Miller v. RP On-Site, LLC

Background

Brian Miller brought a proposed class action against RP On-Site, LLC, under the Fair Credit Reporting Act, a federal law governing consumer reports. Miller alleged that On-Site violated the law by failing to use reasonable procedures to ensure that its reports were as accurate as possible and by reporting certain adverse information more than seven years old.

Miller sought certification of three proposed classes. The proposed Disciplinary Infraction Class covered people whose On-Site tenant-screening reports allegedly described a department of corrections administrative action as a felony conviction. The proposed Antedated Report Class covered people whose reports allegedly included adverse information other than convictions that was more than seven years old. Miller abandoned the proposed Expungement Class in his reply after accepting several of On-Site’s arguments.

Miller’s own report listed felony convictions and additional records from the Arizona Department of Corrections, most of which concerned disciplinary incidents in prison. The report recommended approving his apartment application under the property’s guideline of considering crimes from the previous decade, and the property approved the application. Miller ultimately chose not to live there because he viewed the property manager as rude.

Legal standard

Under Federal Rule of Civil Procedure 23, a party seeking class certification must prove four requirements: the class is so numerous that individual lawsuits are impractical, members share legal or factual questions, the representative’s claims are typical, and the representative will fairly and adequately protect the class. For the type of class action Miller proposed, the court also had to find that shared questions predominated over individual ones and that a class action was superior to other methods of resolving the dispute.

Reasons for denial

The court first held that Miller failed to prove numerosity, meaning that the proposed classes were large enough that joining all members in separate litigation would be impractical. For the Disciplinary Infraction Class, Miller relied on a law review article stating that at least 52.5 percent of prisoners studied had incurred a disciplinary infraction. The court found that this statistic did not establish how many people were inaccurately reported by On-Site during the proposed class period. The article analyzed state prisoners in 2011 and did not address tenant-screening reports, On-Site, or whether disciplinary actions were incorrectly reported as felony convictions.

For the Antedated Report Class, Miller relied on a law review article concerning expungement rates among people with felony convictions in Michigan. The court found that this information did not show how many On-Site reports contained non-conviction adverse information that was more than seven years old. The court also noted On-Site’s evidence that it generally did not report expunged, sealed, set-aside, or dismissed criminal cases, and that only a small fraction of its reports were disputed or corrected.

The court separately held that Miller was not an adequate class representative. The court found that Miller had repeatedly made false statements in court filings, a sworn interrogatory response, and a sworn declaration. Among other things, he stated that his convictions had been expunged or removed from public records and that all of his former legal rights had been restored, although he acknowledged that those statements were untrue and that the convictions remained publicly available. He also stated that On-Site’s report caused his housing application to be denied, although the application had been approved. The court concluded that these statements directly concerned the FCRA claims and undermined Miller’s ability to represent absent class members.

Disposition

The court denied Miller’s motion for class certification on two independent grounds: failure to prove numerosity and failure to show that he was an adequate class representative. Because either ground independently required denial, the court did not reach On-Site’s other arguments concerning typicality, counsel, commonality, predominance, or manageability. Judge Lucy Koh entered the order on November 25, 2020.