united states court of appeals for the …...2020/03/20 · united states court of appeals for the...

FOR PUBLICATION

UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT

DANIEL WALKER, individually andon behalf of all others similarlysituated,

Plaintiff-Appellant,

v.

FRED MEYER, INC., a Delawarecorporation,

Defendant-Appellee.

No. 18-35592

D.C. No.CV 17-1791 YY

OPINION

Appeal from the United States District Courtfor the District of Oregon

Michael H. Simon, District Judge, Presiding

Argued and Submitted June 11, 2019Anchorage, Alaska

Filed March 20, 2020

Before: A. Wallace Tashima, William A. Fletcher,and Marsha S. Berzon, Circuit Judges.

Opinion by Judge Tashima

WALKER V. FRED MEYER, INC.2

SUMMARY*

Fair Credit Reporting Act

The panel affirmed in part and reversed in part the districtcourt’s dismissal of an action under the Fair Credit ReportingAct, which requires employers who obtain a consumer reporton a job applicant to first provide the applicant with a “clearand conspicuous disclosure” that the employer may obtainsuch a report, and to provide this disclosure “in a documentthat consists solely of the disclosure.”

Reversing the dismissal, for failure to state a claim, ofplaintiff’s claim under 15 U.S.C. § 1681b(b)(2)(A), the panelheld that the disclosure provided by defendant violated theFCRA’s standalone disclosure requirement, which does notallow for the inclusion of any extraneous information in theconsumer report disclosure. Addressing what qualifies aspart of the disclosure, the panel held that, beyond a plainstatement disclosing “that a consumer report may be obtainedfor employment purposes,” some concise explanation of whatthe phrase means may be included. The panel remanded,leaving it for the district court to decide in the first instancewhether the remaining language in defendant’s disclosuresatisfied the “clear and conspicuous” requirement.

Affirming the dismissal of plaintiff’s claim under§ 1681b(b)(3)(A), the FCRA’s pre-adverse action noticerequirement, the panel held that the right provided by theFCRA to dispute inaccurate information in a consumer report

* This summary constitutes no part of the opinion of the court. It hasbeen prepared by court staff for the convenience of the reader.

WALKER V. FRED MEYER, INC. 3

does not require employers to provide job applicants oremployees with an opportunity to discuss their consumerreports directly with the employer. Instead, the FCRArequires that an employer provide, in a pre-adverse actionnotice to the consumer, a description of the consumer’s rightto dispute with a consumer reporting agency the completenessor accuracy of any item of information contained in theconsumer’s file at the consumer reporting agency.

COUNSEL

Steven L. Woodrow (argued) and Patrick H. Peluso,Woodrow & Peluso LLC, Denver, Colorado; Neal Weingart,Jones & Swartz PLLC, Portland, Oregon; for Plaintiff-Appellant.

Faith C. Whittaker (argued) and Michael B. Mattingly,Dinsmore & Shohl LLP, Cincinnati, Ohio; Michael Porterand Taylor D. Richman, Miller Nash Graham & Dunn LLP,Portland, Oregon; for Defendant-Appellee.

OPINION

TASHIMA, Circuit Judge:

The Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq.(“FCRA”), protects consumers’ privacy rights by requiringemployers who obtain a consumer report on a job applicantto first provide the applicant with a “clear and conspicuousdisclosure” that the employer may obtain such a report. 15 U.S.C. § 1681b(b)(2)(A)(i). That disclosure must beprovided “in a document that consists solely of the


disclosure.” Id. We recently held that because of this “clearstatutory language that the disclosure document must consist‘solely’ of the disclosure,” Syed v. M-I, LLC, 853 F.3d 492,496 (9th Cir. 2017), the FCRA’s disclosure requirements donot allow for the inclusion of any extraneous information inthe consumer report disclosure, even if such information isrelated to the disclosure. See Gilberg v. Cal. Check CashingStores, LLC, 913 F.3d 1169, 1175–76 (9th Cir. 2019). Giventhat the disclosure document may contain only the§ 1681b(b)(2)(A)(i) disclosure, we now address as a matter offirst impression what qualifies as part of that “disclosure . . .that a consumer report may be obtained for employmentpurposes.” 15 U.S.C. § 1681b(b)(2)(A)(i).

