Theresa Tailford v. Experian Information Solutions ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THERESA TAILFORD; SANFORD No. 20-56344
BUCKLES; JEFFREY C. RUDERMAN,
and all similarly situated individuals, D.C. No.
Plaintiffs-Appellants, 8:19-cv-02191-
CJC-KES
v.
EXPERIAN INFORMATION SOLUTIONS, OPINION
INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Argued and Submitted November 18, 2021
Pasadena, California
Filed March 1, 2022
Before: Richard Linn, * Jay S. Bybee, and Mark J. Bennett,
Circuit Judges.
Opinion by Judge Linn
*
The Honorable Richard Linn, United States Circuit Judge for the
U.S. Court of Appeals for the Federal Circuit, sitting by designation.
2 TAILFORD V. EXPERIAN INFORMATION SOLUTIONS
SUMMARY **
Fair Credit Reporting Act
The panel affirmed the district court’s denial of
plaintiffs’ motion for a remand to state court and the district
court’s dismissal of plaintiffs’ class action suit alleging
violations of the Fair Credit Reporting Act by Experian
Information Solutions, Inc., a consumer credit reporting
agency.
Plaintiffs alleged that the FCRA required Experian to
disclose behavioral data from its “ConsumerView”
marketing database, “soft inquiries” from third parties and
affiliates, the identity of certain parties who procured
consumer reports, and the date on which employment data
was reported.
Affirming the district court’s denial of plaintiffs’ motion
to remand the case to the state court, the panel held that
plaintiffs’ pleadings contained sufficient allegations of
injury to support Article III standing. The panel held that as
the party invoking the federal judicial power, Experian had
the burden of establishing the facts necessary to support
standing at the pleading stage. Because plaintiffs’ pleadings
adequately alleged particularized injuries to their individual
privacy and information interests, the panel rejected
plaintiffs’ argument that Experian failed to show that
plaintiffs had Article III standing. Under the Spokeo III test,
these interests were sufficiently concrete to confer standing
because the statutory provisions at issue were established to
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
TAILFORD V. EXPERIAN INFORMATION SOLUTIONS 3
protect a plaintiff’s concrete interests in privacy and
accuracy in the reporting of consumer credit information
(and not merely procedural rights). Distinguishing
TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021), the
panel further concluded that the specific violations alleged
presented a material risk of harm to plaintiffs’ concrete
interest in consumer privacy.
Affirming the district court’s dismissal of plaintiffs’ first
amended complaint, the panel held that none of the data
alleged to be missing from Experian’s consumer reports was
subject to disclosure under 15 U.S.C. § 1681g(a)(1), (3), or
(5), considered individually or in combination. The panel
held that § 1681g(a)(1), requiring disclosure of “all
information in the consumer’s file,” did not require
disclosure of all the information in Experian’s internal-only
“Admin Reports.” The panel held that Experian did not
violate § 1681g by failing to include in its disclosures several
inquiries from third parties. Further, Experian was not
required to disclose the behavioral data included in the
ConsumerView database. Finally, Experian did not violate
§ 1681g(a)(1) by failing to disclose the dates on which
employment dates were reported to it.
4 TAILFORD V. EXPERIAN INFORMATION SOLUTIONS
COUNSEL
Robert S. Green (argued), James Robert Noblin, and Emrah
M. Sumer, Green & Noblin P.C., Larkspur, California, for
Plaintiffs-Appellants.
Meir Feder (argued) and Kelly C. Holt, Jones Day, New
York, New York; John A. Vogt and Ryan D. Ball, Jones
Day, Irvine, California; for Defendant-Appellee.
TAILFORD V. EXPERIAN INFORMATION SOLUTIONS 5
OPINION
LINN, Circuit Judge:
Theresa Tailford, Sanford Buckles, and Jeffrey C.
Ruderman (“Plaintiffs”), appeal from the denial by the
United States District Court for the Central District of
California of their motion to remand to state court their class
action suit alleging violations of the Fair Credit Reporting
Act (“FCRA”), 15 U.S.C. § 1681 et seq. Plaintiffs contend
that Experian Information Solutions, Inc. (“Experian”)
failed to show that Plaintiffs have Article III standing and
further contend that the district court erred in dismissing
with prejudice Plaintiffs’ first amended complaint for failure
to state a claim. Because Plaintiffs’ pleadings contain
sufficient allegations of injury to support Article III
standing, we affirm the district court’s denial of their motion
to remand to state court. Because none of the data alleged
by Plaintiffs to be missing from Experian’s consumer reports
is subject to disclosure under the FCRA, we affirm the
district court’s dismissal with prejudice of Plaintiffs’ first
amended complaint.
