*1 REYNOLDS; Ray Matthew Jason
Rausch, Plaintiffs-
Appellants,
v.
HARTFORD FINANCIAL SERVICES
GROUP, INC.; Hartford Fire Insur Company, Defendants-Appellees.
ance
Ajene Edo, Plaintiff-Appellant, Casualty Company, Defendant,
Geico Company;
Geico General Insurance Gei Indemnity Company;
co Government
Employees Company, Insurance Sub corporation, Defen
sidiaries of Geico
dants-Appellees. 03-35695,
Nos. 04-35279. of Appeals,
United States Court
Ninth Circuit. 8,
Argued and Submitted March 2005. Aug.
Filed *3 Shorr, D.
Steve Larson Scott A. and Stoll, Stoll, Berne, Lokting & Shlachter Portland, PC, OR, Edo, appellants for Rausch, Reynolds. Meloney Cargil
Robert D. Allen and McKenzie, Dallas, TX; Perry, Baker & Christopher Gundy, Baker & Van McKen- zie, Francisco, CA; Gordon, Thomas San Polscer, LLC, Portland, OR, & Gordon Casualty Company, appellees GEICO Company, Insurance GEICO General Indemnity Company, and Govern- Employees Company. ment Insurance Lear, Houser, Douglas Lisa E. G. Loren Podwill, Grade, D. and Andrew Bullivant PC, Portland, OR, Bailey ap- Houser Group, Hartford Financial pellees Services Inc., Compa- and Hartford Fire Insurance ny. Kovacic, Counsel, E.
William General Daly,' Deputy F. General Counsel for John DeMille-Wag- Litigation, and Lawrence man, on behalf of the Federal Trade Com- support Amicus of mission as Curiae Edo, Rausch, Reynolds. appellants T. Schwartz and Heidi S. Wick- Gilbert LLP, er, & Bailen on behalf of Schwartz Association, The The American Insurance Casualty Insurers Association Property America, The National Association of Pro- ancillary questions. We also resolve five First, Agents, fessional Insurance Na- we hold that FCRA’s adverse action requirement tional applies Association Mutual Insurance whenever a Companies, consumer would have received a lower support as Amicus Curiae rate for insurance had his informa- appellees, Hartford Financial Services favorable, Inc., regardless tion been more Group, and Hartford Fire Insurance rating whether his credit is above or below Company. average. Specifically, requirement covers those whose credit information is disregarded replaced for purposes of a computation by average rate or neutral figure, long so as the insurance *4 rates would have been lower had the cred- it information been more favorable. Sec- ond, we hold that charging more for insur- REINHARDT, BERZON, Before: and ance on the basis of a stating transmission BYBEE, Judges. Circuit that no credit information or insufficient credit information is available constitutes REINHARDT, Judge: Circuit an adverse action based on information in Under the Fair Reporting Credit Act report consumer and requires therefore (“FCRA”), insurance companies are re- giving Third, the of notice under FCRA. quired to that, send adverse action notices to comply we hold with FCRA’s no- consumers they whenever the requirement, must, increase tice a company inter alia, rates for insurance on the basis of informa- communicate to the consumer that an tion contained in consumer reports. adverse action based on a report consumer 1681a(k)(l)(B)(i), lGSlnFa).1 §§ 15 taken, action, U.S.C. was specify describe the principal question before us is consumer, effect of the action upon the straightforward: Does FCRA’s identify party adverse and parties taking or action notice requirement apply to Fourth, the rate the action. we hold that when a charged first in an policy initial applies insur- for insurance a fam- ance? We hold that yes: ily the answer is companies charged higher requires The Act that an compa- rate for insurance because of his credit ny send the consumer an adverse action report, two or more within that higher notice whenever a charged rate is family may jointly severally liable. obtains, because of credit information it The notice requirement applies any regardless of whether the rate is company contained that makes a decision that a in an initial policy or an extension or re- imposed, rate shall be poli- issues a policy newal of a regardless cy rate, wheth- at a higher or provide refuses to company er the previously policy rate, at a lower if company’s consumer a lower rate. action is part based whole or in on the 1681m(a) provides any person of, Section as "a denial or cancellation an increase in any who "takes for, action with any charge or a reduction or other ad- any consumer that is based in whole or in change verse or unfavorable in the terms of part any information contained in a con- of, insurance, coverage or amount exist- report” provide sumer must "notice of the for, ing applied or in connection with the adverse action to the consumer." Section underwriting of insurance.” la(k)(l)(B)(i) 168 defines an "adverse action”
1101 information about important consumers Finally, information.2 consumer’s may ben- credit information improved definition how Third Circuit’s adopt receiving they can avoid employed them and how term is efit “willfully,” liable ratings the future. FCRA, and hold unfavorable if it “know violation of FCRA for willful the various issues have To resolve an act intentionally committed ingly notice of regarding ad- arisen FCRA’s rights of oth for disregard conscious in a set of requirement action re- verse onCorp., v. Trans Uni ers.” Cushman cases, consolidated two lated we have Cir.1997) (3d (quoting 226 F.3d opinion: purposes of this appeals Corp., F.3d Trans Union Philbin v. Financial Reynolds v. Services Hartford amended)). Cir.1996) (3d (as 957, 970 Inc., 03-35695 and Edo v. Group, No. Circuit, that con we hold Third Like the Co., No. 04-35279. Casualty knowing “either disregard scious means issue: Reynolds presents principal to be contravention charged in an initial May a rate first pursuant by consumers possessed rights of insurance constitute in- disregard of in reckless the FCRA purposes of the FCRA rate creased those policy contravened whether requirement? rights.” Id. at 227. that a rate cannot Fire asserts *5 a AND THE APPEALS increased unless lower rate qualify I. THE ACT charged to the cus- previously been Act seeks to Reporting Credit The Fair Reynolds the presents also is- tomer. fairness of “[a]ecuracy and the ensure stating a communication whether sues variety of a through reporting” credit information or insufficient no credit to this § 1681. Central 15 U.S.C. means. is available constitutes information who persons limits the goal, FCRA under the statute report” a “consumer reports and re- obtain consumer action notice whether an and adverse notify con- reports to of such quires users tell the consumer that an that does when, on a consumer in reliance sumers against taken action has been adverse been taken. action” has report, “adverse him, and its effect describe that action 1681a, 1681b, Specif- §§ 1681m. 15 U.S.C. consumer, identify par- the and the upon 1681m(a) “If a person ically, provides: the action is sufficient taking ties adverse action with any takes Edo the issue whether presents FCRA. or is whole based consumer occurs whenever action an in a contained any information part on received lower would have consumer provide shall report,” person the had been if his credit rate con- to the the adverse action “notice of favorable; an whether more action notices advise Adverse sumer.” providing of ad- company’s practice action has been that an adverse consumers only if the 'consum- notice verse them, of that and nature against the taken average