The present consumer class action stemmed from Defendant Experian Information Solutions, Inc.’s (“Defendant” or “Experian”) violations of the Fair Credit Reporting Act (“FCRA”) and the California Consumer Credit Reporting Agencies Act (“CCRAA”). Experian violated consumers’ rights under these laws by failing to implement procedures that ensure the highest possible accuracy of the consumer background records it creates and sells. As a result, it produced inaccurate consumer reports that were then sold to third parties.
Experian specifically breached the FCRA and CCRAA by improperly linking innocent consumers to individuals involved in illegal activities, such as terrorists, narcotics traffickers, money launderers, and arms dealers subject to U.S. government sanctions.
Experian filed a motion to exclude or limit the opinions and testimony of Plaintiff’s credit reporting expert witness Evan Hendricks. Plaintiff Maria Pena (“Plaintiff” or “Mrs. Pena”), successor in interest to Jose Pena (“Mr. Pena”), opposed the Motion.
Credit Reporting Expert Witness
Since 1981, Evan Hendricks has been Editor/Publisher and founder of Privacy Times, a newsletter based in the Washington, D.C. area.
He has written a book on credit reports, testified before Congress and the Federal Trade Commission on credit reports a dozen times, maintains an FCRA Certification from the National Credit Reporting Association.
Hendricks has served as a consultant on privacy issues to Federal and State governmental organizations, and businesses.
Want to know more about the challenges Evan Hendricks has faced? Get the full details with our Challenge Study report.
Discussion by the Court
Experian filed a motion to exclude two statements made by Evan Hendricks from the Court’s consideration.
Opinion One: Legal Opinion on Office of Foreign Assets Control (“OFAC”) Information
Experian argued that Hendricks’ statement that Ramirez v. TransUnion, LLC and follow-on decisions “provided that OFAC information is subject to the FCRA and engaging in loose or name-only matching violated the FCRA,” amounts to an improper legal opinion.
The challenged statement is offered in support of Hendricks’ first proffered opinion that “credit reporting agencies have been provided ample guidance on the need for multi factor matching to assure the accuracy of information on credit reports, including OFAC information.” In bolstering his opinion, Hendricks quotes from two court cases, as well as other government bodies such as the Consumer Financial Protection Board.
The Court held that Hendricks’ statement is not an ultimate issue of law because Hendricks is not offering a legal opinion on whether Experian’s specific matching procedures were “reasonable,” a legal standard articulated by the Federal Credit Reporting Act (“FCRA”) and left for the factfinder. Instead, Hendricks is stating there are certain procedures that enforcement authorities, such as courts, found to be lacking in accuracy and Experian is on notice of those deficient procedures.
The Court held that a statement explaining how Experian was on notice of certain procedures courts found to be deficient is testimony within the reasonable confines of Hendricks’ subject area.
Opinion Two: Consumer Access to OFAC Information
Second, Experian stated Hendricks’ opinion that “consumers do not typically have access from third parties to OFAC information on credit reports” is based on “raw speculation.” Experian alleged each source referenced by Hendricks’ in this part of his report is inadequate to establish Hendricks’ opinion.
The Court held that Hendricks’ opinion would be permissible based on his experience alone considering Hendricks has a wealth of experience evaluating the credit reporting industry. Additionally, the sources Hendricks’ cites to bolster his opinion are not speculation or cherry-picked evidence, as Experian argues. For instance, the undisputed fact that the Department of Treasury does not require creditors to notify consumers of OFAC hits on their credit report does make it more likely that consumers are unaware of this information and its effect on their credit score. Further, if Experian takes issue with the basis for Hendricks’ opinion, it is best challenged in front of the ultimate factfinder.
Held
The Court denied Experian’s motion to exclude Plantiff’s credit reporting expert witness Evan Hendricks’ testimony.
Key Takeaway:
Hendricks’ report does not assess the reasonableness of Experian’s specific matching procedures or offers legal conclusions; instead, the report provides a general overview of the industry standards shaped by courts for the purpose of demonstrating what Experian knows or should have known. Hendricks is qualified to provide this relevant opinion.
Case Details:
| Case caption: | Jose Pena V. Experian Information Solutions, Inc. Et Al |
| Docket Number: | 8:22cv1115 |
| Court: | United States District Court for the Central District of California |
| Dated: | November 13, 2024 |
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