I
The FCRA is a specifically tailored federal law enacted
in 1970 “to ensure fair and accurate credit reporting, promote
efficiency in the banking system, and protect consumer
privacy.” Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 52
(2007). It created a mechanism “for investigating and
evaluating the credit worthiness, credit standing, credit
capacity, character, and general reputation of consumers.”
15 U.S.C. § 1681(a)(2). It is not intended to provide broad-
based federal oversight into data-collection practices in
general. It is instead one of several federal and state laws
each designed to regulate the collection and dissemination of
6 TAILFORD V. EXPERIAN INFORMATION SOLUTIONS
specifically identified types of credit data for specifically
identified purposes. The FCRA limits what credit,
employment, and personal information consumer reporting
agencies (“CRAs”) can collect, how CRAs can obtain such
information, and to whom credit reports containing such
information may be disseminated. Id. §§ 1681b, 1681a(d).
The FCRA also specifies the circumstances under which
consumer reports may be distributed by CRAs and the
purposes for which such distribution is authorized. See id.
§§ 1681a, 1681b.
To give consumers the opportunity to verify the accuracy
of data maintained by CRAs, the FCRA requires CRAs to
disclose certain information to the consumer upon request.
See 15 U.S.C. § 1681g; TransUnion LLC v. Ramirez, 141 S.
Ct. 2190, 2213 (2021) (“As the plaintiffs note, the disclosure
and summary-of-rights requirements are designed to protect
consumers’ interests in learning of any inaccuracies in their
credit files so that they can promptly correct the files before
they are disseminated to third parties.”). The willful failure
to comply with such a disclosure request gives rise to a
private cause of action for actual or statutory damages.
15 U.S.C. § 1681n(a). As relevant here, the disclosure must
include the following three categories of information:
(1) All information in the consumer’s file at
the time of the request [subject to some
exceptions not relevant on appeal]
...
(3) [E]ach person (including each end-user
identified under section 1681e(e)(1) of
this title) that procured a consumer report
...
TAILFORD V. EXPERIAN INFORMATION SOLUTIONS 7
(ii) for any other purpose [than
employment purposes], during the 1-year
period preceding the date on which the
request is made.
...
(5) A record 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.
15 U.S.C. § 1681g(a)(1), (3), (5). We refer herein to the
disclosure required under the FCRA as a Ҥ 1681g
disclosure.”
II
Experian is a credit reporting agency that collects
traditional consumer credit data. Experian stores the
collected consumer credit data in a database called “File
One.” This data includes information about credit accounts,
creditors, debts, and credit inquiries. Experian uses its File
One database to respond to credit inquiries made under
§ 1681g of the FCRA, but in doing so does not include
information from its internal-only “Admin Reports.” The
Admin Report summarizes all the information Experian has
on each consumer, including, inter alia, dates that employers
reported employees’ employment information, certain soft
credit inquiries, and non-traditional “behavioral data” such
as “household income, purchase history, whether an
individual is a ‘dog’ or ‘cat’ person,” and thousands of other
marketing attributes. Experian also gathers this behavioral
data in a marketing database called “ConsumerView.”
8 TAILFORD V. EXPERIAN INFORMATION SOLUTIONS
“The ConsumerView database contains data on
thousands of attributes on more than 300 million consumers
and 126 million households, including age, gender, marital
status, presence of children, homeowner status, education,
and occupation.” Tailford v. Experian Info. Sols., Inc., No.
CV 19-02191-CJC (KESx), 2020 WL 6867157, at *1 (C.D.
Cal. Nov. 18, 2020) (order granting motion to dismiss)
(“Dismissal Order”) (quotation marks omitted). Experian
sells this information to affiliates and third parties through a
product called “OmniView.” Experian’s marketing
materials indicate that OmniView may be used to “[t]arget
candidates for invitations to apply for credit.” Tailford v.
Experian Info. Sols., Inc., No. SACV 19-02191JVS (KESx),
2020 WL 2464797, at *2 (C.D. Cal. May 12, 2020) (order
denying motion to remand and granting motion to dismiss)
(“Remand Order”). OmniView also includes credit statistics
aggregated by zip code, the raw data for which Plaintiffs
allege is sourced from the File One database. Experian does
not include the information in its ConsumerView database
in its § 1681g disclosures. Experian additionally collects
information about consumers’ employers and dates of
employment. This information is used in another product
called “Employment Insight.”
