inc., ultimately owned by Reed Elsevier Inc., in 2009 operated a database from which Accurint branded reports were prepared. That company is currently known as Simmons Decl. 2; Policastro Decl. LexisNexis Risk Data Management, Inc. (LNRDMI). In 2009, LNRDMIs flagship product was called Accurint, a
SUPPORTING EVIDENCE Declaration of Lisa Simmons In Support Of LexisNexis Defendants Motion For Summary Judgment (Simmons Decl.) 2.
2.
2.
Simmons Decl. 3; Policastro Decl. 3.

1
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UNCONTROVERTED FACTS suite of online information products. Reports and services bearing the Accurint brand differed in the types of information they contained, but all Accurint-branded reports were prepared from information housed in the Accurint database. The Accurint database is currently owned and operated by a company known as LexisNexis Risk Solutions FL Inc. The Accurint products are known primarily as tools for locating persons, verifying identity, and detecting fraud. Accurints subscription customers include many law enforcement agencies, debt collectors, package delivery services and law firms, among others.
SUPPORTING EVIDENCE
Simmons Decl. 3.
Simmons Decl. 3.
Simmons Decl. 4.
Simmons Decl. 4.
10. Accurint products contain primarily public record and commercially available information about individuals assembled from a large number of sources.
Simmons Decl. 5.
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UNCONTROVERTED FACTS 11. The Accurint database contains information from a wide variety of sources, such as telephone directory listings, real property records, UCC and secretary of state filings, professional licenses, selected court filings, and credit header data. 12. The latter consists of files, usually prepared by credit bureaus, that provide information such as individual names, name variants, current and former addresses and social security numbers that are displayed only in truncated form other than to a limited number of qualified customers. 13. Persons with access to the database can conduct a person search based on criteria such as name or address to retrieve all names in the database matching those criteria. 14. Users can then select a returned name to retrieve database information associated with that particular returned name. 15. The types of information returned
SUPPORTING EVIDENCE Simmons Decl. 5.
Simmons Decl. 5.
Simmons Decl. 5.
Simmons Decl. 5.
Simmons Decl. 5.
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UNCONTROVERTED FACTS varies depending on the type of Accurint report selected and the number of records associated with the selected name.
SUPPORTING EVIDENCE
16. The Accurint database does not contain places of birth; mothers maiden names; . . . income; banking information; . . . credit cards . . .; insurance records; [or] medical records . . . 17. The database contains customers [h]ome prices and values only to the extent that such information is found in publicly available documents, such as recorded mortgages or tax assessment rolls. 18. The database does not contain credit records including but not limited to loans with banks and other entities although the database can contain publicly filed security instruments, such as a deed of trust or a UCC-1, to the extent such instruments are available and include such information.
Simmons Decl. 6.
Simmons Decl. 6.
Simmons Decl. 6.
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UNCONTROVERTED FACTS
SUPPORTING EVIDENCE
19. Paragraph 147 of the first amended complaint alleges that the Reed . . . Defendants own, possess and maintain consumer databases of consumer identity and credit information for use in generating and providing background and credit reports . . . 20. This statement is untrue as to LNRDMI, and is largely untrue as to other entities owned directly or indirectly by Reed Elsevier Inc. 21. None of the entities owned directly or indirectly by Reed Elsevier Inc. prepare credit reports. 22. Some companies owned directly or indirectly by Reed Elsevier Inc., such as LexisNexis Risk Screening Solutions Inc. (LNRSSI), do prepare employment background screening reports. 23. However, all reports sold by companies owned directly or indirectly by Reed Elsevier Inc. that are expected or intended to be used
FAC 147.
Simmons Decl. 7.
Simmons Decl. 7.
Simmons Decl. 7.
Simmons Decl. 7.
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UNCONTROVERTED FACTS for credit, insurance, or other eligibility determinations, are sold by entities other than LNRDMI and are prepared using databases other than the Accurint database.
SUPPORTING EVIDENCE
24. Accurint reports are intended to give Simmons Decl. 8. users workable leads to help identify and locate a particular individual, not to provide definitive information about that individual. 25. The reports themselves recognize the uncertainties inherent in this sort of search. They identify Names Associated With the Subject, Possible Associates, Possible Relatives, etc. 26. In addition, the data sources themselves come with certain recognized limitations. Accurint reports include the following notice: Important. The Public Records and commercially available data sources used on reports have errors. Data is sometimes entered poorly, processed incorrectly and is generally not free from defect. This
Simmons Decl. 8.
Simmons Decl. 8.
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UNCONTROVERTED FACTS system should not be relied upon as definitively accurate. Before relying on any data this system supplies, it should be independently verified. For Secretary of State documents, the following data is for information purposes only and is not an official record. Certified copies may be obtained from that individual States Department of State. 27. Accurint reports were delivered in several different ways. 28. LNRDMI sold Accurint reports directly to subscribers who had entered into agreements with LNRDMI or an affiliated company. 29. None of the Taitz or Sankey Defendants had accounts with LNRDMI that gave them access to Accurint reports. 30. In addition, LNRDMI entered into agreements with other information providers (resellers) under which such providers could run searches against the Accurint database to prepare reports that the resellers sold
