The Ninth Circuit recently rejected an interpretation of the Fair Credit Reporting Act’s disclosure obligation that would have significantly expanded what information credit reporting agencies (CRAs) must disclose upon consumer request.

The FCRA requires CRAs to disclose, among other things, “[a]ll information in the consumer’s file” and “[i]dentification of each person . . . that procured a consumer report.”  See 15 U.S.C. § 1681g(a)(1), (3)(A).  It also requires disclosure of “all inquiries received by the agency during the 1-year period preceding the request that identified the consumer in connection with a credit or insurance transaction that was not initiated by the consumer.”  Id. § 1681g(a)(5).

In Tailford v. Experian Information Solutions, Inc., — F.4th —, 2022 WL 599318 (9th Cir. Mar. 1, 2022), putative class action plaintiffs argued that Experian was obligated to disclose not only traditional credit reporting information such as credit accounts and debts, but also other information Experian maintained for other uses, such as certain soft credit inquiries and marketing attribute data including household income and purchase history.

The Ninth Circuit refused to read the disclosure obligation so broadly.  First, it explained that “consumer’s file” only encompasses information “that might be furnished, or has been furnished, in a consumer report.”  Because Experian had not and did not plan to include soft inquiries or marketing attribute data in a consumer report, the Ninth Circuit held it need not be disclosed.

The court further held that a soft inquiry does not result in “procur[ing] a consumer report” and so does not need to be disclosed under Section 1681g(a)(3)(A).  Last, it explained that Section 1681g(a)(5)’s requirement to disclose “all inquiries received . . . in connection with a credit or insurance transaction” was limited to “inquiries leading to a firm offer of credit,” and so did not include promotional inquiries.

To read other coverage of decisions affecting the class actions in the financial services industry, click here.  To read broader coverage of financial services topics, click here.

Photo of Amy Heath Amy Heath

Amy Heath focuses on complex commercial litigation and class actions. She has handled matters involving contract, privacy, consumer protection, fraud, unfair competition, and intellectual property claims. She also has experience with internal investigations. Before practicing law, Amy served as an intelligence analyst.

Photo of Andrew Soukup Andrew Soukup

Andrew Soukup has a wide-ranging complex litigation practice representing highly regulated businesses in class actions and other high-stakes disputes. He has built a successful record of defending clients from consumer protection claims asserted in class-action lawsuits and other multistate proceedings, many of which…

Andrew Soukup has a wide-ranging complex litigation practice representing highly regulated businesses in class actions and other high-stakes disputes. He has built a successful record of defending clients from consumer protection claims asserted in class-action lawsuits and other multistate proceedings, many of which were defeated through dispositive pre-trial motions.
Andrew is co-chair of the firm’s Class Action Litigation practice group.

Andrew has helped his clients achieve successful outcomes at all stages of litigation, including through trial and appeal. He has helped his clients prevail in litigation against putative class representatives, government agencies, and commercial entities. Representative victories include:

  • Delivered wins in multiple nationwide class actions on behalf of large financial companies related to fees, disclosures, and other banking practices, including the successful defense of numerous lenders accused of violating the Paycheck Protection Program’s implementing laws, which contributed to Covington’s recent recognition as a “Class Action Group Of The Year.”
  • Successfully defending several of the nation’s leading financial institutions in a wide variety of litigation and arbitration proceedings involving alleged violations of RICO, FCRA, TILA, TCPA, FCBA, ECOA, EFTA, FACTA, and state consumer protection and unfair and deceptive acts or practices statutes, as well as claims involving breach of contract, fraud, unjust enrichment, and other torts.
  • Successfully defended several of the nation’s leading companies and brands from claims that they deceptively marketed their products, including claims brought under state consumer protection and unfair deceptive acts or practices statutes.
  • Obtained favorable outcomes for numerous clients in commercial disputes raising contract, fraud, and other business tort claims.

Because many of Andrew’s clients are subject to extensive federal regulation and oversight, Andrew has significant experience successfully invoking federal preemption to defeat litigation.

Andrew also advises clients on their arbitration agreements. He has successfully helped numerous clients avoid multi-district class-action litigation by successfully enforcing the institutions’ arbitration agreements.

Clients praise Andrew for his personal attention to their matters, his responsiveness, and his creative strategies. Based on his “big wins in his class action practice,” Law360 named Mr. Soukup a “Class Action Rising Star.

Prior to practicing law, Andrew worked as a journalist.