The opinion of the court was delivered by: Jacqueline Scott Corley United States Magistrate Judge
United States District Court Northern District of California
ORDER DENYING DEFENDANT'S MOTION TO DISQUALIFY COUNSEL AND FOR SANCTIONS (Dkt. No. 51)
Now pending before the Court is Defendant's Motion to Disqualify Counsel and for Sanctions (Dkt. No. 51). Defendant asks the Court to disqualify Plaintiff's counsel because 23 of statements posted about this case on counsel's website. After carefully considering the 24 pleadings and evidence submitted by the parties, and having had the benefit of oral argument 25 on March 13, 2013, the Court DENIES Defendant's motion. 26
In this putative class action, Plaintiff Sergio Ramirez alleges that Defendant Trans Union, LLC, a credit reporting agency, violated the Federal Credit Reporting Act ("FCRA") and the California Consumer Credit Reporting Agencies Act ("CCRAA") by failing to ensure 2 "maximum possible accuracy" of its credit reports and failing to provide consumers with 3 proper disclosures. In particular, Plaintiff alleges that he was denied an auto loan after Trans 4 Union provided a car dealer with a credit report which indicated that Plaintiff's name matched 5 a name on the federal government's Office of Foreign Assets Control ("OFAC") list.
This OFAC alert, as it is known, is a specific type of data provided by consumer reporting agencies 7 on credit reports signifying that the subject of the report is purportedly included in the list of 8 the Office of Foreign Assets Control, Specifically Designated National and Blocked Persons, 9 which includes terrorists, money launderers and narcotic traffickers. (Dkt. No. 1 at ¶¶ 15-16.) 10 11 next day, Plaintiff contacted Trans Union to inquire as to the OFAC alert. He was told he was 12 not on the OFAC list and that he would be sent a copy of his credit report. (Dkt. No. 60-2, 37:2-6.) Plaintiff received a mailed copy of his credit report, and separately, a letter from 14 42:13-14.) Upon receipt of the letter, Plaintiff contacted legal counsel, spoke with Trans 16 Union "a lot of times," and sent Trans Union a letter asking that it take him "off the OFAC 17 list." (Dkt. Nos. 51-2, 54:6-11, p. 29; 60-2, 43:11-25.) Plaintiff then received another letter 18 from Trans Union stating that "we have removed your name from the OFAC name screen 19 alert list." (Id. at 46:15-47:4.) This lawsuit followed. 20 & Brewer, posted on their website after this lawsuit was filed late last year. The posting 22 discussed the underlying action and a prior action brought by Plaintiff's counsel against Trans 23 Union. In that case, Cortez v. TransUnion, LLC, 617 F.3d 688 (3d Cir. 2010), the court held 24 as a matter of first impression that an OFAC alert on a credit report is subject to FCRA 25 reporting requirements. The court also held that Trans Union had negligently failed to 26 comply with FCRA's requirement that consumer reporting agencies follow reasonable 27 procedures to assure the maximum possible accuracy of the information in credit reports. The 28 posting, which Defendant characterizes as a "solicitation," appears on the "California Credit
Plaintiff's wife was subsequently able to qualify by herself and purchased the car.
The Trans Union which indicated that he "potentially matched to the OFAC list." (Dkt. No. 60-2, 15 United States District Court Northern District of California
This motion arises out of a posting Plaintiff's counsel, the law firm Anderson, Ogilvie Law Blog" portion of Anderson, Ogilvie & Brewer's website and is entitled "Credit Reports 2 Tag Consumers as Terrorists or Drug Dealers." (Dkt. No. 51-4.) It was written by Mark F. 3 Anderson a partner at Anderson, Ogilvie & Brewer. The posting describes the Ramirez and 4 Cortez cases, and of particular relevance here, provides the following description of what 5 happened with Plaintiff's attempt to purchase a car: 6 When Mr. Ramirez applied for a car loan at a dealership in Dublin, CA but the dealer rejected his application after the finance manager pulled a Trans Union 7 credit report indicating that he may be a drug trafficker. When Ramirez 8 disputed the report, Trans Union told him there was nothing Ramirez or the credit bureau could do to fix the problem! 9 Id. at 2. The posting also states: 10 If a consumer learns that an OFAC alert tied to your name is being reported to 11 lender, the consumer should write or call the credit bureau that is making the 12 report and ask to be taken off the list. If a credit bureau refuses to remove the United States District Court Northern District of California false alert, the consumer may wish to contact this law firm for further advice.
The parties dispute whether this posting preceded or followed a news article posted on creditcards.com entitled "Credit reports falsely tag consumers as terrorists, drug traffickers" 16 written by Kelly Dillworth. (Dkt. No. 51-5.) The Dillworth article has been republished by 17 many other news outlets. Anderson's posting states that it was posted on November 23, 2012 18 and the creditcards.com article was published December 6, 2012. However, Anderson has 19 filed a declaration under oath stating that although the post is dated November 23, 2012, that 20 is the date Anderson began to draft the post. He did not actually post it on the website until 21 the day after the creditcards.com article ran because he "thought she had expressed some 22 ideas better than my draft post so I edited my draft borrowing some words and phrases from 23 her story." (Dkt. No. 70-1 ¶ 6.) 24
Defendant thereafter filed the underlying motion for disqualification of counsel and sanctions based on the statements in Anderson's posting and the creditcards.com article.
Attorneys who appear before the United States District for the Northern District of California must comply with the California Rule of Professional Conduct. See Civ. L.R. 11-- 4(a) (1) (requiring that all members of the bar of this Court and attorneys permitted to practice 2 before the Court pro hac vice be "familiar and comply with the standards of professional 3 conduct required of members of the State Bar of California"). To determine whether to 4 disqualify counsel, the court applies California law. See In re County of Los Angeles, 223 5 F.3d 990, 995 (9th Cir. 2000). Because motions to disqualify are often tactically motivated 6 and can be disruptive to the litigation process, disqualification is a drastic measure that is 7 generally disfavored and imposed only when absolutely necessary. See Optyl Eyewear 8 Fashion Int'l Corp. v. Sytle Cos., Ltd., 760 F.2d 1045, 1050 ...