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    Paul Wm. Polin and Marsha Polin v. Dun & Bradstreet, Inc., A Delaware Corporation, 768 F.2d 1204, 10th Cir. (1985)

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    The plaintiffs, Paul and Marsha Polin, appealed a district court's grant of summary judgment in favor of the defendant, Dun & Bradstreet, Inc. The plaintiffs alleged invasion of privacy and violations of the Oklahoma Credit Ratings Act based on credit reports prepared by the defendant about the plaintiffs and distributed to various subscribers. The Tenth Circuit Court of Appeals affirmed the district court's grant of summary judgment, finding that the plaintiffs failed to establish the elements of a false light invasion of privacy claim or constitutional privacy violation under Oklahoma law. The court also found that the plaintiffs did not allege a violation of the only section of the Oklahoma Credit Ratings Act that provides for monetary damages.

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    Paul Wm. Polin and Marsha Polin v. Dun & Bradstreet, Inc., A Delaware Corporation, 768 F.2d 1204, 10th Cir. (1985)

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    The plaintiffs, Paul and Marsha Polin, appealed a district court's grant of summary judgment in favor of the defendant, Dun & Bradstreet, Inc. The plaintiffs alleged invasion of privacy and violations of the Oklahoma Credit Ratings Act based on credit reports prepared by the defendant about the plaintiffs and distributed to various subscribers. The Tenth Circuit Court of Appeals affirmed the district court's grant of summary judgment, finding that the plaintiffs failed to establish the elements of a false light invasion of privacy claim or constitutional privacy violation under Oklahoma law. The court also found that the plaintiffs did not allege a violation of the only section of the Oklahoma Credit Ratings Act that provides for monetary damages.

    Original Description:

    Filed: 1985-07-29 Precedential Status: Precedential Citations: 768 F.2d 1204 Docket: 83-1952

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    Paul Wm. Polin and Marsha Polin v. Dun & Bradstreet, Inc., a Delaware Corporation, 768 F.2d 1204, 10th Cir. (1985)

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    The plaintiffs, Paul and Marsha Polin, appealed a district court's grant of summary judgment in favor of the defendant, Dun & Bradstreet, Inc. The plaintiffs alleged invasion of privacy and violations of the Oklahoma Credit Ratings Act based on credit reports prepared by the defendant about the plaintiffs and distributed to various subscribers. The Tenth Circuit Court of Appeals affirmed the district court's grant of summary judgment, finding that the plaintiffs failed to establish the elements of a false light invasion of privacy claim or constitutional privacy violation under Oklahoma law. The court also found that the plaintiffs did not allege a violation of the only section of the Oklahoma Credit Ratings Act that provides for monetary damages.

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    47 views5 pages

    Paul Wm. Polin and Marsha Polin v. Dun & Bradstreet, Inc., A Delaware Corporation, 768 F.2d 1204, 10th Cir. (1985)

    Uploaded by

    Scribd Government Docs
    The plaintiffs, Paul and Marsha Polin, appealed a district court's grant of summary judgment in favor of the defendant, Dun & Bradstreet, Inc. The plaintiffs alleged invasion of privacy and violations of the Oklahoma Credit Ratings Act based on credit reports prepared by the defendant about the plaintiffs and distributed to various subscribers. The Tenth Circuit Court of Appeals affirmed the district court's grant of summary judgment, finding that the plaintiffs failed to establish the elements of a false light invasion of privacy claim or constitutional privacy violation under Oklahoma law. The court also found that the plaintiffs did not allege a violation of the only section of the Oklahoma Credit Ratings Act that provides for monetary damages.

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    of 5

    768 F.

    2d 1204

    Paul Wm. POLIN and Marsha Polin, Plaintiffs-Appellants,


    v.
    DUN & BRADSTREET, INC., a Delaware corporation,
    Defendant-Appellee.
    No. 83-1952.

    United States Court of Appeals,


    Tenth Circuit.
    July 29, 1985.

