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Experian Information Solutions, Inc. v. Lifelock

May 19, 2009

EXPERIAN INFORMATION SOLUTIONS, INC., A CORPORATION, PLAINTIFFS,
v.
LIFELOCK, INC., A CORPORATION; AND DOES 1 THROUGH 10, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Andrew J. Guilford United States District Judge

ORDER GRANTING MOTION FOR PARTIAL SUMMARY JUDGMENT

Plaintiff and Counter-Defendant Experian Information Solutions, Inc. ("Experian") has filed a Motion for Partial Summary Judgment ("Motion") against Defendant Lifelock, Inc. ("Defendant") in this case concerning fraud alerts under Section 1681c-1 of the Fair Credit Reporting Act ("FCRA"). The issue here is whether a stated public policy that companies like Experian are not required to process fraud alerts placed by companies, rather than individuals, establishes a public policy that companies like Lifelock must not place such fraud alerts. The Court concludes that there is a public policy against Lifelock placing such fraud alerts, and GRANTS the Motion.

BACKGROUND

Experian is one of three major credit reporting organizations operating in the United States. Lifelock is a corporation offering its customers a "bundle of identity theft protection services." (Counterclaim ¶ 36.) As one of those services, Lifelock submits requests for placement of "fraud alerts" on the credit files maintained by Experian and other consumer reporting agencies. When a consumer reporting agency like Experian receives a valid request for a fraud alert, the reporting agency is required to place certain information in the requesting consumer's file, refer the request to the other reporting agencies, and send the consumer certain disclosures.

Experian's Second Amended Complaint brings several claims against Lifelock, including claims for concealment and suppression of fact, intentional and negligent misrepresentation, unjust enrichment, and violation of various provisions of the California Business & Professions Code, including Section 17200, et seq., known as California's Unfair Competition Law ("UCL"). Lifelock has responded with several counterclaims against Experian. Experian here moves for partial summary judgment on its seventh claim, a UCL claim.

PRELIMINARY MATTERS

To support its Motion, Experian requests that the Court take judicial notice of one document: House of Representatives Report 108-263, Fair and Accurate Credit Transactions Act of 2003, ordered to be printed on September 4, 2003. Under Federal Rule of Evidence 201, "[a] judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." The Court finds House of Representatives Report 108-263 appropriate for judicial notice, and Experian's request is GRANTED. See Fed. R. Evid. 201; Fed. Depost Ins. Corp. v. Jackson-Shaw Partners No. 46, Ltd., 1994 WL 665262, at *8, n. 4 (N.D. Cal. Aug. 12, 1994) (under Rule 201, court may take judicial notice of the legislative history of a statute).

To support its Opposition to the Motion, Lifelock requests that the Court take judicial notice of the web page of the Governor of Connecticut. The Court finds that the material on the Governor's web page is not "capable of accurate and ready determination by resort to sources whose accuracy cannot be questioned." See Fed. R. Evid. 201. The Court declines to take judicial notice of the web page, and Lifelock's request is DENIED. The Court further finds that if it had taken judicial notice of the web page, it would not have reached a different conclusion.

Various objections to evidence have also been filed. The Court has not relied upon any of the evidence under objection.

ANALYSIS

Experian's seventh claim against Lifelock alleges that Lifelock's business practices violate the UCL. The UCL prohibits "any unlawful, unfair or fraudulent business act or practice." Cal. Bus. & Prof. Code § 17200. "The 'unfair' standard, the second prong of...

[S]section 17200,... provides an independent basis for relief." Smith v. State Farm Mut. Auto. Ins. Co., 93 Cal. App. 4th 700, 718 (2001) (internal quotations omitted). It "makes clear that a practice may be deemed unfair even if not specifically proscribed by some other law." Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co., 20 Cal. 4th 163, 180 (1999). The section "was intentionally framed in its broad, sweeping language, precisely to enable judicial tribunals to deal with the innumerable new schemes which the fertility of man's invention would contrive." Id. at 181 (quoting Am. Philatelic Soc. v. Claibourne, 3 Cal. 2d 689, 698 (1935)); Barquis v. Merchs. Collection Ass'n, 7 Cal. 3d 94, 112 (1972) (quoting Am. Philatelic, 3 Cal. 2d at 698). To succeed on its UCL claim, Experian must establish that Lifelock engages in an "unfair" business practice and that Experian has suffered an injury in fact and lost money and property as a result. Gregory v. Albertson's, Inc., 104 Cal. App. 4th 845, 854 (2002); White v. Trans Union, LLC, 462 F. Supp. 2d 1079, 1083-84 (C.D. Cal. 2006); G&C Auto Body, Inc. v. Geico Gen. Ins. Co., 2007 WL 4350907 at *3 (N.D. Cal. Dec. 12, 2007).

A plaintiff may establish that a business practice is "unfair" by showing that it violates an established public policy. People v. Casa Blanca Convalescent Homes, Inc., 159 Cal. App. 3d 509, 530 (1984); Gregory, 104 Cal. App. 4th at 854; Scripps Clinic v. Super. Ct., 108 Cal. App. 4th 917, 939 (2003). Some courts have held that "where a claim of an unfair act or practice is predicated on public policy,... the public policy which is a predicate to the action must be 'tethered' to specific constitutional, statutory or regulatory provisions." Gregory, 104 Cal. App. 4th at 854. Experian argues that Lifelock's business practice of requesting the national consumer reporting agencies to place fraud alerts on consumer files violates Section 17200 of the UCL because it offends a public policy established by the Fair Credit Reporting Act ("FCRA"). The Court agrees.

Section 1681c-1 of the FCRA requires consumer reporting agencies to place a fraud alert "[u]pon the direct request of a consumer, or an individual acting on behalf of or as a personal representative of a consumer, who asserts in good faith a suspicion that the consumer has been or is about to become a victim of fraud or related crime, including identity theft...." 15 U.S.C. § 1681c-1(a). The FCRA expressly defines "consumer" as an "individual," while the statute uses the term "person" to refer to individuals and entities. See 15 U.S.C. §§ 1681a(b); 1681a(c). Experian argues that by using the term "consumer" rather than "person" in Section 1681c-1, Congress expressly excused Experian and ...


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