In late 2017, a data breach in an Amazon cloud storage
location revealed information on millions of households in a
spreadsheet titled “ConsumerView_10_2013.yxdb.”
Plaintiffs allege that this information was placed in cloud
storage by data analytics company Alteryx, Inc. that
allegedly bought it from Experian. Following this breach,
each of the three Plaintiffs requested and received from
Experian various § 1681g disclosures. Plaintiffs contend
these disclosures were incomplete. Plaintiffs do not allege
that Experian failed to include in its § 1681g disclosures any
the information in its File One database responsive to
TAILFORD V. EXPERIAN INFORMATION SOLUTIONS 9
Plaintiffs’ requests. Plaintiffs do contend, however, that
Experian failed to include in its § 1681g disclosures several
pieces of information they allege Experian was required by
the FCRA to provide, including behavioral data from its
ConsumerView database, inquiries from third parties and
affiliates, the identity of certain parties who procured
consumer reports, and the date on which employment data
was reported.
III
Plaintiffs sought to remedy Experian’s alleged violation
of the FCRA by joining a putative class action initially filed
by Terry Carson before the United States District Court for
the Central District of California, alleging violations of
§ 1681g(a)(1), (3), (5), and § 1681e(b) of the FCRA. Carson
v. Experian Info. Sols., Inc., No. 8:17-cv-02232-JVS-KES,
2019 U.S. Dist. LEXIS 118387, at *2–3 (C.D. Cal. July 9,
2019). In that action, Experian filed a motion to dismiss, a
motion for judgment on the pleadings, and a motion to stay
discovery. Id. at *3–4. Plaintiffs opposed the motions. The
district court, Judge Selna, granted the motion to dismiss,
holding that “Plaintiffs fail[ed] to show how Defendant’s
alleged violation of the FCRA amount[ed] to more than a
‘bare procedural violation,’” and thus did not plead “a
concrete injury sufficient to confer Article III standing to
bring their § 1681g claims.” Id. at *20–21. The district
court also granted in part the motion for judgment on the
pleadings and dismissed the motion to stay discovery as
moot. Plaintiffs did not appeal Carson.
Instead, Plaintiffs filed a separate class action suit in state
court, again alleging violations of § 1681g. Experian, in a
turnabout from the position it took in Carson, removed the
case to the Central District. Experian then filed a motion to
dismiss the Original Complaint for failure to state a claim.
10 TAILFORD V. EXPERIAN INFORMATION SOLUTIONS
Plaintiffs countered with a motion for remand to state court.
Plaintiffs argued in their remand motion that Experian had
not met its burden of establishing Article III standing, but
did not expressly argue, as they did in Carson, that standing
was lacking. Judge Selna denied Plaintiffs’ motion, holding
that removal under § 1441 was proper because “[t]there
[was] no question that Plaintiffs’ complaint raised issue[s]
under the FCRA, a federal law,” and that there was no initial
requirement for Experian to prove subject matter jurisdiction
in order to remove an action. Remand Order, 2020 WL
2464797, at *4. Judge Selna also granted Experian’s motion
to dismiss, holding that none of the information missing
from the § 1681g disclosures sent to Plaintiffs was required
to be disclosed under the FCRA. Id. at *4–6. Judge Selna
then allowed Plaintiffs leave to amend.
The case was reassigned to Judge Carney. Plaintiffs filed
a First Amended Complaint (“FAC”), in which they repeated
and expanded their original allegations and added a stand-
alone claim that Experian violated § 1681b by sharing
consumer report information for non-authorized marketing
purposes. Plaintiffs specifically alleged that the disclosures
they received from Experian failed to include: (1) certain
behavioral data; (2) certain so-called “soft inquiries,”
namely those not initiated by a consumer; (3) the identity of
parties procuring consumer reports; and (4) the dates on
which their employers reported Plaintiffs’ employment
history. Plaintiffs also alleged that the § 1681g disclosures
did not show that Experian had given the Plaintiffs’ data to
Alteryx. Experian again filed a motion to dismiss for failure
to state a claim.
This time, the district court dismissed the FAC with
prejudice. Dismissal Order, 2020 WL 6867157, at *7.
