Understanding the

FAIR CREDIT
REPORTING ACT

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The Fair Credit Reporting Act (FCRA)

is a widely used statute governing the
collection, maintenance, and disclosure
of consumers personal information.
In addition to regulating consumer
reporting agencies, the statute imposes
a number of obligations on parties
that supply consumer information to
these agencies or use consumer reports.
With FCRA litigation on the rise
nationwide, it is more important than
ever for counsel to be familiar with the
FCRA and its implications.
MEIR FEDER
PARTNER
JONES DAY

Meir heads the firms Issues & Appeals Practice in New York. He has argued
appeals in the US Supreme Court and in eight federal circuits, and has briefed
and argued state court appeals and dispositive motions at the trial level. Meir
has extensive experience with the FCRA as well as in many other practice areas,
and he has argued some of the leading FCRA cases, such as Carvalho v. Equifax
Information Services, LLC, 629 F.3d 876 (9th Cir. 2010).

RAJEEV MUTTREJA
ASSOCIATE
JONES DAY

Rajeev is a member of the firms Issues & Appeals Practice in New York. He has
argued before the Sixth, Seventh, and Ninth Circuits, and has drafted briefs in
the US Supreme Court, many other appellate courts, and trial courts across the
country. Rajeev has served as lead defense counsel in more than two dozen cases
arising under the FCRA.

2016 Thomson Reuters. All rights reserved.

The Journal | Litigation | April/May 2016 49

ongress enacted the Fair Credit Reporting Act (FCRA)

in 1970 to promote the accuracy, fairness, and privacy of
information in the files of consumer reporting agencies
(CRAs) while also satisfying the important commercial
need for consumer reports (15 U.S.C. 1681; see TRW Inc. v. Andrews,
534 U.S. 19, 23 (2001)). The FCRA has been amended numerous
times, most significantly in 1996 and 2003, and generally regulates:
How CRAs must maintain their files on consumers.
How parties may furnish information about

consumers to CRAs.
How consumers may dispute information in their

consumer reports.
When a party may request and use a consumer report.

The FCRA is most often associated with reports on a consumers

credit history, commonly known as credit reports, but covers
other types of reports as well. Consumer reports typically
include an individuals credit history and payment patterns,
demographic and identifying information, and public records
information, such as arrests, judgments, and bankruptcies.
Parties can use this information, for example, when making
decisions on applications for credit cards, mortgages,
apartments, and employment to predict the risk that a consumer
might not satisfy a future debt or obligation.
The Federal Trade Commission and Consumer Financial
Protection Bureau share enforcement authority under the FCRA,
and both have issued related regulations and informal guidance.
Yet private consumer lawsuits seeking to recover actual or
statutory damages for violations of the FCRA far outnumber
agency actions. Moreover, plaintiffs counsel increasingly are
aggregating consumer claims for class action litigation (see Box,
Special Considerations for FCRA Class Actions).
This article provides an overview of key issues that counsel
should consider when litigating private consumer lawsuits under
the FCRA. In particular, it addresses:
The scope of the FCRA and the entities covered by it.
Preemption of state-law claims.
The required mental state for civil liability under the FCRA.

any other purpose authorized by Section 1681b of the FCRA

(see below Issuing or Obtaining a Consumer Report for an
Impermissible Purpose).

zz

(15 U.S.C. 1681a(d)(1); see Yang v. Govt Emps. Ins. Co., 146 F.3d
1320, 1323 (11th Cir. 1998); St. Paul Guardian Ins. Co. v. Johnson, 884
F.2d 881, 885 (5th Cir. 1989) (noting that a communication can be
a consumer report under the FCRA if it contains information that
was collected or expected to be used for a listed purpose under the
statute, even if not actually used for that purpose).)
The FCRAs definition of a consumer report excludes:
Reports that concern a consumers eligibility for commercial,

rather than personal, credit (see Ippolito v. WNS, Inc., 864 F.2d
440, 452 (7th Cir. 1988)).
Reports about a consumers transactions or experiences

with the person or organization making the report, such as

retail stores, hospitals, present or former employers, banks,
mortgage servicing companies, or credit unions (15 U.S.C.
1681a(d)(2)(A)(i); see, for example, Owner-Operator Indep.
Drivers Assn v. USIS Commercial Servs., Inc., 537 F.3d 1184,
1190-92 (10th Cir. 2008)).
Certain communications between corporate affiliates (15

U.S.C. 1681a(d)(2)(A)(ii)-(iii); see, for example, Am. Bankers

Assn v. Gould, 412 F.3d 1081, 1084 (9th Cir. 2005)).
Decisions on potential extensions of credit (15 U.S.C.

1681a(d)(2)(B)-(C)).
Reports

that are disclosed to only the consumer, rather

than a third party (see Wantz v. Experian Info. Sols., 386
F.3d 829, 834 (7th Cir. 2004), abrogated on other grounds
by Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47 (2007);
Pettway v. Equifax Info. Servs., LLC, 2010 WL 653708, at *7
(S.D. Ala. Feb. 17, 2010)).

Disclosures of basic identifying or demographic information,

such as a consumers name or address, typically are not
considered consumer reports. However, communications about
a persons income, employment, or medical history have been
held to qualify as consumer reports because they bear on a
consumers personal characteristics. (See Rowe v. UniCare Life &
Health Ins. Co., 2010 WL 86391, at *3 (N.D. Ill. Jan. 5, 2010).)