    Don E. Gasaway, Gasaway, Green & Harris, P.A., Tulsa, Okl., for
    plaintiffs-appellants.
    Arthur E. Rubin, Gable & Gotwals, Tulsa, Okl., for defendant-appellee.
    Before HOLLOWAY, Chief Judge, DOYLE, Circuit Judge, and
    BROWN * , District Judge.
    WILLIAM E. DOYLE, Circuit Judge.

    Plaintiffs Paul and Marsha Polin appeal from a grant of summary judgment
    entered in favor of defendant Dun & Bradstreet, Inc. by the United States
    District Court for the Northern District of Oklahoma. We affirm the district
    court's grant of summary judgment.

    The problem here considered arose in the 1960's. During that period Paul Polin
    worked as a business and financial consultant as well as an insurance agent.
    Marsha Polin assisted her husband in the consulting business and also sold life
    insurance. The Polins operated under several trade names.

    In response to an inquiry from the Minnehoma Financial Company in 1966,


    defendant prepared a credit report on Mr. Polin. This report was sent to eight
    businesses and detailed Polin's financial history. It listed four lawsuits filed
    against Polin for money due on accounts. Defendant prepared a similar report
    on Polin in 1968, pursuant to a request from Dallas Aero Services Company.

    The 1968 report, which was furnished to seven companies, contained much the
    same information as the 1966 report; it also listed three lawsuits pending
    against the Polins. The following year defendant revised its report on the
    Polins. At the same time it provided the new report to two businesses. The
    1969 revision again listed the lawsuits pending against the Polins.
    4

    The businesses that received reports on the Polins did so pursuant to defendant's
    standard subscription agreement. The agreement provides in pertinent part:

    1. All information furnished to the subscriber by Dun & Bradstreet, Inc. is for
    the exclusive use of the subscriber as a basis for credit, insurance, marketing
    and other business decisions and for no other purpose. Such information shall
    be held in strict confidence and shall never be reproduced, revealed or made
    accessible in any manner whatever to the persons reported upon or to any
    others. It is expressly understood that the subscriber shall neither request
    information for the use of others, nor permit requests to be made under this
    subscription by others.

    Defendant never obtained the Polins' permission to investigate them, nor did
    defendant mail the Polins copies of the credit reports before the subscribers
    received them. In 1966 the Polins asked defendant to cease and desist from
    preparing the reports without first following the Oklahoma law on the making
    of credit reports. The Polins renewed their request in 1968, but defendant
    continued to furnish its subscribers with the reports.

    In 1970 the Polins filed the instant action against defendant in the United States
    District Court for the Northern District of Oklahoma. Count I of their amended
    complaint alleged an invasion of common law and constitutional rights of
    privacy. Count II alleged violations of the Oklahoma Credit Ratings Act,
    Okla.Stat.Ann. tit. 24, Secs. 81-82. The Polins sought $1,000,000 actual and
    $500,000 punitive damages on each count.

    In 1977, at the request of the parties, the district court referred the case to a
    Special Master. The following year the Special Master granted defendant's
    motion for summary judgment on both counts, Fed.R.Civ.P. 56(c), and the
    district court entered judgment "in conformity with" the Special Master's order.
    In Polin v. Dun & Bradstreet, Inc., 634 F.2d 1319 (10th Cir.1980) (en banc),
    we held that the district court had failed to review the Special Master's report in
    conformity with Fed.R.Civ.P. 53(e)(4) and remanded the case for the proper
    review. On remand, the district court granted defendant's motion for summary
    judgment, stating, "[T]he facts found by the Special Master do not as a matter

    of law constitute an invasion of privacy and do not as a matter of law constitute


    a violation of Secs. 81 and 82 of the Oklahoma Credit Reporting (sic) Act that
    would allow any monetary recovery to the plaintiffs herein." We now review
    the district court's decision.
    9

    Count I of the Polins' complaint fails to present any invasion of privacy claim
    for which relief can be granted.

