Daniel Walker v. Fred Meyer, Inc.
953 F.3d 1082
9th Cir.2020Background
- Walker applied for a job at Fred Meyer and was hired contingent on a background check conducted by consumer reporting agency GIS.
- Fred Meyer presented a standalone "Disclosure Regarding Consumer Reports and Investigative Consumer Reports" and a separate authorization form; Walker signed both but alleged the Disclosure was confusing.
- The Disclosure: (1) stated Fred Meyer would obtain consumer/investigative reports for employment purposes; (2) identified GIS and types of information to be checked; and (3) described rights to inspect GIS files and obtain scope-of-investigation disclosures.
- GIS sent a pre-adverse-action letter enclosing Walker’s report and telling him he could dispute inaccuracies with GIS; it did not offer an opportunity to discuss the report with Fred Meyer. Fred Meyer later declined to continue Walker’s employment.
- Walker sued under the FCRA, alleging the Disclosure violated the §1681b(b)(2)(A)(i) standalone and "clear and conspicuous" requirements and that the pre-adverse-action notice violated §1681b(b)(3) by failing to inform him he could discuss the report with the employer.
- The district court dismissed; on appeal the Ninth Circuit (1) held parts of the Disclosure violated the standalone requirement and (2) rejected Walker’s claim that the FCRA requires a right to discuss reports directly with the employer.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the FCRA’s §1681b(b)(2)(A)(i) standalone requirement forbids all additional text in the disclosure document | Walker: Disclosure contained extraneous information (e.g., investigative-report detail and inspection-rights language) that rendered the document non-"solely" the disclosure and confused applicants | Fred Meyer: Brief explanatory information (types of reports, how obtained, agency ID) is permissible as part of the disclosure | Court: Permits concise explanatory language (what a "consumer report" is, how obtained, employment purposes) as part of the disclosure, but the fourth and fifth paragraphs (detailed inspection/rights language) were extraneous and violated the standalone requirement; remanded to assess "clear and conspicuous" for the remaining text |
| Whether the FCRA requires pre-adverse-action notices to inform applicants of a right to discuss the report with the prospective/current employer | Walker: Right to "dispute" implies opportunity to discuss and correct or explain the report directly with the employer before adverse action | Fred Meyer: Statutory text requires notice of the right to dispute with the consumer reporting agency, not the employer; no provision creates a separate right to discuss with employer | Court: The statute requires notice of the right to dispute with the consumer reporting agency (CRA) and does not create a separate right to discuss the report directly with the employer; pre-adverse-action notice here did not violate §1681b(b)(3) |
Key Cases Cited
- Syed v. M-I, LLC, 853 F.3d 492 (9th Cir. 2017) (construing "solely" to require a standalone disclosure document under the FCRA)
- Gilberg v. Cal. Check Cashing Stores, LLC, 913 F.3d 1169 (9th Cir. 2019) (foreclosing implied exceptions to the standalone requirement and adopting the "clear and conspicuous" analysis)
- Rubio v. Capital One Bank, 613 F.3d 1195 (9th Cir. 2010) (defining "clear and conspicuous" as "reasonably understandable" and "readily noticeable")