Kelly v. Realpage Inc., 2022 U.S. App. LEXIS 23683 (3rd Cir. August 24, 2022) (Krause, C.J.) In late 2018, Appellants Kevin Kelly and Karriem Bey found themselves in just the sort of frustrating predicament the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq., was designed to avoid. Their rental applications were denied based on inaccurate consumer reports generated by a consumer reporting agency, RealPage, Inc. RealPage would not correct the reports unless Appellants obtained proof of the error from its sources; and the identity of RealPage’s sources was not included in the disclosures to Appellants, despite their requests for their files. So Appellants availed themselves of the remedy Congress provided and sued RealPage, claiming it had violated its obligation under the FCRA to disclose on request “[a]ll information in the consumer’s file at the time of the request” and “[t]he sources of th[at] information.” 15 U.S.C. § 1681g(a). Appellants sought damages and attorneys’ fees not only for themselves but also on behalf of a purported class and subclass. The class action did not get far. The District Court denied Appellants’ motion for class certification on the grounds that Appellants failed to satisfy Rule 23(b)(3)‘s predominance and superiority requirements and that their proposed class and subclass were not, in any event, ascertainable. For the reasons explained below, we disagree, and because the Court based its predominance analysis on a misinterpretation of Section 1681g(a) and erred in applying our ascertainability precedent, we will vacate and remand. In sum, rather than working a sea change to its informational injury jurisprudence, the Supreme Court in TransUnion simply reiterated the lessons of its prior cases: namely, to state a cognizable informational injury a plaintiff must allege that “they failed to receive . . . required information,” and that the omission led to “adverse effects” or other “downstream consequences,” TransUnion, 141 S. Ct. at 2214 (internal quotation omitted), and such consequences have a nexus to the interest Congress sought to protect, Spokeo, 578 U.S. at 342. In sum, the text, context, and structure of the FCRA provide that the District Court was right to distinguish between consumers who made direct requests under § 1681g and consumers who received courtesy copies of the property managers’ Rental Reports (presumably under § 1681e(c)). Only the former were entitled to the disclosure of all the information in the consumers’ files and the “sources” of that information. The All Requests class, however, consists of both types of consumers, so the District Court correctly concluded that the “essential element” of who made the request, Gonzalez, 885 F.3d at 196, could not be established “with common, as opposed to individualized, evidence,” Hayes, 725 F.3d at 359 (citation omitted), and that certification of the All Requests class should therefore be denied. Because the District Court erroneously concluded that individualized proof would be needed to distinguish requests for “reports” from those for “files,” it found predominance lacking on that basis. And as that decision rested on “an errant conclusion of law,” Hayes, 725 F.3d at 354 (quoting In re Hydrogen Peroxide Antitrust Litig., 552 F.3d at 312), we will vacate and remand for the District Court to consider whether Rule 23(b)(3)‘s predominance and superiority requirements are satisfied with respect to the subclass. In sum, the District Court misapprehended our case law and therefore erred in denying certification of the Direct Requests subclass on the basis of ascertainability, as well as predominance. For the foregoing reasons, we will vacate the District Court’s order denying class certification of the Direct Requests subclass and remand for the Court’s reconsideration in light of this opinion.