Regarding the missing “behavioral data,” the district court
TAILFORD V. EXPERIAN INFORMATION SOLUTIONS 11
concluded that Experian was not obligated to include that
data in its § 1681g disclosure because it was not part of the
consumer’s “file” under the FCRA and was not information
that was or might be furnished in a consumer report,
notwithstanding the fact that some ConsumerView data
contained aggregated information from the File One
database. Id. at *3. Concerning the soft inquiries, the district
court held that Experian was not obligated to include those
inquiries in its § 1681g disclosure because such inquiries
were never included in consumer reports. Id. at *4. The
district court next concluded that the dates on which
employment was reported to Experian has nothing to do with
a consumer’s eligibility for credit, insurance, or employment
information and is not the kind of information that might be
furnished in a consumer report. Id. The district court also
held that while Experian was required by the FCRA to
disclose those who procured a consumer report, Plaintiffs
had failed to plausibly allege that Alteryx was a procuring
party. Id. at *5. Finally, the district court held that Experian
was not obligated under the Act to identify the particular
end-users omitted from the § 1681g report. Id.
Plaintiffs appealed the denial of their motion to remand
and the dismissal for failure to state a claim. This Court has
jurisdiction over a final decision of the district court under
28 U.S.C. § 1291. This Court also has “both the inherent
authority and the responsibility to consider [its] own
jurisdiction.” Hoffmann v. Pulido, 928 F.3d 1147, 1151 (9th
Cir. 2019).
IV
We review the district court’s denial of Plaintiffs’ motion
to remand to state court de novo. D-Beam Ltd. P’ship v.
Roller Derby Skates, Inc., 366 F.3d 972, 974 n.2 (9th Cir.
2004). We also consider whether there is constitutional
12 TAILFORD V. EXPERIAN INFORMATION SOLUTIONS
standing de novo. Bernhardt v. County of Los Angeles,
279 F.3d 862, 867 (9th Cir. 2002). Likewise, we review the
grant of a motion to dismiss de novo. Knievel v. ESPN,
393 F.3d 1068, 1072 (9th Cir. 2005).
V
All parties agree that because this case arises out of a
well-pleaded complaint alleging a violation of a federal law,
there is federal question jurisdiction in the district courts
under 28 U.S.C. § 1331 and § 1441. Plaintiffs argue,
however, that Experian failed to satisfy its burden of
establishing Article III standing. We note that Plaintiffs did
not file a motion to dismiss for lack of standing and do not
actually argue that standing does not exist, just that Experian
failed to meet its burden to show Plaintiffs’ standing in its
motion to remove this case from state to federal court. 1
Standing is a constitutional requirement for the exercise
of subject matter jurisdiction over disputes in federal court.
Spokeo, Inc. v. Robins, 578 U.S. 330, 339 (2016) (“Spokeo
II”). A key component of standing is satisfaction of the
injury-in-fact requirement: that Plaintiff has “suffered ‘an
invasion of a legally protected interest’ that is ‘concrete and
particularized’ and ‘actual or imminent, not conjectural or
hypothetical.’” Id. (quoting Lujan v. Defenders of Wildlife,
504 U.S. 555, 560 (1992)). Plaintiffs’ pleadings adequately
1
Plaintiffs appear to argue that the district court’s failure to include
an analysis of standing requires reversal and remand. This argument is
baseless. The relevant question is whether standing exists, not whether
the district court analyzed the question vel non. Cf. Weissman v. Quail
Lodge, Inc., 179 F.3d 1194, 1200 (9th Cir. 1999) (“[F]ederal appellate
courts review decisions, judgments, orders, and decrees—not opinions,
factual findings, reasoning, or explanations . . . .” (quoting In re
Williams, 156 F.3d 86, 90 (1st Cir. 1998))).
TAILFORD V. EXPERIAN INFORMATION SOLUTIONS 13
allege particularized injuries to their individual privacy and
informational interests. The only question is whether the
interests allegedly violated are sufficiently concrete to
confer standing.
As the party invoking the federal judicial power,
Experian has the burden of establishing the facts necessary
to support standing “with the manner and degree of evidence
required at the successive stages of the litigation.” 2 See
Lujan, 504 U.S. at 561. “At the pleading stage, general
factual allegations of injury resulting from the defendant's
conduct may suffice, for on a motion to dismiss we
‘presum[e] that general allegations embrace those specific
facts that are necessary to support the claim.’” Id. (alteration
in original) (quoting Lujan v. Nat’l Wildlife Fed’n, 497 U.S.
