The FCRA’s statute of limitations: an update (Part 3 of 3)

January 8, 2016 Leave a comment

A few years back, I wrote a post which stated that district courts in the Ninth Circuit were interpreting the FCRA’s “new” statute of limitations in a plaintiff-friendly way.

Since then, courts in other jurisdictions have interpreted the FCRA’s statute of limitations differently, which suggests that it is time for my prior post to be updated.  I’m doing the update in three parts:  1) how the old FCRA statute of limitations worked; 2) how it was revised in 2003, and how these revisions led at least some courts to read the statute in a plaintiff-friendly way in 2009 and 2010; and 3) how decisions since then interpreted the “new” (amended in 2003) statute.

Part 3:  How recent decisions have interpreted the FCRA’s “new” (amended in 2003) statute of limitations

In parts one and two of this exciting three-part series, I tried to establish that: 1) in 2001, the Supreme Court ruled that the FCRA’s then-current statute of limitations began to run when a defendant violated the FCRA and not when the plaintiff discovered the violation; and 2a) Congress appeared to “un-do” that ruling by making amendments in 2003, which 2b) meant, according to several courts, that it started to run not when the plaintiff knew that the defendant was doing something the plaintiff didn’t like, but when the plaintiff knew that the defendant was violating the FCRA.

Things began to change in 2010 and kept going from there.  Let me explain.

First, in 2010 the Supreme Court decided a case that involved the statute of limitations for securities fraud.  Merck & Co. v. Reynolds, 559 U.S. 633 (2010).  The text of that statute of limitations – 28 U.S.C. Sec. 16858(b) – is identical to the FCRA’s statute of limitations at 15 U.S.C. Sec. 1681p.  The Supreme Court held that “‘discovery’ as used in this statute encompasses not only those facts the plaintiff actually knew, but also those facts a reasonably diligent plaintiff would have known. And we evaluate Merck’s claims accordingly.”  Id. at 648.

Next, in 2014 the Fifth Circuit applied the Supreme Court’s reasoning in Merck to an FCRA case.  Mack v. Equable Ascent Fin., L.L.C., 748 F.3d 663 (5th Cir. 2014).  In Mack, the plaintiff claimed that the FCRA’s statute of limitations did not begin to run until he had “become aware of the actual violation of the statutory provision,” which only happened when “he engaged in substantial study and research” of the [FCRA], several months after the plaintiff knew that the defendant had obtained a credit report about him, allegedly without his consent.  Id, at 664.  The Fifth Circuit rejected that position and cited Merck for the proposition that “a limitations period begins to run when a claimant discovers the facts that give rise to a claim and not when a claimant discovers that those facts constitute a legal violation.”  Id. at 665-666.

Finally, a number of courts have followed the Fifth Circuit’s decision in Mack.  See, e.g.Rocheleau v. Elder Living Constr., No. 15-1588, 2016 U.S. App. LEXIS 2732, **6-8 (6th Cir. Feb. 18, 2016); Wirt v. Bon-Ton Stores, Inc., No. 1:14-cv-1755, 2015 U.S. Dist. LEXIS 135694, *13 (M.D. Pa. Oct. 1, 2015); Moore v. Rite Aid Hdqtrs Corp., 2015 U.S. Dist. LEXIS 69747, *25 (E.D. Pa. May 29, 2015).

FCRA plaintiffs, and their counsel, may find it hard to square the Supreme Court’s decision in Merck (that the FCRA’s limitations provision begins to run when the plaintiff discovers facts, not law) with the recent history of the FCRA’s limitations period (a prior Supreme Court decision held the same thing, and Congress thereafter amended the FCRA, perhaps to change it).  However, unless and until the Supreme Court reverses or changes the decision in Merck (which had no dissents), its holding appears to be binding.


 

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The FCRA’s statute of limitations: an update (Part 2 of 3)

December 4, 2015 Leave a comment

A few years back, I wrote a post which stated that district courts in the Ninth Circuit were interpreting the FCRA’s “new” statute of limitations in a plaintiff-friendly way.

Since then, courts in other jurisdictions have interpreted the FCRA’s statute of limitations differently, which suggests that it is time for my prior post to be updated.  I’m going to do the update in three parts:  1) how the old FCRA statute of limitations worked; 2) how it was revised in 2003, and how these revisions led at least some courts to read the statute in a plaintiff-friendly way in 2009 and 2010; and 3) how decisions since then interpreted the “new” (amended in 2003) statute.

