Date: 08-10-2015

Case Style: Erica Tierney v. Advocate Health and Hospitals Corporation

Case Number: 14-3168

Judge: Kane

Court: United States Court of Appeals for the Seventh Circuit on appeal from the Northern District of Illinois (Cook County)

Plaintiff's Attorney:

Defendant's Attorney:

Description: In July 2013 burglars stole four
desktop computers from one of Defendant Advocate Health
and Hospitals Corporation’s administrative offices in Illinois.
The computers contained unencrypted private data relating
to approximately four million Advocate patients. Six of the
affected patients brought this putative class action alleging
that Advocate did too little to safeguard their information.  
The plaintiffs asserted claims for willful and negligent
violations of the Fair Credit Reporting Act (the “Act” or
“FCRA”), 15 U.S.C. § 1681, et seq., and state‐law claims for
negligence and invasion of privacy. The district court dis‐
missed the FCRA claims for failure to state a claim; it also
found that four of the plaintiffs lacked standing to sue. Then,
having dismissed the federal claims, the court relinquished
supplemental jurisdiction over the remaining state‐law
claims. See 28 U.S.C. § 1367(c)(3). The plaintiffs appeal the
dismissal of their FCRA claims.
Before turning to the merits, we briefly address the
threshold issue of the plaintiffs’ standing to sue under Arti‐
cle III of the U.S. Constitution. The district court raised this
issue sua sponte because it potentially affects our jurisdiction.
See Rhodes v. Johnson, 153 F.3d 785, 787 (7th Cir. 1998). The
court concluded that two of the plaintiffs, Benkler and Oli‐
ver, had sufficiently concrete, particularized, and impending
injuries to confer standing: the thieves attempted to use the
stolen information to access Benkler’s bank accounts and to
open a cell phone account in Oliver’s name. Benkler and Oli‐
ver’s standing to sue is uncontested, and we agree with the
district court’s conclusion. See Remijas v. Neiman Marcus Grp.,
LLC, No. 14–3122, 2015 WL 4394814, at *3–5 (7th Cir. July 20,
No. 14‐3168 3
2015) (finding standing in similar circumstances), petition for
reh’g en banc filed (Aug. 3, 2015).  
The district court concluded that the four other plaintiffs,
however, lacked standing because their injuries were too
speculative: the thieves had stolen their information but had
not yet misused it. Advocate claims that conclusion was cor‐
rect; the plaintiffs say it was wrong. There is no need to re‐
solve this dispute because “[w]here at least one plaintiff has
standing, jurisdiction is secure and the court will adjudicate
the case whether the additional plaintiffs have standing or
not.” Ezell v. City of Chicago, 651 F.3d 684, 696 n.7 (7th Cir.
2011). Our jurisdiction is secure.
Now to the merits. We review de novo a district court’s
dismissal under Federal Rule of Civil Procedure 12(b)(6).
Meade v. Moraine Valley Cmty. Coll., 770 F.3d 680, 684 (7th Cir.
2014). To survive dismissal, the complaint must allege suffi‐
cient facts to  ʺstate a claim to relief that is plausible on its
face.ʺ Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). We
accept the plaintiffs’ well‐pled facts as true and construe rea‐
sonable inferences in their favor. Thulin v. Shopko Stores Oper‐
ating Co., 771 F.3d 994, 997 (7th Cir. 2014). But “allegations in
the form of legal conclusions are insufficient.” McReynolds v.
Merrill Lynch & Co., 694 F.3d 873, 885 (7th Cir. 2012) (citing
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). So are
“[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements.” Adams v. City of
Indianapolis, 742 F.3d 720, 728 (7th Cir. 2014) (quoting Iqbal,
556 U.S. at 678).
The Act requires every “consumer reporting agency” to
“maintain reasonable procedures” to ensure that it does not
“furnish[] … consumer reports” to unauthorized third par‐
4 No. 14‐3168
ties or for impermissible purposes. 15 U.S.C. § 1681e(a). The
plaintiffs allege that Advocate did not maintain reasonable
procedures and thereby exposed their private information to
the thieves. They seek various forms of relief, including stat‐
utory damages, which the Act makes available for willful
violations even without a showing of actual damages. See id.
§ 1681n(a); Killingsworth v. HSBC Bank Nev., N.A., 507 F.3d
614, 622 (7th Cir. 2007).  
But the plaintiffs must plausibly allege that the reasona‐
ble‐procedures provision applies in the first place, which in‐
cludes, for a start, properly pleading that Advocate is a
“consumer reporting agency.” The Act defines that term, in
relevant part, to mean:
any person which, [1] for monetary fees, dues, or
on a cooperative nonprofit basis, [2] regularly en‐
gages in whole or in part in the practice of assem‐
bling or evaluating consumer credit information or
other information on consumers [3] for the purpose
of furnishing consumer reports to third parties … .
15 U.S.C. § 1681a(f) (numbering added). The complaint al‐
leges that “Advocate is a Consumer Reporting Agency” be‐
cause it “assembl[es] information on consumers” on a “co‐
operative nonprofit basis and/or for monetary fees” for the
“purpose of furnishing Consumer Reports to third parties.”
But these are merely conclusory allegations—a “threadbare
recital” of the statutory elements. Adams, 742 F.3d at 728. On
their own, they are insufficient under Twombly and Iqbal.  
The complaint’s other, more detailed allegations fall short