SUPPORTING EVIDENCE
Simmons Decl. 9.
Simmons Decl. 9.
Simmons Decl. 9; Declaration of Neil Sankey In Support Of LexisNexis Defendants Motion for Summary Judgment (the Sankey Decl.) 8. Simmons Decl. 9.
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UNCONTROVERTED FACTS to their own customers under either their own brand or the Accurint brand. 31. One such Accurint reseller was IRBsearch, LLC (IRB). IRB is a reseller that sells information services to the private investigator and process server sub-market. 32. Defendant The Sankey Firm had an account with IRB that permitted The Sankey Firm to purchase Accurint reports from IRB. 33. A true and correct copy of the Public Record Products Application & Agreement entered into between The Sankey Firm and IRB dated February 21, 2007, (the IRB/Sankey Agreement) is attached as Exhibit A to the Simmons Declaration. 34. LNRDMIs intent and expectation in offering Accurint products for sale was that the Accurint products were not consumer reports within the meaning of the Fair Credit Reporting Act, 15 U.S.C. 1681, et
SUPPORTING EVIDENCE
Simmons Decl. 9; Sankey Decl. 6.
Simmons Decl. 9; Sankey Decl. 6, 8.
Simmons Decl. 9 & Ex. A.
Simmons Decl. 10.
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UNCONTROVERTED FACTS seq. (the FCRA). 35. The following language appears on the webpage that can be found at www.Accurint.com and other Accurint webpages (see, e.g., www.Accurint.com, https://secure.accurint.com/app/bps/ main, etc.): The Accurint services are not provided by consumer reporting agencies, as that term is defined in the Fair Credit Reporting Act (15 U.S.C. 1681, et seq.) (FCRA) and do not constitute consumer reports, as that term is defined in the FCRA. Accordingly, the Accurint service may not be used in whole or in part as a factor in determining eligibility for credit, insurance, employment or for other eligibility determination purposes that would qualify the service as a consumer report under the FCRA.
SUPPORTING EVIDENCE
Simmons Decl. 11.
36. This same language is also included on the customer sign-in page. See
Simmons Decl. 11.
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UNCONTROVERTED FACTS https://secure.accurint.com/app/bps/ main. For security purposes Accurint customers are specifically instructed to access the Accurint product only from this sign-in page.
SUPPORTING EVIDENCE
37. In its standard form subscription agreements with end-users, LNRDMI required such users to agree (a) that Accurint reports were not consumer reports within the meaning of the FCRA, and (b) that the users would not use Accurint reports in determining a consumers eligibility for credit, insurance employment or for any other purpose that would cause Accurint reports to be treated as consumer reports within the meaning of the FCRA. A true and correct copy of the form subscription agreement used for the Accurint product in 2009 is attached as Exhibit B to the Simmons Declaration. 38. While some of the wording in this form has changed over time, the
Simmons Decl. 12 & Ex. B.
Simmons Decl. 12.
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UNCONTROVERTED FACTS essential substance of these provisions has remained the same 39. Among other things, those agreements require each customer, as a condition to obtain any Accurint data product to agree in Section 2(vii) that: For the purposes of this Agreement, the [LexisNexis] entities listed on the first page of this Agreement are not consumer reporting agencies, as that term is defined in the Fair Credit Reporting Act, 15 U.S.C. 1681 et seq. (FCRA), and such entities do not issue consumer reports, as that term is defined in the FCRA. Accordingly, (A) Customer certifies that it will not use any of the information it receives through the LNRM Services for any of the following purposes: (1) in establishing a consumers eligibility for credit or insurance to be used primarily for personal, family or household purposes or in connection with the review or collection of an
SUPPORTING EVIDENCE
Simmons Decl. 12.
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UNCONTROVERTED FACTS existing credit account of a consumer; (2) for employment purposes; (3) in connection with a determination of a consumers eligibility for a license or other benefit granted by a government agency; (4) as a potential investor or servicer, or current insurer, in connection with a valuation of, or assessment of credit or prepayment risks associated with, an existing credit obligation; or (5) for any other purpose deemed to be a permissible purpose under the FCRA; . . .
SUPPORTING EVIDENCE
40. Where LNRDMI entered into agreements with resellers of Accurint products, LNRDMI required such resellers to include in the resellers agreements with their end-users language reflecting the same understanding and use restriction found in LNRDMIs agreements with its end users.
Simmons Decl. 13.
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UNCONTROVERTED FACTS
SUPPORTING EVIDENCE
41. This is illustrated by the Accurint Services Re-Seller Agreement between IRB and LNRDMIs predecessor as of September 3, 2002 (the Re-Seller Agreement), a true and correct copy of which is attached as Exhibit C to the Simmons Declaration. 42. In the Re-Seller Agreement, LNRDMI granted IRB a license to be an authorized re-seller of Accurint Services to the private investigative industry, bail bondsmen and physical asset repossession companies. LNRDMI and IRB expressly agreed in Paragraph 9 that: USE LIMITATIONS Re-Seller specifically agrees that Re-Sellers customers will comply with the following use limitations on the use of the Accurint Services: (a) not to use the Accurint Services for any permitted purpose covered by the Fair Credit Reporting Act (15
Simmons Decl. 13 & Ex. C.
Simmons Decl. 13.