Damages and remedies available for FCRA violations.

The FCRA provisions that most often form the basis for

consumer claims.
Common defenses to FCRA claims.

REGULATED ENTITIES
In regulating consumer reports, the FCRA imposes duties on:
CRAs, which prepare consumer reports and maintain the

reported information.

STATUTORY SCOPE

Furnishers, which provide information about their experiences

The FCRA defines a consumer report as any written or oral

communication that meets all of the following conditions:

Third parties that request and use consumer reports.

It is prepared by a CRA.
It bears on a consumers creditworthiness, credit standing,

credit capacity, character, general reputation, personal

characteristics, or mode of living.
It is used or collected, at least in part, to establish a

consumers eligibility for:

credit or insurance for personal, family, or household purposes;

zz

employment purposes; or

with consumers to CRAs.

CRAs

A CRA is an organization that regularly assembles or evaluates

consumer credit information or other consumer information
(typically from a variety of sources, including credit card companies,
banks, and public records), to prepare and provide consumer
reports to third party users (15 U.S.C. 1681a(f); see, for example,
Hodge v. Texaco, Inc., 975 F.2d 1093, 1097 (5th Cir. 1992)).

zz

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Under the FCRA, CRAs must:

Maintain reasonable procedures to ensure:

the accuracy of their consumer reports; and

zz

that the consumer reports are provided only for permissible

purposes (see Box, Permissible Purposes: Reasonable
Procedures and Certifications).

Search Consumer Regulations Governing Debt Collection for

information on the federal consumer laws that govern debt collection
activities, including how the FCRA applies to debt collectors.

zz

Reasonably investigate consumers disputes of reported

information.
The largest CRAs include Equifax Information Services, LLC,
Experian Information Solutions, Inc., and TransUnion LLC,
which each maintain vast repositories of consumer credit
information. However, the definition of CRA also reaches smaller
organizations that provide credit screenings and reports for use
by employers, landlords, banks, mortgage companies, retail
stores, casinos, and insurance companies, among others.
INFORMATION FURNISHERS

A furnisher provides information to CRAs for inclusion in

consumer reports. Under the FCRA, furnishers must:
Provide accurate and complete information to the CRAs.
Investigate consumers disputes of the accuracy of furnished

information.
(15 U.S.C. 1681s-2.)
The term furnisher is not defined in the statute, but is generally
understood to include organizations that provide information
about their customers to CRAs. Examples of furnishers include
banks, credit card issuers, mortgage lenders, collection agencies,
and auto finance lenders.
USERS OF CONSUMER REPORTS

Under the FCRA, third-party users of consumer reports must:

Have a permissible purpose to obtain the consumer report

(see below Issuing or Obtaining a Consumer Report for an

Impermissible Purpose).

PREEMPTION OF STATE-LAW CLAIMS

When alleging FCRA violations, consumers often also bring
claims under various state laws in the same action. However,
the FCRA preempts certain state statutes and common law,
including:
Inconsistent state laws. The FCRA preempts state statutes,

regulations, and common law that purport to govern the

collection, distribution, or use of any consumer information,
or to prevent or mitigate identity theft, where the state law is
inconsistent with the FCRA. These state laws are preempted
to the extent of the inconsistency (15 U.S.C. 1681t(a)).
This occurs, for example, when complying with the state
law would violate the FCRA (see, for example, Davenport v.
Farmers Ins. Grp., 378 F.3d 839, 843 (8th Cir. 2004)).
Defamation,

privacy, and negligence claims. The FCRA

specifically bars defamation, invasion of privacy, and
negligence claims that concern the reporting of information
from being brought against any CRA, any user of a consumer
report, or any furnisher of reported information, except
for false information furnished with malice or willfully
intended to injure the consumer (15 U.S.C. 1681h(e); see,
for example, Thornton v. Equifax, Inc., 619 F.2d 700, 703
(8th Cir. 1980)). For a state-law claim to stand under this
provision, a defendants misconduct must be truly malicious
and not simply careless (see Ross v. FDIC, 625 F.3d 808, 817
(4th Cir. 2010)).

The FCRA also preempts any law or regulation addressing the

series of subjects listed in Section 1681t(b), including any subject
matter relating to, for example, the responsibilities of furnishers
or persons who take adverse actions against consumers
(15 U.S.C. 1681t(b)(1)(F)).

Make certifications to the CRA on their intended use of

consumer reports (see Box, Permissible Purposes: Reasonable

Procedures and Certifications).
Notify consumers when adverse actions are taken, or certain

other decisions are made, based on a consumer report

(15 U.S.C. 1681m).
Follow specific policies and procedures related to identity

theft (15 U.S.C. 1681c-1).

Adequately resolve discrepancies related to a consumers

address (15 U.S.C. 1681c(h)).

Apart from these requirements, the FCRA imposes additional
obligations on creditors that use consumer reports in connection
with an application for, or a grant of, an extension or a provision of
credit to the consumer. These creditors must provide consumers
with a risk-based pricing notice if both of the following apply:
The credits material terms are materially less favorable than

the most favorable terms available to a substantial proportion

of consumers.
The credits terms are based in whole or in part on the

consumer report.
(15 U.S.C. 1681m(h).)
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Search Federal Preemption Issues in Banking for information on the

federal preemption doctrine under US banking law, including more on
conflicts between the FCRA and state law.

