The Ninth Circuit recently rejected an interpretation of the Fair Credit Reporting Act’s disclosure obligation that would have significantly expanded what information credit reporting agencies (CRAs) must disclose upon consumer request.

The FCRA requires CRAs to disclose, among other things, “[a]ll information in the consumer’s file” and “[i]dentification of each person . . . that procured a consumer report.”  See 15 U.S.C. § 1681g(a)(1), (3)(A).  It also requires disclosure of “all inquiries received by the agency during the 1-year period preceding the request that identified the consumer in connection with a credit or insurance transaction that was not initiated by the consumer.”  Id. § 1681g(a)(5).

In Tailford v. Experian Information Solutions, Inc., — F.4th —, 2022 WL 599318 (9th Cir. Mar. 1, 2022), putative class action plaintiffs argued that Experian was obligated to disclose not only traditional credit reporting information such as credit accounts and debts, but also other information Experian maintained for other uses, such as certain soft credit inquiries and marketing attribute data including household income and purchase history.

The Ninth Circuit refused to read the disclosure obligation so broadly.  First, it explained that “consumer’s file” only encompasses information “that might be furnished, or has been furnished, in a consumer report.”  Because Experian had not and did not plan to include soft inquiries or marketing attribute data in a consumer report, the Ninth Circuit held it need not be disclosed.

The court further held that a soft inquiry does not result in “procur[ing] a consumer report” and so does not need to be disclosed under Section 1681g(a)(3)(A).  Last, it explained that Section 1681g(a)(5)’s requirement to disclose “all inquiries received . . . in connection with a credit or insurance transaction” was limited to “inquiries leading to a firm offer of credit,” and so did not include promotional inquiries.

To read other coverage of decisions affecting the class actions in the financial services industry, click here.  To read broader coverage of financial services topics, click here.

Tags: FCRA, Ninth Circuit
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Photo of Amy Heath Amy Heath

Amy Heath is a class action and commercial litigator. She has significant experience with matters involving privacy, contract, consumer protection, fraud, unfair competition, antitrust, and intellectual property claims for clients in the technology, financial services, and consumer products sectors, among others. Before joining…

Amy Heath is a class action and commercial litigator. She has significant experience with matters involving privacy, contract, consumer protection, fraud, unfair competition, antitrust, and intellectual property claims for clients in the technology, financial services, and consumer products sectors, among others. Before joining the firm, Amy clerked for the Honorable Michelle T. Friedland of the United States Court of Appeals for the Ninth Circuit and the Honorable Lucy H. Koh, then of the United States District Court for the Northern District of California. Amy maintains an active pro bono practice that focuses on direct services for individual clients.

Before practicing law, Amy served as an intelligence analyst.

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Photo of Andrew Soukup Andrew Soukup

Andrew Soukup is a co-chair of the firm’s Class Action Litigation Practice Group. Andrew specializes in representing heavily regulated businesses in class actions, multidistrict litigation, and other high-stakes disputes. Recognized for achieving “big wins in his class action practice,” Andrew has defeated a variety…

Andrew Soukup is a co-chair of the firm’s Class Action Litigation Practice Group. Andrew specializes in representing heavily regulated businesses in class actions, multidistrict litigation, and other high-stakes disputes. Recognized for achieving “big wins in his class action practice,” Andrew has defeated a variety of advertising, consumer protection, privacy, and product defect and safety claims ranging in exposure from millions to billions of dollars.

Andrew’s clients include those in the consumer products, life sciences, financial services, technology, automotive, and media and communications industries. He has helped his clients prevail in litigation in federal and state courts across the country against putative class representatives, government agencies, state attorneys general, and commercial entities.

With a long history of representing companies subject to extensive federal regulation and oversight, Andrew provides a unique ability to help courts understand the complex environment that governs clients’ businesses. Clients turn to Andrew because of his successful outcomes at all stages of litigation, his responsiveness and attention to their matters, his understanding of their businesses, and his creative strategies.

Andrew’s recent successes include:

  • Leading the successful defense of several of the world’s leading companies and brands from claims that they engaged in deceptive marketing or sold defective products, including claims brought under state consumer protection and unfair deceptive acts or practices statutes.
  • Delivering wins in multiple nationwide class actions on behalf of leading financial institutions related to fees, disclosures, and other banking practices, including the successful defense of numerous financial institutions accused of violating the Paycheck Protection Program’s implementing laws, which contributed to Covington’s recognition as a “Class Action Group of the Year.”
  • Helping one of the world’s largest seafood companies defeat ESG-related claims accusing the company of misrepresenting its environmental-friendly production practices.

Andrew has also obtained favorable outcomes for numerous clients in commercial and indemnification disputes raising contract, fraud, and other business tort claims. He helps companies navigate contractual and indemnification disputes with their business partners. And he advises companies on their arbitration agreements, and has helped numerous clients avoid multi-district and class-action litigation by successfully enforcing their arbitration agreements.

Watch: Andrew provides insights on class action litigation, as part of our Navigating Class Actions video series.

 
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