Sarmad Syed v. M-I, LLC , 853 F.3d 492 ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SARMAD SYED, an individual, on No. 14-17186
behalf of himself and all others
similarly situated, D.C. No.
Plaintiff-Appellant, 1:14-cv-00742-
WBS-BAM
v.
M-I, LLC, a Delaware Limited OPINION
Liability Company; PRECHECK, INC.,
a Texas Corporation,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, District Judge, Presiding
Argued and Submitted November 17, 2016
San Francisco, California
Filed January 20, 2017
Before: Mary M. Schroeder, Kim McLane Wardlaw,
and John B. Owens, Circuit Judges.
Opinion by Judge Wardlaw
2 SYED V. M-I, LLC
SUMMARY*
Fair Credit Reporting Act
The panel reversed the district court’s dismissal pursuant
to Federal Rule of Civil Procedure 12(b)(6) of an action under
the Fair Credit Reporting Act.
The panel held that a prospective employer violates 15
U.S.C. § 1681b(b)(2)(A) when it procures a job applicant’s
consumer report after including a liability waiver in the same
document as a statutorily mandated disclosure. The panel
also held that, in light of the clear statutory language that the
disclosure document consist “solely” of the disclosure, a
prospective employer’s violation of § 1681b(b)(2)(A) is
“willful” when the employer includes terms in addition to
the disclosure, such as the liability waiver here, before
procuring a consumer report or causing one to be procured.
COUNSEL
Peter R. Dion-Kindem (argued), Peter R. Dion-Kindem P.C.,
Woodland Hills, California; Lonnie C. Blanchard, III, The
Blanchard Law Group, Los Angeles, California; for Plaintiff-
Appellant.
Jason S. Mills (argued) and Alexis M. Gabrielson, Morgan
Lewis & Bockius LLP, Los Angeles, California, for
Defendant-Appellee M-I, LLC.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
SYED V. M-I, LLC 3
E. Michelle Drake and John Albanese, Nichols Kaster PLLP,
Minneapolis, Minnesota, for Amici Curiae National
Association of Consumer Advocates and National Consumer
Law Center.
OPINION
WARDLAW, Circuit Judge:
The modern information age has shined a spotlight on
information privacy, and on the widespread use of consumer
credit reports to collect information in violation of
consumers’ privacy rights. This case presents a question of
first impression in the federal courts of appeals: whether a
prospective employer may satisfy the Fair Credit Reporting
Act’s (“FCRA”) disclosure requirements by providing a job
applicant with a disclosure that “a consumer report may be
obtained for employment purposes” which simultaneously
serves as a liability waiver for the prospective employer and
others.1 See 15 U.S.C. § 1681b(b)(2)(A). We hold that a
prospective employer violates Section 1681b(b)(2)(A) when
it procures a job applicant’s consumer report after including
a liability waiver in the same document as the statutorily
mandated disclosure. We also hold that, in light of the clear
statutory language that the disclosure document must consist
1
The statutory provision at issue, 15 U.S.C. § 1681b(b)(2)(A),
governs the procurement of consumer reports “for employment purposes
with respect to any consumer.” Thus, the statute’s application is not
limited to employer-employee relationships. However, for the sake of
brevity, we describe the parties governed by the statute as “prospective
employers” and “job applicants,” while recognizing that the statute in fact
applies more broadly.
4 SYED V. M-I, LLC
“solely” of the disclosure, a prospective employer’s violation
of the FCRA is “willful” when the employer includes terms
in addition to the disclosure, such as the liability waiver here,
before procuring a consumer report or causing one to be
procured.
I.
A. Fair Credit Reporting Act.
Congress enacted the FCRA in 1970 in response to
concerns about corporations’ increasingly sophisticated use
of consumers’ personal information in making credit and
other decisions. Fair Credit Reporting Act of 1970, Pub. L.
91-508, § 602, 84 Stat. 1114, 1128. Specifically, Congress
recognized the need to “ensure fair and accurate credit
reporting, promote efficiency in the banking system, and
protect consumer privacy.” Safeco Ins. Co. v. Burr, 551 U.S.
47, 52 (2007). Congress thus required the use of reasonable
procedures in procuring and using a “consumer report,”
defined as
any 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
SYED V. M-I, LLC 5
purposes; or (C) any other purpose authorized
under [the statute].
15 U.S.C. § 1681a(d).
Congress amended the FCRA in 1996. Consumer Credit
Reporting Reform Act of 1996, Pub. L. 104-208, § 2403, 110
Stat. 3009-426, 3009-431. It recognized “the significant
amount of inaccurate information that was being reported by
consumer reporting agencies and the difficulties that
consumers faced getting such errors corrected.” S. Rep.
No. 108-166 at 5–6 (2003) (describing 1996 amendments).
Congress was specifically concerned that prospective
employers were obtaining and using consumer reports in a
manner that violated job applicants’ privacy rights. S. Rep.