below information is er’s action, they may view them that alerts and “neutral”) (or that factor results in trig- report of the consumer copy if rate than imposition of charge the action free of gered the average, rating had affecting their eco- his any errors and correct Edo Both with FCRA. reports if are free consistent well-being. Even nomic us to decide which Reynolds also require error, give notices from adverse action exhaustive. this list to be not intend do companies are liable entity under FCRA for contracting policyholder with the give the failure to only of increased the possible statutory taker of ad- rate when several affiliated verse action contracting because process are involved entity rate-set- is capable increasing premium ting Finally, issuance. defen- changing for or the terms of the insurance dants in summary both cases seek judg- contract Second, with the insured.” and in ground alternative, ment the alternative it held that an insurance their actions were not willful as matter issues a to a new contention, of law. To address this last policy-holder “cannot[be held to] ‘increase’ meaning we must define the of the term a charge for insurance unless the insurer “willfully” as it applies FCRA. makes an initial for payment demand subsequently insured and increases Reynolds A. Financial Ser- Hartford amount of that demand based on informa- Group, vices Inc. tion in the insured’s credit report.” The second and alternative Reynolds holding relies on a Jason is the remaining sole previous court, decision the same named-plaintiff in Mark this against class action Co., v. Valley Insurance 275 F.Supp.2d Fire Company Insurance (“Hartford (D.Or.2003). Fire”).3 On the He seeks basis decision, that earlier punitive the district damages, as court also well as reason- Reynolds amend, denied leave to attorneys reasoning able fees for company’s vio- that he could not “state viable lation of FCRA’s FCRA adverse action notice re- claims quirement. proposed defendants,” Reynolds’ claims relate to PCIC Hartford and Hartford policies obtained, two insurance he Midwest. one for words, other leave was automobile and the denied on the other for homeowners ground policies that the were us, insurance. On initial issues the record before *6 previous and no charge had been Hartford Fire set the made to rates to be charged the customer at a policies. both lower rate. for Property Hartford Casualty Company Insurance of Hartford
(“PCIC Hartford”) The_ Companies’ Use Reynolds issued HaHford Credit homeowners insurance and Hart- Information Company ford Insurance of the Midwest During the period, relevant time Hart- (“Hartford Midwest”) him issued the auto- ford Fire and the American Association of mobile policy. insurance We refer (“AARP”) Retired Persons agree- had an Fire, PCIC, Hartford Hartford and Hart- ment under which Hartford Fire or one of ford Midwest as the “Hartford Compa- its subsidiaries would issue automobile and nies.” homeowners insurance to AARP members
Reynolds originally sued Hartford premium Fire at a rate if those individuals en- sought and later complaint amend his to joyed favorable ratings. While the add PCIC Hartford and Hartford procedures Mid- used for issuing the kinds two west.4 Hartford sought Fire summary of insurance varied slightly, they were judgment, which the court granted district same in most relevant respects. In both grounds. First, on two it cases, held that “the employees of Hartford Fire would longer 3. pursuing Rausch is no appeal. ing his company, pursuing but is not his claims entity. Reynolds also named Hartford Financial Inc., Group, Services which as a serves hold- concerning Companies’ AARP Adverse all of the decisions make Hartford of its policies Policy for all Action insurance members’ Midwest, subsidiaries, including Hartford 'Hartford Fire is the one insurance, and issued automobile which developed to have Hartford, which issued homeowners PCIC parties action notices. The sent adverse so, doing Hartford Fire’s insurance. actually dispute whether Hartford Fire credit information would obtain employees Reynolds, an adverse action notice to sent Union, a consumer information Trans from question of fact for the fact- but bureau, Hart- through a contract to which finder. Whether the notice Hartford Fire signato- were Fire and Trans Union ford adequate it sent was contends conveyed information would be ries. This of law that discuss question FCRA is through assess- to Hartford Fire risk below. ChoicePoint, firm, supply and data ment High an score.” the form of “insurance Reynolds’ Insurance Policies more fa- scores correlated with insurance Reynolds applied for both automobile reports. regard With vorable credit by contacting and homeowners insurance insurance, if an AARP member automobile Companies. the Hartford He had no ex- score, he enough insurance high had a An isting policy group. with that em- discount. qualify percent ten would personal ployee of Hartford Fire collected insurance, to homeowners regard With Rey- attempted information and to obtain topa insur- only if the member obtained twice, nold’s insurance score once for assigned top to the could he be ance score application. The credit each insurance with the best rate. tier of insurance Reynolds reported both times that bureau If, request Hartford Fire sent a when n.5, supra. hit.” Al- was a “no See score, no informa- an insurance him an Hartford Midwest issued though the name and address tion matched and Hartford automobile that did or if the information him a homeowners insur- PCIC issued in- generate match was insufficient “no hit” policy, as a result of his ance score, this information would surance Reynolds did not receive either status the con- company, to the transmitted premium the AARP rates. a “no labeled a “no hit” or sumer would be assigned would not be insur- score” and *7 Casualty B. Co. Edo GEICO score, an insurance ance score. Without cases of the consolidated The second qualify not for the ten consumer could to an automobile insurance relates Midwest, with Hartford percent discount Ajene Reynolds, Like by Edo. obtained top placed could he.be nor damages, punitive Edo seeks result, Hartford. As tier with PCIC fees, attorney as reasonable as well consumer would “no hit” or “no score” for violation of a class of consumers behalf insur- pay instances more for numerous require- action notice of FCRA’s adverse high if had received a insur- ance than he He, too, remaining is the sole ment. ance score.5 database, up in the the informa- Reynolds' request for connection with 5. insurance, generate an insurance insufficient to was labeled a "no tion was automobile he "no a label of "no hit” and did not score. As both his name and address hit” because effect, practical for con- have the same any person's the national database. score” match in this we will hereafter refer insur- venience’s sake with his homeowners In connection category a “no opinion report in either to a request, he was labeled a “no score” ance because, name and address did call hit.” while his 1104 1213, 1222(D.Or.2003); Ra
