The “above my pay grade defense” to FCRA liability: The 10th Circuit weighs in.

January 5, 2018 Leave a comment

When someone is faced with a decision that he doesn’t think he has the right to make, he can respond that “it’s above my pay grade.”  The phrase appears to have originated in the US military – which has pay grades – and spread from there.

About a decade ago, the First Circuit and Ninth Circuit both discussed what could be called the “above my pay grade” defense to FCRA liability.  More recently, the 10th Circuit has joined the conversation.  This post will discuss what the “above my pay grade” defense is, and how the three courts have discussed it.

The “above my pay grade” defense applies to claims that a consumer reporting agency (CRA) did not conduct a “reasonable reinvestigation” of a consumer’s dispute, and thereby violated 15 U.S.C. Sec. 1681i.

As far as I can tell, the defense first came up* in DeAndrade v. Trans Union LLC, 523 F.3d 61 (1st Cir. 2008).    In that case, the plaintiffs alleged that a mortgage on their house had been procured through fraud; that they had asked the CRAs to report it that way; and that the CRAs’ refusal to do so was a violation of 15 U.S.C. Sec. 1681i.  Trans Union moved for summary judgment, the district court granted the motion, and the First Circuit affirmed.

The First Circuit found that to resolve claims under Section 1681i, “the decisive inquiry is whether the defendant credit bureau could have uncovered the inaccuracy if it had reasonably reinvestigated the matter.”  Id. at 68 (citation omitted).  It then stated that a CRA’s duty to “reasonably reinvestigate” a consumer’s dispute does not extend to deciding whether a lender procured a loan through fraud:  “DeAndrade has crossed the line between alleging a factual deficiency that Trans Union was obliged to investigate pursuant to the FORA and launching an impermissible collateral attack against a lender by bringing an FCRA claim against a consumer reporting agency.”  Id.

Two years after the First Circuit decided DeAndrade, the Ninth Circuit issued a similar decision in Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876 (9th Cir. 2010).  In Carvalho, the plaintiff did not pay a medical bill because she thought her insurance should cover it.  She asked the CRAs to stop reporting that she owed the debt, and when they didn’t, she sued them for violating Sec. 1681i.  All three CRAs moved for summary judgment; the district court granted the motion; and the Ninth Circuit affirmed.  It followed DeAndrade and stated that the CRAs were not in a position to determine whether plaintiff’s insurance company should or should not have paid her medical bill, and that “reinvestigation claims are not the proper vehicle for collaterally attacking the legal validity of consumer debts.”  Id. at 892.

For several years, no federal appeals courts took up this issue.  But in 2015, the Tenth Circuit did so in Wright v. Experian Info. Solutions, Inc., 805 F.3d 1232 (10th Cir. 2015).  In Wright, the IRS issued a lien for unpaid taxes against “Attorneys Title Insurance Agency of / Wright Gary A Member,” which Pitkin County, Colorado recorded as a lien against Mr. Wright personally (as opposed to a lien against AITA the corporation, which Mr. Wright owned and operated).  The CRAs issued consumer reports about Mr. Wright which showed that he owed the lien, and when he disputed that, they changed their reports to show that the lien had been paid (because it had).  But they still showed the lien as pending against Mr. Wright personally.  He sued them under Sec. 1681i, but the district court found that their reinvestigation had been reasonable, and the Tenth Circuit affirmed.

The Tenth Circuit found that because the IRS’s lien named both Mr. Wright and his corporation, it was reasonable for the CRAs to think that the lien was against Mr. Wright personally.  Mr. Wright contended that the CRAs should have gone further than that and asked the IRS, or a tax law expert, whether the lien really applied to him.  The Tenth Circuit disagreed and stated that “Like the consumers in Carvalho and DeAndrade, Mr. Wright’s argument would require the CRAs to do more than a reasonable reinvestigation requires.”  Id. at 1245.