No. 104-185 at 35 (1995). The disclosure and authorization
provision codified at 15 U.S.C. § 1681b(b)(2)(A) was
intended to address this concern by requiring the prospective
employer to disclose that it may obtain the applicant’s
consumer report for employment purposes and providing the
means by which the prospective employee might prevent the
prospective employer from doing so—withholding of
authorization. S. Rep. No. 104-185 at 35. This provision
furthers Congress’s overarching purposes of ensuring
accurate credit reporting, promoting efficient error correction,
and protecting privacy. See Safeco, 551 U.S. at 52. Indeed,
in addition to securing job applicants’ privacy rights by
enabling them to withhold authorization to obtain their
consumer reports, the provision promotes error correction by
providing applicants with an opportunity to warn a
prospective employer of errors in the report before the
6 SYED V. M-I, LLC
employer decides against hiring the applicant on the basis of
information contained in the report.2
Congress prohibited procurement of consumer reports
unless certain specified procedures were followed:
(2) Disclosure to consumer
(A) In general
Except as provided in subparagraph
(B), a person may not procure a consumer
report, or cause a consumer report to be
procured, for employment purposes with
respect to any consumer, unless—
(i) 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, that a
consumer report may be obtained for
employment purposes; and
(ii) the consumer has authorized in
writing (which authorization may be
2
This opportunity is particularly important given that, in practice, the
FCRA does not otherwise provide an opportunity for a job applicant or
employee to dispute his consumer report before adverse action is taken.
See Richard Fischer, A.S. Pratt & Sons, Law of Financial Privacy ¶
1.04[2][F] (2014).
SYED V. M-I, LLC 7
made on the document referred to in
clause (i)) the procurement of the
report by that person.
15 U.S.C. § 1681b(b)(2)(A). Congress amended the statute
in 1998 to add language providing that the authorization may
be made on the same document as the disclosure. Consumer
Reporting Employment Clarification Act of 1998, Pub. L.
105-347, § 2, 112 Stat. 3208, 3208.
The FCRA provides a private right of action against those
who violate its statutory requirements in procuring and using
consumer reports. The affected consumer is entitled to actual
damages for a negligent violation. 15 U.S.C. § 1681o. For a
willful violation, however, a consumer may recover statutory
damages ranging from $100 to $1,000, punitive damages, and
attorney’s fees and costs. 15 U.S.C. § 1681n.
B. Syed’s Lawsuit Against M-I.
Syed applied for a job with M-I in 2011. M-I provided
Syed with a document labeled “Pre-employment Disclosure
Release.” See Appendix A. The Disclosure Release
informed Syed that his credit history and other information
could be collected and used as a basis for the employment
decision, authorized M-I to procure Syed’s consumer report,
and stipulated that, by signing the document, Syed was
waiving his rights to sue M-I and its agents for violations of
the FCRA. Syed’s signature served simultaneously as an
authorization for M-I to procure his consumer report, and as
a broad release of liability.
The liability waiver at the heart of the present dispute
reads as follows:
8 SYED V. M-I, LLC
I understand the information obtained will be
used as one basis for employment or denial of
employment. I hereby discharge, release and
indemnify prospective employer, PreCheck,
Inc., their agents, servants and employees, and
all parties that rely on this release and/or the
information obtained with this release from
any and all liability and claims arising by
reason of the use of this release and
dissemination of information that is false and
untrue if obtained by a third party without
verification.
Appendix A.
Syed alleges that the Disclosure Release failed to satisfy
the disclosure requirements mandated by 15 U.S.C.
§ 1681b(b)(2)(A). Syed does not contend that M-I’s form
contained too little information. Instead, he argues that it
contained too much. Specifically, he alleges that M-I’s
inclusion of the liability waiver violated the statutory
requirement that the disclosure document consist “solely” of
the disclosure. See § 1681b(b)(2)(A)(i). Syed alleges that he
realized M-I had violated the statute when, upon reviewing
his personnel file, he noticed that M-I had procured his
consumer report, in spite of the allegedly deficient disclosure
with which it had provided him. He alleges that he filed the
complaint within two years of reviewing his file.
On May 19, 2014, Syed filed a putative class action in
district court on behalf of himself and any person whose
consumer report was obtained by M-I after receiving a
disclosure in violation of Section 1681b(b)(2)(A)(i) within
the two-year limitations period. He sought statutory damages
SYED V. M-I, LLC 9
pursuant to Section 1681n(a)(1)(A), punitive damages
pursuant to Section 1681n(a)(2), and attorney’s fees and costs
pursuant to Section 1681n(a)(3).3 Syed did not seek actual
damages, which would have required proof of actual harm.
See Crabill v. Trans Union, L.L.C., 259 F.3d 662, 664 (7th
Cir. 2001) (citing cases).
