FACTS

On September 11, 2012, Tony Smith (plaintiff) applied for a job as a truck driver with Dart Transit Company through Dart's student driver training program. Dart ordered a criminal background check on Smith from E-Backgroundchecks.com (BGC). Dart ordered a U.S. OneSEARCH, which is an automated computer search of BGC's nationwide criminal database programmed to return results instantaneously. US OneSEARCH reports are prepared by matching identifying information provided by the end users to identifiers contained within the public criminal records in BGC's database, and BGC's practice is to report criminal records that match a consumer's full name and date of birth.

Dart supplied the name "Tony Willie Smith," his date of birth, the state within which he works, and his Social Security number, though the Social Security number was not required. BGC's system identified six criminal records matching plaintiff's first and last name and date of birth and did not contain any middle name.

BGC returned these records to Dart in a two-step process. First, BGC provided Dart with a summary screen showing basic information about

each of the matching records. BGC's system then required Dart to indicate, based on its review of the summary records, whether any records did not match plaintiff. Dart did not indicate that any of the records supplied by BGC were not a match to plaintiff, and it therefore continued on to the second step of the process, which entailed BGC providing Dart with a detailed view of the criminal records that carried over from another screen. Dart was then able to review each record individually and was required to indicate whether each record would negatively affect plaintiff's employment. Following this step, BGC then completed and electronically returned the criminal background report to Dart on September 12, 2012.

Because the report contained public criminal record information, BGC's system automatically generated a letter to Smith, advising him that BGC had reported public record information to Dart and enclosing a copy of the report, a summary of plaintiff's rights under the FCRA, and a dispute form. The letter, dated September 12, 2012, was mailed to Smith, which he received at his home some time after BGC transmitted the report

to Dart.

Smith contacted BGC on September 17, 2012, and disputed the Dart report. Two days later, on September 19, BGC issued a corrected report removing all of the previously reported criminal records provided on the September 12 report and showing that Smith had no matching criminal records. That same day, BGC e-mailed a notice to Dart, advising Dart that it had updated the criminal background issues. On September 20, 2012, Dart approved Smith to begin the training program, which he began on September 25.

On May 20, 2013, Smith filed suit against BGC for inaccurately reported his criminal history on his consumer report and that he was denied employment with Dart due to the inaccurate information, which included convictions for possession of a controlled substance by an unregistered person, carrying firearms without a license, and criminal conspiracy. Smith alleged that BGC "continues to publish and disseminate such inaccurate information to other third parties" in violation of the FCRA.

JUDICIAL OPINION

VINEYARD, Judge

Plaintiff alleges that BGC, by failing to follow reasonable procedures to assure maximum possible accuracy when preparing a criminal background

check, negligently and willfully violated 1681e(b)of the FCRA.

The FCRA provides that "[w]henever a [CRA] prepares a consumer report[,] it shall follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates."

BGC admits that it furnished a report to Dart that inaccurately attributed to plaintiff certain criminal convictions belonging to other individuals with the same first and last name and date of birth. Plaintiff asserts that BGC "had at its disposal the means to determine that the convictions did not belong to [plaintiff], and that [BGC] was able [to] make such a determination within [two days] of being notified of the possible inaccuracy of its initial report."

BGC furnished to Dart an indisputably inaccurate report that did not match plaintiff's full name and social security number that Dart had provided

to BGC. Since BGC had in its possession information that could have been used to demonstrate the inaccuracy of the report it furnished to Dart, there is a material dispute of fact as to whether BGC's initial search procedures were in fact reasonable in this instance because "while requiring a [CRA] to go beyond the face of court records to determine whether [those records] correctly report the outcome of the underlying action may be too much to ask, requiring a [CRA] to correctly determine which public records belong to which individual consumers is not."

BGC maintains that its procedures "will only return matching records where there is a first name, last name, and date of birth match, together with]

no middle name mismatch (i.e., the middle name record does not conflict with what the employer supplied)." BGC argues that "[r]eporting records

that match complete names and dates of birth is a procedure reasonably designed to assure maximum possible accuracy, and is considered industry best-practice." However, that is not what BGC did in this case. Dart provided plaintiff's complete name to BGC, but BGC returned records that only matched plaintiff's first and last name, a very common name at that, and despite having in its possession plaintiff's complete name and social security number, BGC took no steps prior to issuing its initial report to confirm whether the "Tony Smith" criminal records it provided to Dart were associated with the full name and social security number of plaintiff.

Although BGC has submitted evidence of its procedures and its efforts to match criminal records relating to the individual that is the subject of the

background report, plaintiff has submitted evidence that despite BGC's efforts, the records reported did not relate to plaintiff, and he has also pointed to other matching identifiers that did not match his identifying information, as well as shown that BGC is capable of utilizing social security numbers during the dispute process to confirm whether the records are in fact a match to the individual. Indeed, [BGC] even admitted that the automated computer program had no way of differentiating between individuals with the same name and date of birth, and that after it compiled its initial matching records, it then placed the burden on the prospective employer to indicate whether any records did not match the individual.

Accordingly, BGC's motion for summary judgment as to this claim is DENIED.

1. What could and should BGC do differently?