SHANIQUE BEST v. BANK OF AMERICA (2026)

REPORT AND RECOMMENDATION

Plaintiff Shanique Best sued Defendant Bank of America, N.A. (“BANA”) alleging violations of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. §§ 1681 et seq., and state law claims for breach of contract and unjust enrichment. (See generally Compl., ECF No. 1.)¹ Before the Court is BANA's motion to strike Plaintiff's class allegations pursuant to Rules 12(f) and 23 of the Federal Rules of Civil Procedure. (Def.’s Mot., ECF No. 38.) The Honorable LaShann DeArcy Hall referred the motion for report and recommendation. For the reasons set forth below, the Court respectfully recommends that the motion should be denied.

I. BACKGROUND

A. Factual Allegations

The following facts are taken from the First Amended Class Action Complaint (“FAC”). Plaintiff is a New York resident and a “consumer” within the meaning of the FCRA. (FAC, ECF No. 24 ¶ 4.) BANA is a North Carolina corporation that regularly “furnishes” information, within the meaning of the FCRA, to consumer reporting agencies (“CRAs”) regarding its transactions with customers. (See id. ¶ 5.)

In October 2021, Plaintiff learned that BANA informed ChexSystems, a CRA, that Plaintiff engaged in fraudulent activity relating to a check deposited into her BANA account. (Id. ¶ 18.) The check was payable to Daniel Hylton, Plaintiff's husband, from his union's vacation account, and Mr. Hylton endorsed the check to Plaintiff to deposit into her BANA account. (Id.) At the time of BANA's report to ChexSystems, Plaintiff had an account in good standing with BANA and no prior incidents of suspected fraud. (Id.)

Plaintiff sent a detailed letter to ChexSystems and BANA in March 2022, disputing BANA's report and enclosing supporting documentation including, inter alia, a copy of her marriage certificate with Mr. Hylton and a letter from Mr. Hylton's employer verifying the check's validity. (Id. ¶ 19.) ChexSystems forwarded Plaintiff's dispute to BANA, but BANA did not investigate or contact Plaintiff, Mr. Hylton, or his union. (Id. ¶¶ 20–21.) On April 26, 2022, BANA sent Plaintiff a letter informing her that BANA received her dispute “to adjust information reported to the consumer reporting agency,” that BANA's review “determined that [it] accurately reported [Plaintiff's] account to the consumer reporting agencies,” and that “[t]he account information is being accurately reported to [Plaintiff's] file.” (Id. ¶ 22.) After requesting her file from ChexSystems, on November 13, 2023, Plaintiff learned that ChexSystems was still reporting the BANA fraudulent check. (Id. ¶ 23.) According to the file, since BANA's April 2022 response to Plaintiff's letter, ChexSystems had reported the erroneous BANA information regarding Plaintiff's account to other entities, including on December 20, 2022, and on July 11, 2023. (Id.)

In January 2024, Plaintiff again disputed the erroneous BANA account with both ChexSystems and BANA by sending each detailed letters and additional supporting documentation. (Id. ¶ 24.) ChexSystems forwarded Plaintiff's dispute to BANA, and again, BANA did not investigate Plaintiff's dispute. (Id. ¶¶ 25–26.) On January 14, 2024, ChexSystems sent Plaintiff a letter which asserted that Plaintiff's dispute was considered “frivolous or irrelevant,” that the closure status date was changed to January 30, 2020, and that the information would remain on file at ChexSystems “because the source verified the information” as “accurate and complete.” (Id. ¶ 27.) Moreover, ChexSystems included a copy of Plaintiff's file which referred to the “suspected” fraudulent BANA check activity. (Id. ¶ 28.)

A few months later, on April 22, 2024, Early Warning Systems (“EWS”) sent Plaintiff a file which documented that BANA reported that Plaintiff had engaged in “Checking Account Fraud.” (Id. ¶ 30.) On May 15, 2024, BANA sent Plaintiff a letter that stated, inter alia, that BANA reevaluated Plaintiff's claim, and its decision to close Plaintiff's account remained unchanged. (Id. ¶ 32.) However, based on “additional information” that Plaintiff provided, BANA submitted requests to ChexSystems and EWS to remove the fraud reporting from Plaintiff's credit file. (Id.) Plaintiff asserts that she did not submit this “additional information” and that BANA only investigated her dispute because of this lawsuit. (Id.) To date, Plaintiff has not received the funds from the $6,663.38 check that her husband endorsed to her, nor has BANA returned the check to Mr. Hylton's union. (Id. ¶¶ 34–36.) Plaintiff alleges that she suffered damages because BANA reported the erroneous fraud report to CRAs and did not investigate her disputes. (Id. ¶ 38.)