The original complaint alleged that M-I’s statutory
violation had been “willful,” the predicate for Syed’s claimed
statutory and punitive damages. See 15 U.S.C. § 1681n; see
also Safeco, 551 U.S. at 53. On August 28, 2014, the district
court dismissed Syed’s complaint for failure to state a claim,
with leave to amend. It held that the allegation of willfulness
consisted only of “labels and conclusions.” See Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Syed filed his First Amended Complaint (“FAC”) on
September 2, 2014. The FAC sets forth the same factual and
legal allegations as did the original complaint. However, it
also includes citations to Federal Trade Commission (“FTC”)
staff opinion letters and district court opinions that Syed
asserts support his position that M-I “knew or should have
known about its legal obligations under the FCRA,” thus
rendering its statutory violation willful.
On October 23, 2014, the district court again dismissed
Syed’s FAC for failure to state a claim, this time without
leave to amend. The district court reasoned that Syed had
still not sufficiently pleaded willfulness. The court concluded
that the FTC letters could not have “warned [M-I] away from
3
Syed also named PreCheck, the company hired by M-I to obtain his
consumer report, as a defendant. Syed has since settled his claims against
PreCheck. Thus, only his claims against M-I are at issue in this appeal.
10 SYED V. M-I, LLC
the view it took” because they were informal staff opinions,
not authoritative guidance. See Safeco, 551 U.S. at 70, 70
n.19. Similarly, the court found that the judicial opinions
cited by Syed did not demonstrate that M-I’s conduct had
been willful because the opinions issued after M-I had
provided Syed the Disclosure Release in 2011.
II.
We have jurisdiction under 28 U.S.C. § 1291 to review
the district court’s final judgment dismissing with prejudice
Syed’s claims against M-I.
We review de novo the grant of a motion to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6). Fayer
v. Vaughn, 649 F.3d 1061, 1063–64 (9th Cir. 2011). In so
doing, we accept “all factual allegations in the complaint as
true and construe the pleadings in the light most favorable to
the nonmoving party.” Knievel v. ESPN, 393 F.3d 1068,
1072 (9th Cir. 2005). In addition, “the district court’s
interpretation of a statute is a question of law which we
review de novo.” Pakootas v. Teck Cominco Metals, Ltd.,
830 F.3d 975, 980 (9th Cir. 2016) (internal quotation marks
omitted).
III.
Syed has established Article III standing. A plaintiff who
alleges a “bare procedural violation” of the FCRA, “divorced
from any concrete harm,” fails to satisfy Article III’s injury-
in-fact requirement. Spokeo, Inc. v. Robins, —U.S.—, 136 S.
Ct. 1540, 1549 (2016). However, Syed alleges more than a
“bare procedural violation.” The disclosure requirement at
issue, 15 U.S.C. § 1681b(b)(2)(A)(i), creates a right to
SYED V. M-I, LLC 11
information by requiring prospective employers to inform job
applicants that they intend to procure their consumer reports
as part of the employment application process. The
authorization requirement, § 1681b(b)(2)(A)(ii), creates a
right to privacy by enabling applicants to withhold
permission to obtain the report from the prospective
employer, and a concrete injury when applicants are deprived
of their ability to meaningfully authorize the credit check. By
providing a private cause of action for violations of Section
1681b(b)(2)(A), Congress has recognized the harm such
violations cause, thereby articulating a “chain[ ] of causation
that will give rise to a case or controversy.” See Spokeo, 136
S. Ct. at 1549 (quoting Lujan v. Defs. of Wildlife, 504 U.S.
555, 580 (1992) (Kennedy, J., concurring)). Therefore, Syed
has Article III standing to bring this lawsuit. See Thomas v.
FTS USA, LLC, —F. Supp. 3d—, No. 3:13–cv–825, 2016 WL
3653878, at *4–12 (E.D. Va. June 30, 2016) (holding that an
improper disclosure under 15 U.S.C. § 1681b(b)(2)(A) causes
“a concrete injury sufficient to confer standing”).
IV.
A. M-I violated the FCRA by including a liability waiver on
the same document as its disclosure.
Neither the Supreme Court nor any circuit court of
appeals has addressed whether a prospective employer may
satisfy 15 U.S.C. § 1681b(b)(2)(A) by providing a disclosure
on a document that also includes a liability waiver. The
district court avoided this interpretive question, holding only
that M-I’s view that it had not violated the FCRA, whether
correct or not, was “not objectively unreasonable,” and that
M-I therefore could not be held liable for statutory or punitive
damages. See Safeco, 551 U.S. at 69–70. We conclude that
12 SYED V. M-I, LLC
the inclusion of the liability waiver did violate the FCRA, and
next consider whether that violation was willful.
1. Section 1681b(b)(2)(A) unambiguously requires a
document that “consists solely of the disclosure.”
We must begin with the text of the statute. Where
congressional intent “has been expressed in reasonably plain
terms, that language must ordinarily be regarded as
conclusive.” Griffin v. Oceanic Contractors, Inc., 458 U.S.
564, 570 (1982) (internal quotation marks omitted). And
when “the meaning of the words seems to us to be intelligible
upon a simple reading, . . . we shall spend no time upon
generalities concerning the principles of [statutory]
interpretation.” United States v. M.H. Pulaski Co., 243 U.S.