871, 889 (1990)).
This Court has adopted a two-step framework to
determine whether alleged violations of FCRA provisions
are sufficiently concrete to confer standing: “(1) whether the
statutory provisions at issue were established to protect [a
plaintiff’s] concrete interests (as opposed to purely
procedural rights), and if so, (2) whether the specific
procedural violations alleged in this case actually harm, or
present a material risk of harm to, such interests.” Robins v.
Spokeo, Inc., 867 F.3d 1108, 1113 (9th Cir. 2017) (“Spokeo
2
In their opening brief, Plaintiffs argued that Experian must satisfy
its burden on the basis of averments in its arguments against remand
rather than in the complaint. Plaintiffs’ argument is misplaced as
standing is predicated on allegations in the complaint and is not limited
to averments in the arguments against remand. See Maya v. Centex
Corp., 658 F.3d 1060, 1067 (9th Cir. 2011); see also Spokeo II, 578 U.S.
at 333–34 (considering plaintiff’s allegations). Plaintiffs essentially
conceded this point at oral argument. Oral Argument at 1:57–2:10,
https://www.ca9.uscourts.gov/media/video/?20211118/20-56344/.
14 TAILFORD V. EXPERIAN INFORMATION SOLUTIONS
III”) (adopting the standard set forth in Strubel v. Comenity
Bank, 842 F.3d 181, 190 (2d Cir. 2016)). In this case, both
prongs of the Spokeo III test are satisfied.
Regarding the first prong, Plaintiffs’ complaint, as noted
infra, alleges the violation of specific provisions of the
FCRA established to protect concrete interests of privacy
and accuracy in the reporting of consumer credit
information, and not merely procedural rights. One of the
two principal reasons for enactment of the FCRA was the
protection of consumers’ interests in “fair and accurate credit
reporting” and to “protect consumer privacy.” Spokeo III,
867 F.3d at 1113 (quoting Safeco Ins. Co., 551 U.S. at 52)).
The interest in consumer privacy “resemble[s] other
reputational and privacy interests that have long been
protected in the law.” Id. at 1114; see also Nayab v. Capital
One Bank, 942 F.3d 480, 492 (9th Cir. 2019) (holding that
being “deprived of the right to keep private the sensitive
information about [one’s] person” is historically considered
a harm protected by common law).
As to the second prong of Spokeo III, Plaintiffs’
complaint contains sufficient allegations of non-disclosure
of information under § 1681g to “present a material risk of
harm” to Plaintiffs’ concrete interest in consumer privacy.
Plaintiffs here alleged, inter alia, that Experian’s failure to
disclose consumer report information in their § 1681g
statements was a violation of a right to privacy “because
while their PII [(“personal identifiable information”)] was
made readily available . . . , Plaintiffs had no knowledge of
or opportunity to disagree with the provision of their PII to
third parties. This violated Plaintiffs’ rights to privacy,
which, once lost, can never be regained.”
In Syed v. M-I, LLC, 853 F.3d 492 (9th Cir. 2017), this
court recognized that an employee had standing to sue an
TAILFORD V. EXPERIAN INFORMATION SOLUTIONS 15
employer for a violation of an FCRA procedural rule,
namely, 15 U.S.C. § 1681b(b)(2)(A). That rule allowed a
prospective employer to obtain a consumer report only after
disclosing to the prospective employee that it was seeking to
obtain the report and receiving the prospective employee’s
authorization. Syed, 853 F.3d at 497–98. In relevant part,
this court explained that this procedural rule protected the
consumer’s substantive right to control who received their
credit report and identify any violation of their rights of
privacy and information. Violation of the rule was thus
considered “more than a ‘bare procedural violation.’” Id.
at 499 (quoting Spokeo II, 578 U.S. at 341). This case is
substantially similar, in that the alleged procedural
violations protected substantive rights by requiring
disclosures necessary for informed decision-making. Just as
the alleged violation in Syed was sufficient to confer
standing, the alleged violations of § 1681g here are similarly
sufficient. Where, as here, Congress has identified a
concrete interest deserving of protection, a violation of
procedure may demonstrate a sufficient “risk of real harm”
to the underlying interest to establish concrete injury without
the “need [to] allege any additional harm beyond the one
Congress has identified.” Spokeo II, 578 U.S. at 341–42.
Plaintiffs in their reply brief rely on TransUnion, 141 S.