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UNCONTROVERTED FACTS U.S.C. Sec. 1681 et seq.); (b) not to use the Accurint Services other than pursuant to an exception of the privacy provisions of the GrammLeach-Bliley Act (15 U.S.C. Sec. 6801 et seq.); (c) not to use the Accurint Services in violation of the Drivers Privacy Protection Act (18 U.S.C. Section 2721 et seq.); and (d) such other legislation that may be enacted in the future that Seisint determines limits the use of the Accurint Services by the Customers.
SUPPORTING EVIDENCE
43. The Re-Seller Agreement provides in Paragraph 7 that LNRDMI shall solely be responsible for the provision of the Accurint Service to the Re-Seller, but makes clear that IRB shall be responsible for all activities and costs associated with marketing, prospecting, qualifying customers, sales, sales support and contracting with the Customers.
Simmons Decl. 14.
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UNCONTROVERTED FACTS The Customers will contract directly with Re-Seller. 44. The agreement between IRB and The Sankey Firm under which The Sankey Firm ran the searches and reports described above expressly provides: For the purposes of this Agreement, IRBsearch is not a consumer reporting agency, as that term is defined in the FCRA. Accordingly, (A) Customer certifies that it will not use any of the information it receives through IRBSearch Services for any of the following purposes: (1) in establishing a consumers eligibility for credit or insurance to be used primarily for personal, family or household purposes or in connection with the review or collection of an existing credit account of a consumer; (2) for employment purposes; (3) in connection with a determination of a consumers eligibility for a license or other benefit granted by a government
SUPPORTING EVIDENCE
Simmons Decl. 14 & Ex. A.
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UNCONTROVERTED FACTS agency; (4) as a potential investor servicer, or current insurer, in connection with a valuation of, or assessment of credit or prepayment risks associated with, an existing credit obligation; or (5) for any other purpose deemed to be a permissible purpose under the FCRA . . .
SUPPORTING EVIDENCE
45. The IRB account held by The Sankey Firm did not permit the display of full social security numbers. 46. For the majority of customers, Accurint reports do not contain full social security numbers: they contain, instead, the first five digits of the social security number. 47. LNRDMI provides full social security numbers only to law enforcement agencies and certain carefully credentialed customers. 48. None of the searches or reports ran by the Sankey Defendants included
Simmons Decl. 15; Sankey Decl. 7.
Simmons Decl. 15
Simmons Decl. 15.
Simmons Decl. 15.
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UNCONTROVERTED FACTS the full social security numbers of Plaintiff Liberi or Plaintiff Ostella. 49. LNRDMIs records of searches against the Accurint database indicate the subscriber by which the search was made. 50. Where a reseller runs a search against the Accurint database, LNRDMIs records indicate the reseller by which the search was made. 51. Records of searches by resellers indicate which of the resellers customers initiated the search by the reseller. 52. Lisa Policastro is able to determine from LNRDMIs records which searches and reports were purchased by The Sankey Firm, including searches that were initiated through resellers. 53. A user ID that was assigned to Neil Sankey was used to run the following searches with IRB: (a) last name = Liberi and first name = Lisa, Brent (husband) or Vincent
SUPPORTING EVIDENCE
Policastro Decl. 3.
Policastro Decl. 3.
Policastro Decl. 3.
Policastro Decl. 3.
Policastro Decl. 4.
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UNCONTROVERTED FACTS (unknown). The search types were: Person, Business, Court, Civil, Criminal, Marriage & Divorce, and Comprehensive Person. The searches were run on March 16, 2009; April 6, 2009; April 15, 2009; April 19, 2009; and May 7, 2009. (b) last name = Ostella and first name = Lisa, Frank (husband) or Mario (unknown). The search types were: Person and Comprehensive Person. The searches were run on April 13, 2009, and April 19, 2009. 54. As a matter of standard operating practice, LNRDMI did not retain records of which items of data were returned in response to a search criteria, only the criteria used for the search or report. 55. Defendant Neil Sankey obtained the so-called personal identifying information regarding Liberi including her full Social Security number and date of birth from court filings made by Ms. Liberi. 56. Mr. Sankey obtained the court filings directly from courts.
SUPPORTING EVIDENCE
Policastro Decl. 5.
Sankey 3.
Sankey 3.
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UNCONTROVERTED FACTS 57. None of the LexisNexis Defendants was involved in any way in Mr. Sankeys retrieval of these publicly available documents.
SUPPORTING EVIDENCE Sankey 3.
58. Attached as Exhibit A to the Sankey Sankey 4 & Ex. A. Declaration is a true and correct copy of the Declaration of Lisa Liberi that was filed by Ms. Liberi on September 21, 2006, in a criminal action brought against Ms. Liberi in San Bernadino, California (Case No. FWV 028000). In that declaration, Ms. Liberi set forth her full unredacted social security number, her date of birth, her marriage history (along with maiden names and her husbands name) and some portion of her criminal history. 59. Attached as Exhibit B to the Sankey Declaration is a true and correct copy of documents filed by Ms. Liberi in connection with a bankruptcy action filed on behalf of Lisa Liberi in the U.S. Bankruptcy Court in the Central District of California (Bankruptcy Petition No.
Sankey 5 & Ex. B.