Part 2:  How the FCRA’s statute of limitations was revised in 2003, and how these revisions led some courts to read the statute in a plaintiff-friendly way in 2009 and 2010

In our last post, we reviewed the Supreme Court’s 2001 reading of the “old” or pre-2003 version of the FCRA’s limitations provision (15 U.S.C. Sec. 1681p).  That reading was that, absent special cases involving a defendant’s misrepresentations, the FCRA’s two-year limitations period began to run on the date that the defendant engaged in the act that (allegedly) violated the FCRA, and not when the plaintiff discovered those alleged violations.

In 2003, Congress amended the FCRA’s limitations provision and adopted its current form, which states that FCRA claims must be brought:

(1)  2 years after the date of discovery by the plaintiff of the violation that is the basis for such liability; or
(2) 5 years after the date on which the violation that is the basis for such liability occurs.
On first glance, and knowing the history, you might read this and think that Congress’s 2003 amendment was intended to un-do the Supreme Court’s 2001 interpretation of the FCRA’s limitations provision.
One court, in a decision that inspired the prior blog post that I am updating here, stated that “Indisputably, the plain language of the statute now turns upon the date that a plaintiff acquires knowledge of the alleged violation–not the date of the alleged violation itself.”  Andrews v. Equifax Info. Servs. LLC, 700 F. Supp. 2d 1276, 1278 (W.D. Wash. 2010).
The Andrews court surveyed the limited precedent discussing the “new” version of 1681p and tried to apply it to a case where:  i) the plaintiff disputed information with Equifax in 2004 and 2005; ii) was denied credit in 2006; but iii) did not file suit until 2008.  Equifax contended that the events of 2004-2006 all triggered the statute to start running; plaintiff contended otherwise.  The court found that:
Equifax does not not explain how, from the information it sent, Plaintiff could discern whether the company’s procedures in ensuring accuracy or reinvestigating her dispute were reasonable, indicating a violation of Secs. 1681e(b) or 1681i.
such that
The Court thus finds the conclusion inescapable that there is a material dispute of fact as to when Plaintiff discovered the alleged violations at issue here.

Id. at 1279.

In my post, I didn’t agree that the Andrews court’s conclusion was “inescapable.”  But I did find that if its reasoning were adopted by other courts, then the two-year limitations period would be worthless to defendants, because they would never be able to prove, at summary judgment, that a plaintiff had discovered an alleged FCRA violation.

As it turns out, the Andrews court’s reasoning was not adopted by other courts.  More on that in Part 3 of 3.

 

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The FCRA’s statute of limitations: an update (Part 1 of 3)

November 6, 2015 Leave a comment

A few years back, I wrote a post which stated that district courts in the Ninth Circuit were interpreting the FCRA’s “new” statute of limitations in a plaintiff-friendly way.

Since then, courts in other jurisdictions have interpreted the FCRA’s statute of limitations differently, which suggests that it is time for my prior post to be updated.  I’m going to do the update in three parts:  1) how the old FCRA statute of limitations worked; 2) how it was revised in 2003, and how these revisions led at least some courts to read the statute in a plaintiff-friendly way in 2009 and 2010; and 3) how decisions since then interpreted the “new” (amended in 2003) statute.

Part I:  How the old FCRA statute of limitations worked.

Prior to 2003, the FCRA’s statute of limitations provision at 15 U.S.C. Sec. 1681p stated that:

An action to enforce any liability created under [the Act] may be brought . . . within two years from the date on which the liability arises, except that where a defendant has materially and willfully misrepresented any information required under [the Act] to be disclosed to an individual and the information so misrepresented is material to the establishment of the defendant’s liability to that individual under [the Act], the action may be brought at any time within two years after discovery by the individual of the misrepresentation.

That version of the statute said that plaintiffs typically had to file an FCRA lawsuit “within two years from the date on which the liability arises.”  The Supreme Court addressed that version of the statute in TRW Inc. v. Andrews, 534 U.S. 19 (2001).

In Andrews, the plaintiff contended that Experian (then known as TRW) provided credit reports about her to four lenders; that Experian did this when it knew or should have known that an impostor was using her social security number, last name, and first initial to apply for credit from those lenders; and that Experian thus violated the FCRA’s anti-identity theft provision at Sec. 1681e(a).  Experian’s reports were created on four separate occasions (July 25, 1994; September 27, 1994; October 28, 1994; January 3, 1995); the plaintiff discovered this on May 31, 1995; and she filed suit on “October 21, 1996, almost 17 months after she discovered the Impostor’s fraudulent conduct and more than two years after TRW’s first two disclosures.”  Id. at 24-25.