Ct. 2190, to support their argument that the ability to protect
privacy interests is insufficient to satisfy the concrete-harm
requirement. But the § 1681g claim at issue in this case is
distinguishable from the disclosure claims that the
TransUnion Court found lacked standing because the
plaintiffs here have alleged a sufficiently concrete injury—
they alleged that without complete information in their
§ 1681g disclosures, they are unable to adequately opt out of
certain disclosures to other parties and ensure fair and
accurate reporting of their credit information. See id. at 2213
16 TAILFORD V. EXPERIAN INFORMATION SOLUTIONS
(noting that “the disclosure and summary-of-rights
requirements are designed to protect consumers’ interests in
learning of any inaccuracies in their credit files so that they
can promptly correct the files before they are disseminated
to third parties”). Unlike the plaintiffs here, who alleged that
certain information was missing from Experian’s §1681g
disclosures, the plaintiffs in TransUnion lacked standing
because their only allegation of non-disclosure was improper
formatting of the information. Id. at 2214 (“The plaintiffs
did not allege that they failed to receive any required
information. They argued only that they received it in the
wrong format.”).
For the above reasons, we conclude that the allegations
of injury to Plaintiffs’ informational and privacy interests as
recited in the FAC are sufficiently concrete to support
Article III standing at this pleading stage. The district
court’s denial of Plaintiffs’ motion to remand to state court
is affirmed.
VI
Plaintiffs contend that the district court erred in granting
Experian’s motion to dismiss. 3 They argue that various
combinations of § 1681g(a)(1), (3), and (5) require that “all
information” in a consumer’s file must be disclosed when
requested and that four specific categories of data should
have been included in Experian’s § 1681g disclosures:
ConsumerView data and the identity of parties receiving that
information, soft inquiries by third parties, the identity of all
parties procuring credit reports (including Experian
affiliates), and the date on which employment dates were
3
Plaintiffs do not appeal the dismissal of their stand-alone claim
under § 1681b.
TAILFORD V. EXPERIAN INFORMATION SOLUTIONS 17
reported. Experian responds that its § 1681g disclosures
were in full compliance with the FCRA and that nothing
required was omitted. For the reasons that follow, we hold
that none of the information Plaintiffs contend Experian
failed to include in its § 1681g disclosures is subject to
disclosure under § 1681g(a)(1), (3) or (5), considered
individually or in combination.
A
Plaintiffs first argue that § 1681g(a)(1) encompasses “all
information” maintained by a CRA, contending that the
statutory language, “[a]ll information in the consumer’s file
at the time of the [§ 1681g] request,” is entitled to “a liberal
construction in favor of consumers when interpreting the
FCRA,” and thus includes all the information in Experian’s
Admin Reports. Experian contends that § 1681g(a)(1)
cannot and should not be read so broadly. We agree with
Experian.
A consumer’s “file,” for purposes of the FCRA, is “all of
the information on that consumer recorded and retained by a
consumer reporting agency regardless of how the
information is stored.” 15 U.S.C. §1681a(g). In Shaw v.
Experian Information Solutions, Inc., we held that “[a]
consumer’s file includes ‘all information on the consumer
that is recorded and retained by a [CRA] that might be
furnished, or has been furnished, in a consumer report on that
consumer.” 891 F.3d 749, 759 (9th Cir. 2018) (alteration in
original) (emphasis added) (quoting Cortez v. Trans Union,
LLC, 617 F.3d 688, 711–12 (3d Cir. 2010)) (citing Gillespie
v. Trans Union Corp., 482 F.3d 907, 909 (7th Cir. 2007)).
While we agree with Plaintiffs that a consumer’s “file” is not
limited to information previously contained on a consumer
report, the word “file” cannot be given the expansive
definition suggested at first glance by the phrase “might be
18 TAILFORD V. EXPERIAN INFORMATION SOLUTIONS
furnished.” As the Seventh Circuit recognized in Gillespie,
§ 1681g(a) includes several enumerated categories of
information that must be disclosed apart from information in
the consumer’s file under § 1681g(a)(1): the name of each
person that received a consumer report, certain inquiries,
original payees, and amounts of any checks that form the
basis of an adverse credit entry. 482 F.3d at 909. We agree
with the Seventh Circuit that these enumerated categories of
information would fall within an expansive definition of
“file” and that we should thus avoid an interpretation of
“file” that would render the enumerated categories
duplicative. See id. As the district court here persuasively
reasoned, to treat “might be furnished” as an open-ended
possibility of future use would categorize huge swaths of
information as consumer information and “would essentially
mean that any and all information ever retained by a CRA,
even if it is not data that would appear in a credit report,
could be considered ‘consumer report’ data.” Remand
Order, 2020 WL 2464797, at *5. Information that “might be
furnished” in the sense of Shaw is instead more reasonably
interpreted to mean information similar to that shown to
have been included by the CRA in a consumer report in the
past or planned to be included in the future. On this record,
none of the information Plaintiffs contend Experian failed to
disclose is of the type that has been included in a consumer
report in the past or is planned to be included in such a report
in the future.