We hold that beyond a plain statement disclosing “that aconsumer report may be obtained for employment purposes,”some concise explanation of what that phrase means may beincluded as part of the “disclosure” required by§ 1681b(b)(2)(A)(i). For example, a company could brieflydescribe what a “consumer report” entails, how it will be“obtained,” and for which type of “employment purposes” itmay be used. See id.

We also hold that the right provided by the FCRA todispute inaccurate information in a consumer report does notrequire employers to provide job applicants or employeeswith an opportunity to discuss their consumer reports directlywith the employer. See id. § 1681b(b)(3)(A). Instead, theFCRA requires that an employer provide, in a pre-adverseaction notice to the consumer, a description of the consumer’sright to dispute with a consumer reporting agency thecompleteness or accuracy of any item of informationcontained in the consumer’s file at the consumer reportingagency. See id. §§ 1681g(c)(1)(B)(iii), 1681i.


Accordingly, we affirm in part, reverse in part andremand.

I.

In March 2017, Plaintiff-Appellant Daniel Walker(“Walker”) applied for a job at one of Defendant-AppelleeFred Meyer Inc.’s (“Fred Meyer”) supermarkets. Shortly aftersubmitting his application, Walker was hired—contingentupon satisfactory results on a background check—as anassociate at a Fred Meyer store in Portland, Oregon.

As part of the hiring process, Walker was presented withseveral disclosure and acknowledgment forms, including twodocuments concerning an investigation of his background. One of these documents was a Disclosure RegardingConsumer Reports and Investigative Consumer Reports (the“Disclosure”), which informs new hires that Fred Meyer willinvestigate their background using an employmentbackground reporting company, General InformationServices, Inc. (“GIS”). Specifically, this Disclosure, whichis the subject of this litigation, consisted of the followingparagraphs, followed by a signature line to acknowledgereceipt:

We ([t]he Kroger family of companies) willobtain one or more consumer reports orinvestigative consumer reports (or both) aboutyou for employment purposes. These purposesmay include hiring, contract, assignment,promotion, reassignment, and termination.The reports will include information aboutyour character, general reputation, personalcharacteristics, and mode of living.


We will obtain these reports through aconsumer reporting agency. The consumerreporting agency is General InformationServices, Inc. GIS’s address is P.O. Box 353,Chapin, SC 29036. GIS’s telephone number is(866) 265-4917. GIS’s website is atwww.geninfo.com.

To prepare the reports, GIS may investigateyour education, work history, professionallicenses and credentials, references, addresshistory, social security number validity, rightto work, criminal record, lawsuits, drivingrecord and any other information with publicor private information sources.

You may inspect GIS’s files about you (inperson, by mail, or by phone) by providingidentification to GIS. If you do, GIS willprovide you help to understand the files,including communication with trainedpersonnel and an explanation of any codes.Another person may accompany you byproviding identification.

If GIS obtains any information by interview,you have the right to obtain a complete andaccurate disclosure of the scope and nature ofthe investigation performed.1

1 No party disputes that this is the language of the Disclosurepresented to Walker. As the magistrate judge noted, the text of theDisclosure may be considered at the motion-to-dismiss stage under theincorporation-by-reference doctrine, because, although Walker did not


Second, Walker was also presented with an AuthorizationRegarding Consumer Reports and Investigative ConsumerReports (the “Authorization”), which seeks a new hire’sauthorization for GIS to conduct such an investigationthrough a variety of means, including “any public or privateinformation source.” Walker signed both these documents inorder to proceed with this employment opportunity, but heallegedly found the documents confusing and was thereforeunable meaningfully to evaluate and understand the nature ofthe report that Fred Meyer intended to obtain about him.