named-plaintiff. appeals F.Supp.2d Edo the district summary judgment Co., to de- grant court’s zilov v. Nationwide Mut. Ins. (D.Or.2003). Insur- Employees Government fendants Final F.Supp.2d 989-90 (“Government Company Employ- ance ly, summary it to GEI- granted judgment ees”), Company General Insurance GEICO Indemnity premium CO because “the (“GEICO General”), and GEICO Indemni- charged by Indemnity to GEICO [Edo] (“GEICO Indemnity”).6 ty Corporation would have the same even if GEICO been companies, all of These are affiliated which Indemnity did not bonsider information in Corporation are subsidiaries of the GEICO history.” Plaintiffs consumer credit collectively by and are referred Companies.” parties as the “GEICO GEICO’s Use Credit Information group compa- sometimes refer to that Companies organized are GEICO by designation and sometimes nies provides pre- risk. GEICO General simply as GEICO. policies ferred with low rates for those who Fire, Unlike GEICO Com- are lesser insurance risks. Government panies concede that adverse actions can Employees provides poli- also preferred respect occur with to the first rates cies, government but employees. in an initial of insurance. Indemnity policies issues GEICO standard They do not assert order for an with mid-level rates for moderate risk con- to occur there must be Finally, Casualty sumers. GEICO issues increase to a rate that the consumer has policies non-standard rates high Nevertheless, previously charged. greater those who are risks. The GEICO granted summary judg- the district court Companies began using consumer credit ment with to the various GEICO reports early grounds. entities on a of different number insurance, purchase In order consum- .to First, the court held that Edo did have not ers call toll-free number and talk to a standing bring claim FCRA sales GEICO counselor. The sales coun- Employees Government because he “was employed by Employ- selor is Government eligible coverage for insurance from ees but works on behalf of all of the GEI- company] regardless [that of his consumer Indeed, Companies. CO all of the work of credit score because Employ- Government performed by coverage only gov- ees offers insurance workers, Employees Government as the employees military personnel.” ernment or other employ- do have Next, granted it summary judgment in' learning ees. that a Upon customer favor of GEICO General because that com- insurance, purchase wishes to automobile pany “did not contract with Plaintiff to the sales counselor elicits basic information poli- issue to underwrite an insurance and asks whether he use the custom- cy.” ruling This was in accord with the *8 arranging er’s credit information when for previous holdings district court’s in other policy. If acquiesces, his the customer the only related cases that company the policy issues the insurance can sales counselor obtains the credit informa- be held to have taken tion in the form of an adverse insurance score Inc., Ashby Group, by FCRA. v. Farmers analysis See calculated the data firm Fair pursuing appeal against Casualty Edo is not his GEI- est rates. GEICO did not issue a (“GEICO Edo, Casualty Corporation policy CO Casual- of insurance to and Edo did not ty”), company policies policy that writes insurance seek to obtain a at the unfavorable high charges high- risk company charged. consumers and the the rates panies’ weight “neutral” credit supplied Trans was de- from information Isaacs fined, generally Employees speaking, weight is the as the Government Union. average rating a contract that reflected the credit company that has only GEICO Companies all The GEICO pro- and Fair Isaacs to consumers. with Trans Union calculate two final total Using a Govern- would vide this information. weights, only computer system, using the one variable —the actu- Employees
ment case, weight the insurance al credit one and the “neu- counselor converts sales weight Only it tral” credit the other. if weight to a credit and combines score weight using final total insurance the assigned to other insur- the weights with other factors, weight and number of “neutral” credit would have result- age ance such as placement ed in the consumer’s with a to arrive at a final total insur- accidents weight, company on that final different or in different tier weight. ance Based than that to which the consumer was actu- assigns the customer to the sales counselor if Companies ally assigned, deter- such different one of the GEICO placement This would have resulted in the con- appropriate the insurance tier. mines rate, being a lower charged to establish the rate sumer’s would determination serves charged. an adverse action consumer will be After GEICO issue words, provided the customer has notice. other the GEICO Com- information verified, an insurance panies’ policy sending been he is issued was to refrain from at that rate. if use of the consumer’s appli- actual information caused the credit Policy Adverse Action
GEICO’s entity in a placed cant to be with an charging tier that resulted in the Companies’ original FCRA The GEICO ad- a lower rate than the rate that he adopted in was to send same or policy, charged action notices to all consumers would have been had the calcula- verse making reports ensuing assignment whose credit were used tion and the been Later same average insurance decisions. based on a “neutral” or changed policy, its at least if year, rating. policy, GEICO this even the rate Under sending to reduce costs. Instead of part ultimately charged was than the everyone, action notices to GEICO adverse would have rate to which the consumer system determining which developed had a more favorable been entitled had he by comparing it deemed actions statutory notice was not rating, the rate that it would charged the rate to if “neutral” and the actual sent use charged have had the credit information assign- data would have led to an “neutral.” been Thus, entity and tier. it ment to the same was not GEICO’s send however, system, new did GEICO’s who action notices to all consumers would requirements. The comply with FCRA’s they rates had been lower have policy during peri- Companies’ GEICO rating. a more favorable credit enjoyed compare od relevant to this case was place- consumer’s actual and tier Application Edo’s Insurance (which, above, was ment as described toll- Following Edo’s call GEICO’s rating) on his credit part based number, the sales counselor used free to which he would have company and tier place he obtained assigned had a “neutral” credit Indemnity. new customer with actual *9 weight been substituted for his applied then its Companies The calculating the final GEICO weight when determining whether an adverse policy Com- weight. total insurance The GEICO 1106 charged? statutory As all inter had occurred. GEICO calculated been with
that, weight of pretation, begin had the neutral credit been with the text weight, See, e.g., used instead of Edo’s actual statute. Underwriters Bank, N.A., still resulting weight final total would Planters 530 Ins. Co. Union being placed in with 1942, have resulted Edo’s 1, 6, 147 L.Ed.2d U.S. S.Ct. Indemnity. place- That Edo’s (2000). GEICO An action with ment, insur- charged and the rate for his by 15 is defined U.S.C. ance, improve did not when the “neutral” 1681a(k)(l)(B)(i) § as “a denial or cancella weight surprising, was used is not as Edo’s of, for, any charge in or a tion increase than aver- weight actual credit was better reduction or other adverse or unfavorable however, age. policy, Under its the GEI- change coverage in the terms of or amount Companies did not issue him an ad- CO of, insurance, for, any existing applied verse action notice. underwriting in of in connection surance.”