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UNCONTROVERTED FACTS 6:02-bk-22845-PC). That document is a public filing which included full unredacted social security numbers related to Ms. Liberi. Although all account and social security numbers appearing as Exhibit B have been at least partially redacted, the original copy on file with the court was unredacted. 60. The Sankey Defendants have never run any search on Plaintiff Lisa Liberi (or the name Lisa Liberi in any capacity) or Plaintiff Lisa Ostella (or the name of Lisa Ostella in any capacity) directly through the LexisNexis Defendants or any of their affiliates.
SUPPORTING EVIDENCE
Sankey 8.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I.
CONCLUSIONS OF LAW THE LEXISNEXIS DEFENDANTS ARE ENTITLED TO SUMMARY
JUDGMENT BECAUSE THEY ARE NOT CONSUMER REPORTING AGENCIES VIS--VIS THE PLAINTIFFS, AND DID NOT PROVIDE A CONSUMER REPORT ON PLAINTIFFS. 1. Summary judgment is appropriate where, reading the record in favor
of the non-moving party, there is no genuine issue as to any material fact, and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett , 477 U.S. 317, 322-23 (1986). 2. A dispute must be as to a material fact to prevent summary judgment.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Material facts are those that are necessary to the proof or defense of a claim, as determined by reference to substantive law. Id. 3. A genuine issue of material fact exists only if sufficient evidence is
presented such that a reasonable fact finder could decide in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Any alleged issue of fact must be genuine. When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. Id. 4. Moreover, the party seeking to oppose summary judgment must do
more than introduce some evidence, a scintilla of evidence, or evidence that is not significant[ly] probative. Anderson, 477 U.S. at 247, 249, 251. Thus, [w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. Matsushita, 475 U.S. at 587 (citation omitted). Summary judgment is appropriate where, as here, the nonmoving party fails to make a sufficient showing on an essential element of his case for which he bears the burden of proof. Celotex, 477 U.S. at 322-23.
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5.
The initial burden is on the moving party to demonstrate an absence of
a genuine issue of material fact. Celotex, 477 U.S. at 322-23. Once that burden is met, the non-moving party must produce enough evidence to rebut that claim and create a genuine issue of material fact. Id. Unless the non-moving party meets this burden, the motion will be granted. Nissan Fire & Marine Ins. Co. v. Fritz Co., Inc., 210 F.3d 1099, 1103 (9th Cir. 2000). 6. Whether a communication constitutes a consumer report is governed
by the language of the statute. See Duncan v. Walker, 533 U.S. 167, 172 (2001) (We begin, as always, with the language of the statute.). Under the FCRA, with other limitations not relevant to this motion, The term consumer report means any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumers credit worthiness [creditworthiness], credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living which is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumers eligibility for (A) credit or insurance to be used primarily for personal, family, or household purposes;
(B) employment purposes; or
(C) any other purpose authorized under [15 U.S.C. 1681b]. 15 U.S.C. 1681a(d)(1) (emphasis added). 7. As recognized by this Courts recent ruling on the Intelius motion for
summary judgment, the Ninth Circuit has held that information furnished to a third party will be construed as a consumer report only if the furnisher of the report expects the user to use the report for a purpose permissible under the FCRA, without regard to the ultimate purpose to which the report is actually put. Comeaux v. Brown & Williamson Tobacco Co., 915 F.2d 1264, 1273-74 (9th Cir. 1990) (citing Heath v. Credit Bureau of Sheridan, 618 F.2d 693, 696 (10th Cir. 1980)).
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8.
In the FTCs staff report, titled 40 Years of Experience With the Fair
Credit Reporting Act, the FTC explained that where the furnisher of information: has taken reasonable steps to insure that the report is not used for [a permissible purpose under the FCRA], and if it neither knows of, nor can reasonably anticipate such use, the report should not be deemed a consumer report by virtue of uses beyond the entity's control. Federal Trade Commission, 40 Years of Experience With the Fair Credit Reporting Act, July 2011, at 22, available at http://www.ftc.gov/os/2011/07/110720fcrareport.pdf. In that same report, the FTC declares that [t]he entity supplying the report might establish that it does not reasonably anticipate such use of the report by requiring the recipient to certify that the report will not be used to determine eligibility for a permissible purpose, by auditing report recipients for compliance, and by taking appropriate action against those who violate such certification. Id. at 22-23. 9. Here, there is no dispute that the LexisNexis Defendants did not and
could not have expected that the information at issue here could have been used for a purpose permissible under the FCRA. In the Reseller Agreement, IRB was limited to selling Accurint Servicers to the private investigative industry, bail bondsmen and physical asset repossession companies. (UF No. 42; Simmons Decl. Ex. C.) IRB was not authorized to sell Accurint Services to typical consumer report users such as lenders, insurance underwriters or employers. (UF No. 42.) The LexisNexis Defendants required IRB to get agreements from IRBs users that they would not so use reports generated from the Accurint database. (UF No. 40.) IRBs contract with The Sankey Firm contained that required use restriction. (UF No. 44.) 10. The fact that the Sankey Defendants did not obtain the reports from the
LexisNexis Defendants but rather from IRB is basis alone to grant summary judgment in favor of the LexisNexis Defendants on the Thirteenth and Fourteenth
[PROPOSED] STMT OF UNCONTROVERTED FACTS
AND CONCLUSIONS OF LAW
Causes of Action, which allege that LexisNexis provided credit reports to