CULPABLE MENTAL STATES UNDER THE FCRA

The FCRA is not a strict liability statute. An inaccurate consumer
report therefore does not automatically result in liability. Instead,
the FCRA imposes civil liability for negligent and willful failures
to comply with its requirements (15 U.S.C. 1681n, 1681o).
NEGLIGENT VIOLATIONS

Negligence liability typically turns on whether the defendant

acted reasonably (see below Common Claims Under the FCRA).
To prove a claim for negligent failure to comply with the FCRA,
a consumer must show a causal relationship between the
defendants FCRA violation and the claimed harm, such as a
loss of credit. Absent this causal relationship, there can be no
liability. (See, for example, Crabill v. Trans Union, L.L.C., 259 F.3d
662, 664 (7th Cir. 2001); Cahlin v. Gen. Motors Acceptance Corp.,
936 F.2d 1151, 1160-61 (11th Cir. 1991).)
The Journal | Litigation | April/May 2016 51

For example, it is not enough for a consumer to show that his

consumer report is inaccurate and that he was denied credit.
Instead, the consumer must also prove that the inaccuracy, rather
than other aspects of the report, or other factors altogether,
caused the alleged harm. (See, for example, Pettus v. TRW
Consumer Credit Serv., 879 F. Supp. 695, 698 (W.D. Tex. 1994).)
Causation has two components:
The violation must be the factual cause of the plaintiffs injury.

Some courts have held that the violation must have been the
but-for cause of the plaintiffs injury (see, for example, Matise
v. Trans Union Corp., 1998 WL 872511, at *7 (N.D. Tex. Nov. 30,
1998) (requiring a plaintiff to show that the inaccurate
information contained in a CRA-defendants report, rather
than other lines in the [defendants] report or a report from a
different CRA, caused his injury)). Others have held that the
violation must have been a substantial factor in causing the
injury (see, for example, Enwonwu v. Trans Union, LLC, 364 F.
Supp. 2d 1361, 1366 (N.D. Ga. 2005)).
The violation must be the proximate cause of the plaintiffs

injury (see, for example, Reeves v. Equifax Info. Servs., LLC,

2010 WL 2036661, at *6 (S.D. Miss. May 20, 2010)). This
means the connection between the violation and the alleged
injury cannot be too remote or indirect.
WILLFUL VIOLATIONS

To establish a willful violation of the FCRA, a consumer must

demonstrate that the defendant either knowingly or recklessly
violated the statute. This scienter requirement involves two
inquiries:
Is there an objectively reasonable interpretation of the

statute under which the defendants conduct could be

considered lawful? There is no willful violation of the FCRA
if, at the time of the defendants actions, his conduct could
reasonably have been thought lawful. This objective inquiry
is made by the court rather than the jury. The defendants
subjective intent is irrelevant. (See Safeco, 551 U.S. at 70 & n.20.)
If the defendants conduct was objectively unreasonable

under the statute, how unreasonable was it? For the

defendants conduct to have been reckless, the risk of violating
the FCRA must have been substantially greater than the risk
associated with a merely careless reading of the statute (see
Safeco, 551 U.S. at 69). A jury often must decide this question
based, in part, on the facts surrounding the defendants

particular interpretation of the statute (see Fuges v. Sw.

Fin. Servs., Ltd., 707 F.3d 241, 251 (3d Cir. 2012)). The US
Supreme Court in Safeco suggested (but did not hold) that
a defendants good-faith reliance on legal advice could be
relevant to this inquiry (Safeco, 551 U.S. at 70 n.20).
The objective nature of the first part of the Safeco test lends
itself well to a motion to dismiss or a motion for summary
judgment because a defendant can argue as a matter of law
that his alleged conduct did not violate any clearly established
FCRA requirement or prohibition (for more on strategies to
defend against FCRA claims, see below Common Defenses to
FCRA Claims).

DAMAGES AND REMEDIES

When claiming negligence liability, consumers may seek their
actual damages arising from an FCRA violation (15 U.S.C.
1681o(a)(1)-(2)). Consumers alleging a willful failure to comply
with an FCRA requirement may seek:
Either:

actual damages (15 U.S.C. 1681n(a)(1)(A)); or

zz

statutory damages of $100 to $1,000 (15 U.S.C. 1681n(a)(1)(A)).

zz

Punitive damages (15 U.S.C. 1681n(a)(2)).