You can see the pattern here.  In DeAndrade, Carvalho, and Wright, a consumer asked the CRAs to change the way they were reporting something and sued them when they didn’t.  The courts ruled that the CRAs had not violated the FCRA because they were not in a position to decide whether the basis of the consumer’s dispute (fraud in DeAndrade; breach of insurance contract in Carvalho; tax lien interpretation in Wright) was sound.

The opinion in DeAndade suggested that there is a “line” between consumer disputes that CRAs have the power to resolve (like “the credit card on my consumer report belongs to my dad, not me”) and disputes that CRAs do not have the power to resolve (like “yes, my name is on that loan, but it was procured through fraud”).

I don’t know where the line will be drawn:  three appellate court cases are not enough of a sample to tell us.  But those three opinions suggest that CRAs who have been sued under 15 U.S.C. Sec. 1681i should consider whether the “above my pay grade” defense could apply in their cases.

*I said above that the “above my pay grade” defense appears to have first come up in DeAndrade.  I say that because while the DeAndrade court cited prior cases, those cases did not involve the “above my pay grade” defense as I have outlined it here.  For example, both DeAndrade and Carvalho cited prior cases in which a consumer sued a creditor under 15 U.S.C. 1681s-2 and the court, in the course of resolving that lawsuit, issued some dicta about the limits to what a CRA could and couldn’t do.  Those prior exist and are helpful, but they don’t make the same point that three cases that I’ve discussed here make.

Categories: Bankruptcy

FCRA defendants hit back: sanctions motions in FCRA discharge cases

May 5, 2017 Leave a comment

In recent months, bankruptcy lawyers have begun to bring strikingly similar FCRA lawsuits on behalf of former clients who went through Chapter 13 bankruptcy.  This post will discuss these cases and how defendants are responding to them by winning on the merits, then moving for sanctions.  The first few paragraphs will set the stage by explaining a few aspects of bankruptcy, and then we’ll get to the gusto.

When a debtor goes through Chapter 13 bankruptcy, he or she follows a court-approved “plan” by paying money to a bankruptcy trustee each month for about 3-5 years.  The trustee uses that money to pay off a portion of the debtor’s debts, plus the various fees and costs of the bankruptcy case itself.  If the debtor follows the plan from beginning to end, he or she is rewarded by a court order which discharges all debts that were paid through the plan.

Debtors who have home mortgages and who want to keep their homes post-bankruptcy can go through Chapter 13, but with a twist:  the plan will list the home mortgage as a debt, but it will clarify that the borrower will pay it outside the plan.  Specifically, the debtor will pay the trustee one monthly payment, and then the mortgage company a second monthly payment.  If the debtor completes the plan, any non-mortgage debts will be discharged, but the home mortgage won’t be.

Bankruptcy lawyers can and do file hundreds of Chapter 13 cases each year, which means that they have hundreds and even thousands of former clients.  Recently, some bankruptcy lawyers have begun to file numerous FCRA lawsuits on behalf of these former clients – collectively, they have been filing dozens of them every month.  The lawsuits allege that because the former client completed a Chapter 13 plan and received a discharge order:  a) the mortgage should be reported as discharged, with a $0 balance; and/or b) any late payments that the borrower made on the mortgage before or during the plan should not be reported at all.

The legal theory behind these cases isn’t completely clear to me, but it appears to be that if a mortgage was listed on a Chapter 13 plan – even if it wasn’t paid by the trustee as part of the plan – then it should be reported as though it was discharged at the end of the plan (even though it wasn’t).

These lawsuits present FCRA defendants with a true dilemma.  The defendants know that the lawsuits are meritless:  case law states that if a mortgage isn’t paid by the trustee during a Chapter 13 plan, then it isn’t discharged and remains an open debt.  Moreover, and as we discussed last year, a borrower’s late payments before and during bankruptcy can be reported, because bankruptcy doesn’t erase a debt – it just removes the debtor’s obligation to pay it.

However – and here’s the dilemma for defendants – hiring a lawyer to argue these points and get the case dismissed can be expensive – especially if you’re facing dozens of these each month.  So many defendants settle them – although that’s expensive, too, and it’s annoying to pay to settle a case that you don’t think had merit in the first place.