It if the is uricontested GEICO highest had used the Specifically, we must decide whether weight that a consumer could receive rath- charging higher price a for initial insur- rate er than the neutral credit to deter- ance than the insured would otherwise placement, mine Edo’s alternate charged have been because of information placed would have Edo with GEICO Gen- in report a consumer credit constitutes an eral, a him preferred company, and offered any charge” “increase within the mean- short, a lower insurance rate. In if Edo’s First, ing of FCRA. we examine the defini- had credit information been more favor- “charge.” tions of “increase” Hart- (even though already able it was above that, ford Fire contends to their limited average), charged he would have been less definitions, ordinary apply these words _ insurance. his the GEICO only previously when consumer has been Companies changed began charged charge for insurance and that issue adverse action notices whenever a by thereafter been increased the insurer. report with more favorable credit informa- phrase, previously The “has been tion would have resulted in á lower insur- Hartford, charged,” by as used refers not policy, ance rate. Under the new Edo only to a previ- rate the consumer has would have received the notice. ously paid for insurance but also to a rate previously the consumer has II. ANALYSIS if quoted, even that rate was increased A. Initial Policies Insurance any before the payment. consumer made that, principal question Reynolds The disagrees, asserting this and a term, number of related cases7 ordinary constitutes definition of the impression: matter of first Does charge FCRA’s increase also occurs whenever requirement apply charges adverse action notice an insurer rate than it charged the rates first in an initial would otherwise have because insurance or is it limited to an increase factor —such as adverse credit infor- mation, previously age, a rate that the consumer has or driving regard- record8 — 7. The related cases are resolved memoran- was due to contained "information con- 1681m(a). disposition concurrently report.” da of filed sumer 15 U.S.C. herewith. reports at issue in these cases are can, 8. An adverse reports. charges action under FCRA While increases in course, factors, charge many plaintiffs occur if the increase in occur because of
1107 (6th Sales, Inc., 272 previous- was F.3d 327 of whether the customer Cir. less 2001). According manner, charged some other rate. Defined in this in ly charged he was an increased Reynolds, charge charge creased is a that is rating when he rate because of his than it would otherwise have been but for higher than compelled pay a rate was of the existence some factor that causes rate because he failed to premium insurer to charge higher price. Thus, insurance score. he high obtain Second, definition of “ad- of argues, the definitions “increase” action,” as it applicable verse is made compa- “charge” encompass the insurance insurance, explicitly encompasses “any in- practice. Reynolds nies’ is correct. surance, existing or applied for.” to make some “Increase” means 1681a(k)(l)(B)(i) § (emphasis U.S.C. add- See, EN thing greater. e.g., OXFORD ed). Congress’ phrase use of the latter (2d 1989) ed. GLISH DICTIONARY demonstrates its intent that ac- “adverse (“The action, becoming fact process, or of apply tions” to all insurance transactions— making greater; augmentation, growth, or from an initial policy of insurance to a extension.”); enlargement, WEBSTER’S of a long-held policy. renewal The text of ' NEW DICTIONARY OF WORLD permit imposition the statute does (3d college AMERICAN ENGLISH any temporal limitation. Hartford has ed.1988) (defining “growth, “increase” suggested no reading sensible alternative etc[J”). enlargement, “Charge” means the Thus, “existing applied or reading for.” price goods demanded for or services. in “charge” the terms “increase” and See, e.g., DICTIO OXFORD ENGLISH whole, provision context partic- as a (2d (“The 1989) price required ed. NARY ularly “existing applied phrase, or for” (less rendered, or demanded for service supports affording ordinary them their usually) goods supplied.”); WEB meaning. NEW DICTIONARY STER’S WORLD Third, (3d interpretation our at college terms OF AMERICAN ENGLISH 1988) (“[T]he price comports pur- ed. cost or of an arti issue best with the stated etc.”). cle, service, Nothing “[a]ccuracy the defini pose of FCRA: to ensure the implies tion of these words that the term reporting.” and fairness of credit in any charge “increase for” should U.S.C. 1681. FCRA’s adverse action limited to cases which a raises requirement important is an tool previously the rate that an has individual created, broad, Congress using en- charged. Through compassing language. this re- sought promote quirement, Congress While no court has considered whether rights by giving of consumers them requires previous charge an increase information about how their cred- essential FCRA, meaning within the the Sixth used, they it is information that report employed the term “increase” Circuit way. The infor- could obtain no other circumstance, stating, “An analogous im- Congress mation mandated serves two price increase in the base of an automobile foremost, portant ends. First and once customer, charged to a cash but they customer, .possess consumers this information solely to a customer, in their can check and correct errors triggers because he is a credit reports. increases the chances Lending Truth disclosure This [the Act’s] stability requirements.” Auto that a consumer’s financial will Cornist B.J.T. information. contest the increases due to unfavorable *11 1108 charged, informa- the initial rate is no conse- hampered by faulty
not
accuracy
improves
Reynolds’
tion.
It also
the overall
rate was increased
quence.
op-
facilitates the
reports,
which
it
have otherwise
above that which would
Second, even
of our markets.
eration
report. As the
because of his credit
been
accurate,
are
inform-
reports
when credit
clear,
statute’s text is
we need
resort
rating
when their credit
is
ing consumers
agency’s interpretations9 or
to either the
marketplace gives
in the
hurting them
history.
legislative
the statute’s
The dis-
about the ben-
important
them
granting summary
in
trict court erred
in
rating
their credit
improving
efits of
ground
Fire on
judgment to Hartford
assist them learn-
future and
even
apply
that FCRA does not
to the rate first
ing how to do so.
charged
policy.10
an initial
Fire’s contention
FCRA
charged
the rate
apply
does not
to
B. What Constitutes An Adverse Action
seriously
policies would
initial insurance
The GEICO
contend
purpose.
Congress’s clear
undermine
determining which
their method of
help determine the
reports
use of credit
consumers were entitled to receive adverse
initial insurance
charged
rates to be
FCRA,
comported
action notices
with
is common. Moreover it is these
policies
while Edo asserts that under GEICO’s
economically
policies
unsophisti-
procedure numerous consumers who were
likely
purchase.
cated are most
Con-
charged
of their
strong protec-
increased rates because
gress did not create such
only
rating
them credit
failed to receive the statutori
tions for consumers
render
critical a
inapplicable
ly required
so
circumstance.
notice. At
the time Edo
Furthermore,
pro-
a consumer
as FCRA is
sought
policy,
an initial insurance
it was
statute, we must construe it so as
tection
practice to send an adverse ac
GEICO’s
objectives.
to further
Guimond v.
if
only
tion notice to a consumer
the use of
Co.,
Trans
Credit
45 F.3d
Union
his actual credit information resulted
his
Info.