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unauthorized third parties without a permissible purpose in violation of 15 U.S.C. 1681b. (FAC 341-64.) Since the LexisNexis Defendants did not sell any reports at issue in the case to the Sankey Defendants, any obligations that Plaintiffs claim arose from the sale of the reports arose on the part of IRB as the reports sole seller. 11. For those who purchase reports from LNRDMI, the Accurint website
included an express warning that Accurint reports are not consumer reports, and a requirement that any direct purchaser of an Accurit report to expressly agree to this treatment. (UF Nos. 35-36.) This is consistent with the holding in Mende v. Dun & Bradstreet, Inc., F.2d 129 (9th Cir. 1982), where the court held that the CCRAA was not violated because Dun & Bradstreet require[]d that its subscribers sign an agreement that they will use reports on businesses only as a basis for credit to businesses in their capacities as such. Id. at 132. 12. Mende was decided under California law, but its reasoning has been
applied to the FCRA as well. See Forrest v. Secured Funding, Inc., No. 05-C-1324, 2007 WL 81878 (E.D. Wis. Jan. 8, 2007). In Forrest, the district court ruled that the report at issue was not a consumer report because the contract between the defendant and the company expressly provided that the data in the report was not collected for credit purposes and is not intended to be indicative of any consumers credit worthiness, credit standing, credit capacity, or other characteristics listed in Section 603(d) of the Fair Credit Reporting Act. Id.; see also Cavaliere v. Burke, 50 F.3d 1033, 1995 WL 136229, at *3 (5th Cir. 1995) (per curiam) (the relevant question in determining whether a credit report is a consumer report falling within the scope of the FCRA is whether the report was prepared for an enumerated FCRA purpose); Ippolito v. WNS, Inc., 864 F.2d 440, 449-50 (7th Cir. 1988) (same). 13. Indeed, the undisputed relevant facts here show more than just that the
LexisNexis Defendants did not and could not have expected that the information at
[PROPOSED] STMT OF UNCONTROVERTED FACTS
AND CONCLUSIONS OF LAW
issue here could have been used for an eligibility determination of the type that
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qualifies a report as a consumer report. The undisputed facts show that the purchaser of the Accurint reports here (the Sankey Defendants, through IRB) neither intended to nor used the reports in a way that would make them consumer reports. The simple reality is that whatever else this case might be about, it has nothing whatsoever to do with the terms of or the policy underlying the FCRA. CONCLUSION Based on the foregoing, there is no genuine issue as to any material fact. Accordingly, the LexisNexis Defendants Motion for Summary Judgment should be GRANTED in its entirety.
IT IS SO ORDERED. Dated:_____________, 2012 The Honorable _Andrew Guilford United States District Judge
Respectfully Submitted By: JAMES F. MCCABE MORRISON & FOERSTER LLP
By: /s/ James F. McCabe James F. McCabe Attorneys for Defendants Reed Elsevier Inc., LexisNexis Risk and Information Analytics Group Inc., LexisNexis, Inc., LexisNexis Risk Solutions, Inc., LexisNexis ChoicePoint, Inc., LexisNexis Seisint, Inc., d/b/a Accurint, and LexisNexis Group Inc.
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Proposed Order Statement of Uncontroverted Facts and Conclusions of Law On LexisNexis Defendant's Motion For Summary Judgement Doc 491-2