So, if you are a defendant faced with one or more lawsuits, all of which allege that you should have reported a mortgage as having a $0 balance and as having never been late, simply because the debtor went through Chapter 13 bankruptcy, what do you do?

A few of the larger defendants – the nationwide consumer reporting agencies – have responded by winning a few cases in court, and then filing sanctions motions against the lawyers who brought them.  Here’s the status of three of those cases:

  1.  In Pappas, Case No. 1:15-cv-08115  (N.D. Illinois), Experian prevailed on a motion for summary judgment and recently filed a motion for sanctions.  That motion is pending; Experian’s reply brief will be due in a couple weeks;
  2. In Jackson, Case No. 1:15-cv-11140  (N.D. Illinois), Experian likewise prevailed on a motion for summary judgment and then filed a motion for sanctions.  That motion has been fully briefed and is pending; and
  3. In LeTren, Case No. 8:15-cv-03361 (D. Maryland), Trans Union filed a motion for sanctions, and the court will hear oral argument on May 16, 2017.

There are other ways to approach these cases from the defense perspective, and smaller defendants – including smaller reporting agencies and mortgage servicers – have been considering them.  As a lawyer in some of these cases (but not the three just mentioned!), I am very curious to see what the courts will do.




Categories: Bankruptcy

The FCRA does not apply to plaintiffs who are turned down for business credit

October 7, 2016 Leave a comment

This month’s post will attempt to establish something that I’ve always vaguely known to be true, but never had occasion to fully research:  the FCRA applies to consumers who are trying to get personal credit, not credit for their business.

Most courts treat this as a well-established point.  See, e.g.,  Frydman v. Experian Info. Solutions, Inc., No. 14-cv-9013, 2016 U.S. Dist. LEXIS 107139, *29 (S.D.N.Y. Aug. 11, 2016) (stating that “[T]he FCRA does not apply to consumers’ business transactions” ); Boydstun v. U.S. Bank Nat’l Ass’n ND, 187 F. Supp. 3d 1213, 1217 (D. Or. May 11, 2016) (citing 14 cases and referring to “many others” which support the proposition that “the statutory text, legislative history, and administrative interpretation of the FCRA and concluded that it “does not cover reports used or expected to be used only in connection with commercial business transactions”).

The point is well-established because courts have been making it since just after the FCRA became law in 1970.  See, e.g., Wrigley v. Dun & Bradstreet, Inc., 375 F. Supp. 969, 970-971 (N.D.Ga. 1974) (“The court is constrained to the view that both the legislative history of the Act and the official administrative interpretation of the statutory terminology involved compel the conclusion that the Act does not extend coverage to a consumer’s business transactions.”).

The point is also well-established because several circuit courts have made it as well.  See, e.g., Bacharach v. Suntrust Mortg., 827 F.3d 432, 435 (5th Cir. 2016) (“Numerous courts have concluded that the FCRA does not cover reports used or expected to be used only in connection with commercial business transactions”); Matthews v. Worthen Bank & Trust Co., 741 F.2d 217, 219 (8th Cir. 1984).

The point sometimes gets muddied, because there are a number of court cases which involve an entity that pulls someone’s credit report not to help him (or his business) get credit, but rather in hope of finding some dirt to use to discredit him.

Defendants in those cases have sometimes argued that precisely because they didn’t pull the credit report to help the plaintiff get a loan, the report was not a “consumer report” and plaintiff’s FCRA claims must therefore be dismissed.

At least one court has looked to those cases and come away unsure of whether a plaintiff who fails to get credit for his business can sue  under the FCRA.  Breed v. Nationwide Ins. Co., No. 3:05CV-547-H, 2007 U.S. Dist. LEXIS 30714, *5 (W.D. Ky. April 24, 2007)  (citing such cases and then claiming that “The Circuits are split as to whether the consumer’s purpose in obtaining credit [i.e., for personal or business purposes] necessarily determines whether the report is a consumer report under the FCRA”).

