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

December 4, 2015 1 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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