B
Plaintiffs next argue that Experian violated
§ 1681g(a)(1), (3), and (5) by failing to include in its § 1681g
disclosures several inquiries from third parties. Plaintiffs
focus their appeal on Experian’s failure to disclose inquiries
from American Mercury and the U.S. Department of
TAILFORD V. EXPERIAN INFORMATION SOLUTIONS 19
Housing in Plaintiff Buckles’s reports (under § 1681g(a)(1)
and (3)); the Providence Mutual inquiry in Plaintiff
Ruderman’s report (under § 1681g(a)(1) and (3)); and the
Loanme and Credit One Bank inquiries in Plaintiff
Tailford’s report (under § 1681g(a)(1), (3), and (5)). The
FCRA does not require Experian to disclose any of these
inquiries under any subsection.
Section 1681g(a)(1) is inapposite because there is no
dispute that the listed inquiries were “soft inquiries” that by
definition “cannot be viewed by third parties who request a
consumer’s credit report” and “cannot be taken into
consideration in the lending process.” Dismissal Order,
2020 WL 6867157, at *4 n.2. Plaintiffs do not contest this
definition of soft inquiries or argue that the soft inquiries at
issue were included in consumer reports in the past or
planned to be included in the future. Soft inquiries are not
part of Plaintiffs’ “file[s]” under § 1681g(a)(1), and
therefore do not need to be disclosed.
Plaintiffs are incorrect in contending that the inquiries
must be disclosed under § 1681g(a)(3). CRAs must disclose
“each person (including each end-user identified under
section 1681e(e)(1) of this title) that procured a consumer
report.” 15 U.S.C. § 1681g(a)(3) (emphasis added). A
prerequisite of a necessary disclosure under that section is
the actual procurement of a consumer report by an identified
party. Plaintiffs nowhere allege that Experian actually sent
the inquiring parties anything, or that whatever was sent was
a consumer report. Moreover, even though Plaintiff
Buckles’s and Plaintiff Ruderman’s inquiries requested the
identification of “end-users” of information obtained by
another party, § 1681a(g)(3) applies only to end-users
identified under § 1681e(e)(1), which is limited to reports
obtained by the end-user through a reseller of consumer
20 TAILFORD V. EXPERIAN INFORMATION SOLUTIONS
reports, who has identified the end-user to Experian.
Plaintiffs do not allege that the information was obtained in
such a manner.
Plaintiffs further allege that Experian violated
§ 1681g(a)(5) with respect to two promotional inquiries
made with respect to Plaintiff Tailford by Loanme and
Credit One Bank. Although that section requires disclosure
of “inquiries” without reference to “consumer report,” that
section is limited to “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) (emphasis added). As this section refers
explicitly to a “transaction,” it is limited to inquiries leading
to a firm offer of credit. Plaintiffs nowhere allege that these
two inquiries led to an offer made to Tailford. Plaintiffs
therefore failed to sufficiently plead a violation of
§ 1681g(a)(5) based on the non-disclosure of the Loanme
and Credit One Bank inquiries.
C
Plaintiffs allege that § 1681g(a)(1), (3), and (5) require
Experian to disclose the behavioral data included in the
ConsumerView database in the § 1681g disclosures sent to
Plaintiffs. None of these sections so require. Plaintiffs make
a number of arguments why the behavioral information in
the ConsumerView database is part of a consumer’s “file”
and for that reason should have been disclosed. First,
Plaintiffs contend that because the ConsumerView database
sources some of its data from the File One credit database
and because File One data was collected for credit purposes,
that data should be considered part of a consumer’s file that
might be used in a consumer report. The problem with this
argument is that despite the sourcing of some of the data
TAILFORD V. EXPERIAN INFORMATION SOLUTIONS 21
from the File One database, the data maintained in the
ConsumerView database is aggregate data, organized by zip-
code and not individualized to any consumer. Such
aggregate data is not information that ever has been or might
arguably be included in an individual consumer report. The
aggregate information contained in Experian’s
ConsumerView database is thus not part of a consumer’s
“file” and is therefore not subject to disclosure under
§ 1681g(a)(1) of the FCRA.