    10

    First, the Polins have failed to state a cause of action for false light invasion of
    privacy under Oklahoma law. Oklahoma has recognized this tort as defined by
    the Restatement (Second) of Torts Sec. 652E, which provides:

    11 who gives publicity to a matter concerning another that places the other before
    One
    the public in a false light is subject to liability to the other for invasion of privacy, if
    12 the false light in which the other was placed would be highly offensive to a
    (a)
    reasonable person, and
    13 the actor had knowledge of or acted in reckless disregard as to the falsity of the
    (b)
    publicized matter and the false light in which the other would be placed.
    14

    See McCormack v. Oklahoma Publishing Co., 613 P.2d 737 (Okla.1980). The
    Restatement defines "publicity" as meaning "that the matter is made public, by
    communicating it to the public at large, or to so many persons that the matter
    must be regarded as substantially certain to become one of public knowledge."
    Restatement (Second) of Torts Sec. 652D, comment a. It is clear that the
    element of publicity is lacking in the instant case. Defendant's 1966 credit
    report on the Polins was sent to eight subscribers, the 1968 report to seven
    subscribers, and the 1969 revision to two subscribers. The Polins admit that the
    foregoing are the only ones having access to the credit reports, this being a
    condition of defendant's subscription agreement. Plaintiffs' Motion to Special
    Master to Reconsider Pre-Trial Order, June 7, 1978. Because the Polins cannot
    prove the element of publicity, they do not have a claim for false light invasion
    of privacy under Oklahoma law.

    15

    Second, we accept the district court's holding that "Oklahoma law does not
    require a credit or financial information reporting entity to obtain the consent of
    an investigated party prior to distribution of reports on such party ..." Colonial
    Park Country Club v. Joan of Arc, 746 F.2d 1425 (10th Cir.1984) (district
    court's understanding of unsettled law of its state is entitled to deference).

    16

    Third, the Polins have failed to establish any constitutional right to privacy in

    this case. Such a constitutional right exists only against the acts of a federal or
    state government, Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14
    L.Ed.2d 510 (1965); it does not extend to a private party such as defendant. The
    fact that defendant's credit reporting operations are regulated by federal and
    state law is not sufficient to create state action. Jackson v. Metropolitan Edison
    Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974).
    17

    We also must conclude that Count II of the Polins' complaint fails to state any
    cause of action under the Oklahoma Credit Ratings Act, Okla.Stat.Ann. tit. 24,
    Secs. 81-82,1 for which damages may be awarded. The district court, relying on
    Derryberry v. Retail Credit Co., 550 P.2d 942 (Okla.1976), correctly concluded
    that only Sec. 832 provides for monetary recovery. Because the Polins did not
    allege any violation of Sec. 83, the court properly granted summary judgment
    to defendant.

    18

    The judgment is affirmed.

    Wesley E. Brown, United States District Judge, District of Kansas, sitting by


    designation

    Sections 81 and 82 provide:


    Sec. 81. Persons furnishing ratings to request statement of assets and liabilities
    Any person, firm or corporation engaged in or purporting to furnish retail
    merchants the financial or credit rating of any person who is the actual or
    prospective customer of such retail merchant shall, before furnishing such
    rating, submit, either in person or by mailing to his last known postoffice
    address to the person whose rating is about to be reported, a request asking for
    a statement of the assets and liabilities of such person.
    Sec. 82. Copy of opinion furnished person to whom it relates
    Whenever an opinion in writing upon the financial or credit standing of any
    person is about to be submitted for the purpose of establishing a financial or
    credit rating of customers, to be used by the retail business concerns, the
    person, firm or corporation submitting such opinion shall first mail a copy of
    such opinion to the person about whom the opinion is given, at his proper
    postoffice address.

    Section 83 provided:

    Sec. 83. False rating--Damages--Misdemeanor--Penalty


    Any person, firm or corporation who knowingly promulgates or publishes a
    false opinion or statement in any book or list as to the credit or financial
    standing of any person, and circulates such book or list among wholesale or
    retail business concerns, shall be liable in damages to the person about whom
    the false opinion or statement is made, for the full amount of injury sustained,
    and in addition thereto for exemplary damages in any sum to be fixed by the
    jury, and shall also be guilty of a misdemeanor, and upon conviction thereof,
    shall be fined in any sum not exceeding twenty-five dollars.
    This section was amended in 1984.

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