In Gilberg v. Cal. Check Cashing, Ninth Circuit extends Syed, holding that FCRA precludes all surplussage in background check disclosures

In Gilberg v. California Check Cashing Stores, LLC (9th Cir. Jan. 29, 2019), the Ninth Circuit confirmed that Syed v. M-I, LLC, 853 F.3d 492 (9th Cir. 2017) applied to any surplussge in employment background check disclosures required by the Fair Credit Reporting Act.

I did that. Weird flex, but okay.

Slip opinion available to download here.

Ninth Circuit: Court faced with question of first impression when asked to construe CCRAA

In a suit alleging violation of the California Consumer Credit Reporting Agencies Act (“CCRAA”), Cal. Civ. Code § 1785.1 et seq., the Ninth Circuit, in Carvalho v. Equifax Information Services LLC (9th Cir. Aug. 18, 2010), faced a question of statutory interpretation not yet answered by a California Court.  Explaining its task, the Court said:

The California courts have yet to consider whether a plaintiff must demonstrate that a disputed item is inaccurate to obtain relief for a violation of the CCRAA’s reinvestigation provisions. However, because the CCRAA “is substantially based on the Federal Fair Credit Reporting Act, judicial interpretation of the federal provisions is persuasive authority and entitled to substantial weight when interpreting the California provisions.” Olson v. Six Rivers Nat’l Bank, 3 Cal. Rptr. 3d 301, 309 (Ct. App. 2003) (internal citations omitted).

Slip op., 12117.  After examining how federal courts approached the same question under the FCRA, the Court concluded that "inaccuracy" would be a requirement of a claim arising under California's CCRAA:

“We generally adhere to the maxim of statutory construction that similar terms appearing in different sections of a statute should receive the same interpretation.” United States v. Nordbrock, 38 F.3d 440, 444 (9th Cir. 1994); see also Chiang v. Verizon New Eng. Inc., 595 F.3d 26, 37 (1st Cir. 2010) (deeming the term “inaccurate” in section 1681i(a) to be “essentially the same” as the term “incomplete or inaccurate” in section 1681s-2(b)). Moreover, we operate under the assumption that California courts would interpret the FCRA and CCRAA consistently. See Olson, 3 Cal. Rptr. 3d at 309. Accordingly, in considering whether Carvalho’s credit report was inaccurate within the meaning of the CCRAA, we are guided by Gorman’s “patently incorrect or materially misleading” standard.

Slip op., at 12119.

The Court also rejected a preemption argument, finding that the savings provision of the FCRA would not have saved a state law violation statute if the state law remedy were not also available.

En banc hearing requests denied in Gorman v. Wolpoff & Abramson

On October 21, 2009, in Gorman v. Wolpoff & Abramson (previously discussed by this blog here), the Ninth Circuit panel issued an amended Opinion that does not substantively alter the original Opinion and denied all petitions for panel rehearing or rehearing en banc.  When everybody wants a case reheard en banc, it was either a very good opinion or a disasterously bad opinion.  In this instance, it's much closer to the former.  Read the Opinion for pointers on how to be an effective disgruntled consumer and provide sufficient notice to your credit card company that you are royally ticked off about some goods you've received to reduce the likelihood of unqualified negative credit report entries.