The question presented was whether the FCRA’s two-year statute of limitations began to run on the date of each report (in which case her claims as to the first two reports were time-barred) or on the date that she discovered what had happened (in which case her claims were timely as to all four reports).

The Supreme Court took the case because the Ninth Circuit had answered the question one way, and the Third, Seventh, Tenth, and Eleventh Circuits had answered it another way.  Predictably, the Supreme Court found that the Ninth Circuit’s interpretation was wrong.

The Ninth Circuit “appl[ied] what it considered to be the ‘general federal rule . . . that a federal statute of limitations begins to run when a party knows or has reason to know that she was injured.'”  Id. at 26.  The Supreme Court disagreed that any such rule applied to the FCRA, because “The most natural reading of Sec. 1681p is that Congress implicitly excluded a general discovery rule by explicitly including a more limited one.”  Id. at 28.  Specifically:

[I]ncorporating a general discovery rule into Sec. 1681p would not merely supplement the explicit exception contrary to Congress’ apparent intent; it would in practical effect render that exception entirely superfluous in all but the most unusual circumstances. A consumer will generally not discover the tortious conduct alleged here — the improper disclosure of her credit history to a potential user — until she requests her file from a credit reporting agency. If the agency responds by concealing the offending disclosure, both a generally applicable discovery rule and the misrepresentation exception would operate to toll the statute of limitations until the concealment is revealed. Once triggered, the statute of limitations would run under either for two years from the discovery date. In this paradigmatic setting, then, the misrepresentation exception would have no work to do.

Id. at 29.

In summary, under the “old” or pre-2003 version of the FCRA’s statute of limitations, the two-year period for FCRA claims began to run on the date that a defendant engaged in some conduct that violated the FCRA.  The only exception to this was when a defendant “materially and willfully misrepresented” information that:  1) it was obligated to provide to plaintiff; and 2) would have put plaintiff on notice that the defendant had violated the FCRA.

 

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Reseller Liability: An Update

October 2, 2015 Leave a comment

A year ago, I concluded a series on whether resellers – who create “tri-merge” reports that contain credit data from Experian, Equifax, and Trans Union – can be liable under 15 USC 1681e(b) if one bureau reports inaccurate information, the other two don’t, and the reseller reports it all without comment.

In recent weeks, two courts have issued new opinions on this question, one on one side and one on the other.  This post will briefly explain each opinion and then comment on them together.

In Baker v. Experian Info. Solutions, Inc., No. 14-cv-1011, 2015 U.S. Dist. LEXIS 82845 (C.D. Cal. June 22, 2015), plaintiff Danny Baker alleged that when he applied for a loan, the lender obtained tri-merge reports from Credco which contained accurate data from Equifax and Trans Union, but inaccurate data from Experian.  Specifically, he alleged that Experian’s reports listed a number of his late father’s debts as pertaining to him, and that by repeating this, Credco’s tri-merge report prevented him from getting credit.  Id. at **5-8.  

The court stated that “The essence of Plaintiff’s argument is that if Defendant gets information from Experian, Equifax, or TransUnion that is not included on a report by the other, then that provides notice that the information is inaccurate information” and, under existing precedent, is enough to make the reasonableness of Credco’s procedures a jury question for trial.  However, the court disagreed with this argument and found that Credco’s “procedures were reasonable as a matter of law.”  The court reached this conclusion as follows: there is no evidence that all three credit bureaus need to report the same information, which means that “the type of information reported by Experian does not by its existence show inaccuracy,” which means that Credco’s reports did not contain a “patent error” and were not “incorrect on their face,” which means that Credco, as an intermediary, had no duty to notice or correct the latent errors.  Id. at **12-14.  Notably, the court considered some of the decisions going the other way (discussed in my prior posts), but distinguished them on the grounds that they involved reports with patent errors.

In Ocasio v. CoreLogic Credco, LLC, No. No. 14-cv-1585, 2015 U.S. Dist. LEXIS 130990 (D.N.J. Sept. 29, 2015), plaintiff Gardenia Ocasio alleged that when she applied for a loan, the lender obtained tri-merge reports from Credco which contained debts that pertained to her grandmother and not to her, and that she was unable to obtain credit for this reason.  Id. at *2.  Unlike the Baker court, the Ocasio court did not note whether all three bureaus had been reporting her grandmother’s accounts as pertaining to her, or just one or two.  Id.  

