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Kelly v. Realpage Inc.

Kelly v. Realpage Inc.

United States Court of Appeals for the Third Circuit

December 15, 2021, Argued; August 24, 2022, Opinion Filed

No. 21-1672

Opinion

 [*205]  KRAUSE, Circuit Judge.

In late 2018, Appellants Kevin Kelly and Karriem Bey found themselves in just the sort of frustrating predicament the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681 et seq., was designed to avoid, see J.A. 5. Their rental applications were denied based on inaccurate consumer reports generated by a consumer reporting agency, RealPage, Inc. RealPage would not correct the reports unless Appellants obtained proof of the error from its sources; and the identity of RealPage's sources was [**2]  not included in the disclosures to Appellants, despite their requests for their files. So Appellants availed themselves of the remedy Congress provided and sued RealPage, claiming it had violated its obligation under the FCRA to disclose on request "[a]ll information in the consumer's file at the time of the request" and "[t]he sources of th[at] information." 15 U.S.C. § 1681g(a). Appellants sought damages and attorneys' fees not only for themselves but also on behalf of a purported class and subclass.

The class action did not get far. The District Court denied Appellants' motion for class certification on the grounds that Appellants failed to satisfy Rule 23(b)(3)'s predominance and superiority requirements and that their proposed class and subclass were not, in any event, ascertainable. For the reasons explained below, we disagree, and because the Court based its predominance analysis on a misinterpretation of Section 1681g(a) and erred in applying our ascertainability precedent, we will vacate and remand.

I. Factual and Procedural Background

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47 F.4th 202 *; 2022 U.S. App. LEXIS 23683 **; 113 Fed. R. Serv. 3d (Callaghan) 1211

KEVIN JOSEPH KELLY; KARRIEM BEY, On behalf of themselves and all others similarly situated, Appellants v. REALPAGE INC., d/b/a ONSITE; RP ON SITE, LLC.

Prior History:  [**1] On Appeal from the District Court for the Eastern District of Pennsylvania. (E.D. Pa. No. 2-19-cv-01706). United States District Judge: Honorable Joshua D. Wolson.

Kelly v. RealPage, Inc., 338 F.R.D. 19, 2020 U.S. Dist. LEXIS 238249, 2020 WL 7479620 (E.D. Pa., Dec. 18, 2020)

CORE TERMS

consumer, disclosure, requests, Rental, ascertainability, records, consumer report, disclose, third-party, class certification, predominance, files, subclass, users, inaccurate, concrete, omission, vendor, cases, consumer reporting agency, triggering, courtesy, disclosure obligations, property manager, public record, website, adverse effect, feasible, putative class member, class action

Banking Law, Consumer Protection, Fair Credit Reporting, Consumer Reports, Business & Corporate Compliance, Insurance Company Operations, Personal & Public Information, Fair Credit Reporting Act, Governments, Legislation, Statutory Remedies & Rights, Liability for Violations, Right to Financial Privacy, Civil Procedure, Special Proceedings, Class Actions, Certification of Classes, Appeals, Standards of Review, Abuse of Discretion, De Novo Review, Appellate Review, Appellate Jurisdiction, Interlocutory Orders, Preliminary Considerations, Justiciability, Standing, Prerequisites for Class Action, Adequacy of Representation, Evidence, Burdens of Proof, Allocation, Constitutional Law, Case or Controversy, Standing, Elements, Burdens of Proof, Injury in Fact, Bank Activities, Loans, Consumer Reporting Agencies, Predominance, Banking & Finance, Fair Credit Reporting, Interpretation, Courts, Authority to Adjudicate, Preponderance of Evidence, Class Members