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Ernst v. Dish Network, LLC

United States District Court, S.D. New York

September 22, 2014

SCOTT ERNST, individually and as a representative of a putative class, Plaintiff,
DISH NETWORK, LLC, et al., Defendants

For Scott Ernst, individually and as a representative of the classes, Plaintiff: Adam W. Hansen, Eleanor Michelle Drake, Joseph C Hashmall, PRO HAC VICE, Megan D Yelle, Nichols Kaster, PLLP, Minneapolis, MN; Michele Renee Fisher, Nichols Kaster & Anderson, PLLP, Minneapolis, MN.

For Dish Network, LLC, Dish Network Service, LLC, Defendants: Peter C. Moskowitz, LEAD ATTORNEY, Jackson Lewis LLP (NY), New York, NY; William J. Anthony, LEAD ATTORNEY, Jackson Lewis LLP, Albany, NY; Steven Joshua Seidenfeld, Tara Mercadante, Jackson Lewis P.C. (NY), New York, NY.

For Sterling Infosystems, Inc., Defendant: Megan Starace Ben'Ary, LEAD ATTORNEY, PRO HAC VICE, Robert William Hellner, LECLAIRRYAN(NYC), New York, NY; Richard Ian Greenberg, LEAD ATTORNEY, Jason A Zoldessy, Jackson Lewis LLP (NY), New York, NY; Charles Kalman Seyfarth, PRO HAC VICE, Leclairryan, Richmond, VA; James Andrew McKenna, PRO HAC VICE, Jackson Lewis LLP, Chicago, IL; Lisa Marie Fitzgerald, Traub Lieberman Straus & Shrewsberry LLP, Hawthorne, NY; Meagan Anne Mihalko, PRO HAC VICE, Leclair Ryan, Richmond, VA; Stephen Michael Forte, LeClairRyan, New York, NY.

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Scott Ernst, the named Plaintiff in this putative class action, was a satellite dish installation technician employed by non-party Superior Satellite, Inc. (" Superior" ). Defendants Dish Network L.L.C. and Dish Network Service L.L.C. (collectively " Dish" ) provide satellite television and installation services. Plaintiff alleges that Dish procured a credit report about him from Defendant Sterling Infosystems Inc. (" Sterling" ), a consumer reporting agency, without his consent and without the proper disclosures. He further alleges that the report was used to terminate Plaintiff without Dish providing him with a copy of the report and a summary of his rights in violation of the Fair Credit Reporting Act (the " FCRA" ), 15 U.S.C. § 1681. Plaintiff also asserts that Sterling violated the FCRA by providing outdated information and refusing to provide Plaintiff with its source of information upon request.

Having completed the first phase of discovery, Dish and Plaintiff now cross-move for summary judgment on a single potentially dispositive issue -- whether the type of document obtained by Dish concerning Plaintiff (the " Summary Report" ) is a " consumer report" within the meaning of the FCRA and therefore subject to its strictures. For the reasons discussed below, Plaintiff's motion is granted because the Summary Report is a consumer report as defined by the FCRA.


The facts are taken from the parties' Rule 56.1 statements and the exhibits submitted in connection with the motions, and are undisputed except as otherwise noted.

When customers purchase Dish services, Dish installs a satellite dish at the customers' residences using its own employees or its network of third-party contractors. Installation and service call assignments are assigned through Dish's work order management system called " ETA Direct."

In the fall of 2010, Dish implemented a customer safety program that required third-party contractors to obtain a background report on any technician who entered the home of a Dish customer. Only

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third-party technicians who received a rating of " low risk" as a result of the background report were eligible to receive Dish work assignments or enter the homes of Dish customers. Dish worked with Defendant Sterling to develop a template for the information to be provided to third-party contractors in the reports about their technicians. Dish did not receive a copy of the full background reports. Instead, Dish received for each technician a Summary Report that contained only the following information: the company where the individual worked or was seeking employment; an order number based on the request for a background report; the date the background check request order was opened; the date the order was closed; the individual's first and last name; the last four digits of the individual's social security number; the individual's status in ETA Direct; the type of report that the third-party contractor ordered for the individual; and the individual's risk rating. The risk rating was one of three designations -- " high risk," " low risk," or " review."

Dish established the criteria that triggered these labels. The items in the background report that resulted in a " high risk" rating in the Summary Report included:

o Violent crimes -- " Assault, Terroristic Threats, Stalking, Harassment"
o Property crimes -- " Identity theft, Theft of property, Forgery"
o Sex crimes -- " Rape, Child pornography, Indecent liberties with a minor, Voyeurism" and " Sex offenders -- registered or those who fail to register"
o Drug crimes -- " DUI -- drug, Drug Trafficking/manufacture . . . Prescription fraud, Possession of controlled substance"
o Alcohol-related crimes -- " DUI -- alcohol, Contribute to a minor, Drunk in public"
o " Miscellaneous -- Escape, Perjury, Conspiracy, Evading police officer, Espionage, Accessory . . . Disorderly ...

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