The Ocasio court found that “Plaintiff has shown the inaccuracy of this information was obvious on the face of her credit reports which reported accounts owned by individuals with different birth years (1938 vs. 1987).”  Id. at *8.  For this reason, the court rejected Credco’s argument that “its procedures were reasonable as a matter of law because it accurately complied and reported information collected from the credit bureaus.”  Id.  (The court also rejected another legal argument, which has been rejected by other courts in the past, namely that “the statutory definition of ‘reseller’ exempts resellers from the duties of consumer reporting agencies,” id. at *11).

In comparing these two decisions, the most obvious difference (besides the fact that one granted Credco’s motion for summary judgment and the other court denied it) is the fact that the Baker court did not find discrepancies between the bureau reports to be “patent errors” which made the reports “incorrect on their face,” whereas the Ocasio court did.

Does the fact that the Ocasio reports contained credit accounts belonging to people with different birthdays mean that Credco could have decided which accounts were right, and which were wrong?  The court seemed to think so.  But without looking at the Ocasio reports, which were not re-printed in the court’s opinion, it is hard to know whether to agree. Even if the bureaus reported credit accounts that belonged to people with different birthdays, it does not necessarily follow that Credco had the power to see which accounts belonged to the person born in 1938, and which to the person born in 1987.  The Ocasio court apparently thought that Credco had the ability to do this, but the opinion doesn’t say why.

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Seventh Circuit Reiterates Its Position on an FCRA Plaintiff’s Burden of Proof

September 4, 2015 Leave a comment

The FCRA requires that every consumer reporting agency follow “reasonable procedures to assure maximum possible accuracy” of the information that it reports.  15 U.S.C. Sec. 1681e(b).  If a plaintiff can prove that a CRA didn’t follow reasonable procedures, then he or she can obtain actual damages and/or punitive damages, plus costs and fees.  Id. at Secs. 1681n, 1681o.

In general, the federal courts have never been very clear about what evidence the plaintiff must have to show that a CRA didn’t follow reasonable procedures.  Most of them say that it varies depending on the circumstances and is therefore usually a question for juries to decide.  See, e.g., Philbin v. Trans Union Corp., 101 F.3d 957 (3d Cir. 1996).

The Seventh Circuit is a notable exception to this general reluctance to tell parties what sort of evidence is sufficient to show a “reasonable procedures” violation.  In Sarver v. Experian Info. Solutions, 390 F.3d 969 (7th Cir. 2004), the plaintiff argued that Experian didn’t use reasonable procedures, because it reported that one of his credit accounts had been listed in bankruptcy, while at the same time showing that he had no public record of having filed for bankruptcy.  The plaintiff suggested that a reasonable procedure would have been for “each computer-generated report [to] be examined for anomalous information,” such as a conflict between an account in bankruptcy and an absence of a bankruptcy filing “and, if it is found, an investigation be launched.”  Id. at 972.  The Seventh Circuit rejected this position and said that the plaintiff had to present evidence “of prevalent unreliable information from a reporting lender, which would put Experian on notice that problems exist.”  Id. at 972.  In other words, merely saying that a computer process might allow inaccurate reports to be created is not enough: the plaintiff must go further and show that the defendant had notice of a problem with the computer process but hadn’t taken steps to correct it.

Recently, the Seventh Circuit followed (but didn’t cite) Sarver in Childress v. Experian Information Solutions, Inc., 790 F.3d 745 (7th Cir. 2015).  In Childress, the plaintiff argued that Experian’s practice of tracking bankruptcy court filings was unreasonable.  Experian used a computer to track electronic court records which showed when a person filed for bankruptcy, and later, what the outcome of that filing was (e.g., the petition for bankruptcy was dismissed or granted).  The plaintiff argued that this process was unreasonable because it didn’t show whether, when a bankruptcy petition was dismissed, that happened because the consumer withdrew it, or because the court deemed it insufficient.  The plaintiff argued for a manual system in which every time a bankruptcy petition was dismissed, someone would look at it and record whether that dismissal was voluntary or not.

The Seventh Circuit rejected this argument and stated that requiring a manual review of every court record “would put an enormous burden on the consumer credit-reporting agencies. Or so it seems; it was the plaintiff’s burden to establish the reasonableness of her proposed procedure.” 790 F. 3d at 747.

This decision is helpful to FCRA defense lawyers in two ways.  First, it suggests that CRAs are not required across the board to manually review the information they report before they report it.  Second, it reiterates that plaintiffs have the burden to prove that a different procedure would be reasonable, especially where the procedure seems like one that would impose “enormous costs” on the CRAs for little if any gains in accuracy.