Whether claiming a negligent or willful violation, a plaintiff

may recover costs and reasonable attorneys fees (15 U.S.C.
1681n(a)(3), 1681o(a)(2)).
Actual damages can include damages for emotional distress,
even if the plaintiff suffered no economic damages (see, for
example, Cortez v. Trans Union, LLC, 617 F.3d 688, 719 (3d Cir.
2010); Guimond v. Trans Union Credit Info. Co., 45 F.3d 1329,
1333 (9th Cir. 1995)). Courts generally require compelling proof
of a plaintiffs emotional damages (see, for example, Sloane v.
Equifax Info. Servs., LLC, 510 F.3d 495, 502-03 (4th Cir. 2007);
Ruffin-Thompkins v. Experian Info. Sols., Inc., 422 F.3d 603, 610
(7th Cir. 2005) (holding that conclusory statements of emotional
harm were insufficient)).
Damages for alleged lost opportunities, such as those that
might have happened had a loan been approved, typically are
not available because they are too speculative (see, for example,
Casella v. Equifax Credit Info. Servs., 56 F.3d 469, 475 (2d Cir.
1995); Lee v. Sec. Check, LLC, 2010 WL 3075673, at *13 (M.D. Fla.
Aug. 5, 2010)). Additionally, business-related damages are not

It is not enough for a consumer to show that his consumer

report is inaccurate and that he was denied credit.
Instead, the consumer must also prove that the inaccuracy,
rather than other aspects of the report, or other factors
altogether, caused the alleged harm.
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recoverable (see, for example, Tilley v. Global Payments, Inc., 603

F. Supp. 2d 1314, 1328-29 (D. Kan. 2009)).
Also, courts generally have held that injunctive relief is not
available to private litigants under the FCRA, although there is
limited older authority that reaches a contrary conclusion (see,
for example, Washington v. CSC Credit Servs. Inc., 199 F.3d 263,
268 (5th Cir. 2000) (summarizing older authority and finding
no private right to injunctive relief); White v. First Am. Registry,
Inc., 378 F. Supp. 2d 419, 421-24 (S.D.N.Y. 2005) (following
Washington); Howard v. Blueridge Bank, 371 F. Supp. 2d 1139,
1145-46 (N.D. Cal. 2005) (same)).

1994); Burke v. Experian Info. Sols., Inc., 2011 WL 1085874, at *5

(E.D. Va. Mar. 18, 2011); Stewart v. Abso, Inc., 2010 WL 3853114, at
*11 (W.D. Ky. Sept. 28, 2010)).
To establish liability under Section 1681e(b), a plaintiff must
show that:
His consumer report contained inaccurate information.
The CRA provided his consumer report to a third party.
The inaccuracy was due to the defendants unreasonable

procedures.
He suffered injury.
His injury was caused by the inclusion of the inaccurate entry.

COMMON CLAIMS UNDER THE FCRA

Although the FCRA imposes a variety of requirements, plaintiffs
most frequently raise claims alleging that a defendant violated
the FCRA by negligently or willfully:
Failing to follow reasonable procedures for ensuring the

accuracy of consumer information.

Failing to properly investigate or reinvestigate a consumers

dispute.
Issuing or obtaining a consumer report for an impermissible

purpose.
Courts have consistently held that to prevail on a reasonable
procedures or reinvestigation claim, a consumer must
demonstrate that the reported consumer information is
inaccurate (see, for example, DeAndrade v. Trans Union LLC, 523
F.3d 61, 65-67 (1st Cir. 2008) (collecting cases)). Courts generally
have agreed that the question of accuracy may be addressed at
summary judgment, but they have adopted different definitions
of accuracy (see, for example, Gorman v. Wolpoff & Abramson,
LLP, 584 F.3d 1147, 1163 (9th Cir. 2009) (a consumer report is
inaccurate if it is factually accurate but misleading, for example,
because it omits certain information); Spence v. TRW, Inc., 92
F.3d 380, 382 (6th Cir. 1996) (a consumer reports accuracy
depends solely on the correctness of the information reported)).
Notably, the FCRA does not provide for a private right of action
for alleged violations of a partys duties when using a consumer
report (which are different from a partys duties when requesting
a consumer report under Section 1681b) (see 15 U.S.C. 1681m(h)(8)).
Instead, only the federal government can enforce those duties
(see, for example, Perry v. First Natl Bank, 459 F.3d 816, 819-23
(7th Cir. 2006)). In these actions, the user cannot be held liable if
he shows by a preponderance of the evidence that he maintained
reasonable procedures to assure compliance with the FCRA at
the time of the alleged violation (15 U.S.C. 1681m(c)).
FAILURE TO FOLLOW REASONABLE PROCEDURES

The FCRA requires CRAs to follow reasonable procedures to

assure maximum possible accuracy when preparing consumer
reports (15 U.S.C. 1681e(b); see Thompson v. San Antonio Retail
Merchants Assn, 682 F.2d 509, 513 (5th Cir. 1982) (noting that
Section 1681e(b) imposes a duty of reasonable care on CRAs)).
Therefore, a CRA will not be liable if, for example, it accurately
reports information from a reliable source, but that source
provided inaccurate information (15 U.S.C. 1681e(b); see, for
example, Henson v. CSC Credit Servs., 29 F.3d 280, 285 (7th Cir.

