FCRA Short Note: If The Named Plaintiff Lied, Class Certification Will Get Denied

FORREST v. SHENANDOAH NATIONAL BANK, USDC-WIED No. 2:06-cv-11, before Chief USDJ Randa, filed 28 Mar 2007. Not binding on other courts but may be persuasive.

Plaintiff sued Defendant under the Fair Credit Reporting Act, particularly 15 U.S.C. § 1681b, for accessing her consumer credit report without extending a firm offer of credit and without her consent or any other lawful reason to do so. Plaintiff also sought to represent a class of plaintiffs similarly situated, and moved to certify such a class per Fed.R.Civ.P. 23.

Class certification requires adequate representation, both of counsel and of named plaintiff. The court was well familiar with Plaintiff's counsel, whose practice consisted largely of FCRA plaintiff work, and considered counsel very competent to run the case. However, even though the burden to show adequacy of named plaintiff is very light--understand the basic facts underlying the complaint, and participate in discovery--this one did not qualify. The same counsel had represented her in 11 other actions filed in the same U.S. District Court in the previous year, but at Plaintiff's deposition, she denied filing them, and counsel did not attempt to clarify. Also, when presented with the loan solicitation letter over which she was suing, she said it "looks like a loan," and she did not know the status of the current lawsuit. Regardless of the reason for her inadequate answers in deposition, Plaintiff gave the impression of being uninterested and unconcerned, and such a shadow plaintiff could not adequately represent the class. No representative means no class can exist, and all other questions were moot. CLASS CERTIFICATION DENIED.