Several weeks later, GIS sent Walker a letter (the “pre-adverse action notice”), dated April 3, 2017. The letterprovided Walker with a copy of the consumer report that GIShad procured about him, explained that Fred Meyer uses suchreports “in evaluating individuals for employment as FredMeyer team members,” and notified Walker that Fred Meyer“has or will be completing their review of your applicationwithin the next few days, and may take action based on theenclosed report.” The letter then informed Walker that hecould dispute the accuracy or completeness of the consumerreport with GIS directly by filling out a request form withinfive business days. However, the letter provided no optionfor or information about discussing the report with FredMeyer itself.

attach the document to his pleadings, he referenced it throughout hiscomplaint. See Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005)(noting that a court may “take into account documents whose contents arealleged in a complaint and whose authenticity no party questions, butwhich are not physically attached to the [plaintiff’s] pleading.” (internalquotation marks omitted)); United States v. Ritchie, 342 F.3d 903, 908(9th Cir. 2003) (explaining that the court may “treat such a document aspart of the complaint, and thus may assume that its contents are true forpurposes of a motion to dismiss under Rule 12(b)(6)”).


Five business days later, GIS sent Walker a second letter,dated April 10, 2017, informing him that Fred Meyer haddecided, based on the consumer report, not to continue hisemployment. In the letter, GIS stated that it did not make thedecision to terminate Walker’s employment, and that it wasunable to provide him with an explanation of the decision. Looking for answers, Walker contacted his Human ResourcesManager at Fred Meyer, who told him that she was neitheraware of the consumer report nor of the fact that Walker’semployment was being terminated.

On November 8, 2017, Walker filed a putative classaction complaint against Fred Meyer, alleging that FredMeyer had willfully violated the FCRA by: (1) providing anunclear disclosure form encumbered by extraneousinformation, in violation of 15 U.S.C. § 1681b(b)(2)(A); and(2) failing to notify Walker in the pre-adverse action notice,in violation of 15 U.S.C. § 1681b(b)(3), that he could discussthe consumer report obtained about him directly with FredMeyer.

On December 28, 2017, Fred Meyer filed a motion todismiss pursuant to Federal Rule of Civil Procedure 12(b)(6),arguing that Walker had failed to state a claim because theconduct described in the complaint did not violate the FCRA.Specifically, Fred Meyer argued that its disclosure formsatisfied the FCRA’s consumer report disclosurerequirements, and that the FCRA did not require that Walkerexplicitly be provided with the opportunity to discuss hisconsumer report with Fred Meyer prior to his termination.2

2 Fred Meyer also moved to dismiss Walker’s second claimconcerning the pre-adverse action notice under Rule 12(b)(1), arguing thatWalker lacked Article III standing to bring that claim because he never


Adopting in part a magistrate judge’s findings andrecommendations regarding Fred Meyer’s motion to dismiss,the district court granted the motion and dismissed Walker’scomplaint with prejudice for failure to state a claim. Inparticular, the district court ruled that Fred Meyer’sDisclosure met the FCRA’s disclosure requirements becauseit was not overshadowed by extraneous information. As toWalker’s second claim, the district court concluded that theFCRA does not require that pre-adverse action notices informan employee how to contact and discuss his consumer reportdirectly with his employer. Walker timely appealed thedistrict court’s order of dismissal.

II.

We have jurisdiction under 28 U.S.C. § 1291, and wereview de novo the grant of a Rule 12(b)(6) motion to dismissfor failure to state a claim. Syed, 853 F.3d at 499. In sodoing, we accept all well-pleaded factual allegations in thecomplaint as true and construe the pleadings in the light mostfavorable to the plaintiff. Id. In determining whether thecomplaint’s allegations state a claim for relief, we review denovo the district court’s construction of the FCRA, becausethe interpretation of a statute is a question of law. See id.

III.

Walker argues that the district court erred by grantingFred Meyer’s Rule 12(b)(6) motion to dismiss because,

availed himself of the opportunity to dispute the contents of his consumerreport. The district court rejected this argument, ruling that Walker hadalleged a sufficiently particularized and concrete injury to establish ArticleIII standing.


under the correct interpretation of the FCRA’s requirements,both the Disclosure and the pre-adverse action notice violatedthe FCRA. We address each of Walker’s two claims in turn.

A.