2016 Thomson Reuters. All rights reserved.

(See Cortez, 617 F.3d at 708; Wantz, 386 F.3d at 834.) One
possible exception to this list may apply to cases in the Ninth
Circuit, which has suggested that Section 1681e(b) liability does
not require provision of a consumer report to a third party (see
Guimond, 45 F.3d at 1333).
The circuit courts disagree on who bears the burden of proving
the reasonableness of the CRAs procedures. The Ninth and
Eleventh Circuits have suggested that the CRA bears the burden
of showing that it acted reasonably (see Guimond, 45 F.3d at 1333
(noting that a CRA can escape liability if it establishes that an
inaccurate report was generated despite the agencys following
reasonable procedures); Cahlin, 936 F.2d at 1156 (same)).
By contrast, the Fourth and DC Circuits have held that the
plaintiff bears the burden of showing that the defendants
procedures were unreasonable (see Dalton v. Capital Associated
Indus., Inc., 257 F.3d 409, 416 (4th Cir. 2001); Stewart v. Credit
Bureau, Inc., 734 F.2d 47, 51 & n.5 (D.C. Cir. 1984)). These courts
have noted that Congress explicitly shifted the burden of proof
from a plaintiff to a CRA elsewhere in the FCRA. By not also
doing so in Section 1681e(b), Congress intended that the default
burden would apply to claims under that provision. (See Stewart,
734 F.3d at 51 n.5 (citing 15 U.S.C. 1681d(c), 1681m(c)).)
FAILURE TO INVESTIGATE OR REINVESTIGATE

If a consumer believes that information on his consumer

report is inaccurate, he can dispute the inaccuracy with the
CRA or directly with the furnisher. The consumers filing of a
dispute with the CRA triggers reinvestigation duties for the
CRA and investigation duties for the furnisher. Filing a dispute
with the furnisher, by contrast, triggers only the furnishers
duties. These duties call for a reasonable examination of the
consumer dispute by the CRA and the furnisher (see 15 U.S.C.
1681i(a)(1)(A), 1681s-2(b)). Notably, one circuit court has held
that a claim concerning reinvestigation applies to information
contained in a consumers file at a CRA, even if the CRA did
not provide the information to a third party (although, without
this disclosure, a consumer likely will have trouble proving
damages) (see Collins v. Experian Info. Sols., Inc., 775 F.3d 1330,
1333 (11th Cir. 2015)).
CRA Liability for Failing to Reinvestigate

Consumers commonly dispute the accuracy of information in

their consumer reports with the CRA that prepared the report.
Within 30 days after receiving notice of a dispute, subject to
an extension of 15 days if the consumer supplies additional
The Journal | Litigation | April/May 2016 53

Permissible Purposes: Reasonable Procedures and Certifications

CRAs must observe reasonable procedures to limit the
issuance of consumer reports to permissible purposes.
These procedures can include:
Requiring that a party requesting a consumer report

certify the purposes for which it is seeking the

information.
Making a reasonable effort to verify the users identity

and certified purposes.

Declining to provide a consumer report if the CRA has

reasonable grounds to believe the report will not be used

for a permissible purpose.
(15 U.S.C. 1681e(a).)
Most courts have held a CRAs reliance on a partys
blanket certification that reports are being requested for
a permissible purpose to be reasonable as a matter of
law, particularly when the CRA has no reason to doubt the

information, the CRA must conduct and complete a reasonable

reinvestigation to determine whether the disputed information is
inaccurate (15 U.S.C. 1681i(a)(1)(A)).
A reasonable reinvestigation calls for reasonable diligence
by the CRA (Dennis v. BEH-1, 520 F.3d 1066, 1071 (9th Cir.
2008)). This typically requires asking the furnisher whether the
reported information should be modified or deleted based on
the consumers dispute. There ordinarily is no need for the CRA
to require original documentation from the furnisher, and it is
typically reasonable for the agency to rely on the furnishers
verification or modification of the reported information. (See, for
example, Fed. Trade Commn, 40 Years of Experience with the
Fair Credit Reporting Act, at 76 (July 2011).) But if the CRA knows
or should know that the furnisher is unreliable, and if verifying
the reported information would not be too costly, then a
reasonable reinvestigation may in some circumstances require
verifying the accuracy of the furnishers information (Cushman v.
Trans Union Corp., 115 F.3d 220, 225 (3d Cir. 1997)).
However, a CRA is not required to resolve a legal dispute
between a furnisher and a consumer by, for example,
determining which side has the better interpretation of
a contract governing a reported debt (see, for example,
Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 892 (9th
Cir. 2010) (observing that a CRA is not required as part of its
reinvestigation duties to provide a legal opinion on the merits);
DeAndrade, 523 F.3d at 68; Krajewski v. Am. Honda Fin. Corp.,
557 F. Supp. 2d 596, 616-17 (E.D. Pa. 2008)).
If the CRA reasonably determines that a consumers dispute
is frivolous or irrelevant, the agency may terminate the
reinvestigation (15 U.S.C. 1681i(a)(3)(A)). This can occur if,
for example, the consumer does not give the agency a reason
to believe that the reported information is inaccurate, or
54

April/May 2016 | Practical Law

requesting partys purposes (see, for example, Hernandez

v. Lamboy Furniture, Inc., 2008 WL 4061344, at *9-10 (E.D.
Pa. Sept. 2, 2008); Enoch v. Dahle/Meyer Imports, L.L.C.,
2007 WL 4106264, at *5 (D. Utah Nov. 16, 2007); Dobson
v. Holloway, 828 F. Supp. 975, 977 (M.D. Ga. 1993); Davis
v. Asset Servs., 46 F. Supp. 2d 503, 508 (M.D. La. 1998);
Boothe v. TRW Credit Data, 557 F. Supp. 66, 71 (S.D.N.Y.
1982)). No court has held that blanket certifications are
impermissible, and that a CRA must individually review
every request for a consumer report.
Some courts, however, have held that whether the use of a
blanket certification is a reasonable procedure in certain
circumstances is a question of fact (see, for example,
Pintos v. Pac. Creditors Assn, 565 F.3d 1106, 1114 (9th Cir.
2009), amended and superseded on other grounds by 605
F.3d 665 (9th Cir. 2010); Sheldon v. Experian Info. Sols., Inc.,
2010 WL 3768362, at *5 (E.D. Pa. Sept. 28, 2010)).