(9th Cir.1995).
1329,
While our inter-
placement
entity
and tier that
one,
pretation
plain
sup-
is the
this canon
provided
higher
insurance rate than the
our result.
ports
entity and tier to which he would have
if
assigned
average
“neutral” or
cred
hold that whenever because of his
it information had been used instead.
company charges
information a
short,
it was GEICO’s
to send ad
higher
initial rate than it
verse action notices
to some of the
charged, it
in-
would otherwise have
consumers who would have received more
charge
meaning
creased the
within
Therefore,
Reynolds’
they enjoyed
favorable rates had
a better
FCRA.
the fact
one,
his
rating. Specifically,
was an initial
rate was
notices were
holding
Although
principally
consistent with
10.
We note that our
our discussion has
re-
policies,
lated
initial insurance
our inter-
interpreta-
the Federal Trade Commission's
charge”
pretation
of "increase in
is obvi-
we find FCRA
tion of the statute. Because
ously
policy.
not limited to a consumer's first
however,
unambiguous,
we reach our deci-
explained,
charge
As we have
an increased
of,
to,
independently
sion
and do not
defer
charge
that is
than it would other-
U.S.A.,
agency's interpretation. See Chevron
wise have been but for the existence of some
Council,
Inc. v. Natural Res.
467 U.S.
Def.
charge
factor that causes the insurer to
837, 842,
104 S.Ct.
FCRA does not limit its adverse action “No Hit” C. Adverse Actions actions that requirement result separate Hartford Fire makes a ar paying higher a rate than the customer he gument why in Reynolds’ as case no charged would otherwise be because his Specifically, adverse action was taken. rating average credit is worse than the company argues that no adverse action Instead, requires consumer’s. it such no- against Reynolds was taken “based a pays higher tices whenever consumer a or in part whole information con rating credit is than rate because his less report” tained a consumer within the words, top potential In other if score. 1681m(a). meaning of 15 U.S.C. When the consumer would have received a lower Hartford Fire requested credit information rate for his insurance had the information Reynolds, about Trans Union not pos did report his consumer been more favor- necessary sess the generate information to able, an adverse action has been taken score and insurance transmitted this against him.11 Such is the case with Edo. finding to Reynolds the insurer. was placed Because Edo would have been n.5, a therefore considered “no hit.” See GEICO General instead of GEICO Indem- supra. designated, Because he was so nity charged and thus would have been a Reynolds was ineligible rendered for the if rating lower rate his credit had been premium AARP rates available to mem higher, an adverse action occurred and an and, qualifying ratings, bers with credit required action notice was result, charged higher was a rate his formula, FCRA.12 Under the GEICO policies. argues, initial Hartford Fire rating actually fact that the credit Edo however, that these were not adverse ac higher average received was than the rat- contends, because, tions it an “adverse ac ing did not mean that Edo not would only if it tion” occurs is based on “informa charged rate than he would have tion in a report” been had he had an even better contained report, but it report credit ensured he would no such was received with require placed 11. We note that the statute does not in had his credit information not been company statement, an insurance to issue an adverse used. While is a true this it simply action notice because a consumer does so because if the consumer refuses to allow get possible the best rate. If a better used, his credit information to be the sales report credit would not have reduced the con- assigns counselor the consumer the "neutral” rate, report sumer's insurance his credit Therefore, weight. Compa- the GEICO higher price the cause of the and there- argument ad- nies' the action was not no adverse fore action based on re- verse because it was the same as if no credit port has occurred. functionally had used is argument identical action was Making slightly argument, different at it not adverse because was not detrimental rhetorically, least the GEICO also compared using when to the result a "neu- argue they the action took Edo Thus, rating. argument tral” credit this fails placed was not adverse because he was in the same that he have been as well. would it is uncontested reject Hartford Fire’s FCRA. Because Reynolds. charged lower Reynolds would have been
argument. qualifying rates had he received re of “consumer definition FCRA’s application ratings and because the It encom unquestionably port” is broad. him from precluded hit” rule of the “no commu reporting agency’s passes a credit ratings, we hold that receiving such company that nication to an insurance against him on action was taken enough informa not have consumer does in a of information contained the basis score to be for an insurance tion on file the district report. Accordingly, Specifically, U.S.C. calculated. summary judgment may court’s order of *13 1681a(d)(l) explains that term § “[t]he its ground affirmed on the not be written, oral, any means report’ ‘consumer Reynolds to were actions with any of or other communication informa on such information. based agency bear reporting a consumer tion worthiness, credit on a consumer’s ing Adequacy D. The Notice Of ” .... capacity standing, [or] urges us to af Hartford Fire also added). (emphasis summary of grant the district court’s firm cannot obtain Reporting agency that an that, ground judgment on the alternative regarding a consumer or any information (in view) although required it was not a consumer has insufficient credit in- to adverse action no under FCRA send conveys message file a re- formation on tices, Compa that the Hartford the notices creditworthiness, garding the consumer’s were sufficient to meet its nies did send ob- standing, capacity makes his reject ar this responsibilities. FCRA a far more difficult. Such taining of credit gument because the notices were inade that the consumer cannot report suggests quate as a matter of law. Under 15 U.S.C. timely a man- pays show that he debts 1681m(a)(l), § a takes ad may be false: The ner. That information on the basis of a consumer verse action wrong agency may have used the oral, written, report “provide must or elec records, wrong or the miss- name searched tronic notice of the adverse action to the that would have shown that the ing data meet a of consumer” as well as number creditworthy. Provid- is indeed applicant the specific requirements.13 other While serves the ing notice