To protect consumers’ privacy rights, the FCRA requiresthat an employer who obtains a consumer report about a jobapplicant first provide the applicant with a standalone, clearand conspicuous disclosure of its intention to do so, andobtain the applicant’s consent:

[A] person may not procure a consumerreport, or cause a consumer report to beprocured, for employment purposes withrespect to any consumer, unless—

(i) a clear and conspicuous disclosure hasbeen made in writing to the consumer at anytime before the report is procured or caused tobe procured, in a document that consistssolely of the disclosure, that a consumerreport may be obtained for employmentpurposes; and

(ii) the consumer has authorized in writing(which authorization may be made on thedocument referred to in clause (i)) theprocurement of the report by that person.

15 U.S.C. § 1681b(b)(2)(A). Walker argues that, contrary tothis provision, the Disclosure document did not consist“solely of the disclosure” because it contained extraneousinformation, particularly about investigative consumer


reports, and that such extraneous information also violatedthe “clear and conspicuous” requirement because it renderedthe Disclosure “muddled” and “confusing to consumers.”3 Thus, both the “clear and conspicuous” requirement and the“solely” requirement, also known as the “standalonerequirement,” are at issue. We must decide whether thoserequirements disallow the inclusion of any of the informationincluded in the Disclosure.

1.

First, as to the standalone disclosure requirement, wenoted in Syed that “[t]he ordinary meaning of ‘solely’ is‘[a]lone; singly’ or ‘[e]ntirely; exclusively,’” and we held thatthe standalone requirement was unambiguous and meant whatit said. Syed, 853 F.3d at 500–01 (quoting American HeritageDictionary of the English Language 1666 (5th ed. 2011)); seeGilberg, 913 F.3d at 1175 (explaining the basis for Syed’sconclusion that “the statute meant what it said”). Thus, NinthCircuit precedent reads the FCRA as mandating that a

3 Because Walker signed a separate authorization form, Walker doesnot claim that Fred Meyer failed to properly secure his authorization toobtain a consumer report as required by 15 U.S.C. § 1681b(b)(2)(A)(ii). However, Walker does argue that the language of Fred Meyer’sauthorization form “underscores the confusing and distracting nature ofFred Meyer’s disclosure form, thereby reinforcing Walker’s claim forviolation of § 1681b(b)(2)(A)(i),” i.e., his claim that the Disclosureviolated the FCRA. While it may be true that the authorization formamplifies any confusion allegedly created by the Disclosure, theauthorization form is not relevant to the disclosure form standard set forthin the statute where, as here, the authorization is not included in theDisclosure. Either the Disclosure meets the “clear and conspicuous” and“standalone” requirements, or it does not; that determination does notdepend on what is in a separate authorization form. See 15 U.S.C.§ 1681b(b)(2)(A).


disclosure form contain nothing more than the disclosureitself.4 Simply put, “the [disclosure] form should not containany extraneous information.” See U.S. Fed. Trade Comm’n,Advisory Opinion to Hauxwell, 1998 WL 34323756, at *1(June 12, 1998).5

4 The statute provides an express exception permitting the requiredauthorization to be included in the disclosure form as well. That exceptionis not at issue here because Fred Meyer provided its authorization in aseparate form. See 15 U.S.C. § 1681b(b)(2)(A)(ii); Syed, 853 F.3d at 497,500–01.

5 The FTC’s advisory opinions are not binding or precedential, butcan provide helpful insight. For example, the FTC has noted that “[t]hereason for requiring that the disclosure be in a standalone document is toprevent consumers from being distracted by other information side-by-sidewith the disclosure.” U.S. Fed. Trade Comm’n, Advisory Opinion toLeathers, 1998 WL 34323725, at *1 (Sept. 9, 1998). As the FTCexplained:

[W]e believe that it was the intent of the drafters toassure that the required disclosure appearconspicuously in a document unencumbered by anyother information. The reason for specifying a stand-alone disclosure was so that consumers will not bedistracted by additional information at the time thedisclosure is given. We believe that including anauthorization in the same document with the disclosure. . . will not distract from the disclosure itself; to thecontrary, a consumer who is required to authorizeprocurement of the report on the same document will bemore likely to focus on the disclosure. However, sucha document should include nothing more than thedisclosure and the authorization for obtaining aconsumer report.