97, 106 (1917).
The ordinary meaning of “solely” is “[a]lone; singly” or
“[e]ntirely; exclusively.” American Heritage Dictionary of
the English Language 1666 (5th ed. 2011). M-I argues that
the statute’s requirement that the disclosure appear on a
“document that consists solely of the disclosure” is
ambiguous because subsection (ii) of the provision provides
that the consumer may authorize the procurement of a
consumer report on the document containing the disclosure.
See 15 U.S.C. § 1681b(b)(2)(A). If the statute allows for an
authorization on the same document as the disclosure, M-I
reasons, then the statute must not really require the document
to “consist[ ] solely of the disclosure.” See § 1681b(b)(2)(A).
M-I thus urges us to find that Section 1681b(b)(2)(A) is
internally inconsistent, and to give no effect to Congress’s use
of the term “solely.”
SYED V. M-I, LLC 13
However, contrary to M-I’s contention, the statutory
allowance for the consumer to “authorize in writing” the
procurement of a consumer report on the same document as
the disclosure does not undermine the requirement that the
document consist “solely of the disclosure.” The two clauses
are consistent because the authorization clause is an express
exception to the requirement that the document consist
“solely of the disclosure.” While the statute does not
specifically designate it as such, the authorization clause
immediately follows the disclosure clause, and makes express
reference to it. See § 1681b(b)(2)(A)(ii). This is not a case
where we must rationalize two plainly inconsistent
subsections, or smooth over a “mistake in draftsmanship.”
Russello v. United States, 464 U.S. 16, 23 (1983). To the
contrary, it is clear that Congress intended the two
subsections to work together.
Allowing an authorization on the same document as the
disclosure is consistent with the purpose of the statute.
Congress passed Section 1681b(b)(2)(A) in order to protect
consumers from “improper invasion[s] of privacy,” S. Rep.
No. 104-185 at 35 (1995), and the disclosure and
authorization requirements fit hand in glove to achieve that
purpose. Indeed, each would be largely ineffective on its
own. Had the statute required disclosure without
conditioning the procurement of a consumer report on the job
applicant’s authorization, it would have failed to give the
applicant control over the procurement of the personal
information contained in the consumer report. On the other
hand, had the statute conditioned the procurement of a report
on the job applicant’s authorization without mandating clear
disclosure by the prospective employer, Congress’s purpose
would have been frustrated because applicants would not
understand what they were authorizing. The disclosure and
14 SYED V. M-I, LLC
authorization clauses therefore work in tandem to further the
congressional purpose of protecting consumers from
“improper invasion[s] of privacy.” See id.
Congress reasonably could have concluded that
permitting the consumer to provide an authorization on the
same page as the disclosure would enhance the effectiveness
of each clause. A job applicant may read a disclosure more
closely if he understands that the potential employer may
obtain his consumer report only if he signs an authorization
for it to do so. The decision to authorize or deny the
prospective employer’s use of his report to accept or reject
his employment application may be better informed if the
authorization immediately follows the disclosure.
We thus reject M-I’s argument that Section
1681b(b)(2)(A) is internally inconsistent. “It is our duty to
give effect, if possible, to every clause and word of a statute.”
United States v. Menasche, 348 U.S. 528, 538–39 (1955)
(internal quotation marks omitted). M-I’s interpretation fails
to give effect to the term “solely,” violating the precept that
“statutes should not be construed to make surplusage of any
provision.” Wilshire Westwood Assocs. v. Atl. Richfield
Corp., 881 F.2d 801, 804 (9th Cir. 1989) (alterations and
internal quotation marks omitted). That other FCRA
provisions mandating disclosure omit the term “solely” is
further evidence that Congress intended that term to carry
meaning in 15 U.S.C. § 1681b(b)(2)(A)(i). See 15 U.S.C.
§§ 1681d, 1681s-3.
SYED V. M-I, LLC 15
2. The statute does not implicitly authorize the inclusion
of a liability waiver in a disclosure document.
Congress’s express exception to the “solely” requirement,
allowing the disclosure document to also contain the
authorization to procure a consumer report, does not mean
that the statute contains other implicit exceptions as well. See
United States v. Johnson, 529 U.S. 53, 58 (2000). Indeed, in
light of Congress’s express grant of permission for the
inclusion of an authorization, the familiar judicial maxim
expressio unius est exclusio alterius counsels against finding
additional, implied, exceptions. See Tenn. Valley Auth. v.
Hill, 437 U.S. 153, 188 (1978). We therefore reject M-I’s
contention that a liability waiver is an implicit exception to
the “solely” requirement in 15 U.S.C. § 1681b(b)(2)(A)(i).
Moreover, “[a]n implied exception to an express statute
is justifiable only when it comports with the basic purpose of
the statute.” Walker v. Fairbanks Inv. Co., 268 F.2d 48, 53
(9th Cir. 1959). Here, an implied exception permitting the
inclusion of a liability waiver on the same document as the
disclosure does not comport with the FCRA’s basic purpose.