However, the cases that Breed cited all involved plaintiffs who never sought a loan, but rather learned that someone had pulled their credit report without their permission, and filed suit for damages.  See, e.g.,  St. Paul Guardian Ins. Co. v. Johnson, 884 F.2d 881 (5th Cir. 1989); Heath v. Credit Bureau of Sheridan, Inc., 618 F.2d 693, 696 (10th Cir.1980); Hansen v. Morgan, 582 F.2d 1214 (9th Cir. 1978); but see Ippolito v. WNS, Inc., 864 F.2d 440, 452 (7th Cir. 1988) (cited by Breed as support for what Breed called a circuit split, but actually finding that a credit report that a franchisor pulled to evaluate a franchisee did not give the franchisee a viable FCRA claim, and stating that “In enacting the FCRA, Congress sought to regulate the dissemination of information used for consumer purposes, not business purposes”).  For this reason, one district court expressly declined to follow what it called Breed‘s “cautious approach.”  Tilley v. Global Payments, Inc., 603 F. Supp. 2d 1314, 1329 (D. Kan. 2009) (noting that the rule against FCRA claims applying to business loans applies even where the plaintiffs are running unincorporated businesses under their own names).

Before closing, I feel that I should address the fact that in one case, the Ninth Circuit held that a plaintiff who “hoped to start a business” had a viable FCRA claim when he was turned down for a loan due to incorrect information on his credit report.  Dennis v. BEH-1, LLC, 520 F.3d 1066, 1068 (9th Cir. 2008).  But in that case, the plaintiff was turned down for a personal loan, not a business loan:  he applied for the personal loan in the hope of establishing “a clean credit history when he sought financing for [his] venture.”  Id.

Dennis doesn’t really pertain to the proposition here, which is that if a plaintiff gets turned down for a business loan due to inaccurate information on his credit report, he doesn’t have a valid claim under the FCRA.



Categories: Uncategorized

Crazy FCRA case in NJ illustrates some common themes

September 2, 2016 Leave a comment

The District of New Jersey just resolved two FCRA cases that, in my view, combine all of the best (or worst) features of FCRA litigation:  they involve a confusing issue on a credit report; a threat of sanctions; a judge that didn’t get the facts she needed when she needed them; and parties and lawyers who had better things to do than get, or really think about, those facts.  Grab a drink, and I’ll tell you all about them.

Glenn and Lorissa Williams each filed a separate FCRA lawsuit against Experian. (Why two lawsuits?  It’s hard to say; in a world where just filing one lawsuit can cost $450+, you’d think the plaintiffs would’ve tried to sue just once, and to save the second fee).  The Williamses’ lawyer alleged that someone had filed for bankruptcy on the Williamses’ behalf but without their knowledge or consent; that Experian reported these bankruptcies as having been filed by the Williameses; that the Wililamses eventually noticed the bankruptcies on their credit reports and brought them to Experian’s attention; and that Experian failed to respond properly to their disputes.   See Williams v. Experian, No. 14-cv-8115, No. 14-cv-8116 (D.N.J. 2016) (full citations below).

The court and the parties learned the facts gradually, but having read the opinions, I think I can tell the story chronologically.  The Williamses were facing foreclosure and asked a credit counselor named Andrew Bartok for assistance.  Mr. Bartok specialized in helping people avoid foreclosure, and he did this by filing for bankruptcy on their behalf without telling them much about it.  He likely filed for bankruptcy on the Williamses’ behalf, which involved his paying filing fees, his submitting signed documents that contained their correct dates of birth and social security numbers, and the bankruptcy court’s sending various documents to the Williamses at their home.  Through all of this, the Williamses did not read their mail from the court, so they never had any idea that Mr. Bartok had filed for bankruptcy on their behalf.