Second, Plaintiffs argue that the OmniView product,
which incorporates the ConsumerView database, is itself a
consumer report because Experian markets it to “target
candidates for invitations to apply for credit” and insurance.
Plaintiffs assert that these are credit purposes.
Notwithstanding the uses identified by Plaintiffs, OmniView
is not itself a consumer report. The FCRA defines a
“consumer report” as follows:
[A]ny written, oral, or other communication
of any information by a consumer reporting
agency bearing on a consumer’s credit
worthiness, credit standing, credit capacity,
character, general reputation, personal
characteristics, or mode of living which is
used or expected to be used or collected in
whole or in part for the purpose of serving as
a factor in establishing the consumer’s
eligibility for—
(A) credit or insurance to be used primarily
for personal, family, or household purposes;
(B) employment purposes; or
22 TAILFORD V. EXPERIAN INFORMATION SOLUTIONS
(C) any other purpose authorized under
section 1681b of this title.
15 U.S.C. § 1681a(d)(1). The marketing of ConsumerView
data to identify “target candidates for invitations to apply for
credit,” is not using that information to establish a
consumer’s eligibility for credit, employment or any other
purpose authorized under § 1681b. The ConsumerView
information therefore does not meet the definition in
§ 1681a(d)(1) of a consumer report.
Plaintiffs next argue that § 1681g(a)(3) required
Experian to disclose “each person . . . that procured a
consumer report” and that Experian was thus required to
include the identity of all persons including Alteryx who
purchased ConsumerView information including Plaintiffs’
information. This argument fails for the same reason as
Plaintiffs’ argument with respect to § 1681g(a)(1):
ConsumerView information is not a consumer report for
purposes of the FCRA. The FCRA thus did not require
Experian to disclose the identity of those persons under
§ 1681g(a)(3).
Plaintiffs also allege that Experian failed to disclose that
Experian affiliates and Alteryx received consumer reports
that included information from the File One database. As
relevant here, § 1681g(a)(3) is limited to persons procuring
a report during the one-year period prior to the consumer’s
§ 1681g request. Plaintiffs have not alleged that Experian
shared consumer reports with its affiliates within the
applicable time-period, and Plaintiffs’ allegations with
respect to Alteryx relate to information obtained in 2013,
several years before any of the Plaintiffs’ § 1681g requests.
Plaintiffs have thus failed to sufficiently allege a violation of
TAILFORD V. EXPERIAN INFORMATION SOLUTIONS 23
the FCRA based on Experian’s information sharing with its
affiliates or Alteryx.
D
Finally, Plaintiffs argue that Experian violated
§ 1681g(a)(1) by failing to disclose the dates on which
Tailford’s and Ruderman’s employment dates were reported
to Experian. To be clear, Plaintiffs do not allege that the
dates of employment were not included in Experian’s
§ 1681g disclosures—only the dates on which those
employment dates were reported to Experian. This
information was included in Experian’s Admin Report and
Plaintiffs allege that it is also included in the Employment
Insight report that Experian markets for sale.
The date on which employment was reported to Experian
is not part of the consumer’s “file” and need not be disclosed.
The district court did not err in dismissing Plaintiffs’
employment reporting date allegations. Plaintiffs argue that
the reported date of employment is included in Experian’s
Employment Insight report, which is itself a consumer report
that should be disclosed. But even assuming that the
Employment Insight report is a consumer report, the date
employment dates were reported can have no “bearing on a
consumer’s credit worthiness, credit standing, credit
capacity, character, general reputation, personal
characteristics, or mode of living.” 15 U.S.C. § 1681a(d)(1).
That information therefore need not be included in a § 1681g
disclosure.
VII
For the above reasons, we affirm the district court’s
denial of Plaintiffs’ motion to remand to state court and its
24 TAILFORD V. EXPERIAN INFORMATION SOLUTIONS
dismissal with prejudice of Plaintiffs’ first amended
complaint for failure to state a claim. 4
4
Because we conclude that none of the data alleged by Plaintiffs to
be missing from Experian’s § 1681g disclosures is subject to disclosure
under the FCRA, we need not and do not address Plaintiffs’ contention
that Experian acted in willful violation of the FCRA.