To the contrary, it would frustrate Congress’s goal of
guarding a job applicant’s right to control the dissemination
of sensitive personal information. See 15 U.S.C.
§ 1681(a)(4); S. Rep. No. 104-185 at 35. An authorization
requiring the job applicant’s signature focuses the applicant’s
attention on the nature of the personal information the
prospective employer may obtain, and the employer’s
inability to obtain that information without his consent. But
a liability waiver does just the opposite—it pulls the
applicant’s attention away from his privacy rights protected
by the FCRA by calling his attention to the rights he must
forego if he signs the document. Indeed, by reading M-I’s
16 SYED V. M-I, LLC
Disclosure Release, a job applicant could reasonably
conclude that his signature was not consent to the
procurement of the consumer report, but to a broad release of
the employer from claims arising from the totality of the
“investigative background inquiries” referenced in the first
sentence of the form. See Appendix A. Thus, 15 U.S.C.
§ 1681b(b)(2)(A) does not contain an implied exception
allowing a prospective employer to include a liability waiver
on the same document as the statutorily mandated disclosure.
3. The statute’s explicit language cannot be interpreted
as permitting the inclusion of a liability waiver.
M-I also argues that the statute contains an explicit
exception allowing for the inclusion of a liability waiver,
positing that a liability waiver is one type of authorization.
But we need not speculate about how broadly Congress
intended us to read the term “authorization,” because
Congress told us exactly what it meant when it described the
authorization as encompassing only “the procurement of [a
consumer] report.” 15 U.S.C. § 1681b(b)(2)(A)(ii). Further,
even assuming the statute were not as clear as it is, M-I’s
interpretation is inconsistent with the plain meaning of the
term “authorize.” To authorize is to “grant authority or
power to.” American Heritage Dictionary 120. To waive is
to “give up . . . voluntarily” or “relinquish.” Id. at 1947.
Authorization bestows, whereas waiver abdicates. A
consumer may authorize the procurement of a consumer
report or waive an employer’s liability, but he may not
“authorize” a “waiver.” We decline to so harry the English
language. See Int’l Primate Prot. League v. Adm’rs of Tulane
Educ. Fund, 500 U.S. 72, 82 (1991). We thus reject M-I’s
SYED V. M-I, LLC 17
argument that the statute somehow explicitly permits the
inclusion of a liability waiver on the disclosure document.4
4. Whether the disclosure is “clear and conspicuous” is
irrelevant to the analysis.
Next, M-I suggests that its inclusion of a liability waiver
was permissible because even with the waiver, the disclosure
was still “clear and conspicuous.” M-I cites Smith v. Waverly
Partners, LLC, No. 3:10–CV–00028–RLV–DSC, 2012 WL
3645324, at *6 (W.D.N.C. Aug. 23, 2012), for the proposition
that a disclosure made pursuant to Section 1681b(b)(2)(A) is
valid despite the inclusion of a liability waiver where the
waiver is “not so great a distraction as to discount the
effectiveness of the disclosure.” The district court in Smith
concluded that “in order to give Congress’s inclusion of the
word ‘solely’ meaningful effect, . . . inclusion of the waiver
provision was statutorily impermissible and . . . the waiver is
therefore invalid.” Id. Only then, analyzing the single,
separated sentence releasing the company from liability, did
the court hold that the waiver was “not so great a distraction
as to discount the effectiveness of the disclosure.” Id. It is
inexplicable to us that a court would find that including a
waiver violated the FCRA, but because the disclosure was
“clear and conspicuous,” an additional requirement under the
FCRA, see 15 U.S.C. § 1681b(b)(2)(A)(i), the disclosure was
nonetheless “adequate.” See Smith, 2012 WL 3645324, at *6.
4
M-I’s argument that the legislative history supports its interpretation
of the statute is also misguided. M-I’s reading is in fact inconsistent with
Congress’s intent, because the inclusion of a liability waiver tends to
distract from the disclosure’s clarity. In any event, “it is well-settled that
‘reference to legislative history is inappropriate when the text of the
statute is unambiguous.’” United States v. Sioux, 362 F.3d 1241, 1246
(9th Cir. 2004). Thus, we look no further than the statutory text.
18 SYED V. M-I, LLC
Because the question of whether a disclosure is “clear
and conspicuous” within the meaning of Section
1681b(b)(2)(A)(i) is separate from the question of whether a
document consists “solely” of a disclosure, and is not one that
is before us here, we decide only that including the waiver
violated the statute’s “solely” requirement. Further, we
question whether the Smith court’s approach comports with
the clear mandate and purpose of the FCRA’s disclosure
procedures.
B. M-I’s statutory violation was willful as a matter of law.
Syed seeks statutory and punitive damages only, not
actual damages. Statutory and punitive damages are available
under the FCRA only where a defendant “willfully fails to
comply” with the statute. 15 U.S.C. § 1681n(a). Therefore,
we must decide whether M-I willfully failed to comply with
Section 1681b(b)(2)(A) by procuring Syed’s consumer report
after including a liability waiver on the same document as the
statutorily mandated disclosure. We may resolve this
question as a matter of law, as the parties acknowledge.