U.S. Fed. Trade Comm’n, Advisory Opinion to Steer, 1997 WL33791227, at *1 (Oct. 21, 1997).


Here, the district court held, based on several districtcourt opinions and FTC advisory opinions, that Fred Meyer’sdisclosure complied with the FCRA’s standalone requirementbecause “some additional information” may be included in anFCRA disclosure, as long as the information is “closelyrelated to the FCRA disclosure,” and focuses the applicant’sattention on the FCRA disclosure rather than detracting fromit. After this case was appealed, however, the Ninth Circuitdecided Gilberg, which forecloses the district court’sinterpretation that the FCRA contains an implied exceptionallowing the inclusion of information that is “closely related”to the disclosure. See Gilberg, 913 F.3d at 1176 (explainingthat Syed “forecloses” such an approach and suggesting that,in any case, such a standard would be difficult to implement,and would be inappropriate because “even ‘related’information may distract or confuse the reader”).6

In light of Gilberg, a disclosure form violates the FCRA’sstandalone requirement if it contains any extraneousinformation beyond the disclosure required by the FCRA.

6 Specifically, the Gilberg court read Syed as signaling that the FCRA“should not be read to have implied exceptions,” especially when anexception would be contrary to the FCRA’s purpose. Id. at 1175 (citingSyed, 853 F.3d at 501–03); see also Syed, 853 F.3d at 501 (explaining that,“in light of Congress’s express grant of permission for the inclusion of anauthorization, the familiar judicial maxim expressio unius est exclusioalterius counsels against finding additional, implied, exceptions,” andnoting that “[a]n implied exception to an express statute is justifiable onlywhen it comports with the basic purpose of the statute”). Gilberg thenwent on to hold that, even where a defendant argues that any additionalinformation in its disclosure form is consistent with the congressionalpurpose of the FCRA, “purpose does not override plain meaning,” and themeaning of “solely” is plain. 913 F.3d at 1175. As a result, the Gilbergcourt concluded that “Syed holds that the standalone requirementforecloses implicit exceptions.” Id. at 1176.


See Gilberg, 913 F.3d at 1176 (holding that the defendantviolated the standalone requirement where its disclosure“contain[ed] extraneous and irrelevant information beyondwhat [the] FCRA itself requires”). As Fred Meyer points out,if an FCRA disclosure may only contain the disclosure that isrequired by the statute, the question then becomes whatlanguage counts as part of the “disclosure” itself. The statuterequires a standalone “disclosure . . . that a consumer reportmay be obtained for employment purposes,” but does notfurther define the term “disclosure” or explain whatinformation can be considered part of that “disclosure” forpurposes of the standalone requirement. See 15 U.S.C.§§ 1681a, 1681b(b)(2)(A)(i).

We now hold that beyond a plain statement disclosing“that a consumer report may be obtained for employmentpurposes,” some concise explanation of what that phrasemeans may be included as part of the “disclosure” required by§ 1681b(b)(2)(A)(i). For example, a company could brieflydescribe what a “consumer report” entails,7 how it will be“obtained,” and for which type of “employment purposes” it

7 Such an allowance for a brief description of consumer reports wouldalign with prior FTC guidance. In its advisory opinion to Coffey, the FTCexplained:

It is our view that Congress intended that the disclosurenot be encumbered with extraneous information. However, some additional information, such as a briefdescription of the nature of the consumer reportscovered by the disclosure, may be included if theinformation does not confuse the consumer or detractfrom the mandated disclosure.

Fed. Trade Comm’n, Advisory Opinion to Coffey, 1998 WL 34323748,at *2 (Feb. 11, 1998).


may be used.8 See 15 U.S.C. § 1681b(b)(2)(A)(i). Suchinformation would further the purpose of the disclosure byhelping the consumer understand the disclosure. See Syed,853 F.3d at 501 (noting that Congress’ purpose to protectconsumers from improper invasions of privacy would befrustrated in the absence of a clear disclosure because jobapplicants would not understand what they were authorizing).

