Boothe v. TRW Credit Data, 80 Civ. 5073 (CBM).

• Decision Date: 21 October 1982
• Docket Number: No. 80 Civ. 5073 (CBM).,80 Civ. 5073 (CBM).
• Citation: 557 F. Supp. 66
• Parties: Philip BOOTHE, Plaintiff, v. TRW CREDIT DATA and Fidelifacts/Metropolitan, N.Y., Inc., Defendants.
• Court: U.S. District Court — Southern District of New York

557 F. Supp. 66

Philip BOOTHE, Plaintiff, v. TRW CREDIT DATA and Fidelifacts/Metropolitan, N.Y., Inc., Defendants.

No. 80 Civ. 5073 (CBM).

United States District Court, S.D. New York.

October 21, 1982.^*

Lewis G.P. Ashton, Jamaica, N.Y., for plaintiff.

Wexler & Burkhart, P.C. by Stephen B. Wexler, David Hirschberg, New York City, for defendant Fidelifacts/Metropolitan, N.Y., Inc.

Townley & Updike by Jerome P. Coleman, Walter F. Timpone, New York City, for defendant TRW Credit Data.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

MOTLEY, Chief Judge.

Plaintiff, Philip Boothe, brought this action against TRW Credit Data (TRW) and Fidelifacts/Metropolitan, N.Y., Inc. (Fidelifacts) charging them with having violated the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., through the dissemination of a credit report about plaintiff. The following are the court's Findings of Fact and Conclusions of Law upon the trial of this action, which took place on June 2-4 and June 9, 1982.

Findings of Fact

Plaintiff, Philip Boothe, was a mail importer of various items for resale (Tr. 59-60). Defendant TRW is a credit reporting agency which receives, assembles, stores and reports consumer credit information to its subscribers (Tr. 339). Defendant Fidelifacts is an investigative agency which is a contractual subscriber of TRW (Pre-Trial Order (PTO) ¶ 11). Plaintiff operated his business under the name Quality Mail Order House (PTO p. 2 ¶ 1). Plaintiff had over 30 years of experience in various types of foreign trade at the time of the events at issue (Tr. 64). In September, 1979, plaintiff attempted to enter the liquor business (Tr. 61). To do so, he wrote to a Dr. Paul Singer in September, 1979, receiving in response a list of whiskey importers. On that list was the name of Haecky A.G. of Switzerland (Haecky) (Tr. 62).

After receiving the list from Dr. Singer, plaintiff wrote to Haecky (Tr. 62-63; Plaintiff's Exh. 2). Haecky then asked plaintiff to make offers on two liquors (Tr. 64-65; Plaintiff's Exh. 3). After receiving a $40 money order from Haecky, plaintiff sent Haecky two "sample" bottles of whiskey (Tr. 66).

Haecky is an overseas distributor of Johnny Walker Red Label Scotch, obtaining the liquor directly from the producer of the scotch, Distillers, Ltd., (PTO p. 3, ¶ 6). Haecky notified Distillers of plaintiff's offer to sell its liquor (PTO p. 3, ¶ 7).

Distillers thereupon retained Edward Askew, a private investigator located in London, to investigate Quality Mail Order House to determine if the whiskey plaintiff was offering was contraband or counterfeit (PTO p. 3, ¶ 8). Mr. Askew, in turn, contacted Fidelifacts in New York (Tr. 288, 300). Mr. Berbit, a vice president of Fidelifacts during the period in question, testified that Mr. Askew told him that Mr. Boothe had made an offer to sell whiskeys to the "sole distributor of Johnny Walker Black products in Switzerland" (Tr. 293). Mr. Berbit knew that Distillers had encountered problems with counterfeit whiskey shortly before Mr. Boothe's offer (Tr. 304-05).

Fidelifacts is an investigative organization primarily involved in completing reports on job applicants (Tr. 303). Fidelifacts has advertised itself as a credit reporting agency, but it primarily obtains reports from credit bureaus and furnishes them, or reports which Fidelifacts completes, to entities that request them (Tr. 300, 303).

Mr. Benjamin Molina, a window clerk at the Springfield Gardens Post Office, testified that in November, 1979 a man with the first name of Don and a last name that starts with a "G" came in and sought the address of plaintiff (Tr. 245-46). This man "seemed very upset at the time, so Mr. Molina asked him why he was so upset" (Tr. 247). "Don G" replied that plaintiff somehow had cheated him out of money in a liquor deal and, in Mr. Molina's words, "he asked me at that time if I had any more complaints on him or people trying to locate him and all that" (Tr. 247). The court finds Mr. Molina, a witness uninterested in the outcome of this case, to be wholly credible.

Mr. Berbit testified that as a result of the telephone call from Mr. Askew, he ordered plaintiff's credit report (Tr. 289). In order to obtain plaintiff's credit report, he had to first obtain plaintiff's address from his post office box (Tr. 291). To obtain that address, Mr. Berbit dispatched Mr. Donald Gerogetti, an employee or agent of Fidelifacts, to the post office (Tr. 289, 334-35). Mr. Berbit testified that he did not tell Mr. Gerogetti anything except that he wanted plaintiff's business address (Tr. 335).