Plaintiff brings this case individually and on behalf of two subclasses:

Failure to Reinvestigate Class: All persons with an address in the United States and its Territories: (1) for whom Defendant has a record of closing one or more deposit accounts due to an attempt to deposit a check that was issued to and/or endorsed by another individual; 2) for whom Defendant has no confirmed record of fraud; 3) about whom Defendant furnished suspected fraudulent activity to one or more consumer reporting agencies; 4) concerning which suspected fraud activity Defendant received a notice of dispute from the consumer reporting agency during the period beginning two years prior to the filing of this matter and continuing until the date of the Court's class certification order; and 5) for whom Defendant failed to correct or delete the suspected fraudulent history within 30 days of receipt of the notice of dispute.

Failure to Reopen Account and Return Payment Class: All persons with an address in the United States and its Territories: (1) for whom Defendant has a record of closing one or more deposit accounts due to an attempt to deposit a check that was issued to and/or endorsed by another individual; 2) for whom Defendant has no confirmed record of fraud; 3) for which such persons disputed the closure of the account and/or Defendant's reporting of suspected fraud activity with BANA; and 4) for whom Defendant has not returned the check to the issuer or honored the deposit and/or reopened the account(s).

(Id. ¶ 40.) Plaintiff alleges that “[q]uestions of law and fact common to the Class members predominate over questions affecting only individual members, and a class action is superior to other available methods for fair and efficient adjudication of the controversy.” (Id. ¶ 45 (citing Fed. R. Civ. P. 23(b)(3).)

B. Procedural History

Plaintiff filed a class action Complaint against BANA on April 25, 2024, asserting claims for failure to reinvestigate, correct or delete disputed information in violation of 15 U.S.C. § 1681s-2(b), breach of implied contract, and unjust enrichment. (See generally Compl., ECF No. 1.)² After BANA requested leave to seek dismissal of the Complaint, Plaintiff filed the FAC on August 2, 2024. (ECF Nos. 21, 24; July 19, 2024 Order.) On August 16, 2024, BANA filed a pre-motion conference letter regarding its anticipated motion to dismiss the FAC. (ECF No. 25.)

On November 7, 2024, the Court held a pre-motion conference and directed the parties to confirm whether they intended to proceed with briefing BANA's anticipated motion to dismiss. (See Nov. 7, 2024 Minute Entry & Order.) After the parties reported Plaintiff's intent to file a Second Amended Complaint (ECF No. 32), the Court construed the letter as a voluntary withdrawal of Plaintiff's breach of contract and unjust enrichment claims pursuant to Rule 41 and directed BANA to answer the remaining FCRA claim. (See Jan. 2, 2025 Order.)

On January 23, 2025, BANA filed its Answer and a pre-motion conference letter regarding BANA's anticipated motion to strike Plaintiff's class allegations, which Plaintiff opposed on January 30, 2025. (ECF Nos. 33–35.) On April 15, 2025, Judge DeArcy Hall set a briefing schedule and referred the motion for a report and recommendation. (See Apr. 15, 2025 Order.) The motion was fully briefed as of May 15, 2025. (ECF No. 38.) The Court heard oral argument on December 22, 2025, and reserved decision. (See e.g., Dec. 22, 2025 Minute Entry; Dec. 22, 2025 Tr. (“Tr.”), ECF No. 40.)

II. DISCUSSION

A. Legal Standards

1. Motion to Strike

On motion or sua sponte, a court “may strike from a pleading ․ any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). To succeed on a motion to strike class allegations, the defendant must either (1) “address[ ] issues separate and apart from the issues that will be decided on a class certification [motion],” or (2) demonstrate “that it would be impossible to certify the alleged class regardless of the facts the plaintiffs may be able to obtain during discovery.” Carr v. Johnson & Johnson Consumer Inc., No. 21-CV-6557 (EK)(JRC), 2023 WL 3504662, at *2 (E.D.N.Y. May 17, 2023) (quoting Hidalgo v. Johnson & Johnson Consumer Cos., Inc., 148 F. Supp. 3d 285, 292–93 (S.D.N.Y. 2015) and Reynolds v. Lifewatch, Inc., 136 F. Supp. 3d 503, 511 (S.D.N.Y. 2015)). In determining whether it would be impossible to certify a class, courts in this circuit generally look to whether the facts alleged in the complaint plausibly support certification. Staubitz v. Arthrex, Inc., No. 23-CV-6004 (RPK)(LB), 2024 WL 4350669, at *2 (E.D.N.Y. Sept. 29, 2024) (citing Vellon v. Chefs’ Warehouse, Inc., No. 22-CV-4809 (LTS), 2023 WL 6394228, at *6 (S.D.N.Y. Sept. 30, 2023)). Thus, courts have denied motions to strike class allegations “where even with little or no class certification discovery it is evident that the requirements of Rule 23 cannot be satisfied,” including “when a claim is barred by issue or claim preclusion, the named plaintiffs’ claim[s] are subject to arbitration and/or they waived their ability to proceed as a class representative (comprising typicality and adequacy of representation), or it is clear that the numerosity requirement cannot be satisfied.” 1 McLaughlin on Class Actions § 3:4 (22nd ed.).³