therefore term “notice of an adverse action” is not allowing the consumer to cor- purpose of statute, hold, that, we at a defined the Accordingly, reports. in credit rect errors minimum, a notice must communicate such that a con- hold that communication to the consumer that an adverse action or an taken, has no information available report sumer based on a consumer was history permit action, the insufficient credit effect of specify describe the consumer, rating qualifies identify as “a upon calculation of credit the action party parties taking the action.14 report” meaning within the or setting agency, a statement forth the con- The notice must also contain information reporting agency. right dispute directly regarding the consumer It sumer’s with the name, address, accuracy completeness any provide agency and tele- must or provided phone agency report. number of in the See 15 U.S.C. 698, agency § did not report, App. § a statement that the H. 1681m(a)(2)-(3); 16 C.F.R. the adverse decision and is not able to make consumer, setting descrip- a fuller explain 14. We do not decide whether it to the statement right specific information was adverse to obtain a free tion of what forth the consumer's required question us. as this is not before disclosure of the consumer's file from ed.1988) (“one, a, Acceptance an, some; Fischl v. General Motors See or one or more (5th Cir.1983) identification”). 708 F.2d Corp., specification without of “reliance on (requiring regard transactions, disclosure data With lia- report” bility contained in[a consumer’s] attaches whenever an adverse action providing when notice of an adverse ac- “in is taken connection with the underwrit- tion). ing insurance.” 15 U.S.C. 1681a(k)(l)(B)(i). This broad “in con- Reynolds The notices received did language nection with” confirms that a va- comply any require the above riety of entities provi- be liable. No They ments. did not tell him that sion the statute nor comment in the adverse action had been taken him. legislative history suggests that Congress They simply stated that Hartford’s “[t]he intended that single company eligibility pricing decisions are based responsible under FCRA when a consumer in part report(s) on consumer from a con an increased rate for insurance. reporting agency” sumer him and allowed Therefore, the defendants find themselves request make written order to find position the difficult of persuading us Reynolds out more. was entitled to be *14 that Congress something intended differ- informed that his rate for insurance was ent from what it wrote. analyze their increased because his threq arguments separately. report. He was also entitled to be told that pricing Hartford Fire made the First, argues GEICO that the words decision that Hartford PCIC and “applied for” in the definition of adverse policies Hartford Midwest issued him at action, 1681a(k)(l)(B)(i), § demonstrate recognizes those rates. FCRA only that the issuing company is liable telling difference between a consumer that basis, under the statute. On that GEICO his credit information could affect his in asks us to that “applied hold Edo for” surance rate adversely and that it did only insurance with Indemnity GEICO be- rate, requires affect his cause that was company that issued reject latter. We therefore policy. frivolous, him a argument The argument Fire’s alternative for upholding factually both legally. As a matter of the district court’s order. fact, Edo did apply company not to one but instead requested insurance from the GEI- E. Who Is Liable family companies. CO He did spe- not The defendants all contend that cifically placed ask to be In- only company one can be liable when an demnity, and the GEICO did insurance contains an increase in interpret telephone his call request- issuing rates —the company. plain á ing with that in particu- statute, text of purposes, as well as its lar, by as evidenced by the evaluation Gov- Here, contrary. are to the we hold that all Employees eligibility ernment of his for a potentially defendants are un liable policy from several of the GEICO affili- der the statute. ates. That placed he was with GEICO requires “any person” FCRA Indemnity who and not entity another. GEICO takes an adverse action is liable. 15 was the result of a by decision made Gov- 1681m(a). § U.S.C. The definition of Employees personnel, ernment not the re- See, plural. e.g., Thus, includes the WEB- sult of a limited application Edo. “an/’ STER’S NEW WORLD DICTIONARY argument GEICO’s has no basis in fact. (3d Furthermore, law, OF college AMERICAN ENGLISH as a matter of we re- violations aris- for FCRA companies a liable for” into “applied to turn the words fuse single denial of of the issuance or ing to the out that refers of art legal term multiple, confus- result application indication will The clearest issuing company. - notices, would action which ing intend the words did not Congress pur- an unusual rather than further FCRA’s used such thwart for” to be “applied interpretation would is not the case. Joint pose. this Such manner is liability imposes for the obli- liability simply FCRA potential all several eliminate companies disputes No one of the affiliated of insurance. on all gation denials action to action to the term adverse an adverse taking defines responsible FCRA U.S.C. denials. consumer receives include that the affected ensure 1681a(k)(l)(B)(i). However, under GEI- describing the adverse statutory notice a consumer because that fami- interpretation, report within CO’s affect of his credit insurance unless “applied for” are not Multiple has notices ly companies. and because a com- compa- been issued policy has notice from the required; single not, by companies pany identifying that denies those nies involved definition, action policy, issued roles will suffice. respective and their required for denials never be notices would that take ad- Holding all the contrary manifestly This is of insurance. jointly a consumer verse statute, from as it would eliminate to the issuing a notice furthers responsible of actions coverage important set joint example, For re- objectives. FCRA’s subject clearly intended to Congress substantially increases sponsibility requirements. to FCRA’s notice will that an adverse action prospect who seeks to sent and that a customer Second, *15 argue all the defendants group of affiliated obtain insurance from that “takes any adverse action” limits man- informed as to the companies will be requirement action notice FCRA’s ad- his credit ner which actually that issue an insur companies to By joint versely imposing affected him. limitation in find no such policy. ance We im- liability, Congress also and several Congress’s use of by virtue of the statute information consum- quality proved 15 U.S.C. the word “takes” or otherwise. receive, companies each of the 1681m(a). ers because contrary, ac § To the against the that takes an adverse action just broadly far more than tion is defined say must so the notice. We 1681a(k). 