Later on, the Williamses obtained copies of their Experian credit reports, which stated that they had filed for bankruptcy.  The Williamses asked Experian to delete the bankruptcies from their credit reports, without success.  They eventually turned to a lawyer , Brent Vullings, for help.  Mr. Vullings discovered that Andrew Bartok had helped a number of people delay foreclosure by filing false bankruptcy petitions on their behalf; that he’d eventually been indicted for this; and that he may well have done the same thing to the Williamses.  So he sued Experian on their behalf.

When litigation moved into the discovery and dispositive motions phase, counsel took a strangely passive approach.  He doesn’t seem to have conducted much if any discovery, and when Experian filed for summary judgment (on the basis that the bankruptcy petitions matched the Williamses’ names, dates of birth, social security numbers, home address, etc., which made it reasonable to assume that the bankruptcies were theirs and to report them as such), he didn’t tell the court about Mr. Bartok or provide the court with the information that led him to sue Experian in the first place.

The court – faced with facts which showed that the Williamses were disputing bankruptcies which really did appear to be theirs – granted summary judgment to Experian, and threatened to sanction Mr. Vullings for filing suit without a reasonable basis.  Williams v. Experian, No. 14-cv-8115, 8116, 2016 U.S. Dist. LEXIS 80383 (D.N.J. June 21, 2016).  In response to that threat, Mr. Vullings finally told the court about what Mr. Bartok had done to other people, why he thought Bartok might’ve done it to the Williamses, and why Experian should therefore reinvestigate whether the Williamses’ bankruptcies should appear on their credit reports.  The court decided that this was enough to hold off on imposing sanctions.   Williams v. Experian, No. 14-cv-8115, 8116, 2016 U.S. Dist. LEXIS 112105 (D.N.J. Aug. 23, 2016).

What common themes do these events illustrate?  Here are a few:

  1.  As the court stated in both opinions, “Federal Courts are often presented with strange or seemingly incredible factual predicates, and some of those predicates are ultimately supported by the factual record.”  Sometimes truth is stranger than fiction.  In FCRA litigation, it often is.
  2. Both Experian and the Court thought that plaintiffs’ counsel had failed to undertake any kind of investigation before filing suit – to them, it looked like the Williamses noticed some bankruptcies on their credit reports which they hadn’t remembered filing,  and that the plaintiffs’ lawyer filed suit on that basis without more.  As a defense lawyer, this sort of thing happens to me all the time – I’ll get a case in which the allegations don’t seem to add up, and I’ll start to suspect that the lawyer on the other side took his client’s word and filed suit without doing any more diligence.
  3. The plaintiffs themselves had apparently not paid much attention to their financial advisor (Mr. Bartok) or their lawyer (Mr. Vullings).  In the summary judgment opinion, the court said that it was “incredulous” by the allegation that someone had gone to the trouble to file for bankruptcy on the plaintiffs’ behalf (as that costs money and takes effort) and just as incredulous by the fact that “Plaintiffs would continually receive notices of a bankruptcy proceeding being litigated on his or her behalf by a supposed impostor, yet do nothing.”  I have had any number of cases in which the plaintiff, while ably represented by a lawyer who knew what he or she was doing, had not done a very good job of staying on top of his or her financial affairs, and had done an even less good job of reading his or her mail.  The Williams cases are an extreme example of this.
  4. Deciding what should ultimately appear on the post-lawsuit credit reports was difficult.  In its second opinion (the one that declined to sanction plaintiffs’ counsel), the court stated that it “feels compelled to point out that it hopes Experian will reevaluate whether it can continue to report these bankruptcies as legitimately belonging to Plaintiffs,” because at the end of the day, it really seemed as though Bartok had filed for bankruptcy on their behalf but without their consent.  But this begs the question of how Experian should report the bankruptcies.  If the plaintiffs’ debts were discharged, shouldn’t the bankrupcties be reported unless and until the plaintiffs come forward and ask the bankruptcy court to undo that, so that they can start paying on their debts?  If the plaintiffs actually did that, would the bankruptcy court have any way of unringing the bell / unfiling the bankruptcy?
  5. The whole process took two years to complete.  Plaintiffs filed suit in 2014, but the court didn’t decide the summary judgment and sanctions issues until 2016.  The wheels of justice grind slowly.