The Supreme Court has clarified that, under
Section 1681n, willfulness reaches actions taken in “reckless
disregard of statutory duty,” in addition to actions “known to
violate the Act.” Safeco, 551 U.S. at 56–57. A party does not
act in reckless disregard of the FCRA “unless the action is not
only a violation under a reasonable reading of the statute’s
terms, but shows that the company ran a risk of violating the
law substantially greater than the risk associated with a
reading that was merely careless.” Id. at 69.
 SYED V. M-I, LLC 19
1. M-I’s interpretation of the statute was not objectively
reasonable.
M-I contends that, even if it violated the statute by
procuring Syed’s consumer report, its interpretation of 15
U.S.C. § 1681b(b)(2)(A) was not so erroneous that its
non-compliance was willful within the meaning of
Section 1681n. Indeed, M-I argues that its reading was not
“objectively unreasonable” because the statutory text was
“less[ ]than[ ]pellucid.” See id. at 70.
M-I’s arguments on this score track its contentions as to
why its actions did not violate the statute at all. However, for
the reasons outlined above, we conclude that the FCRA
unambiguously bars a prospective employer from including
a liability waiver on a disclosure document provided a job
applicant pursuant to Section 1681b(b)(2)(A).
M-I also contends that its interpretation of the statute is
objectively reasonable in light of the dearth of guidance from
federal appellate courts and administrative agencies. No
court of appeals has spoken to the issue of whether a
disclosure document provided pursuant to Section
1681b(b)(2)(A) may permissibly include a liability waiver.
Nor has an administrative agency promulgated authoritative
guidance on the issue.5
5
The FTC has released three informal staff opinion letters relevant
to the issue at hand, each supporting Syed’s interpretation of Section
1681b(b)(2)(A). See FTC, Opinion Letter, 1997 WL 33791227, at *1
(Oct. 21, 1997) (“[The] document should include nothing more than the
disclosure and the authorization for obtaining a consumer report.”); FTC,
Opinion Letter, 1998 WL 34323748, at *2 (Feb. 11, 1998) (disclosure may
describe the “nature of the consumer reports” it covers, but otherwise
should “not be encumbered with extraneous information”); FTC, Opinion
20 SYED V. M-I, LLC
A lack of “guidance,” however, does not itself render M-
I’s interpretation reasonable. The Supreme Court has
analogized the assessment of whether a FCRA violation may
give rise to a claim for statutory damages to the determination
of whether government employees may be held personally
liable in suits for damages. Safeco, 551 U.S. at 70. In the
qualified immunity context, we have held that “when an
officer’s conduct is so patently violative of the constitutional
right that reasonable officials would know without guidance
from the courts that the action was unconstitutional, closely
analogous pre-existing case law is not required to show that
the law is clearly established.” Boyd v. Benton Cty., 374 F.3d
773, 781 (9th Cir. 2004) (internal quotation marks omitted).
Similarly, at least one circuit court of appeals has concluded
that, in the FCRA context, a “lack of definitive authority does
not, as a matter of law, immunize [a party] from potential
liability” for statutory damages. Cortez v. Trans Union, LLC,
617 F.3d 688, 721 (3d Cir. 2010).
Despite the apparent dearth of guidance on the issue at the
time M-I procured Syed’s consumer report, M-I’s inclusion
of a liability waiver in the statutorily mandated disclosure
document comports with no reasonable interpretation of
15 U.S.C. § 1681b(b)(2)(A). Therefore, we conclude that M-
I’s interpretation was “objectively unreasonable.”
Letter, 1998 WL 34323756, at *1 (June 12, 1998) (inclusion of a waiver
in a disclosure form violates Section 1681b(b)(2)(A)). However, informal
opinion letters do not constitute authoritative guidance. See Safeco, 551
U.S. at 70 n.19. Therefore, we do not rely on them here.
SYED V. M-I, LLC 21
2. M-I’s non-compliance was willful.
The parties appear to assume that, under Safeco, an
objectively unreasonable interpretation of the FCRA is by
definition a reckless one, as well. However, this
interpretation improperly conflates recklessness and
negligence. In tort law, negligent actions are those which do
not meet the standard of objective reasonableness. See
Restatement (Second) of Torts § 283 comment c (Am. Law
Inst. 1965); W. Page Keeton et al., Prosser and Keaton on
The Law of Torts § 32, at 173–74 (5th ed. 1984). On the
other hand, one acts recklessly when he creates an
“unreasonable risk of physical harm to another” that is
“substantially greater than that which is necessary to make his
conduct negligent.” See Restatement (Second) Torts § 500.