The court finds that Mr. Gerogetti was the person Mr. Molina testified came to the post office. The court further finds that Mr. Gerogetti attempted to obtain information about complaints about plaintiff and falsely portrayed himself as a liquor customer of plaintiff. It was undoubtedly not coincidence that Mr. Gerogetti chose the liquor business as the basis of his inquiry. He obviously knew that plaintiff was involved in that business, and that he was suspected by a customer of Fidelifacts of some illicit liquor activity. Mr. Gerogetti learned about plaintiff's involvement in the liquor business from his supervisor, Mr. Berbit. Mr. Berbit's assertion that he told Mr. Gerogetti nothing about why he wanted information on Mr. Boothe is incredible.

Mr. Berbit's oft-stated assertion (Tr. 293-95, 304-07) that he was not aware that the only reason Mr. Askew asked about plaintiff was because he suspected plaintiff of illicit liquor activity is equally incredible. Mr. Berbit knew that Haecky, as the sole distributor of Distillers' liquor in Switzerland, was not likely to purchase liquor by mail from an American retailer or wholesaler. Thus, he knew that the need for the credit report stemmed largely from the investigation taking place. Fidelifacts had only one intention when it obtained plaintiff's credit report. That intention was to aid in an investigation which would attempt to stop a suspected illicit seller of Distillers' goods. There was no intention on the part of Fidelifacts to use plaintiff's report for the purpose of credit, licensing, employment or insurance.

Once Fidelifacts had the information it needed from the Springfield Post Office, it ordered plaintiff's credit report through a terminal in its office (Tr. 289, 343-44, 348-51). The only information (in addition to that needed to identify Fidelifacts) which was put into the terminal to obtain plaintiff's credit report was plaintiff's name and home address (Tr. 291, 325). Fidelifacts did not have to enter any information denominating why it wanted the report, although TRW could require its subscribers to do so (Tr. 360, 403). TRW receives 100,000 requests for reports each day (Tr. 361). Speed is very important to TRW subscribers (Tr. 354).

Fidelifacts, as a subscriber of TRW's services, has entered into a subscriber service agreement with TRW (TRW Exh. B). TRW is a credit reporting agency which stores and reports consumer credit information (Tr. 339). The subscriber service agreement provides in part that Fidelifacts "certifies and agrees that it will request and use credit data received from TRW solely in connection with a credit transaction involving the consumer as to whom a credit profile is sought." (TRW Exh. B, ¶ 8). No other evidence was offered as to steps taken by TRW to ensure that Fidelifacts would not request and automatically obtain reports for whatever reason it so chose. In fact, the evidence presented demonstrates that there is no way for TRW to find out if Fidelifacts requests a report for an improper purpose, unless the latter chooses to tell it so, as there is no way to input on the teletype the purpose for the request (Tr. 352). This is true despite the fact that the computer program of TRW could be written to require subscribers to input the reason for the request (Tr. 360). In the instant case, Fidelifacts obtained plaintiff's report via teleprinter (Tr. 344-45 and TRW Exh. U-1). Fidelifacts did not inform TRW, prior to its receipt of plaintiff's report, that the reason it wanted to obtain the report was to aid in an investigation of plaintiff as a possible counterfeiter (Tr. 355-56).

After his report was released to Fidelifacts, plaintiff learned of Fidelifacts' inquiry (Tr. 83; TRW Exh. G-2). Plaintiff then asked for information regarding Fidelifacts. Eventually, plaintiff informed TRW that he knew nothing of Fidelifacts and asked how it was that the latter came to ask about him (TRW Exh. I). TRW agreed to investigate the Fidelifacts inquiry (TRW Exh. J). TRW then called Fidelifacts (Tr. 375-78; TRW Exhs. K, L). Fidelifacts told TRW that it had no record of having asked for Boothe's file and that TRW could delete its reference to Fidelifacts (Tr. 378-79, 399-400, 449; TRW Exh. L). At trial, Fidelifacts offered no explanation of why it did not acknowledge to TRW that it had requested and obtained plaintiff's report. The court finds that Fidelifacts' unexplained refusal to acknowledge its request to TRW, in conjunction with other circumstances previously described, is evidence of guilty knowledge on the part of the individuals in that organization.

The credit report received by Fidelifacts contained information about plaintiff, his wife, and various paid and unpaid accounts and tax liabilities (Tr. 383-84, 419-420; TRW Exh. M).

Plaintiff values his privacy rights very highly (Tr. 76). On the basis of the number of letters written to TRW by plaintiff, the vigor with which he has pursued the instant action, and his demeanor in court, the court finds that plaintiff was greatly distressed by the unauthorized release of his report by TRW to Fidelifacts and the invasion of his privacy.

Plaintiff suffered no financial or other business loss (PTO ¶ 13).

Conclusions of Law

The court concludes that the report made available by TRW to Fidelifacts was a consumer report as defined by 15 U.S.C. § 1681a. Consumer report is defined...