too. The plaintiffs do successfully plead the second prong of
the statutory definition: the complaint states that Advocate
regularly assembles its patients’ personal and medical in‐
No. 14‐3168 5
formation—including, e.g., names, dates of birth, social se‐
curity numbers, medical diagnoses, and health insurance in‐
formation.  
But the complaint does not satisfy the definition’s first
prong because Advocate does not assemble this information
“for monetary fees.” 15 U.S.C. § 1681a(f) (emphasis added).
The complaint does allege that Advocate transmits patient
information to insurance companies and government agen‐
cies (such as Medicare, presumably) in order to get paid. But
the payments Advocate receives are—in the complaint’s own
words—“for health care services that its physicians have ren‐
dered” (emphasis added). Advocate is not getting paid for
assembling patient information. After all, that is not its busi‐
ness. Advocate is, as the complaint acknowledges, a “net‐
work of affiliated doctors and hospitals that treat patients”—
not a credit or consumer reporting company.
The complaint alleges that Advocate’s patient infor‐
mation serves other purposes as well. The insurance compa‐
nies and government agencies allegedly use it to determine
eligibility and pricing for health services and to set rates for
a variety of insurance products. But, again, none of that
shows that Advocate receives fees in exchange for compiling
and transmitting patient information.  
The plaintiffs’ allegations also fail the third prong of the
statutory definition. To qualify as a “consumer reporting
agency,” Advocate must assemble consumer information
“for the purpose of furnishing consumer reports to third par‐
ties.” 15 U.S.C. § 1681a(f) (emphasis added). A consumer re‐
port includes any communication “bearing on a consumer’s
credit worthiness” which is used to establish the consumer’s
eligibility for credit, insurance, or other listed purposes. Id.
6 No. 14‐3168
§ 1681a(d)(1). But the Act expressly excludes from this defi‐
nition any “report containing information solely as to trans‐
actions or experiences between the consumer and the person
making the report.” Id. § 1681a(d)(2)(A)(i).  
Advocate does not meet this definition. The information
it transmits to insurers is obviously sent to third parties, and
it arguably is used to determine eligibility for insurance cov‐
erage. But the information concerns Advocate’s experiences
with its own patients, including, e.g., personally identifying
information, medical diagnoses, and the names of treating
physicians. It thus falls within the exclusion. See DiGianni v.
Stern’s, 26 F.3d 346, 349 (2d Cir. 1994) (per curiam).
We have found the Act inapplicable in analogous circum‐
stances. In Frederick v. Marquette National Bank, for example,
the plaintiff contracted to buy a condominium from Mar‐
quette National Bank. Marquette asked Frederick for per‐
mission to obtain her credit report; when she refused, Mar‐
quette ordered it anyway. 911 F.2d 1, 1 (7th Cir. 1990). She
sued for alleged violations of the Act. We held that “[t]he
statute is not even potentially applicable” because Marquette
was a bank, not a consumer reporting agency. Id. at 2. More‐
over, we found the plaintiff’s claims not only wrong, but
frivolous. Id. (“When a statute expressly confines liability to
X’s and the defendant is a Y, the suit is frivolous.”).
We reiterated the point in a different context in Mirfasihi
v. Fleet Mortgage Corporation, 551 F.3d 682 (7th Cir. 2008).
There, the plaintiffs, as a class, sued Fleet Mortgage Corpora‐
tion for having transmitted their personal financial infor‐
mation to telemarketing companies, allegedly in violation of
the Act. The district court approved a settlement that placed
no value on the FCRA claim. Id. at 684. (The plaintiffs also
No. 14‐3168 7
brought other claims that did have value, but they do not
concern us here.) We affirmed, holding that the claim (in ad‐
dition to having been forfeited) “has no possible merit, and
in fact is frivolous.” Id. at 686. Fleet, we observed, “is not a
consumer reporting agency—it is a bank.” Id. (citing Freder‐
ick, 911 F.2d at 2).  
Similarly, the Second Circuit concluded in DiGianni that
the term “consumer reporting agency” did not include retail
department stores that merely received and transmitted in‐
formation about their own customers. 26 F.3d at 348–49. The
Eleventh Circuit reached the same conclusion in Rush v. Ma‐
cy’s New York, Inc., where defendant Macy’s “did no more
than furnish information to a credit reporting agency.” 775
F.2d 1554, 1557 (11th Cir. 1985). The Act itself expressly dis‐
tinguishes between companies that furnish information
about their own customers (or patients, etc.) and those that
get paid to assemble, evaluate, and report credit‐related in‐
formation. See 15 U.S.C. § 1681s‐2.1 Advocate falls on the first
side of that line.
Nevertheless, the plaintiffs take another shot at fitting
Advocate within the definition of “consumer reporting
agency.” In an effort to meet the first prong of the definition,
they claim that Advocate assembles and shares its patients’
data “on a cooperative nonprofit basis,” even if not for fees. 15
U.S.C. § 1681a(f) (emphasis added). Specifically, the com‐
plaint alleges that “Advocate, through Advocate Physician
Partners, collects, manages, and shares a multitude of patient
                                                 
