Ninth Circuit Court Finds Tenant Screening Company Did Not “Willfully or Negligently” Violate FCRA


Ninth Circuit Court Finds Tenant Screening Company Did Not “Willfully or Negligently” Violate FCRA

In February 2022, the U.S. Court of Appeals for the Ninth Circuit found a tenant screening company did not “willfully or negligently” violate the Fair Credit Reporting Act (FCRA) by providing a consumer report that contained a non-conviction record more than seven years after the date of the charge.

Filed in 2011, the lawsuit claimed the tenant screening company issued a consumer report that included a non-conviction record predating the report by more than seven years in violation of the FCRA. The screening firm argued the record was included because it was less than seven years after the charge was dismissed.

Under FCRA § 1681c(a)(5): “Requirements relating to information contained in consumer reports [§ 1681c]” (a) Information excluded from consumer reports. (5) Any other adverse item of information, other than records of convictions of crimes which antedates the report by more than seven years.

Two agencies that enforce the FCRA – the Consumer Financial Protection Bureau (CFPB) and the Federal Trade Commission (FTC) – filed an amicus brief in 2013 supporting the argument that the seven-year time period for non-conviction records started at the time of the charge and not at the time of dismissal.

The Ninth Circuit upheld the lawsuit’s dismissal: “Defendant introduced evidence that its interpretation was consistent with industry norms. The FTC’s only guidance on the question at the time (although discussing the statute before the 1998 amendment) appeared to permit reporting the charge.”

The court found no proof of negligence or willfulness: “We cannot say, nor could any other reasonable fact finder, that on this record Defendant’s violation of § 1681c(a)(5) was negligent, much less willful.” Enacted in 1970, the FCRA promotes the accuracy, fairness, and privacy of consumer information.

ClearStar – a Hanover Investors portfolio company – is a leading provider of Human Capital Integrity℠ technology-based services specializing in background, credit, and medical screening. To learn more about ClearStar, please visit Follow ClearStar on Facebook, Twitter, and LinkedIn.

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    Thomas Ahearn - News Blog Editor and Public Relations Specialist

    Thomas Ahearn is our News Blog Editor and Public Relations Specialist. Our News Blog provides information about the background check industry to employers, HR professionals, recruiters, and consumers. ClearStar's News covers a variety of topics including Ban the Box, credit reports, criminal records, data breaches, drug testing, Equal Employment Opportunity Commission (EEOC), E-Verify, Fair Credit Reporting Act (FCRA), HR technology, identity theft and fraud, jobs reports, lawsuits involving screening, Millennial workforce, privacy issues, social media background checks, and workplace violence.

    At ClearStar, we are committed to your success. An important part of your employment screening program involves compliance with various laws and regulations, which is why we are providing information regarding screening requirements in certain countries, region, etc. While we are happy to provide you with this information, it is your responsibility to comply with applicable laws and to understand how such information pertains to your employment screening program. The foregoing information is not offered as legal advice but is instead offered for informational purposes. ClearStar is not a law firm and does not offer legal advice and this communication does not form an attorney client relationship. The foregoing information is therefore not intended as a substitute for the legal advice of a lawyer knowledgeable of the user’s individual circumstances or to provide legal advice. ClearStar makes no assurances regarding the accuracy, completeness, or utility of the information contained in this publication. Legislative, regulatory and case law developments regularly impact on general research and this area is evolving rapidly. ClearStar expressly disclaim any warranties or responsibility or damages associated with or arising out of the information provided herein.


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