This has been a longer post than usual, but it didn’t take long to write.  The issues that the Williams cases presents are, as I say, common themes in FCRA litigation.  They may suggest to readers both why FCRA litigation exists, why I like handling it, and why courts and defendants do not.


Categories: Bankruptcy

Why creditors and CRAs can report debts that were discharged in bankruptcy

August 5, 2016 Leave a comment

Last month’s post was about Bailey v. FNMA, and the question of whether a mortgage company can pull a credit report on a mortgage borrower, even after the borrower has discharged his mortgage in bankruptcy.  Soon after I wrote it, I heard from a lawyer in California who pointed out an issue that I hadn’t mentioned, namely, the law on when and why a debt can keep being reported, even though it has been discharged in bankruptcy.  With thanks to my correspondent for the inspiration (and for a couple of case cites that got me started), I will address that issue here.

The issue is:  Can creditors and consumer reporting agencies report a consumer’s pre-bankruptcy debts, even after those debts have been discharged in bankruptcy?  This is not a hypothetical question:  I was recently involved in a case that presented this issue (i.e., the defendant reported that a judgment against plaintiff was open and unsatisfied, and plaintiff contended that the reporting was inaccurate because the judgment had been discharged in bankruptcy).  What have the courts said about reporting debts that have been discharged?

My correspondent noted that in several bankruptcy cases, the bankruptcy courts have clarified that a bankruptcy discharge doesn’t wipe away the debt or reduce the balance to zero; the discharge merely enjoins the creditor from trying to make the discharged debtor pay it.  These bankruptcy courts have held that when a creditor continues to report a discharged debt as due and owing, the creditor is NOT attempting to collect the debt and is therefore NOT violating the discharge injunction.  See Small v. Univ. of KY, No. 08-52114, 2011 Bankr. LEXIS 1868, at *12 (E.D. Ky. Bankr. May 13, 2011); Vogt v. Dynamic Recovery Servs. (In re Vogt), 257 B.R. 65 (Bankr. D. Colo. 2000).

The Vogt court explained, helpfully, that:

It is apparent from the complaint in this case that the Plaintiffs believe that the effect of the order of discharge is to wipe away the debt. But that clearly is not the case … the discharge does not wipe away the debt. It only serves to eliminate the debtor’s personal responsibility to pay the debt.

The distinction is important, because the initial suggestion here is that the Defendant was somehow in error, or, perhaps, in violation of some provision of the Bankruptcy Code, when it continued to report that, in its records, the Dallas debt was still due and owing, notwithstanding the order of discharge in the Plaintiffs’ bankruptcy case. But the Court cannot fault the Defendant for taking this position.

In re Vogt, 257 B.R. at 70.

Federal district courts have recently made the same point.  In Abeyta v. Bank of Am., N.A., No. 15-cv-02320, 2016 U.S. Dist. LEXIS 43602, (D. Nev. Mar. 30, 2016), a plaintiff alleged that because she filed for bankruptcy in 2010, and was discharged in 2014, a number of creditors and CRAs violated the FCRA by reporting that she had had a “major delinquency” on her debts back in 2010.  The defendants moved to dismiss an amended complaint, and the court granted their motion, because:  a) “Plaintiff did not allege that the fact of the previous delinquency was untrue”; b) “bankruptcy does not prevent the reporting of debt”; and c) “the Bankruptcy Code prevents certain collection activities, but it does not alter the fact of delinquency.”  Id. at ** 5, 7-8; see also Riekki v. Bayview Fin. Loan Servicing, No. 2:15-CV-2427, 2016 U.S. Dist. LEXIS 99527 (D. Nev. July 28, 2016) (following Abeyta and granting motion to dismiss).