the consumers dispute duplicates a previous dispute (see,

for example, Ruffin-Thompkins, 422 F.3d at 608-09). After
terminating the reinvestigation, the agency must notify the
consumer within five business days (15 U.S.C. 1681i(a)(3)(B)).
After a consumer dispute is raised, the CRA must:
Provide prompt notice to furnishers. Within five business

days of receiving notice of a dispute, the CRA must notify the

furnisher of the dispute and provide all relevant information
regarding the dispute that the agency received (15 U.S.C.
1681i(a)(2)(A)). However, this does not require the CRA to
transmit the consumers statements on the dispute, if the CRA
provides an accurate and reasonable summary of the dispute
(see, for example, Paul v. Experian Info. Sols., Inc., 793 F. Supp.
2d 1098, 1103 (D. Minn. 2011); Boothe v. TRW Credit Data, 768
F. Supp. 434, 438-39 (S.D.N.Y. 1991)). The furnisher must then
reasonably investigate the matter and report the results of the
investigation to the CRA (15 U.S.C. 1681s-2(b)).
Modify or delete inaccurate or unverifiable information. The

CRA must promptly modify or delete the disputed information

as appropriate and notify the furnisher of any changes, if the
agency either:
determines that the disputed information is inaccurate or
incomplete; or

zz

cannot verify the information within the timeframe for

completing the reinvestigation.

zz

(15 U.S.C. 1681i(a)(5)(A).) If the agency deletes any

information, it cannot later reinsert the information unless
the furnisher certifies that the information is accurate. If the
furnisher provides this certification, the CRA must notify the
consumer within five business days after the reinsertion (15
U.S.C. 1681i(a)(5)(B)).

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Provide its reinvestigation findings to the consumer. After

completing or terminating a reinvestigation, the CRA must

notify the consumer of the results within five business days
(15 U.S.C. 1681i(a)(3)(B), (a)(6)). The CRA should provide,
among other things, a revised consumer report and, on the
consumers request, a statement describing the procedures
it used to reinvestigate the allegedly inaccurate information
(15 U.S.C. 1681i(a)(6)(B)).

Instead, requesting a report with a consumers consent qualifies

as its own permissible purpose, distinct from the others listed in
the FCRA (see 15 U.S.C. 1681b(a)(2)).
CRAs are not required to police how a user ultimately uses the
consumer report, but they must maintain reasonable procedures
to limit improper disclosures (see Box, Permissible Purposes:
Reasonable Procedures and Certifications).

If the reinvestigation does not resolve the dispute to the

consumers satisfaction, the consumer may file a brief statement
about the dispute that must appear on all consumer reports
listing the information, unless the CRA has reasonable grounds
to believe the statement is frivolous or irrelevant (15 U.S.C.
1681i(b)-(c)).

Firm Offers

Furnisher Liability for Failing to Investigate

(15 U.S.C. 1681b(c).)

If a consumer disputes the accuracy of information in his consumer

report directly with a furnisher, the furnisher must conduct and
complete an investigation within 30 days (15 U.S.C. 1681s-2(a)(8)).
If the furnisher determines that the reported information is
inaccurate, it must promptly correct the information with all CRAs
to which it furnished the information (15 U.S.C. 1681s-2(a)(2)).
As discussed above, a furnisher also must investigate disputed
information after receiving notice from a CRA that a consumer
filed a dispute with the agency (15 U.S.C. 1681s-2(b)).

Plaintiffs commonly allege that a defendant, often a credit card

company, made a firm offer merely as a pretext for obtaining the
plaintiffs consumer report. However, courts typically consider
these offers to be legitimate firm offers if the creditor will extend
credit if the consumer meets the specified pre-selection criteria
(see, for example, Gelman v. State Farm Mut. Auto. Ins. Co., 583
F.3d 187, 194-95 (3d Cir. 2009); Poehl v. Countrywide Home
Loans, Inc., 528 F.3d 1093, 1097-98 (8th Cir. 2008)).

Although the FCRA does not specify the duty of care a

furnisher must use in its investigation, courts have held that the
investigation must be reasonable (see, for example, Johnson v.
MBNA Am. Bank, NA, 357 F.3d 426, 431 (4th Cir. 2004)). It can
be unreasonable, for example, for a furnisher not to consult
the underlying documents when verifying that information is
accurately reported.
A consumer may sue a furnisher over the accuracy of information
only after the consumer has formally disputed the information
with the CRA, which triggers the furnishers investigation duties
(15 U.S.C. 1681s-2(c)). Before a consumer files a dispute with
the CRA, only the federal and state governments may sue the
furnisher (15 U.S.C. 1681s-2(a), (e); see, for example, Seamans
v. Temple Univ., 744 F.3d 853, 864 (3d Cir. 2014); Nelson v. Chase
Manhattan Mortg. Corp., 282 F.3d 1057, 1060 (9th Cir. 2002)).