“In assessing the merits of a Rule 12(f) motion, a district court should be mindful that such motions are ‘viewed with disfavor and infrequently granted.’ ” Jalayer v. Stigliano, 420 F. Supp. 3d 58, 64 (E.D.N.Y. 2018) (quoting Emilio v. Sprint Spectrum L.P., 68 F. Supp. 3d 509, 514 (S.D.N.Y. 2014)). Importantly, motions to strike under Rule 12(f) are “rarely successful in the class action context.” See Katz v. Esurance Prop. & Cas. Ins. Co., No. 24-CV-955 (DG)(JAM), 2025 WL 750937, at *6 (E.D.N.Y. Mar. 10, 2025) (citing Hidalgo, 148 F. Supp. 3d at 292), adopted by Order Adopting R. & R., Katz v. Esurance Prop. & Cas. Ins. Co., No. 24-CV-955 (DG)(JAM) (E.D.N.Y. June 2, 2025). Such motions “ ‘require[ ] a reviewing court to preemptively terminate the class aspects of litigation, solely on the basis of what is alleged in the complaint, and before plaintiffs are permitted to complete the discovery to which they would otherwise be entitled on questions relevant to class certification[.]’ ” DeSimone v. Select Portfolio Servicing, Inc., 748 F. Supp. 3d 136, 179 (E.D.N.Y. Sept. 13, 2024) (quoting Nunez v. Exec. Le Soleil New York LLC., No. 22-CV-4262 (KPF), 2023 WL 3319613, at *5 (S.D.N.Y. May 9, 2023)); accord Microsoft Corp. v. Baker, 582 U.S. 23, 34 n.7 (2017) (“An order striking class allegations is functionally equivalent to an order denying class certification[.]”) (cleaned up). Accordingly, “ ‘district courts in this Circuit have frequently found that a determination of whether Rule 23 requirements are met is more properly deferred to the class certification stage, when a more complete factual record can aid the Court in making this determination.’ ” DeSimone, 748 F. Supp. 3d at 179 (quoting Mazzola v. Roomster Corp., 849 F. Supp. 2d 395, 410 (S.D.N.Y. 2012)). In other words, motions to strike class allegations are “often denied as premature.” Reynolds, 136 F. Supp. 3d at 511.

2. Class Certification

Under Rule 23, “[a]t an early practicable time after a person sues or is sued as a class representative, the court must determine by order whether to certify the action as a class action.” Fed. R. Civ. P. 23(c)(1)(A). As such, a court may “require that the pleadings be amended to eliminate allegations about representation of absent persons and that the action proceed accordingly.” Fed. R. Civ. P. 23(d)(1)(D).

To establish a class, plaintiffs must meet the Rule 23(a) prerequisites: “(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(1)–(4). “A plaintiff must also prove that the action falls within one of three categories under Rule 23(b)—namely, that: (1) prosecuting separate actions would create a risk of inconsistent or prejudicial adjudications; (2) the conduct of the defendant applies generally to the class; or (3) questions of law or fact common to class members predominate over those affecting individual members.” Carr, 2023 WL 3504662, at *3 (citing Fed. R. Civ. P. 23(b)). “The Second Circuit also ‘recognize[s] an implied requirement of ascertainability’ under which the class must be ‘sufficiently definite so that it is administratively feasible for the court to determine whether a particular individual is a member.’ ” Staubitz, 2024 WL 4350669, at *2 (quoting Brecher v. Republic of Argentina, 806 F.3d 22, 24 (2d Cir. 2015)).