The Supreme Court has specifically distinguished
recklessness from negligence in the FCRA context, noting
that a violation is only reckless (and therefore willful) where
an employer adopts a reading of the statute that runs a risk of
error “substantially greater than the risk associated with a
reading that was merely careless.” Safeco, 551 U.S. at 69
(emphasis added); see also id. at 70 (“Safeco’s reading was
not objectively unreasonable, and so falls well short of raising
the ‘unjustifiably high risk’ of violating the statute necessary
for reckless liability.”)
Moreover, equating negligence with recklessness would
fail to give effect to the FCRA’s allowance of actual damages
for negligent violations, on the one hand, and statutory and
punitive damages for willful ones, on the other. See 15
U.S.C. §§ 1681n, 1681o; Safeco, 551 U.S. at 69–70; see also
Menasche, 348 U.S. at 538–39 (“It is our duty to give effect,
if possible, to every clause and word of a statute . . . .”)
(internal quotation marks omitted). Accordingly, if M-I’s
22 SYED V. M-I, LLC
interpretation of the FCRA is merely objectively
unreasonable, it does not follow that Syed is entitled to
statutory damages.
We must determine whether M-I’s interpretation of
15 U.S.C. § 1681b(b)(2)(A) to permit a liability waiver in a
disclosure document crossed the “negligence/recklessness
line.” See Safeco, 551 U.S. at 69. It is possible to imagine an
interpretation of 15 U.S.C. § 1681b(b)(2)(A) that would be
objectively unreasonable without rising to the level of
recklessness. For instance, the Seventh Circuit has held that
a company did not recklessly disregard the FCRA’s mandate
of “clear and conspicuous” disclosure by using six-point type,
even if the company’s actions were negligent. Murray v. New
Cingular Wireless Servs., Inc., 523 F.3d 719, 726–27 (7th
Cir. 2008) (Easterbrook, J.) (qualifying that such a practice
“would be reckless today,” given intervening legal authority).
Here, however, the term we are called upon to construe is
not subject to a range of plausible interpretations. To the
contrary, 15 U.S.C. § 1681b(b)(2)(A) unambiguously
forecloses the inclusion of a liability waiver in a disclosure
document. Thus, we need not consider M-I’s subjective
interpretation of the FCRA in determining whether it acted in
reckless disregard of the statutory language, and therefore
willfully. Indeed, M-I concedes that this question may be
resolved purely as a matter of law.6 Because the statute
6
In Safeco, the Supreme Court did not foreclose the possibility that
a party’s subjective interpretation of the FCRA may be relevant in some
circumstances. 551 U.S. at 70 n.20; see also In re Seagate Tech., LLC,
497 F.3d 1360, 1384 (Fed. Cir. 2007), abrogated on other grounds by
Halo Elecs., Inc. v. Pulse Elecs., Inc., —U.S.—, 136 S. Ct. 1923 (2016)
(a FCRA defendant’s “subjective beliefs may become relevant . . . if [the
plaintiff] successfully makes [a] showing of objective unreasonableness”).
SYED V. M-I, LLC 23
unambiguously bars M-I’s interpretation, whether or not M-I
actually believed that its interpretation was correct is
immaterial. See Reardon v. ClosetMaid Corp., No.
2:08–cv–01730, 2013 WL 6231606, at *11 (W.D. Pa. Dec. 2,
2013) (holding that there was “no issue of material fact”
about whether defendant violated 15 U.S.C. § 1681b(b)(2)(A)
willfully and granting plaintiff summary judgment).7
Notwithstanding that we are the first federal appellate court
to construe Section 1681b(b)(2)(A), this is not a “borderline
case.” See Cortez, 617 F.3d at 722. An employer “whose
conduct is first examined under [a] section of the Act should
not receive a pass because the issue has never been decided.”
Id.
However, where a party’s action violates an unambiguous statutory
requirement, that fact alone may be sufficient to conclude that its violation
is reckless, and therefore willful. We observe that, in tort law, from which
the Safeco Court drew its interpretation of willfulness under the FCRA,
recklessness may be determined by objective evidence alone. Keeton et
al., supra, § 34 at 213–14.
7
We are persuaded by the opinions of a number of other district
courts rejecting the argument that a prospective employer’s inclusion of
a liability waiver in a disclosure made pursuant to 15 U.S.C.
§ 1681b(b)(2)(A) was not willful as a matter of law. Harris v. Home
Depot U.S.A., Inc., 114 F. Supp. 3d 868, 870–71 (N.D. Cal. 2015); Speer
v. Whole Foods Mkt. Grp., Inc., No. 8:14–cv–3035–T–26TBM, 2015 WL
1456981, at *3 (M.D. Fla. March 30, 2015); Avila v. NOW Health Grp.,
Inc., No. 14 C 1551, 2014 WL 3537825, at *3 (N.D. Ill. July 17, 2014);
see also Ramirez v. Midwest Airlines, Inc., 537 F. Supp. 2d 1161, 1171
(D. Kan. 2008) (holding that defendant could not avoid liability for willful
violation as a matter of law under the FCRA, 15 U.S.C. § 1681c(g),
because there was “no plausible alternative reading of the statute in the
foundation of the statutory text”). For the reasons described in Part
IV.A.4, we disagree with the contrary analysis of the court in Smith, 2012
WL 3645324, at *6.