With this standard in mind, we turn to the text of theDisclosure to determine whether it impermissibly containedextraneous information beyond the § 1681b(b)(2)(A)(i)disclosure itself. The first paragraph provides:

We ([t]he Kroger family of companies) willobtain one or more consumer reports orinvestigative consumer reports (or both) aboutyou for employment purposes. These purposesmay include hiring, contract, assignment,promotion, reassignment, and termination.The reports will include information aboutyour character, general reputation, personalcharacteristics, and mode of living.

This language provides the required disclosure that consumerreports may be obtained for employment purposes, see id.,and then, in accordance with the standard we set forth above,helpfully explains what those “employment purposes” may

8 Of course, any such explanation should not be confusing or soextensive as to detract from the disclosure. In other words, it must stillmeet the separate “clear and conspicuous” requirement, discussed furtherbelow. See 15 U.S.C. § 1681b(b)(2)(A)(i).


include and what type of information may be included in the“consumer report.”9

Walker argues that the first paragraph of Fred Meyer’sDisclosure nonetheless violates the FCRA’s standalonedisclosure requirement because it mentions investigativeconsumer reports in addition to consumer reports; hecontends that information about investigative consumerreports qualifies as impermissible extraneous information. We disagree. The FCRA defines an investigative consumerreport as “a consumer report or portion thereof in whichinformation on a consumer’s character, general reputation,personal characteristics, or mode of living is obtained throughpersonal interviews with neighbors, friends, or associates ofthe consumer . . . .” 15 U.S.C. § 1681a(e) (emphasis added). Because investigative reports are a subcategory or specifictype of consumer report, disclosing that an investigativeconsumer report may be obtained for employment purposesdoes not violate the FCRA’s mandate that nothing beincluded in the disclosure document other than a “disclosure. . . that a consumer report will be obtained for employment

9 The Disclosure’s language explaining that reports will includeinformation about the consumer’s “character, general reputation, personalcharacteristics, and mode of living” tracks the language of the FCRA. TheFCRA defines “consumer report” as concerning “communication of anyinformation by a consumer reporting agency bearing on a consumer’scredit worthiness, credit standing, credit capacity, character, generalreputation, personal characteristics, or mode of living.” 15 U.S.C.§ 1681a(d)(1) (emphasis added); see also id. § 1681a(e) (stating thatinvestigative consumer reports also concern information about aconsumer’s “character, general reputation, personal characteristics, ormode of living”).


purposes.”10 See 15 U.S.C. § 1681b(b)(2)(A)(i). As long asthe information about investigative reports is limited todisclosing that such reports may be obtained for employmentpurposes, and providing a very brief description of what thatmeans, the inclusion of such information in a§ 1681b(b)(2)(A)(i) disclosure does not run afoul of thestandalone requirement. Accord Fed. Trade Comm’n,Advisory Opinion to Willner, 1999 WL 33932153, at *1, *2(Mar. 25, 1999) (noting that the § 1681b(b)(2)(A) disclosure“includes all types of consumer reports (including, but notlimited to, investigative reports)” and suggesting that it couldtherefore include a “very limited” and “brief” disclosureregarding investigative consumer reports specifically). Forthe foregoing reasons, the first paragraph of Fred Meyer’sdisclosure form can be considered part of the “disclosure”itself for purposes of the FCRA’s standalone requirement. See 15 U.S.C. § 1681b(b)(2)(A)(i).

The second and third paragraphs of Fred Meyers’Disclosure explain:

We will obtain these reports through aconsumer reporting agency. The consumerreporting agency is General InformationServices, Inc. GIS’s address is P.O. Box 353,Chapin, SC 29036. GIS’s telephone number is

10 Of course, any discussion of investigative consumer reports mustnot be confusing—it is still subject to the clear and conspicuousrequirement. Thus, Walker’s arguments that the disclosure statement’slanguage confusingly “blurs the line between consumer reports andinvestigative reports” such that the reader cannot understand whatinformation will be obtained about him, including by omitting anymention of credit worthiness or credit capacity in the first and thirdparagraphs, are better directed to the clear and conspicuous requirement.


