SUSAN FERRARA v. D’AMBROSIO’S DODGE, INC.

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COMPLAINT – CLASS ACTION

INTRODUCTION

1. Plaintiff, Susan Ferrara, brings this action to secure redress for a course of conduct that included the accessing of a consumer report on plaintiff without plaintiff’s consent or for any lawful reason, in violation of the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. (“FCRA”).

JURISDICTION AND VENUE

2. This Court has jurisdiction under 28 U.S.C. §§ 1331 and 1337 and 15 U.S.C. § 1681p(“FCRA”).

3. Venue in this District is proper in that one defendant is located in the District and the other defendant transacted business in this District, and in that the mailing that gave rise to the violations of law complained of was directed to and received by plaintiff in this District.

PARTIES

4. Plaintiff Susan Ferrara is an individual who resides in the Eastern District of Pennsylvania

5. Defendant D’Ambrosio Dodge, Inc., d/b/a Jeff D’Ambrosio Dodge, is a Pennsylvania corporation which operates a car dealership at 1081 E. Lancaster Avenue, Dowingtown, Pennsylvania 19335.

6. Defendant MDA Capital, Inc. is a Florida corporation with its principal place of business at 6036 Central Avenue, Suite A, St. Petersburg, Florida 33707. It is not authorized to do business in Pennsylvania.

FACTS

7. During the two (2) years preceding the filing of this action, plaintiff Susan Ferrara received the documents attached as Exhibit “A” via the United States mail.

8. Exhibit “A” states: “This prescreened offer of credit is based on information in your credit report. . . .”

9. On information and belief, the quoted statement is true.

10. On information and belief, defendants jointly engaged in or arranged for the “prescreening” of consumers based on information in consumer reports held by a consumer reporting agency.

11. Based on the results of such “prescreening,” defendants sent or caused to be sent mailers in the form represented by Exhibit “A” to numerous consumers, including plaintiff.

12. “Prescreening” is usually performed by “data brokers” or “information brokers,” who access consumer report information. By causing data brokers to handle credit information, defendants subject consumers to an increased risk of improper disclosure and identity theft. See, M. Frank, “Privacy Laws and Data Broker Services,” Congressional Testimony, May 10, 2005, Federal Document Clearing House (“data brokers” that perform prescreening services are inviting targets for identity thieves and have been the subject of several recent incidents of such theft).

13. Exhibit “A” is an example of a printed form document.

14. Exhibit “A” bears the name and commercial symbols of D’Ambrosio’s Dodge, Inc., d/b/a Jeff D’Ambrosio’s Dodge, and MDA Capital, Inc.

15. On information and belief, defendants D’Ambrosio’s Dodge, Inc., d/b/a Jeff D’Ambrosio’s Dodge, and MDA Capital, Inc. each approved and authorized the dissemination of material in the form represented by Exhibit “A.”

16. The response telephone number and mail address on Exhibit “A” is used by defendants D’Ambrosio’s Dodge, Inc., d/b/a Jeff D’Ambrosio’s Dodge.

17. On information and belief, defendant D’Ambrosio’s Dodge, Inc., d/b/a Jeff D’Ambrosio’s Dodge obtained business as a result of the dissemination of mailers in the form represented by Exhibit “A.”

18. On information and belief, more than 200 mailers in the form represented by Exhibit “A” were sent.

19. Plaintiff Susan Ferrara had not authorized defendants to access or use plaintiff’s consumer report.

20. Defendants had no reason to believe that plaintiff Susan Ferrara had authorized defendants or defendants’ agents to access plaintiff’s consumer report or use information therein.

21. Plaintiff Susan Ferrara did not initiate any transaction with defendants.

22. The FCRA, 15 U.S.C. § 1681a(d), defines “consumer report” as follows:

The term “consumer report” means any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer’s credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living which is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer’s eligibility for –

(A) credit or insurance to be used primarily for personal, family, or household purposes; . . .

23. The FCRA, 15 U.S.C. § 1681a(f) defines “consumer reporting agency” as:

[A]ny person which, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties, and which uses any means or facility of interstate commerce for the purpose of preparing or furnishing consumer reports.

24. The FCRA, 15 U.S.C. § 1681b, provides it is permissible to obtain or use a consumer credit report on a consumer only with the written consent of the consumer or for certain “permissible purposes,” such as the extension of credit to, or review or collection of an account of, the consumer, employment purposes, the underwriting of insurance, or in connection with a business transaction that it initiated by the consumer, or to make a “firm offer of credit.”

25. The requester must certify to the consumer reporting agency that a permissible purpose exists.

26. As noted, one “permissible purpose” is to extend a firm offer of credit or insurance to the consumer, even where this has not been requested by the consumer.

27. The sending of the material in Exhibit “A” does not constitute a permissible reason for anyone to access plaintiff’s consumer report without plaintiff’s consent.

28. The sending of Exhibit “A” does not qualify as a firm “offer of credit” within the meaning of FCRA, justifying the obtention of a consumer report on a consumer, in that there is no offer, but merely a sales pitch inviting further negotiation, the sending of which is not a permissible purpose for accessing a consumer report. Cole v. U.S. Capital, Inc., 389 F.3d 719 (7th Cir. 2004).

VIOLATION ALLEGED

29. Defendants obtained or used, or caused to be obtained or used, the consumer report of plaintiff Susan Ferrara and every other person to whom Exhibit “A” was sent without their written permission or for a “permissible purpose.”

30. Defendants willfully violated the FCRA.

31. The FCRA, 15 U.S.C. § 1681n, provides:

§ 1681n. Civil liability for willful noncompliance:

(a) In general. Any person who willfully fails to comply with any requirement imposed under this title [15 U.S.C. §§ 1681, et seq.] with respect to any consumer is liable to that consumer in an amount equal to the sum of –

(1) any actual damages sustained by the consumer as a result of the failure or damages of not less than $100 and not more than $1,000; or

(A) in the case of liability of a natural person for obtaining a consumer report under false pretenses or knowingly without a permissible purpose, actual damages sustained by the consumer as a result of the failure or $1,000, whichever is greater;

(2) such amount of punitive damages as the court may allow; and

(3) in the case of any successful action to enforce any liability under this section, the costs of the action together with reasonable attorney’s fees as determined by the court. . . .

32. The FCRA, 15 U.S.C. § 1681p, provides:

§ 1681p. Jurisdiction of courts; limitations of actions

An action to enforce any liability created under this title [15 U.S.C. § 1681 et seq.] may be brought in any appropriate United States district court without regard to the amount in controversy, or in any other court of competent jurisdiction, within two years from the date on which the liability arises, except that where a defendant has materially and willfully misrepresented any information required under this title [15 U.S.C. § 1681 et seq.] to be disclosed to an individual and the information so misrepresented is material to the establishment of the defendant’s liability to that individual under this title [15 U.S.C. § 1681 et seq.], the action may be brought at any time within two years after discovery by the individual of the misrepresentation.

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