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.

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Photo of Amy Heath Amy Heath

Amy Heath is a class action and commercial litigator who helps the world’s leading companies in the technology, consumer products, and other sectors navigate their most significant disputes. She has had exceptional success with early dispositive motions, distilling complex arguments to show why…

Amy Heath is a class action and commercial litigator who helps the world’s leading companies in the technology, consumer products, and other sectors navigate their most significant disputes. She has had exceptional success with early dispositive motions, distilling complex arguments to show why claims should not proceed. A former intelligence analyst, Amy brings the same sound strategic judgment, analytical rigor, attention to detail, efficiency, and commitment to client service to her practice of law.

Amy frequently litigates matters involving privacy, wiretap, contract, consumer protection, fraud, unfair competition, antitrust, and intellectual property claims. She has significant experience throughout the litigation lifecycle, including developing strategies to coordinate litigation across jurisdictions, including multidistrict litigation; briefing dismissal, class certification, and summary judgment motions; effectively navigating joint defense groups; and drafting and arguing appeals.

Amy also regularly counsels clients on the strategic considerations related to arbitration agreements. She drafts and revises arbitration clauses and class action waivers in terms of service, including to mitigate mass arbitration risk.

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 at CIA, where she was a regular contributor to the President’s Daily Brief.

Photo of Andrew Soukup Andrew Soukup

Andrew Soukup serves as co-chair of the firm’s Class Action Litigation Practice Group. He specializes in representing heavily regulated businesses in class actions, multidistrict litigation, and other high-stakes disputes.

Praised for achieving “big wins in his class action practice,” Andrew has defeated a…

Andrew Soukup serves as co-chair of the firm’s Class Action Litigation Practice Group. He specializes in representing heavily regulated businesses in class actions, multidistrict litigation, and other high-stakes disputes.

Praised 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, with exposure ranging from millions to billions of dollars. Based on his “proven record,” Andrew has been recognized as an “attorney you want on your side in a bet-the-company case.”

Andrew’s clients include those in the consumer products, life sciences, financial services, technology, automotive, gaming, and media and communications industries. He has consistently 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 has 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 and his deep understanding of their businesses.

Andrew’s recent successes include:

Leading the successful defense of several of the world’s leading companies and brands in class actions accusing them of engaging in deceptive marketing or selling defective products, including claims brought under state consumer protection and unfair deceptive acts or practices statutes.
Defeating claims against one of the nation’s leading consumer products companies in industry-wide, multidistrict class-action litigation challenging the company’s marketing and advertising of over-the-counter medicine containing allegedly ineffective ingredients, which earned Andrew recognition by American Lawyer as a “Litigator of the Week.”
Delivered wins in multiple nationwide class actions on behalf of leading financial institutions related to fees, disclosures, and other banking practices, including defending several 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.”
Represented several consumer product and life sciences companies from lawsuits seeking economic damages arising out of the sale of products that allegedly caused personal injuries.
Helping several of the world’s most prominent companies from ESG-related claims accusing them of misrepresenting their practices.

Andrew has also achieved favorable outcomes for clients in commercial and indemnification disputes involving contracts, fraud, and other business tort claims. He helps companies navigate contractual and indemnification disputes with their business partners. Additionally, he provides guidance on arbitration agreements and has helped numerous clients avoid multi-district and class-action litigation by enforcing their arbitration agreements.

As a recognized thought leader on issues impacting class action litigation, Andrew regularly contributes to the firm’s blog, Inside Class Actions, and was recently featured in an interview with Litigation Daily on class-action litigation issues. In recognition of his achievements, he has been recognized by The American Lawyer as a Lawyer of the Week, and the Daily Journal recently included him on their list of Leading Commercial Litigators (2025).

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