24 SYED V. M-I, LLC
M-I ran an “unjustifiably high risk of violating the
statute.” See Safeco, 551 U.S. at 70 (internal quotation marks
omitted). In other words, M-I acted in “reckless disregard of
statutory duty.” Its violation of the FCRA was therefore
willful under 15 U.S.C. § 1681n. See Safeco, 551 U.S. at
56–57.
C. The complaint’s factual allegations preclude dismissal on
statute of limitations grounds.
In the alternative, M-I urges us to affirm the district
court’s dismissal of Syed’s complaint on the ground that
Syed’s claims are barred by the FCRA’s two-year statute of
limitations. The FCRA requires a plaintiff to bring an action
within the earlier of “(1) 2 years after the date of discovery by
the plaintiff of the violation that is the basis for [the
employer’s] liability; or (2) 5 years after the date on which
the violation that is the basis for such liability occurs.” 15
U.S.C. § 1681p. The district court dismissed Syed’s action
because he failed to state a claim under Federal Rule of Civil
Procedure 12(b)(6), not because the claim was time-barred.
However, we may “affirm on any basis fairly supported by
the record.” Corrie v. Caterpillar, Inc., 503 F.3d 974, 979
(9th Cir. 2007).
M-I argues that Syed “discovered” the violation within
the meaning of 15 U.S.C. § 1681p when he signed M-I’s
allegedly deficient Disclosure Release form upon applying
for a job in 2011. Because Syed challenges only the
disclosure document, and not the manner in which M-I used
his consumer report, M-I contends that the date of disclosure
is the relevant one here.
SYED V. M-I, LLC 25
However, a prospective employer does not violate Section
1681b(b)(2)(A) by providing a disclosure that violates the
FCRA’s disclosure requirement. See Harris v. Home Depot
U.S.A., Inc., 114 F. Supp. 3d 868, 869 (N.D. Cal. 2015);
Singleton v. Domino’s Pizza, LLC, No. DKC 11-1823, 2012
WL 245965, at *7 (D. Md. Jan. 25, 2012). The employer
violates the FCRA only where, after violating its disclosure
procedures, it “procure[s] or cause[s] to be procured” a
consumer report about the job applicant. See 15 U.S.C.
§ 1681b(b)(2)(A)(i).
M-I urges a contrary interpretation, relying on cases
construing statutes of limitations involving inadequate
disclosures on loan documents under the Fair and Accurate
Credit Transactions Act of 2003 (“FACTA”), Pub. L. 108-
159, 111 Stat. 1952, which amended the FCRA, and the Truth
in Lending Act of 1968 (“TILA”), Pub. L. 90-321, 82 Stat.
146 (codified at 15 U.S.C. § 1601 et seq). M-I is correct that
the statutes of limitations under FACTA and TILA generally
begin to run when the disclosure is made. However, this is
so because the disclosure and transaction usually occur
simultaneously in the lending context. See Ancheta v. Golden
Empire Mortg., Inc., No. 10-CV-05589-LHK, 2011 WL
826177, at *4 (N.D. Cal. March 7, 2011) (“FACTA claims
presumptively accrue on the date of the loan transaction,
because it should be clear on this date whether or not a credit
score disclosure is made.”).
Here, Syed does not allege that M-I procured his
consumer report at the same time it made its disclosure,
which would have meant that he could have discovered the
statutory violation when he received the Disclosure Release.
To the contrary, he alleges that he was unaware M-I had
procured his consumer report until he reviewed his personnel
26 SYED V. M-I, LLC
file “within the last two years.” Because we must treat this
allegation as true at the motion-to-dismiss stage, Syed
adequately pleaded that his claim fell within the FCRA’s two-
year statute of limitations. See Supermail Cargo, Inc. v.
United States, 68 F.3d 1204, 1207 (9th Cir. 1995) (“[A]
complaint cannot be dismissed [for untimeliness] unless it
appears beyond doubt that the plaintiff can prove no set of
facts that would establish the timeliness of the claim.”).
Therefore, dismissal of Syed’s complaint was not warranted
on the ground that his claim was time-barred.
V.
The FCRA’s employment disclosure provision “says what
it means and means what it says.” See Simmons v.
Himmelreich, —U.S.—, 136 S. Ct. 1843, 1848 (2016). The
statute unambiguously bars the inclusion of a liability waiver
on the same document as a disclosure made pursuant to
15 U.S.C. § 1681b(b)(2)(A). M-I willfully violated the
statute by procuring Syed’s consumer report without
providing a disclosure “in a document that consist[ed] solely
of the disclosure.” § 1681b(b)(2)(A)(i). Therefore, the
district court erred in dismissing Syed’s complaint.
REVERSED and REMANDED.
SYED V. M-I, LLC 27
APPENDIX A