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Should employers be able to use credit reports to decide whether to hire someone?

August 7, 2015 Leave a comment

The mayor of New York City recently signed a bill that will preclude public or private employers from using a credit report to help them decide whether or not to hire someone.  This month’s blog post will ask whether this kind of ban is a good idea.  LIke most of my blog posts, it will present the question but won’t leave you with a firm answer.

On the one side, any number of consumer advocates say that there is no evidence to suggest that a person with a poor credit history will also be a bad worker.  One group in NYC lists five reasons why credit reports shed no light whatsoever on a person’s job performance.  One of them is the fact that someone at Trans Union allegedly admitted, under oath, that “we don’t have any research to show any statistical correlation between what’s in somebody’s credit report and their job performance or their likelihood to commit fraud.”  (I haven’t been able to find a copy of this transcript and would invite readers to let me know if they do.)  Senator Elizabeth Warren has introduced federal legislation that would extend NYC’s upcoming ban nationwide; she says that “research has shown that an individual’s credit rating has little to no correlation with his or her ability to be successful in the workplace” but, again, doesn’t cite the research.

On the other side, some employers claim that “there is abundant research suggesting that financial stress has a negative impact on job performance.”  I was able to find some of the research that they are referring to, including this study which found that a large minority of employees had found personal financial issues to be a distraction at work, and this study which found that 20% of employees said they had skipped at least one day of work to deal with a financial problem.  However, these studies are not peer reviewed; they may be based on small or aberrational samples; they may be biased due to bad survey questions; and even if they show that financial issues can distract workers, they don’t take the next step and show that an employer, given access to a credit report, will be able to pick these people out in advance and hire workers with a better ability to focus.

Long story short, lots of people are making lots of claims about whether employers should be able to use credit reports when they hire people.  There is some evidence to suggest that they should, but both sides seem to be making arguments that outrun their evidence.

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If a credit bureau relies on the ACDV process, can a consumer win punitive damages? Maybe.

July 3, 2015 Leave a comment

Last month, I discussed a difference of opinion between a New York trial court and a Southern appellate court, on the issue of whether a plaintiff who didn’t suffer any actual damages can sue a credit bureau under 15 U.S.C. Sec. 1681i.  This month, I write to call your attention to yet another (potentially) interesting difference between these two cases.

This month, the question before us is whether a bureau, when it gets a dispute from a consumer who explains in some detail why the bureau has incorrectly reported some aspect of his credit history, acts recklessly insofar as it relies on the ACDV process – that is, is it a reckless violation of 1681i for the bureau to simply send a summary of the dispute to the creditor and then take its word over the consumer’s for whatever the status of the debt might be?  Put differently, if Jack Stack tells Experian that he doesn’t have the Capital One account that is listed in an Experian report or disclosure, because Stack’s wife opened the account and he never signed off on it, and if Experian’s response is to send Capital One an ACDV and then report whatever Capital One tells it to report – has Experian violated 1681i in such a reckless way that Experian can be asked to pay punitive damages?

The two courts that we looked at last month answered this question in two different ways.  A New York trial court held that when a consumer makes a detailed dispute, and the credit bureau relies solely on the ACDV process to respond to that dispute, then there is enough evidence for a jury to find that the bureau recklessly violated 1681i, such that it could be liable for punitive damages.  Gorman v. Experian Info. Solutions, Inc., 2008 U.S. Dist. LEXIS 94083 (S.D.N.Y. Nov. 18, 2008).  However, the Eleventh Circuit Court of Appeals recently went the other way, by holding that when a consumer submitted a detailed dispute of the information in his credit file, and the bureau relied solely on the ACDV process, this was NOT a reckless violation of 1681i.  Collins v. Experian Info. Solutions, Inc., 775 F.3d 1330, 1336 (11th Cir. 2015) (“Taking no steps other than contacting only Equable with an ACDV form regarding the disputed entry might have been negligent, but willfulness or recklessness is a higher standard that has not been met in this case”).

This is the kind of disagreement that keeps lawyers like me busy.  The Gorman court appears to think that because the ACDV process involves “merely parroting” whatever a creditor says is true – conduct which was condemned by the Third Circuit in Cushman v. Trans Union Corp., 115 F.3d 220, 225 (3d Cir. 1997) – then a bureau which continues to use the ACDV process, almost two decades after Cushman, is acting reckless enough to be tagged with punitive damages.  But the Collins court thinks – perhaps because there are some occasions when courts (other than Cushman) have found the ACDV process to be acceptable – that using the ADCV process can be negligent, but it is never reckless.  

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