On July 23, 2014, three new FCRA cases were filed in the Southern District of Florida with a lot of commonality and with some troubling new allegations.

The three cases were filed after the apparent two-year statute of limitations expired. The complaints allege disclosures made in 2010 through May 2012.  As we know, the statute of limitations is two years from the date that the consumer discovered the violation, or five years of the date of the violation, whichever is earlier.  The plaintiffs knew the contents of whatever disclosures were used (or not) at the time of those events.  These cases attempt to redefine what constitutes “discovery” of a violation for purposes of the FCRA.  Established case law is that “discovery” occurs when the plaintiff discovers the conduct that constitutes the violation, not when the plaintiff learns that the conduct violated the FCRA.

The plaintiffs all make a second claim that is new. The new claim is that the authorization (not the disclosure) is invalid on the same basis as the disclosure, even though the FCRA does not limit an authorization in the same way it limits the disclosure.

Case information:

Mack v. Panera LLC, No. 0:14-cv-61672, U.S. Dist. Ct., S.D. Fla.

Mack v. American Multi-Cinema, Inc., No.  0:14-cv-61676, U.S. Dist. Ct., S.D. Fla.

Rumph v. Nine West Holdings Inc., No. 0:14-cv-61673, U.S. Dist. Ct., S.D. Fla.

Commonality:

  • The plaintiff suing Panera (a restaurant chain) and AMC (a movie theater chain) is Sarai Mack.
  • In all three cases, the plaintiffs are represented by Richard Celler of Richard Celler Legal PA in Davies, Florida; and by Jeffrey M. and Dana Gottlieb of Gottlieb & Associates of New York, NY.  FCRA cases appear to be a new line of work to the two firms.
  • The forms of the complaint are nearly identical in substance.
  • The plaintiffs complain about events in New York, but the cases were filed in federal court in Florida.
  • All the claims against employers are limited to alleged violations of Sec. 604(b).
  • All plaintiffs allege that the FCRA employment-purposes disclosure are absent, insufficiently disclosed, and combined with information (not separate).
  • The plaintiffs all make a second claim that is new. The new claim is that the authorization (not the disclosure) is invalid on the same basis as the disclosure, even though the FCRA does not limit an authorization in the same way it limits the disclosure.
  • All three cases were filed on July 23, 2014, after the apparent two-year statute of limitations expired. The complaints allege disclosures made in 2010 and through May 2012.  As we know, the statute of limitations is two years from the date that the consumer discovered the violation, five years of the date of the violation, whichever is earlier.  The plaintiffs knew the contents of whatever disclosures were used (or not) at the time of those events.  It is troubling it is that these cases attempt to redefine what constitutes “discovery” of a violation for purposes of the FCRA.  The established case law is that “discovery” occurs when the plaintiff discovers the conduct that constitutes the violation, not when the plaintiff learns that the conduct violated the FCRA.