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Case 8:11-cv-00485-AG-AJW Document 491-2 Filed 04/04/12 Page 1 of 26 Page ID #:12001

Case 8:11-cv-00485-AG-AJW Document 491-2 Filed 04/04/12 Page 2 of 26 Page ID #:12002

Simmons Decl. 3; Policastro Decl. 3.

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SUPPORTING EVIDENCE Simmons Decl. 5.

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Case 8:11-cv-00485-AG-AJW Document 491-2 Filed 04/04/12 Page 7 of 26 Page ID #:12007

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Case 8:11-cv-00485-AG-AJW Document 491-2 Filed 04/04/12 Page 9 of 26 Page ID #:12009

Simmons Decl. 9; Sankey Decl. 6.

Simmons Decl. 9; Sankey Decl. 6, 8.

Simmons Decl. 9 & Ex. A.

Simmons Decl. 10.

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Simmons Decl. 11.

Simmons Decl. 11.

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Simmons Decl. 12 & Ex. B.

Simmons Decl. 12.

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Simmons Decl. 12.

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Simmons Decl. 13.

Case 8:11-cv-00485-AG-AJW Document 491-2 Filed 04/04/12 Page 14 of 26 Page ID #:12014

Simmons Decl. 13 & Ex. C.

Simmons Decl. 13.

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Simmons Decl. 14.

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Simmons Decl. 14 & Ex. A.

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Simmons Decl. 15; Sankey Decl. 7.

Simmons Decl. 15.

Simmons Decl. 15.

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SUPPORTING EVIDENCE Sankey 3.

Sankey 5 & Ex. B.

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Case 8:11-cv-00485-AG-AJW Document 491-2 Filed 04/04/12 Page 22 of 26 Page ID #:12022

CONCLUSIONS OF LAW THE LEXISNEXIS DEFENDANTS ARE ENTITLED TO SUMMARY

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The initial burden is on the moving party to demonstrate an absence of

Case 8:11-cv-00485-AG-AJW Document 491-2 Filed 04/04/12 Page 24 of 26 Page ID #:12024

Causes of Action, which allege that LexisNexis provided credit reports to

CV 09-3319 MMC sf-3128010

Case 8:11-cv-00485-AG-AJW Document 491-2 Filed 04/04/12 Page 25 of 26 Page ID #:12025

CV 09-3319 MMC sf-3128010

Case 8:11-cv-00485-AG-AJW Document 491-2 Filed 04/04/12 Page 26 of 26 Page ID #:12026

Respectfully Submitted By: JAMES F. MCCABE MORRISON & FOERSTER LLP

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