Desiree Gilberg v. Cal. Check Cashing Stores, LLC
913 F.3d 1169
9th Cir.2019Background
- Plaintiff Desiree Gilberg applied for a job with CheckSmart and signed a one‑page "Disclosure Regarding Background Investigation" after completing a separate multi‑page application packet. CheckSmart then obtained a criminal background report. Gilberg was hired and later brought a putative class action.
- Gilberg sued under the Fair Credit Reporting Act (FCRA) and California's ICRAA, claiming CheckSmart failed to provide the required standalone, "clear and conspicuous" disclosure before procuring a consumer report.
- The disputed one‑page disclosure included federal FCRA language plus various state‑specific notices (e.g., New York, Maine, Oregon, Washington, California checkbox language) and a lengthy authorization sentence in small Arial Narrow font.
- The district court granted summary judgment to CheckSmart, finding the disclosure satisfied FCRA and ICRAA. Gilberg appealed.
- The Ninth Circuit considered whether the disclosure: (1) complied with the statutory requirement that the disclosure be in a document that "consists solely of the disclosure" (the standalone requirement), and (2) was "clear and conspicuous."
- The Ninth Circuit affirmed in part, vacated in part, and remanded: it held the disclosure violated the standalone requirement and was not "clear" (though it was "conspicuous").
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of "document" — whether multiple application forms can be treated as one document | "Document" should encompass the whole application packet so standalone requirement would be met only across all pages | The relevant "document" is the separate one‑page disclosure form, not the other application materials | Held: "Document" refers to the specific disclosure form; only the one‑page disclosure is relevant |
| Standalone requirement — whether including state notices and other extraneous info violates the statute | Including state‑required disclosures (and related notices) is permissible and furthers FCRA's purpose | Syed controls: "solely" means no surplusage; related state notices are extraneous and can confuse applicants | Held: Violates FCRA and ICRAA standalone requirement — extraneous state language rendered the document not solely the disclosure |
| Clarity — whether the disclosure is "clear" (reasonably understandable) | The combined federal/state language and authorization sentence are understandable in context | The form is legible and labeled, so readers can understand it | Held: Not clear — the broad/poorly constructed authorization sentence and interleaving of federal and state notices would confuse a reasonable reader |
| Conspicuousness — whether the disclosure is "conspicuous" (readily noticeable) | The small font and cramped layout reduce noticeability | Headings were capitalized, bolded, underlined; the information appears on a single page | Held: Conspicuous — headings and single‑page presentation make it readily noticeable, despite small font |
Key Cases Cited
- Syed v. M-I, LLC, 853 F.3d 492 (9th Cir. 2017) (statute’s "solely" language bars inclusion of extraneous terms in the disclosure document)
- Griffin v. Oceanic Contractors, Inc., 458 U.S. 564 (U.S. 1982) (plain statutory language controls when congressional intent is expressed in reasonably plain terms)
- Rubio v. Capital One Bank, 613 F.3d 1195 (9th Cir. 2010) (definition of "clear and conspicuous" — "clear" = reasonably understandable; "conspicuous" = readily noticeable)