B. Analysis

BANA's motion to strike should be denied as premature because it addresses the same issues that will be decided on a class certification motion and because BANA does not show that it would be impossible to certify a class based on the allegations in the FAC. Carr, 2023 WL 3504662, at *2.

First, BANA's arguments indisputably arise from the Rule 23 requirements that Plaintiff must meet for class certification. BANA claims that Plaintiff's “inherently unique” allegations lack typicality and commonality as required under Rule 23(a). (Def.’s Mem., ECF No. 38-1 at 11–14.) BANA contends that to pursue a class claim under Section 1681s-2(b),⁴ Plaintiff must show that BANA failed to conduct reasonable reinvestigations as to every potential class member, and yet the FAC only pleads distinct facts specific to Plaintiff. (Id. at 12–13; Tr. at 6:6–6:14.) BANA also claims that the FAC asserts “individualized factual issues” that will predominate and “overpower” any common issues in the class. (Def.’s Mem., ECF No. 38-1 at 11–14; see also Tr. at 3:14–4:22 (claiming the “sole adjudication” to establish an FCRA violation will be whether BANA accurately determined that Plaintiff's specific account had fraudulent activity).)

Each of BANA's arguments at this pre-discovery stage, even if well-taken, overlap with the analysis required to evaluate a motion for class certification. In each instance, the Court would have to determine whether Plaintiff's claims are “typical of those of the class,” whether “each member's claim arises from the same course of events,” and whether “each class member makes similar legal arguments to prove the defendant's liability.” See Elisa W. v. City of New York, 82 F.4th 115, 128 (2d Cir. 2023). The Court would also have to determine whether the “class members have suffered the same injury.” Carrillo v. Wells Fargo Bank, N.A., No. 18-CV-3095 (SJF)(SIL), 2019 WL 3714801, at *10 (E.D.N.Y. May 10, 2019) (citation omitted), R. & R. adopted by 2019 WL 3927369 (E.D.N.Y. Aug. 20, 2019).

Courts routinely decline to address these fact-specific inquiries without the benefit of discovery. See, e.g., Steele-Warrick v. Microgenics Corp., No. 19-CV-6558 (VMS), 2021 WL 1109052, at *14 (E.D.N.Y. Mar. 22, 2021) (declining to strike class claims that may involve “individualized inquiries into proximate causation” because discovery could corroborate plaintiff's allegations to satisfy predominance); Travis v. Navient Corp., 460 F. Supp. 3d 269, 286 (E.D.N.Y. May 18, 2020) (denying motion to strike based on challenge to commonality, predominance, and superiority because “it would be premature to decide this fact-specific argument at this juncture”). Further, “[w]hether questions common to the class predominate over individualized issues is precisely the sort of determination that the Court would make at the class certification stage.” Med. Soc'y of New York v. UnitedHealth Grp. Inc., No. 16-CV-5265 (JPO), 2018 WL 1773142, at *2 (S.D.N.Y. Apr. 12, 2018). Plaintiff may be able to prove through discovery that BANA failed to conduct investigations after receiving notice of a credit dispute—for example, through documentary and testimonial evidence of BANA's standard policies and procedures. (See Pl.’s Opp., ECF No. 38-4 at 9; Tr.at 7:8–8:25.) And “while plaintiff might face an ‘uphill certification battle,’ that is insufficient to justify striking plaintiff's class allegations in their entirety before a certification motion has even been filed.” Staubitz, 2024 WL 4350669, at *3 (quoting Carr, 2023 WL 3504662, at *5).

Second, on its face, the FAC alleges issues of fact or law that could plausibly satisfy the Rule 23 class certification requirements. The FAC alleges BANA's “common course of misconduct” as to all class members pursuant to Fed. R. Civ. P. 23(a)(2) and (a)(3), including, inter alia, “failing to have adequate procedures in place” and “failing to conduct reasonable reinvestigations” after consumers dispute fraud entries on their credit reports and those disputes are reported to BANA. (FAC, ECF No. 24 ¶¶ 8, 12.) The FAC also alleges common questions that will “predominate” over individualized questions under Fed. R. Civ. P. 23(b)(3), including “whether Defendant's practices for reporting erroneous fraud warnings to CRAs, failure to investigate consumer disputes, failure to issue payment and/or return checks to issuers and failure to reopen accounts constituted unlawful practices under the FCRA[.]” (Id. ¶ 42.) “To preclude certification without ‘any class discovery [or] the filing of a motion for class certification’ would improperly determine predominance based ‘on assumptions of fact rather than findings of fact.’ ” Staubitz, 2024 WL 4350669, at *3 (quoting Parker v. Time Warner Ent. Co., 331 F.3d 13, 21 (2d Cir. 2003)). Striking the class allegations at this stage is unwarranted because BANA fails to raise any issues that are “separate and apart from the issues that will be decided on a motion for class certification.” Katz, 2025 WL 750937, at *15.⁵

In sum, the Court is not inclined to “preemptively terminate the class aspects of litigation, solely on the basis of what is alleged in the complaint, and before plaintiffs are permitted to complete the discovery ․ on questions relevant to class certification[.]’ ” DeSimone, 748 F. Supp. 3d at 179.

