In Finlay v. Inc., No. 20-cv-1105 (SRN/DTS), 2021 U.S. Dist. LEXIS 49154, at *16-18 (D. Minn. Mar. 16, 2021), Judge Nelson denied a Motion to Dismiss asserting that MyLife did not issue “consumer reports” under the FCRA.

Plaintiff Brion Finlay is a resident of Minnesota and is currently searching for a new job. (Id. ¶¶ 1, 40.) He alleges that it is common for prospective employers to search a prospective employee’s name through Google’s search engine. (Id. ¶¶ 1-2.) When one searches the name “Brion Finlay,” Google generates a search result for “,” stating the following: [*2]  “Brion Finlay (C), 42 -Minneapolis, MN Has Court or Arrest Records ….” (Id. ¶¶ 2-3.) Upon clicking this link, the user arrives at a webpage stating that “Brion DOES have Arrest or Criminal Records” in bolded red text. (Id. ¶¶ 4-5 (emphasis in original).) This webpage then states: “Check Full Background Report to see possible arrest or conviction records we have found on Brion. This may include any DUIs, traffic tickets and outstanding warrants. When applicable, we may show where the crime occurred and provide details about the offense.” (Id. ¶ 5 (emphasis in original).) This webpage also provides a link to “View Brion’s Court, Arrest or Criminal Records.” (Id.) When a user attempts to view Finlay’s “Court, Arrest or Criminal Records” on his MyLife profile, MyLife states that Finlay’s profile may contain “graphic content and sensitive details” and suggests that Finlay is a sex offender—which he is not. (Id. ¶ 8.)  MyLife also provides a “Reputation Score” on Finlay’s profile. To calculate his “Reputation Score,” MyLife allegedly collects and analyzes a variety of information, including certain public records and “user reviews” (i.e., “personal reviews written by others”). (Id. ¶¶ 6,  44.) According to Finlay, MyLife claims on its website that the “Reputation Score” it calculates is “more important than a credit score” and that its “Reputation Scores” may assist in selecting among, inter alia, job applicants, service providers, business opportunities, and dating prospects. (Id. ¶ 11.) Indeed, Finlay alleges that MyLife’s markets its “Reputation Score” to employers. (Id. ¶ 49.) In addition, MyLife’s advertisements acknowledge that employers may use its “Reputation Scores” and that failing to have a good “Reputation Score” may cause consumers to lose out on employment opportunities. (Id. ¶ 50.) For example, in one advertisement, MyLife stated: (1) “Did you ever send out your resume and never hear back?”; and (2) “A bad reputation can hurt you personally and professionally.” (Id. ¶ 12.) According to Finlay, MyLife assigned a “Reputation Score” of 2.32 to 3.51 to him, and MyLife has stated elsewhere that a “Reputation Score” of 2.32 constitutes a poor “Reputation Score.” (Id. ¶¶ 6-7.)

The District Court found that FCRA potentially applies.

MyLife contends that its profiles are not consumer reports because there are no well-pleaded allegations that its profiles are used for employment purposes, or any other covered purposes under the FCRA. (Def.’s Mem. at 16.) Further, MyLife asserts that its “site terms” expressly prohibit parties from using information within MyLife’s profiles in making employment, lending, housing, or insurance decisions. In response, Finlay argues that MyLife does provide consumer reports because MyLife purports to aggregate a variety of personal information, collect “user reviews,” and analyze all of this data to calculate a “Reputation Score” for consumers, such as himself. (Pl.’s Opp’n at 7-8.) Further, according to Finlay, MyLife markets its profiles—highlighting its “Reputation Scores”—to employers, among others, as matters that should factor into employment decisions.  The Court finds that Finlay adequately alleges that MyLife provides “consumer reports” under the FCRA. First, Finlay alleges that his MyLife profile contains information bearing on matters covered by § 1681a(d)(1). (See Am. Compl. ¶ 47.) For example, MyLife’s inclusion of a “Reputation Score” in Finlay’s profile plausibly bears on, at least, his “general reputation.” In addition, Finlay alleges that the information in his MyLife profile “is used,” “expected to be used,” or “collected in whole or in part” for the purpose of serving as a factor in evaluating Finlay’s eligibility for employment. For example, he alleges that MyLife markets its profiles to employers, expects its profiles to be used for employment purposes, and that its profiles are in fact used for employment purposes. (See Am. Compl. ¶¶ 47-50.) Finally, the “site terms” that Finlay and MyLife reference are not properly before the Court at this time, so the Court declines to dismiss Finlay’s Complaint based on what these terms may or may not provide, especially in light of Finlay’s well-pleaded allegations described above. Thus, Finlay plausibly alleges that MyLife provides consumer reports.