(866) 265-4917. GIS’s website is atwww.geninfo.com.

To prepare the reports, GIS may investigateyour education, work history, professionallicenses and credentials, references, addresshistory, social security number validity, rightto work, criminal record, lawsuits, drivingrecord and any other information with publicor private information sources.

These paragraphs elucidate what it means to “obtain” aconsumer report by providing helpful information about whowill provide such a report to Fred Meyer and what private andpublic information about the applicant will be examined tocreate a “consumer report.” As a result, this language alsodoes not violate the FCRA’s requirement that the disclosureconsist solely of a “disclosure . . . that a consumer report willbe obtained for employment purposes.”11 See 15 U.S.C.§ 1681b(b)(2)(A)(i).

Finally, the fourth and fifth paragraphs of Fred Meyer’sDisclosure inform the consumer that:

You may inspect GIS’s files about you (inperson, by mail, or by phone) by providingidentification to GIS. If you do, GIS willprovide you help to understand the files,including communication with trainedpersonnel and an explanation of any codes.Another person may accompany you byproviding identification.

11 See footnote 10, supra.


If GIS obtains any information by interview,you have the right to obtain a complete andaccurate disclosure of the scope and nature ofthe investigation performed.

These paragraphs appear to have been included in good faithin order to provide additional useful information about anapplicant’s rights to obtain and inspect information aboutGIS’ investigation of, and file about, the applicant. Thislanguage, however, may “pull[] the applicant’s attentionaway from his privacy rights protected by the FCRA bycalling his attention to the rights” that he has to inspect GIS’sfiles. See Syed, 853 F.3d at 502; see also Gilberg, 913 F.3dat 1175–76 (noting that additional information about rightsunder state laws, and references to extraneous documents likea summary of rights under the FCRA, was “as likely toconfuse as it [wa]s to inform,” and holding that the inclusionof such information violated the standalone disclosurerequirement). Thus, while we understand Fred Meyer’sreason for providing this information to job applicants, wehold that it should have been provided in a separatedocument, because the information cannot reasonably bedeemed part of a “disclosure . . . that a consumer report willbe obtained for employment purposes.” 15 U.S.C.§ 1681b(b)(2)(A)(i).

Because this additional information means that theDisclosure does not “consist[] solely of the disclosure,” wehold that the fourth and fifth paragraphs of the Disclosureviolate the FCRA’s standalone disclosure requirement.


2.

Second, as to the “clear and conspicuous” requirement,we explained in Gilberg that “clear means ‘reasonablyunderstandable’” and “[c]onspicuous means ‘readilynoticeable to the consumer’” in this context. Gilberg,913 F.3d at 1176 (quoting Rubio v. Capital One Bank,613 F.3d 1195, 1200 (9th Cir. 2010), and adopting its “clearand conspicuous” analysis from the Truth In Lending Actcontext). The Gilberg court assumed, without deciding, “thatclarity and conspicuousness under [the] FCRA presentquestions of law rather than fact.” Id. at 1177. The Courtthen held that the defendant’s disclosure form was not clearbecause it “contain[ed] language that a reasonable personwould not understand” and “would confuse a reasonablereader because it combine[d] federal and state disclosures.” Id.

Here, despite the fact that Syed made clear that the“standalone” and “clear and conspicuous” requirements aredistinct, the district court did not explicitly address whetherthe Disclosure was “clear and conspicuous,” instead focusingexclusively on the standalone requirement. See Syed,853 F.3d at 503 (“[T]he question of whether a disclosure is‘clear and conspicuous’ within the meaning of Section1681b(b)(2)(A)(i) is separate from the question of whether adocument consists ‘solely’ of a disclosure . . . .”). Regardless, because Gilberg was not decided until after thedistrict court issued its order, the district court did not have anopportunity to analyze the Disclosure under the “clear andconspicuous” standard set forth in Gilberg. Nor did the


parties have the opportunity fully to brief that standard onappeal, due to the timing of Gilberg.12

As a result of these circumstances—and because Walker’sarguments about lack of clarity are not addressed byGilberg—we decline to reach the issue of whether the firstthrough third paragraphs of the Disclosure satisfy the FCRA’s“clear and conspicuous” requirement.13 See 15 U.S.C.§ 1681b(b)(2)(A)(i). We leave it to the district court todetermine in the first instance whether the language of thoseparagraphs is sufficiently clear under the reasonable personstandard set forth in Gilberg.14

B.