Long story short, “Bankruptcy does not prevent the reporting  of a previous debt. If the fact of the previous delinquency in this case is true, the FCRA explicitly declines to prohibit its reporting for at least seven years. The Court is unaware of any statute or case providing that discharge in bankruptcy makes a debt unreportable (as opposed to uncollectable) so long as only the fact of the previous delinquency is reported.”  Abeyta v. Bank of Am., N.A., No. 15-cv-02320, 2016 U.S. Dist. LEXIS 8918 (D. Nev. Jan. 25, 2016) (citation omitted) (granting motion to dismiss the original complaint; the motion to dismiss an amended complaint was discussed by the same court at 2016 U.S. Dist. LEXIS 43602, above).


Categories: Bankruptcy

Are banks unable to pull credit reports post-bankruptcy?

July 1, 2016 Leave a comment

A reporter recently contacted me to talk about a new FCRA class action which alleges that banks may not obtain credit reports on consumers, even after those consumers have discharged their debts to the banks in bankruptcy.  The case is Bailey v. Federal National Mortgage Association, Case No. 1:16-cv-01155 (D.D.C).  For this month’s blog entry, I’m going to post her questions and my answers:


It’s a FCRA case about a borrower filing a class-action suit against Fannie Mae for unauthorized credit inquiries post-bankruptcy. The borrower filed Chapter 7 and was discharged from his debt in 2013 but alleges 3 years after the discharge, Fannie made an unauthorized inquiry on to Equifax. [My note: the claim appears to be that Bailey obtained a mortgage from Bank of America that was transferred to Fannie Mae; that he filed for bankruptcy in April 2013; that he was discharged in July 2013; and that Fannie Mae pulled his report in July 2015.  The claim would be that Fannie Mae lacked a permissible purpose to do this and thus violated the FCRA at 15 U.S.C. Sec. 1681b.].

Just talking to a couple of people to get their take on the issue. Do companies have a right to do so? Does the borrower have a strong case or no? Could this set off a trend for other borrowers to file a similar suit?


There are two big hurdles that this lawsuit will have to overcome, and I doubt that it will be able to do so.

First, the plaintiff will have to show that there are no circumstances under which a mortgage lender can check a credit report post-discharge.  If there are some circumstances when that’s okay, and others where it isn’t, then you have to look at the details of each check, which would make a class action impossible.  My impression is that after a consumer files for bankruptcy and gets his mortgage discharged, the lender still needs to service the mortgage for a period of time, and it may need to check the consumer’s credit as part of that process.  Am I surprised that Fannie Mae checked this guy’s credit three years after his loan was discharged?  Yes.  But I think that some checks post-discharge may be permissible, and if that’s true, then a class action would not make sense.

Second, the plaintiff will have to show that Fannie Mae’s alleged FCRA violation caused him real harm.  This is a big issue – the Supreme Court just stated in Robins v. Spokeo that sometimes an FCRA violation will not cause any harm, and when that happens, the plaintiff lacks standing, and any lawsuit should be dismissed.  Here, the plaintiff seems to be alleging that when Fannie Mae checked his credit report, it:  i) invaded his privacy; ii) lowered his credit score; and/or iii) made him scared about a possible data breach in the future.  This is exactly the kind of intangible harm that the Spokeo decision talked about.  It makes the lawsuit look like something that lawyers are doing to get money, as opposed to a call to stop truly problematic behavior.

Last words:

It’ll be interesting to see how this case proceeds.  Law360 says that “Joshua B. Swigart of Hyde & Swigart and by Abbas Kazerounian of Kazerouni Law Group APC.”  I have dealt with Hyde & Swigart before, and they are good plaintiffs’ lawyers.

Target gets rare win in “stand-alone disclosure” class action

June 3, 2016 Leave a comment

For the past few years, plaintiffs’ lawyers have been filing – and winning – class actions against employers who routinely obtain criminal background reports about potential employees.  These suits allege that the employer violated  the FCRA at 15 U.S.C. § 1681b(b)(2)(A), which states that employers can only obtain these reports if “a clear and conspicuous disclosure has been made in writing to the consumer at any time before the report is procured or caused to be procured, in a document that consists solely of the disclosure, that a consumer report may be obtained for employment purposes.”