15 U.S.C. “issuance.” many consumers understand doubt includes specifically definition compa- of affiliated insurance group how a as in and cancellations as well denials how consumers are as- operates nies rates, and other unfavorable creases within their over- signed specific to entities by whomever changes, whenever By having organizations all structure. word “takes” neither adds made. The affiliated explain the actions each It de from that definition. nor detracts took, likely it more Congress made conduct engaging act of scribes the what tran- comprehend consumers would requirement. to the notice gives rise to the increased cost of spired with below, at companies all of the As discussed policy. their actions,” here took “adverse as issue in the statute. term is defined us all of the record before On the basis and Hartford ar- three GEICO finally, all the defendants Third and FCRA, may held as only the Fire be liable that we should hold liable gue may other Hartford entities several the two issuing company holding because 1113 Thus, which leave to amend was denied.15 Two Reynolds ford Midwest. should be Companies, working togeth- permitted to amend his claims on remand. er, responsible increasing are Edo’s F. Meaning Willfully charge for Em- Of Government insurance: ployees, which made the decision as to Each of the defendants asks family which of the GEICO affirm the district grant court’s of sum- and, would issue the insurance to Edo in mary judgment on the ground alternative doing, so determined that he would be that, law, as a matter of its conduct was rate, charged at an increased and GEICO not willful. We must first define “willful- Indemnity, which then issued the insur- ly” as it appears in FCRA.16Interestingly, ance at that increased rate. GEICO legislative there is no history to explain responsible General is because it denied what Congress by intended the use of that Edo insurance for the reason that his cred- term. it rating sufficiently high. was not Hart- begin by following all five of Fire, Employees, ford like Government the other circuits that have addressed the rate-to-be-charged made the critical deci- issue of the mens rea that required that, sion. It determined on the basis of regard to the act that allegedly violates Reynold’s report, eligible he was not FCRA and hold that the act must have for the by lower rates afforded its affiliates performed “knowingly and intention qualifying AARP members and that Grendahl, Phillips See ally.” 312 F.3d he would his insurance at a (8th 357, Cir.2002); Dalton v. Capital 370 rate. Hartford Fire therefore Indus., Inc., Associated 409, 257 F.3d 418 increasing be held liable for Reynolds’ (4th Cir.2001); Cousin v. Trans Union charges for insurance on the basis of his Corp., (5th 359, 246 Cir.2001); F.3d 372 rating. Hartford PCIC and Hart- Handmaker, Duncan v. 424, 149 F.3d 429 ford policies Reyn- Midwest issued the (6th Cir.1998); Cushman v. Trans Union olds at the increased rates determined (3d Cir.1997). Corp., 115 F.3d An Fire, may, accordingly, be act that merely negligent is not willful. held liable as well. Co., See McLaughlin v. Richland Shoe *16 sum,
In 128, 133, Government Employees, 1677, GEI- U.S. 108 S.Ct. 100 L.Ed.2d General, (1988) (“The CO and Indemnity may GEICO 115 word ‘willful’ widely is jointly severally law, and, be held and for liable used although by it has not failing to issue an any given notice to means been a perfect consistent Likewise, Edo. interpretation, Hartford Fire be held generally it is understood failing for Reyn- liable to issue a notice to to refer to conduct that merely is not olds, Reynolds may properly and also negligent.”). Additionally, state adopt we claims position Hartford PCIC and Hart- of four of the five other circuits parties agree every 15. While the do not constituted “adverse actions” within the fact, issue of we hold that on the record meaning of FCRA. before us there is no issue of material fact as (1) Employees to whether Government "Any person willfully comply who fails to Hartford Fire made the decisions that in- any requirement imposed with under this title rates, Reynolds' respective- creased Edo's and respect with consumer is liable to that (2) ly, GEICO policy, General denied Edo a statutory damages, consumer” for actual or (3) Indemnity policy issued Edo a punitive damages, attorney's and reasonable at an rate. increased All of these actions added). (emphasis fees. 15 U.S.C. 1681n by were taken involved and all 1114 111, 128, Thurston, lines, 469 U.S. Inc. v. the act must be that, although
and hold
(1985); see
613,
523
L.Ed.2d
intentional,
product
83
it need not
105 S.Ct.
Dalton,
See, e.g.,
motive.”
507 U.S.
Biggins,
or evil
v.
“malice
Hazen
Co.
Paper
also
plaintiff
(holding that
at 418
F.3d
1701,
257
123
338
604, 614,
L.Ed.2d
113 S.Ct.
motive);
evil
not show malice
need
that,
(1993)
holding
Thurston
(quoting
(same);
Bakker
Cousin,
at
246
372
F.3d
Age
of the
alleged civil violation
for an
(8th
1007,
McKinnon,
1013
Cir.
152 F.3d
Act
Employment
Discrimination
(same).
“
Cushman,
at 226
1998);
F.3d
115
only a
‘reck
(ADEA),
requires
“willful”
Duncan,
(requir
at 429
149 F.3d
see
But
the matter of
disregard for
whether
less
“
”).
In
injure’
this
‘a motivation
ing
by the
prohibited
was
conduct
its
we dis
of willfulness
purposes
respect,
n.
at 134
”); McLaughlin, 486 U.S.
ADEA’
liability. See
criminal
civil from
tinguish
13,
(using
1677
Thurston
108 S.Ct.
184, 191,
States, 524 U.S.
Bryan v. United
interpreting
of “willful”
definition
(1998)
1939,
197
141 L.Ed.2d
118 S.Ct.
Act);
States
Standards
United
Fair Labor
(“Most
differenti
obviously [willfulness]
239,
Co.,
R.R.
303 U.S.
Cent.
v. Illinois
unwitting con
deliberate
between
ates
(1938)
533,
242-43,
L.Ed. 773
58 S.Ct.
82
typi
it
duct,
law also
in the criminal
but
unload
failure to
civil
(holding
defendant’s
state mind.”
culpable
refers to a
cally
it showed
“willful”because
a cattle car was
added)).
(emphasis
and an
statute
disregard
governing
Next,
the more diffi
we address
requirements).
to its
indifference
the nature of the
question: What
cult
cases
respect
rule
civil
Court’s
with
with
that is required
rea
mens
proceed
in criminal
from
rule
differs
Here,
follow the Third Cir
the law?
we
cases,
knowledge
actual
ings.
criminal
hold that as used in
Specifically, we
cuit.
