After a settlement involving claims against Sterling Infosystems, Inc. received final approval, Dish Network, LLC (Dish) continued to fight class certification against satellite television installers who have accused Dish of violating the Fair Credit Reporting Act (FCRA) regarding its use of background checks.
One of the claims asserted against Dish is that it did not provide class members with an appropriate consent and disclosure form under the FCRA. Satellite television contractors who were part of the Dish Network Contractor Program were required to use Sterling to conduct background checks on individual technicians. The disclosure forms identified the contractor as the company obtaining the reports and did not disclose that Dish would also be receiving the information provided by Sterling.
In its Sur-Reply in Opposition to Plaintiff’s Motion for Class Certification, Dish contended that of the proposed class of installers, some were not harmed by Dish allegedly obtaining consumer reports on them without authorization and that they should not be able to bring claims.
According to Dish, several of the proposed class members’ complaints are only that the disclosure forms contained extra information; the complaints are not necessarily about any adverse action against them. According to Dish, these class members were not “wrongfully deprived” of information, and the only information that was omitted from the authorization forms was Dish’s identity.
In addition, Dish argued that it did not intentionally disregard the FCRA’s requirements, and that even if it did, the violation was not willful. Dish further argued that the proposed class did not sufficiently argue that its members meet the commonality requirements established under Rule 23 because courts weigh not just whether members suffered the same violation, but also actual damages, which, according to Dish, will vary between putative class members here.
Finally, Dish argued that the installers improperly raised three new issues in their reply brief: (1) the “informational” injuries; (2) “Dish’s alleged willfulness;” and (3) that class members allegedly suffered the same harm.
Prior to filing its Sur-Reply, Dish requested the Court to consider reserving ruling on the pending Motion for Class Certification until after the United States Supreme Court rules in Spokeo, Inc. v. Robins. The Court entered a briefing schedule, and Dish’s opening brief is due December 5.