MICHAEL T. DREHER, Plaintiff - Appellee,
EXPERIAN INFORMATION SOLUTIONS, INC., Defendant-Appellant, and EQUIFAX, INC.; TRANS UNION, LLC; EQUIFAX INFORMATION SERVICES, LLC; CARDWORKS, INC.; CARDWORKS SERVICING, LLC, Defendants.
Argued: March 21, 2017
from the United States District Court for the Eastern
District of Virginia, at Richmond. John A. Gibney, Jr.,
District Judge. (3:11-cv-00624-JAG)
Feder, JONES DAY, New York, New York, for Appellant.
Feder, JONES DAY, New York, New York, for Appellant. Deepak
Gupta, GUPTA WESSLER PLLC, Washington, D.C., for Appellee.
J. McLoon, JONES DAY, Los Angeles, California, for Appellant.
Jonathan E. Taylor, Richard J. Rubin, GUPTA WESSLER PLLC,
Washington, D.C.; Leonard A. Bennett, Matthew J. Erausquin,
Susan M. Rotkis, CONSUMER LITIGATION ASSOCIATES, P.C.,
Newport News, Virginia; Kristi Cahoon Kelly, Andrew Guzzo,
KELLY & CRANDALL, PLC, Fairfax, Virginia, for Appellee.
KING, SHEDD, and THACKER, Circuit Judges.
THACKER, Circuit Judge:
appeal is from a $11, 747, 510 judgment in an approximately
69, 000 member class action. We consider whether the decision
of Experian Information Solutions, Inc.
("Experian") to list a defunct credit card company,
rather than the name of its servicer, as a "source of
. . . information" on an individual's credit report
-- without more -- creates sufficient injury in fact under
the Fair Credit Reporting Act ("FCRA") for purposes
of Article III standing. 15 U.S.C. § 1681g(a)(2).
conclude that where an individual fails to allege a concrete
injury stemming from allegedly incomplete or incorrect
information listed on a credit report, he or she cannot
satisfy the threshold requirements of constitutional
standing. Here, we discern no concrete injury on behalf of
the named plaintiff. Therefore, we vacate and remand with
instructions that the case be dismissed.
2010, Michael Dreher was undergoing a background check for a
security clearance when the federal government discovered he
was associated with a delinquent credit card account.
Dreher's cousin had taken out the credit card in
Dreher's name to cover expenses for a failing bowling
alley. To clear up the matter, Dreher
requested credit reports from three credit agencies,
including Experian. Dreher received a series of Experian
credit reports, which listed a delinquent account under the
names "Advanta Bank" or "Advanta Credit
Cards" (collectively, "Advanta") and provided
Pennsylvania and New York P.O. Box addresses. J.A. 160,
in early 2011, Dreher sent letters to Advanta. First, in
March 2011, he "requested some verification that [he]
owed this debt, " and receiving no response, he sent
another letter on April 15, 2011, which was similar in
content. J.A. 155. Dreher then received a response on Advanta
letterhead dated April 18, 2011, with a March 2011 statement
showing an outstanding balance of $15, 746.94, along with the
online credit card application bearing Dreher's name and
social security number. On May 23, 2011, Dreher sent a
follow-up correspondence "instructing [Advanta] to
delete the inaccurate information from [his] credit
files." Id. Again receiving no response, he
"lost hope that Advanta . . . would fix their
mistake." Id. He contacted Experian directly
about the issue, but still his credit report listed the
delinquent Advanta account. According to Dreher, this process
caused "additional stress and wasted hours of [his]
time." Id. at 156. It did not, however, affect
his security clearance; in fact, based on Dreher's
representation that he was paying down the balance, the
government approved his clearance, which took a total of
eight days to process. The Advanta account was finally
"deleted from Dreher's credit file" on June 6,
2012. Stipulation at 3, Dreher v. Experian Infos.
Sols., No. 3:11-cv-624 (E.D. Va. filed Nov. 6, 2015),
ECF No. 411.
to Dreher, in early 2010, the Utah Department of Financial
Institutions had closed Advanta, which had failed to
withstand the 2008 financial crisis, and named the Federal
Deposit Insurance Corporation ("FDIC") as receiver.
Deutsche Bank Trust Company ("Deutsche Bank")
received a security interest in Advanta receivables and
appointed CardWorks, Inc., and CardWorks Servicing LLC
(collectively, "CardWorks") as servicer of
Advanta's portfolio, effective August 1, 2010. This meant
that CardWorks would "respond to credit card customer
complaints and effect compromises and settlements of
ongoing credit card customer disputes." J.A. 346. In its
capacity as Advanta's servicer, CardWorks decided to do
business using the Advanta name, the phone number Advanta
used prior to August 2010, and the Advanta website, with the
goal of "mak[ing] the servicing transfer seem as
innocuous as possible." Id.
then had to decide how to list Advanta accounts, or
tradelines,  on consumer credit reports.
On October 4, 2010, Tom Wineland, a post-closing asset
manager for the FDIC, signed a letter to Experian agreeing
that the tradeline appearing for all Advanta accounts on
Experian credit reports should bear the Advanta name.
Authorized representatives from CardWorks and the former
Advanta Bank also signed the letter. Wineland explained that
he agreed to using the Advanta moniker because the successor
creditor of the Advanta accounts, Deutsche Bank, remained the
same after Advanta was placed in receivership; in addition,
"Advanta Credit Cards" "was the name least
confusing to cardholders who (a) might not recognize the new
servicer of their credit accounts represented in the
tradelines, and (b) . . . would continue to access their
accounts and make payments at the [Advanta] website."
J.A. 344. Using the name of the initial creditor also