viola
required for willful
illegality
“willfully”
a “conscious dis
entails
FCRA
Bryan, 524
statute. See
tion of a criminal
law, which means “either
regard” of the
196,
(requiring
imposing liability notwithstanding truly Here, Fire, GEICO Gen inability predict excusable to future devel- eral, Indemnity, GEICO and Government opments the evolving construction of a Employees’ interpretation of the statute by statute the courts. It encourages com- was not Indeed, reasonable. the compa panies that use consumer credit to reports nies’ exceedingly narrow interpretations necessary make the effort to inform them- their obligations under FCRA were coun fairly selves and fully as to their statutory ter to plain the statute’s text as well as its and, result, obligations carry as a out purpose. Relying on reasoning that was mandate of ensuring that unmeritorious, objectively companies these consumers are notified when their credit sought to benefit from privilege information has been used them. using private consumers’ credit informa Unlike preferred the defendants’ defini- tion yet and be free the attendant obli tion, the Third Circuit’s standard not does gations. Specifically, Hartford Fire’s con perverse create incentives for tention that FCRA’s adverse action notice covered FCRA to by learning avoid requirement apply does not compa when a law’s employing dictates counsel with ny charges price a higher for an initial purpose deliberate of obtaining opin- policy, insurance but when it has pre ions that provide unlikely creative but an- viously charged rate, lower swers to impression.” “issues of first Be- Likewise, finds no basis in the statute. cause a reckless failure to comply argument that adverse action notices are requirements FCRA’s puni- can result in required when credit transmission damages, tive compa- other reports that a consumer does not have nies will likely objective more seek an- adequate generate swers from their counsel as to the true clearly contrary score is lan FCRA’s meaning of the statute. guage and to the purpose of the statute. sum, if a company knowingly and Furthermore, argument Hartford Fire’s intentionally performs an act that violates that an action sufficiently FCRA, knowing either that the action vio- complies with requirement FCRA’s even if lates the rights of consumers or in reck- it does not that an disclose adverse action disregard less rights, company those was taken or the nature of that action is will be under 15 liable U.S.C. 1681n Companies’ nonsensical. ar willfully violating rights. consumers’ A gument they are free to send adverse will have acted in reckless only to those notices consumers disregard of a consumers’ rights if it has whose credit rating average is below diligently in good attempted faith not to higher rating those awith also finds fulfill its statutory obligations to de- absolutely support no in the statute. *18 legal termine the correct Likewise, of the meaning GEICO General does not make statute thereby has come to a reason- even a argument that it did not colorable able, erroneous, interpretation albeit of the against when, take adverse action Edo act contrast, statute. In neither a ing conjunction deliberate with the other affiliated hold also policies. We in initial insurance him awith provide to it failed companies, companies insurance requires that FCRA rate; are denials a preferred at action notices whenever defi- to send action by the adverse clearly covered insurance, in rate for a they charge higher and Gov- Fire Finally, Hartford nition. otherwise, of the because they or policies that initial argument Employees’ ernment information, simply not because, though they even consumer’s not liable are rating is below to increase decision the consumer’s made when may have the Furthermore, rates, we hold that they did not issue average. consumers’ the is a lack of as the statute there suffi- unreasonable communication that is policies the a con- regarding to We issuers. credit information is not limited cient on its face the mean- report before us within on the record is a credit hold that sumer therefore addition, hold in reckless disre- we ing all of FCRA. In acted the defendants statutory rights.18 must communicate action notices the consumers’ gard of action argument that an adverse the consumer Accordingly, defendants’ to taken, they report was on the basis summary judgment based on action, effect of specify fails. the willfully describe the did not act also consumer, identify upon the the action III. CONCLUSION the parties taking action. party the in a companies respect which conclusion, ap- With to that FCRA we hold FCRA, we hold under may be liable alia, group rates to the first inter plies, Indemnity an adverse action took we GEICO argues that should not de dissent The Co., companies Casualty No. v. question wil- Edo. Geico cide the whether Edo 23, require 02-678, (D.Or. comply February fully with FCRA's slip op. failed to at 11 did reach district court not because the 2004). argument ments that denials As to GEICO’s district disagree. court the issue. coverage the adverse are not covered of principal directly issues of the did rule all definition, again court held the district positions companies' to on which hold the had correct and that Edo that GEICO was necessarily found them be unreasonable and Casualty's establish that GEICO "failed to example, Hartford as to For reasonable. automobile insurance was failure to offer him FCRA's adverse action contention that Fire’s Id. at 12. an adverse action.” apply to an ini requirement not does and Gov- Finally, to Hartford Fire charge, court concluded that both tial the district they and that the initial Employee's argument Fire was correct are ernment premium at a setting rate poli- of insurance they did not issue the not liable because does best available than the rate cies, again agreed, court once the district "adverse action" FCRA. constitute an only entity holding that issues the Group, Financial Services Rausch Hartford policy can be held have taken (D.Or.2003). 22722061, Inc., *2 at 2003 WL Rausch, 2003 FCRA. adverse action under argument Companies' As to the *1; Edo, slip op. at WL 22722061 at 10-11. adverse action notices they are free to send already judge ruled Because district rating is be to consumers whose companies’ positions on all that the average, explained in the as we text low have as a principal issues were correct matter functionally iden at this footnote claim held, fortiori, law, that the she has also argument that the action GEICO's tical to companies’ positions were not unreasonable. charge was was not adverse because and because the these Under circumstances had been if no information same as legal con- question of the reasonableness n.12, supra. With to this See used. issue, law, essentially question of it is tention that GEICO was the district court ruled futile, necessary, indeed would be that, because the correct when it concluded question court the to the district remand premium charged Edo would have willfully failed whether regardless con same comply with FCRA. history, there was no tained in Edo's credit as to genuine fact whether issue material *19 company BYBEE, that a that makes the rate-set- Judge, Circuit dissenting in decision, ting company that issues part. the
insurance policy, join I majority opinion except so insurance denies at a more favorable rate much of II.F Section that concludes that liable, jointly and severally held GEICO and Hartford companies insurance companies may provide such a willfully violated FCRA. The district court single action notice to consumers awarded judgment to the insurance com- all of containing requisite information. panies on summary judgment without Finally, adopt the Third we Circuit’s defi- reaching question whether the compa- nition “willfully”: disregard Reckless “willfully nies to comply” fail[ed] with the sufficient. requirements of FCRA. 15 U.S.C. 168ín(a). The companies consequence As a of these rulings, we urged court, the district as an alternative grant- hold the district court erred in ground, to hold did not ing summary judgment to Hartford Fire n act willfully aas matter of They law. on the charges basis that increased for urged the position same appeal us on as insurance in an initial policy do not consti- ground alternative for affirming the actions, tute adverse and in denying Rey- judgment. appellants did not brief request nold’s leave amend his com- the question of willfulness until reply plaint to add Hartford PCIC and Hartford briefs, and each case the appellants Likewise, Midwest for that same reason. requested that we decline to rule for the we hold that the district court erred insurance companies and remand the case granting summary judgment to GEICO to the court district further proceed- on the Indemnity basis the actions it ings. took were not adverse and granting sum- decide, I would not as a matter of law mary Fire, judgment to Hartford Govern- fact, that the insurance companies behaved ment Employees, and GEICO General on willfully on lawyers’ the basis of their ar- that only basis the issuer of insurance guments on I appeal. cannot conclude can be Finally, liable FCRA. the basis of the record before us that the hold that summary judgment may not be companies’ here “objective- actions were so granted grounds on the alternative that a ly unmeritorious,” “clearly contrary to transmission that a consumer has insuffi- “nonsensical,” FCRA’s language,” cient generate without argument” “colorable that we can report, score is not a credit that Hartford decide their willfulness ourselves without Fire’s notices were suffi- findings benefit of of fact. Maj. atOp. cient, or that the defendants’ actions were 1115-1116. sum, willful. we reverse the district court’s grant summary judgment Accordingly, I would remand ques- respect to all defendants both Edo and tion of whether the companies willfully Reynolds, reverse its Reynold’s denial of comply failed to with FCRA to the district request complaint to amend his to add court for proceedings. further I respect- Mid-west, PCIC and Hartford fully portion dissent to that of the opin- and remand to the district court for fur- ion. proceedings
ther opin- consistent with this
ion.
REVERSED REMANDED.