FCRA Disclosures: Too Much Information, Not Enough, or Just Right?

The Northern District of California recently considered a case where a plaintiff alleged that her employer’s FCRA disclosure both had too much information and too little. Soman v. Alameda Health Sys., No. 17-CV-06076-JD, 2018 WL 6308185 (N.D. Cal. Dec. 3, 2018). The plaintiff in Soman applied for a job with the defendant. The defendant-employer provided written disclosures describing the nature and scope of the background check and plaintiff’s rights under FCRA. The FCRA disclosure contained three text boxes that advised applicants of their rights under the laws of four states to obtain a copy of their consumer reports. The FCRA disclosure also contained the contract information for the employer’s vendor who conducted the background investigation, but omitted a digit in the zip code for the vendor. The plaintiff filed suit against the employer alleging FCRA violations.

FCRA provides that an employer cannot obtain a consumer report for employment purposes unless there is “a clear and conspicuous disclosure” in writing that consists “solely” of the disclosure, and the applicant authorizes the collection of the report in writing. 15 U.S.C. § 1681(b)(2)(A). In Soman, the plaintiff claimed that the three text boxes were “extraneous and superfluous language” that violated the “clear and conspicuous” and “solely” requirements of FCRA. Soman, 2018 WL 6308185, at * 3. The Court, however, disagreed. The Court found that the three text boxes were easy to read and easily distinguishable from the main text by a box containing bold font. The text boxes did not make the FCRA disclosure “less than clear and conspicuous in any meaningful way, or violate the intent of being ‘solely’ disclosures.” Id.

The Court distinguished this case from the FCRA disclosure at issue in Syed v. M-I, LLC, 853 F.3d 492 (9th Cir. 2017). In Syed, the extraneous language in the FCRA disclosure pertained to a broad liability waiver, i.e., a relinquishment of rights, whereas the text boxes in Soman alerted plaintiff to additional rights that may be available under state law. The plaintiff in Syed allegedly did not understand that he was authorizing a background check due to the extra wording, while no such plausible confusion could be attributed to the text boxes. Accordingly, the plaintiff in Soman failed to allege an inability to meaningfully authorize her background check or any other injury-in-fact.

At the same time that the plaintiff in Soman claimed her employer’s FCRA disclosure contained too much information, she also argue that the disclosure contained too little in other respects. Specifically, the plaintiff took issue with the missing digit in the zip code for the vendor who conducted the background check. Again, the Court found this was insufficient to establish an injury-in-fact: this “minor typo is the quintessence of a procedural misstep that could not cause an injury[.]” Soman, 2018 WL 6308185, at * 3. Moreover, the plaintiff received the vendor’s full contact information in a separate disclosure provided under California law.

Given that the plaintiff failed to establish any concrete harm, the plaintiff lacked standing and thus the Court dismissed her claims. The Court essentially ruled that the employer’s FCRA disclosure contained the ‘right’ amount of information, but it was a hard fought battle – the Court previously allowed the plaintiff leave to amend her complaint three times before dismissing her FCRA claims with prejudice.


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