CRAs may disclose consumer credit information in connection

with the extension of a firm offer of credit or insurance that is not
initiated by the consumer if both:
The consumer has been pre-screened.
The offer meets the criteria set forth at Section 1681a(l).

Although the FCRA does not expressly require firm offers to

exceed a certain amount of credit, a firm offer must provide
sufficient value to be a legitimate credit product, not just a guise
for solicitation (see Cole v. U.S. Capital, Inc., 389 F.3d 719, 728
(7th Cir. 2004)).
Employment Matters

With the consumers consent, a CRA may provide a consumer

report for certain employment purposes, including evaluating
the consumer for employment, promotion, reassignment, or
retention. The user, typically an employer or a background check
provider, must certify to the CRA that:
It has informed the consumer that a consumer report will be

obtained in connection with the employment matter.

The consumer has provided written authorization for the

disclosure of the report.

ISSUING OR OBTAINING A CONSUMER REPORT FOR AN

IMPERMISSIBLE PURPOSE

A copy of the report will be given to the consumer if any

A consumer may sue a CRA or user for negligently or willfully

issuing or obtaining a consumer report for an impermissible
purpose (15 U.S.C. 1681b). Commonly litigated purposes
include:

(See 15 U.S.C. 1681b(a)(3)(B), (b), 1681a(h); see, for example,

Miller v. Johnson & Johnson, 80 F. Supp. 3d 1284, 1295-96
(M.D. Fla. 2015) (holding that an employer violated the FCRA
by failing to provide the plaintiff with pre-adverse action notice
before rescinding an employment offer).)

Firm offers of credit or insurance.

Employment matters.
Credit transactions.
Other legitimate business needs.

Except for consumer reports issued for employment purposes,

consumer consent is not a prerequisite to a permissible purpose
(15 U.S.C. 1681b(b), 1681a(h); see, for example, Hinton v. Trans
Union, LLC, 2009 WL 2461439, at *6 (E.D. Va. Aug. 11, 2009)).

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adverse action is taken in reliance on the report.

Subject to a limited exception, the initial notice to a consumer

must be:
Clear and conspicuous.
In writing.
In a document that consists solely of the notice.
Delivered before the consumers report is procured.

(15 U.S.C. 1681b(b)(2)(A).)

The Journal | Litigation | April/May 2016 55

Courts have looked to the Uniform Commercial Code and the

Truth in Lending Act for guidance when determining what
constitutes a clear and conspicuous notice (see, for example,
Cole v. U.S. Capital, Inc., 389 F.3d 719, 730-31 (7th Cir. 2004)).

However, other judges have argued that this purpose also may
apply to reports used in connection with involuntarily incurred
debts (see Pintos, 605 F.3d at 670-72 (Kozinski, J., dissenting
from denial of rehearing en banc)).

Some courts have held that the notice may not include any
material other than the formal request for the consumers
consent (see, for example, Milbourne v. JRK Residential Am.,
LLC, 92 F. Supp. 3d 425, 433 (E.D. Va. 2015)). Other courts have
permitted the document to contain other material so long as the
notice remains clear and conspicuous (see, for example, Burghy
v. Dayton Racquet Club, Inc., 695 F. Supp. 2d 689, 698-700 (S.D.
Ohio 2010)).

Other Legitimate Business Needs

Search Fair Credit Reporting Act (FCRA) Adverse Action Notification

Letter for a sample letter to send to job applicants not selected for a
position because of information contained in their consumer reports,
with explanatory notes and drafting tips.
Search Fair Credit Reporting Act (FCRA) Disclosure and Authorization
for Background Checks for a sample background check consent
form serving as a disclosure and authorization that an employer can
provide to job applicants and employees before seeking a consumer
report, with explanatory notes and drafting tips.

Credit Transactions

A CRA may issue a consumer report to a party that, the

agency has reason to believe, intends to use the information in
connection with:
The extension of credit to the consumer.
Review or collection of the consumers credit account.

(15 U.S.C. 1681b(a)(3)(A); see, for example, Huertas v. Galaxy

Asset Mgmt., 641 F.3d 28, 34 (3d Cir. 2011) (holding that a
debt collector obtained the plaintiffs credit information for
a permissible purpose under the FCRA where the plaintiffs
accumulation of credit card debt caused the debt collector to
access the plaintiffs credit report and collect on the debt).)

The catchall provision contained in Section 1681b(a)(3)(F)

contemplates disclosing a consumer report where the user
articulates a legitimate business need for the information in
connection with either:
A business transaction that is initiated by the consumer,

such as a transaction relating to credit, insurance eligibility,

employment, or licensing.
A review of a consumers account to determine whether the

consumer continues to meet the terms of the account.