1 Section § 1681s‐2 does place certain obligations on those who furnish
information to consumer reporting agencies. But the plaintiffs do not
allege that Advocate violated those obligations.
8 No. 14‐3168
information … in a variety of ways.” It then lists several ex‐
amples: programs to improve health care quality and effi‐
ciency; a Medicare savings program; a “shared savings con‐
tract with its biggest commercial insurance partner”; and the
hiring of “outpatient care managers.”2 There is no allegation
that these programs involve cooperative sharing of infor‐
mation with third parties. Judging by the allegations, these
are internal Advocate programs, with the possible exception
of the insurance contract. Nor is there any claim that these
programs operate on a non‐profit basis. Even drawing rea‐
sonable inferences in the plaintiffs’ favor, we think these al‐
legations are too thin.
Moreover, the allegations do not meet the definition’s
third prong. Using information internally does not count as
“furnishing … to third parties.” 15 U.S.C. § 1681a(f). And
there is no claim that Advocate shares the information so
that the recipient can make determinations of credit or in‐
surance eligibility. In other words, Advocate is not providing
“consumer reports.” See id. § 1681a(d)(1).
For these reasons, we conclude that the plaintiffs did not
plausibly allege that Advocate is a consumer reporting agen‐
cy. Therefore, the Act’s reasonable‐procedures provision
does not apply, and the FCRA claims were properly dis‐
missed.
Our conclusion does not confine the Act’s reach to the na‐
tion’s three major credit bureaus, as the plaintiffs suggest.
Other entities outside that mold may act in ways that satisfy
                                                 
2 The complaint cites a description of these programs available at
http://www.advocatehealth.com/documents/app/2013ValueReport‐
Complete.pdf (last visited Aug. 6, 2015).
No. 14‐3168 9
the statutory definition of “consumer reporting agency.” See,
e.g., Adams v. Nat’l Eng’g Serv. Corp., 620 F. Supp. 2d 319, 328
(D. Conn. 2009) (holding that a staffing agency was a con‐
sumer reporting agency because it prepared and furnished
background investigation reports for a fee). That, however, is
not what Advocate allegedly did here.  
We need not address Advocate’s other statutory de‐
fense—that it did not “furnish” any information to the
thieves. Nor do we need to decide whether the plaintiffs suf‐
ficiently pled their claims for willful and negligent FCRA vi‐
olations under 15 U.S.C. §§ 1681n and 1681o.

Outcome: The judgment of the district court is AFFIRMED.

Plaintiff's Experts:

Defendant's Experts:

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