925 F.3d 99
2d Cir.2019Background
- Lindsey Kidd applied for a Georgia Department of Public Health job; the agency — a subscriber to Thomson Reuters’ CLEAR service — ran a background search on CLEAR that erroneously reported a prior theft conviction, and Kidd lost the position.
- Kidd sued Thomson Reuters under the Fair Credit Reporting Act (FCRA), alleging CLEAR made Thomson Reuters a “consumer reporting agency” and that Thomson Reuters violated the FCRA by furnishing false information.
- CLEAR is a subscription online platform (primarily for law enforcement and government) providing aggregated motor-vehicle, court, licensing, and property information to subscribers; Thomson Reuters markets and contracts CLEAR for non‑FCRA uses and restricts FCRA uses.
- Thomson Reuters requires prospective users to state and repeatedly affirm allowed uses, vets applicants, trains staff not to market CLEAR for FCRA purposes, and investigates alleged misuses; of ~144 million searches from 2012–2016, 46 misuse reports were made and 10 accounts terminated.
- The district court granted summary judgment for Thomson Reuters, holding the FCRA’s definition of “consumer reporting agency” requires specific intent to furnish consumer reports and that Thomson Reuters did not have that intent; the Second Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an entity is a "consumer reporting agency" only if it specifically intends to furnish a statutory "consumer report" | Kidd: the statute requires only that an entity assemble consumer information and furnish reports that qualify as "consumer reports," without a specific intent to furnish such reports | Thomson Reuters: the FCRA requires specific intent — the entity must intend to furnish "consumer reports" to third parties | Held: The phrase "for the purpose of furnishing consumer reports to third parties" requires specific intent to furnish consumer reports; the court adopts the specific‑intent interpretation |
| Whether Thomson Reuters’ practices permit a reasonable inference it intended to furnish consumer reports | Kidd: knowledge that some subscribers misused CLEAR and the resulting consequences support an inference of intent | Thomson Reuters: pervasive preventative measures, contractual prohibitions, vetting, training, monitoring, investigations and rare misuse show it did not intend FCRA uses | Held: Thomson Reuters’ extensive, undisputed controls negate any reasonable inference of intent; summary judgment for Thomson Reuters affirmed |
Key Cases Cited
- United States v. Bailey, 444 U.S. 394 (discusses specific intent / purpose concept)
- Williams v. Wilmington Trust Co., 345 F.3d 128 (use of term of art presumption in statutory interpretation)
- Caro v. Weintraub, 618 F.3d 94 (interpreting specific intent requirements in analogous statute)
- Zabriskie v. Fed. Nat’l Mortg. Assoc., 912 F.3d 1192 (9th Cir. holding that FCRA applies only where entity intends to furnish consumer reports)
- Tierney v. Advocate Health & Hosps. Corp., 797 F.3d 449 (7th Cir. holding data collected for other purposes is not governed by FCRA when not intended to furnish consumer reports)
- Life Technologies Corp. v. Promega Corp., 137 S. Ct. 734 (instruction to begin statutory interpretation with text)