Fair Credit Reporting Act NCHER Spring Legal Meeting Alexandria Virginia April 12, 2019 Copyright 2016 Ballard Spahr LLP. All rights reserved.

Fair Credit Reporting Act

Outline of topics FCRA Statistics Litigation Trends Section 1681s-2(b) Preemption Accuracy defined Rehabilitation Other litigation issues

The quiet climb FCRA Statistics Number of filings increased every year since 2011 2nd most filed case in 2018 (4,531) 2019 filings are up 10.6% YTD Average of 5% are brought as class actions

15 U.S.C. 1681s-2(b) (b) Duties of furnishers of information upon notice of dispute (1) In general. After receiving notice pursuant to section 1681i(a)(2) of this title of a dispute with regard to the completeness or accuracy of any information provided by a person to a consumer reporting agency, the person shall (A) conduct an investigation with respect to the disputed information; (B) review all relevant information provided by the consumer reporting agency pursuant to section 1681(a)(2) of this title; (C) report the results of the investigation to the consumer reporting agency;

15 U.S.C. 1681s-2(b), cont. Requires notice from CRA Sufficiency of investigation Whether a furnisher’s investigation is “reasonable” is a fact-specific inquiry considered on a case by case basis, including an examination of the status of the furnisher, the information available to the furnisher whether the furnisher acquired sufficient evidence to support the conclusion that the information was true. Hinkle v. Midland Credit Mgmt., 827 F.3d 1295 (11th Cir. 2016) Damages Emotional damages and punitive damages for willful failure to comply with the FCRA Collins v. Experian Info. Sols., Inc., 775 F.3d 1130 (11th Cir 2015)

15 U.S.C. 1681s-2(b), cont. Statute of limitations Federal courts split on whether SOL starts for each ACDV Escobar v. Pa. Higher Educ Assistance, 2018 U.S. Dist. LEXIS 61004 (E.D. Pa. April 11, 2018) Some limitation on challenges FCRA cannot be used to challenge legal determinations. Denan v. TransUnion, 2019 U.S. Dist. LEXIS 30694 (N.D Ill. Feb. 22, 2019).

Preemption “no consumer may bring any action or proceeding in the nature of defamation, invasion of privacy, or negligence with respect to the reporting of information....” 15 U.S.C. 1681h(e) “No requirement or prohibition may be imposed under the laws of any State ... With respect to any subject matter regulated under Section 1681s-2....” 15 U.S.C. 1681t(b)(1)(F)

Accuracy Schweitzer v. Equifax Info. Solutions, LLC, 441 F. App’x 896 (3d Cir. 2011) “A consumer report that contains technically accurate information may be deemed inaccurate if the statement is presented in such a way that it creates a misleading impression.”

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