In the recent past, most companies gave potential employers a disclosure to sign before  obtaining a background report about them.  But these disclosures often contained waivers of liability, which essentially asked the applicant to agree that:  i) the employer could pull a background report; and ii) the applicant could not sue the employer or the background reporter for anything that the report contained, or anything they did in obtaining it.  In the late 1990s, the FTC suggested that waivers like this went too far; and in the past few years, plaintiffs’ lawyers have realized this and begun filing class actions against employers who included these waivers.

These class actions don’t allege that the employer “negligently” violated the FCRA, because then the plaintiffs would only be able to collect “actual damages,” and it is hard to say that a disclosure with a liability waiver that would likely never be enforced will actually damage anyone.  Rather, the plaintiffs allege that the employer “willfully” violated the FCRA, as that entitles each member of the class to statutory damages of $100 to $1,000 – which can add up to millions of dollars in cases against national employers.  Most companies named in these class actions have either settled outright, or else tried to dismiss the lawsuit, failed, and then settled.

A class action against Target – Just v. Target Corp., Case No. 0:15-cv-04117, slip. op. at ECF No. 23 (D. Minn. May 12, 2016) – has ended differently.  Crucially, Target’s disclosure did not contain a liability waiver, so it didn’t contain the one thing that the FTC has said is inappropriate.  Target’s disclosure did say things about the importance of trust and honesty among its employees, the fact that any job that it offered could be terminated at will, and how applicants could get a copy of the report that Target obtained, if they wanted one.  Did these kinds of statements “willfully” violate the FCRA’s stand-alone disclosure provision?

Target argued that they didn’t, and a federal judge agreed:  he dismissed the class action.  (His decision is on appeal).  Following Supreme Court precedent, he judge noted that to “willfully” violate the FCRA, a company must do something that is “objectively unreasonable”in light of the statutory text and of any opinions from the FTC or the federal courts of appeals about that text.

The judge then found that the statutory text isn’t as clear as it seems – while the provision at 15 U.S.C. § 1681b(b)(2)(A)(i) requires a stand-alone disclosure that the employer will pull a background report, the very next provision, at 15 U.S.C. § 1681b(b)(2)(A)(ii), allows the disclosure form to contain a place for the job applicant to consent to a background report. The courts of appeals haven’t said anything about whether adding other language to one of these disclosure forms is or isn’t appropriate, and the FTC has suggested that adding language that explains what the employer is doing and why is probably okay.  For all these reasons, the judge found that Target had not “willfully” violated the FCRA and dismissed the claims that it violated 15 U.S.C. § 1681b(b)(2)(A)(i).

Will this decision stand up on appeal?  It’s an interesting question.  My initial instinct, like the judge’s, is that the language that Target included in its disclosure is appropriate:  the FCRA’s obvious goal here is to put people on notice that an employer is going to look at their criminal record, and Target’s form did not detract from that notice.

Having said that, I would make one caveat.  The objection to the liability waivers is that they don’t enhance or clarify a notice that a background report will be pulled, so the waivers are “objectively unreasonable” under the statute.  But, while Target’s form didn’t contain a liability waiver, it did contain a statement that “You understand if you disagree with the accuracy of any information in the report, you must notify [the company that created the report for Target] within five business days of your receipt of the report.”  This sentence seems to be a bit like the liability waivers in that: i) it does not help clarify that Target is planning to obtain a background report; and ii) it does not have any basis in the FCRA.  [Under the FCRA, a person who gets an inaccurate consumer report can dispute it months or even years later – there is no time limit to dispute a report, per 15 U.S.C. Sec. 1681i].

I can see why Target included this sentence – if a job applicant doesn’t dispute an inaccurate report within a few days, Target will almost certainly have given the job to someone else.  Maybe that’s enough to mean that this sentence is not “objectively unreasonable” either.  But I think it presents a closer question than the other things in Target’s disclosure.

Categories: 1681b disclosures