III. CONCLUSION

For the foregoing reasons, BANA's motion to strike the class allegations from the First Amended Class Action Complaint (ECF No. 38) should be denied. A copy of this Report and Recommendation is being served on all parties via ECF. Within 14 days of service, any party may serve and file specific written objections to this Report and Recommendation. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b). Any requests for an extension of time to file objections shall be directed to Judge DeArcy Hall. If a party fails to object timely to this Report and Recommendation, it waives any right to further judicial review of this decision. See Miller v. Brightstar Asia, Ltd., 43 F.4th 112, 120 (2d Cir. 2022).

SO ORDERED.

FOOTNOTES

1.   All citations to documents filed on ECF refer to the ECF document number and pagination in the ECF header unless otherwise noted.

2.   Shortly after Plaintiff filed the Complaint, BANA sent its May 2024 letter regarding its reevaluation of her claim. (FAC, ECF No. 24 ¶ 32.)

3.   See, e.g., Carovillano v. Sirius XM Radio Inc., No. 23-CV-4723 (PAE), 2024 WL 3460040, at *8–9 (S.D.N.Y. July 18, 2024) (granting defendants’ motion for partial summary judgment and motion to strike class allegations after initial discovery because plaintiffs orally consented to the class action waiver in their customer agreements); Russell v. Forster & Garbus, LLP, No. 17-CV-4274 (JS)(AYS), 2020 WL 1244804, at *5–6 (E.D.N.Y. Mar. 16, 2020) (granting defendants’ motion to strike class allegations because plaintiff's deposition testimony established that he was not an adequate class representative); Chen-Oster v. Goldman, Sachs & Co., 877 F. Supp. 2d 113, 120–22 (S.D.N.Y. 2012) (reluctantly granting motion to strike class allegations because then-recent Supreme Court precedent removed plaintiffs’ standing to seek Rule 23(b)(2) certification); Davito v. AmTrust Bank, 743 F. Supp. 2d 114, 117 (E.D.N.Y. 2010) (granting motion to strike class allegations because Real Estate Settlement Procedures Act claims required notice and exhaustion of remedies for which putative class members were not eligible); In re Initial Pub. Offering Sec. Litig., No. 21-MC-92 (SAS), 2008 WL 2050781, at *3–4 (S.D.N.Y. May 13, 2008) (granting in part motion to strike class allegations related to subset of consolidated putative class actions where plaintiffs failed to locate class representatives who were members of the class).

4.   “In order to maintain a § 1681s-2(b) claim, [a] plaintiff must offer evidence that she notified the consumer credit reporting agencies of an inaccuracy, that those agencies followed up with a notice of a dispute to [the furnisher], and that [the furnisher] failed to correct the inaccuracy.” Holland v. Chase Bank USA, N.A., 475 F. Supp. 3d 272, 276 (S.D.N.Y. 2020).

5.   Moreover, BANA's reliance on Borgese v. Baby Brezza Enters. LLC, No. 20-CV-1180 (VM), 2021 WL 634722, at *6 (S.D.N.Y. Feb. 18, 2021) for the proposition that individual questions predominate over class issues and thus preclude class certification (see Def.’s Mem., ECF No. 38-1 at 15–16; Tr. at 11:21–12:12) is misplaced. In Borgese, plaintiff brought tort claims against the manufacturer of automatic baby formula mixing machines, alleging that the machines’ performance failures caused injury to his child and other similarly situated children. Borgese, 2021 WL 634722, at *1. The Court in Borgese was unable to determine which state laws apply, and in turn, whether those laws materially differ, because plaintiff did not plead the residences of other purchasers of the machines reside, where they purchased the machines, or where they suffered any injury. Id. at *4. In other words, the Borgese complaint did not allege any common legal issues. In contrast, the FAC here sufficiently alleges common factual and legal issues under the FCRA that could plausibly satisfy the class certification requirements.

MARCIA M. HENRY United States Magistrate Judge