The Laboratorium
December 2014

This is an archive page. What you are looking at was posted sometime between 2000 and 2014. For more recent material, see the main blog at

Closed for Maintenance

The Laboratorium will be closed for repairs and renovations for the rest of 2014. Please pardon any glitches, outages, or inconsistencies, and have a happy holiday season. The Laboratorium will return in the new year, and I hope to have some exciting (to me, at least) news to announce then.

Amicus Alert: Berry v. LexisNexis

Today, I filed an amicus brief with the Fourth Circuit in Berry v. LexisNexis Risk & Information Analytics Group, Inc. (To be precise, I filed a motion asking for the court’s permission to file the attached brief.) The trial court approved a class-action settlement of a particularly dangerous sort; my brief supports the objectors who trying to have it rejected on appeal.

The underlying case is a class-action lawsuit suit against a Lexis service called Accurint that provides public-records reports on people. The plaintiffs alleged that customers sometimes use Accurint to grant or deny people credit in a way that triggers the federal Fair Credit Reporting Act. Under the FCRA, consumers are supposed to be able to inspect and correct their credit files. But Lexis didn’t do any of that.

Under the settlement, Lexis would replace Accurint with a new product called Contact & Locate that would have less information in it and come withe more disclaimers. So far, so good. But instead of just giving up their past FCRA claims against Accurint, class members would also have to give up their potential future FCRA claims against Contact & Locate. Which doesn’t exist yet. Whose details still haven’t been worked out. Which may change over time. In effect, Lexis is asking for prospective immunity from the FCRA for Contact & Locate. This, I argue, is both a bad idea and illegal. You can’t “settle” a class-action suit about one product by striking a deal to create a different one. It’s the same thing that was wrong with the Google Books settlement.

If you’re mildly curious, you can read a quick overview of the issue in a blog post I wrote last year. If you’re moderately curious, you can read the brief itself. If you’re especially curious, you can read my 89-page article on the subject.

My thanks to Dan Goldstein, Matthias Niska, Denise Altobelli, and Tyra Wilson from Brown Goldstein Levy for their help in preparing and filing the brief. It is much better for their hard work.