Court Interprets ‘Solely’ for FCRA Disclosure

An employer accused of violating the Fair Credit Reporting Act’s requirement that a disclosure of procurement of a credit report be made “in a document that consists solely of a disclosure” is denied summary judgment on the ground that its disclosure form, which also included a waiver, complied with “the letter and the spirit of the FCRA,” in this decision from Richmond U.S. District Court.

The Fair Credit Reporting Act, 15 U.S.C. § 1681b(b)(2)(A), requires that a person may not procure a consumer report for employment purposes unless a clear and conspicuous disclosure has been made in writing to the consumer at any time before the report is procured or caused to be procured, “in a document that consists solely of the disclosure …”

When plaintiff applied for a position with defendant, he signed a document that stated he released the company from any liability in connection with any information they “give or gather and any decisions made concerning my employment based on such information.” Plaintiff alleges the release language violates § 1681b(b)(2)(A)’s “solely of the disclosure” requirement and thus violates the FCRA. Defendant claims the form complies with the FCRA and seeks summary judgment.

It is useful to determine whether the court can, or should, rely on the Federal Trade Commission letters cited by plaintiff in his opposition. Defendant is correct when it states that district courts across the country (including in the 4^th Circuit) have split as to the meaning of the word “solely” in § 1681b(b)(2)(A). The meaning of the term “solely of the disclosure” has not been definitively settled.

The language of the FCRA does not qualify the word “solely” or otherwise limit its meaning. Judging by the text of the statute alone, inclusion of a waiver within the document containing the disclosure would violate § 1681b(b)(2)(A)(i). The text-based interpretation of the FCRA’s disclosure requirement is supported by the informal FTC opinion letters upon which plaintiff in part relies. Although the FTC has advised individuals that they may combine the disclosure and authorization, it has cautioned that, under the statute, the disclosure may not include a waiver by the consumer of their rights under the statute because such a waiver in a disclosure form will violate the requirement that a disclosure consist “solely” of the disclosure.

The court cannot accept the view that, because Congress explicitly allowed the authorization to appear on the disclosure document, it altered the plain meaning of the word “solely.” Congress provided a specific exemption only for the authorization and does not permit other extraneous language on the face of the disclosure document.

The court denies defendant summary judgment on the ground that its authorization form satisfies “the letter and spirit of the FCRA.”’

The court also denies summary judgment on the “willfulness” element alleged by plaintiff. Willfulness is a fact-driven inquiry that cannot be decided without proper discovery by the parties, and it appears there is a genuine dispute of material fact on the issue of willfulness.

The court denies defendant summary judgment on its argument that the 2003 amendments to the FCRA eliminated any private right of action to recover after a failure to provide notice of an adverse action under § 1681b(b)(3). Because there is no clearly expressed legislative intent to do in § 1681(b)(3) what the legislature did in § 1681m(h)(8), defendant’s argument must fail.

Milbourne v. JRK Residential America LLC (Payne) No.3:12cv861, March 11, 2015; USDC at Richmond, Va. VLW 015-3-122, 22 pp.