(See Houghton v. New Jersey Mfrs. Ins. Co., 795 F.2d 1144, 1149-51
(3d Cir. 1986); Scott v. Real Estate Fin. Grp., 956 F. Supp. 375,
382 (E.D.N.Y. 1997).) Courts have construed this provision
narrowly to require the request for a consumers report to be,
as a practical matter, part of the transaction the consumer
initiated (Smith v. Bob Smith Chevrolet, Inc., 275 F. Supp. 2d 808,
819 (W.D. Ky. 2003)).
A CRA may permissibly provide information about a
consumers spouse if the information bears on the consumers
creditworthiness or credit standing, such as where:
The spouse will use the account or be contractually liable for

the account.
The applicant relies on the spouses income or is acting as the

spouses agent.
(See, for example, Short v. Allstate Credit Bureau, 370 F. Supp. 2d
1173, 1179-80 (M.D. Ala. 2005).)

COMMON DEFENSES TO FCRA CLAIMS

A transaction or debt that the consumer sought out or initiated.

A defendant in an FCRA action may assert defenses based on

statutory requirements that a plaintiff must satisfy to establish
liability. For example, a defendant can point to the failure of
proof relating to:

A debt that has been confirmed by a court.

Accuracy.

(See, for example, Pintos, 605 F.3d at 674-75; Stergiopoulos v.

First Midwest Bancorp, Inc., 427 F.3d 1043, 1048 (7th Cir. 2005).)

Reasonableness.

In these cases, some courts have held that the consumer report
must be used in connection with either:

Causation.

Courts have looked to the Uniform Commercial Code and

the Truth in Lending Act for guidance when determining
what constitutes a clear and conspicuous notice.

56

April/May 2016 | Practical Law

2016 Thomson Reuters. All rights reserved.

ACTUAL INJURY AND CONSTITUTIONAL STANDING

Special Considerations for

FCRA Class Actions
Consumers commonly bring FCRA claims as
class actions under FRCP 23(b)(3). Putative class
representatives often pursue only willful violations of
the FCRA to recover statutory damages. This tactic
avoids the need for individualized assessments of
damages, which often prompt commonality and
typicality challenges to class certification.
By seeking only statutory damages, however, class
representatives might be exposed to an argument
that they lack an actual injury and therefore lack
Article III standing. The Supreme Courts decision
in Spokeo may bear significantly on this issue (see
Actual Injury and Constitutional Standing).
Search Class Action Toolkit for a collection of resources
designed to assist counsel with class action procedure,
requirements, and practice in federal court.

The FCRA explicitly requires a plaintiff claiming negligence

liability to establish that he suffered an actual injury (15 U.S.C.
1681o(a)(1); see, for example, Crabill, 259 F.3d at 665).
The FCRA permits a plaintiff claiming willfulness liability to seek
only statutory damages (15 U.S.C. 1681n(a)(1)). The federal
circuit courts are split on whether this type of plaintiff must
additionally prove an actual injury, and on what constitutes
such an injury, to establish Article III standing (compare Robins
v. Spokeo, Inc., 742 F.3d 409, 412-14 (9th Cir. 2014) (no injury
required) and Beaudry v. TeleCheck Servs., Inc., 579 F.3d 702,
705-07 (6th Cir. 2009) (same) with David v. Alphin, 704 F.3d
327, 338-39 (4th Cir. 2013) (requiring actual injury for Article
III standing in an ERISA case) and Kendall v. Emps. Ret. Plan of
Avon Prods., 561 F.3d 112, 121 (2d Cir. 2009) (same)).
The Supreme Court granted certiorari on this question in Spokeo,
Inc. v. Robins. At issue in Spokeo is whether a plaintiff has
Article III standing where he can demonstrate a willful statutory
violation under the FCRA but has not suffered a concrete injury.
(No. 13-1339, 2014 WL 1802228, at *I (U.S. May 1, 2014).) The
Supreme Courts decision could have a significant impact on the
defenses available in FCRA litigation where the plaintiff has not
suffered a tangible injury or incurred any damages.

These defenses also may serve as grounds for dismissal under

Federal Rule of Civil Procedure (FRCP) 12(b)(6) or a motion for
summary judgment under FRCP 56.
In addition to attacks on failures of proof, common defenses include:
Expiration of the statute of limitations.
Lack of actual injury and constitutional standing.

STATUTE OF LIMITATIONS

A plaintiff must bring an FCRA claim within the earlier of either:

Two years after the plaintiff discovers the violation.
Five years after the violation occurred.

(15 U.S.C. 1681p.) Republication of information in a consumer

report does not constitute a new violation giving rising to a
new cause of action (see, for example, Bermudez v. Equifax Info.
Servs., LLC, 2008 WL 5235161, at *2 (M.D. Fla. Dec. 15, 2008)).
The shorter two-year limitations period begins to run when the
plaintiff discovers the facts giving rise to a claim, rather than
when he discovers that those facts constitute a legal violation
(see Mack v. Equable Ascent Fin., L.L.C., 748 F.3d 663, 665-66
(5th Cir. 2014)). The limitations period will run once a plaintiff
has even inquiry notice of the violation, meaning that the
plaintiff has information of sufficient specificity from which he
could have learned of the violation (see Willey v. J.P. Morgan
Chase, N.A., 2009 WL 1938987, at *5-7 (S.D.N.Y. July 7, 2009)).
Although events outside the statute of limitations cannot
form the basis of a plaintiffs claim, those events still can be
relevant and used, for example, to demonstrate negligence or
willfulness (see Lazar v. Trans Union LLC, 195 F.R.D. 665, 671
(C.D. Cal. 2000)).

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The Journal | Litigation | April/May 2016 57