The FCRA mandates that, before an employer may takeadverse action against an employee or job applicant based ona consumer report, the employer must provide the consumerwith “a copy of the report” and “a description in writing ofthe rights of the consumer . . . as prescribed by the Bureau [ofConsumer Financial Protection] under section 1681g(c)(3) ofthis title.” 15 U.S.C. § 1681b(b)(3)(A). According toWalker, “[o]ne of these rights, mentioned explicitly in the

12 Walker’s opening brief was filed before Gilberg was decided, andtherefore does not address Gilberg’s “clear and conspicuous” standard.

13 Walker’s arguments have to do more with lack of clarity fromomitting, misrepresenting, or failing to explain certain information thanwith lack of clarity from the actual language used in the informationprovided. See Gilberg, 913 F.3d at 1177.

14 As in Gilberg, we do not decide whether the disclosure’s clarityunder the FCRA presents a question of law or fact. See Gilberg, 913 F.3dat 1177.


statute, is the right to dispute the information contained in thereport.” (Citing 15 U.S.C. § 1681b(b)(3)(B)(i)(IV).) Walkercontends that the right to dispute encompasses not just anopportunity to correct erroneous information in a consumerreport, but also an opportunity to discuss the report with acurrent or prospective employer—that is, an opportunity tochange the employer’s mind—before adverse action is taken. Because Fred Meyer’s pre-adverse action notice did notadvise Walker of a right to speak directly with FredMeyer—rather than with GIS15—about any negative items inhis consumer report, Walker argues that Fred Meyer’s pre-adverse action notice violated the FCRA. The district courtconcluded that the FCRA provides no right or requirementthat a pre-adverse action notice include information aboutcontacting a consumer’s employer directly. Thus, the crux ofthe issue is the substantive extent of any right to dispute thatthe FCRA may provide, which § 1681b(b)(3)(A)(ii) wouldrequire be included in the summary of rights thataccompanies a pre-adverse action notice from an employer.

To assess Walker’s argument, we must look to the statute. We conclude that while the FCRA does provide a right todispute inaccurate information in a consumer report,Walker’s interpretation that such a right mandates anopportunity for Walker to discuss his consumer report withFred Meyer directly is unsupported by the text of the FCRA. First, the language of § 1681b(b)(3)(B)(i)(IV)—the provision

15 Walker argues that delegating discussion of his consumer report toGIS, a third party that has “no authority or ability to reconsider theplanned adverse action,” is “purely perfunctory and contravenes thepurpose of the pre-adverse action notice requirement.” He advocates aninterpretation of the FCRA that would require a pre-adverse action noticeto notify recipients of a “right to dispute inaccuracies or discuss the reportwith the party tasked with making the employment decision.”


that Walker cites as providing the relevant right todispute—undermines Walker’s argument that the right todispute requires more than an opportunity to interact with athird party like GIS. That provision requires, in certaincircumstances, that an employer taking adverse actionprovide notice “that the consumer may . . . dispute with theconsumer reporting agency the accuracy or completeness ofany information in a report.” Id. (emphasis added). By itstext, this provision thus only requires notice of an opportunityfor Walker to dispute his report with GIS, the consumerreporting agency—not with Fred Meyer directly.

Walker’s reliance on this provision is also unavailingbecause it likely does not apply to him. Subparagraph Cprovides that the cited notice requirement in subparagraph Bshall apply “only if . . . the consumer is applying for aposition over which the Secretary of Transportation has thepower to establish qualifications and maximum hours ofservice . . . or a position subject to safety regulation by a Statetransportation agency; and . . . as of the time at which theperson procures the report or causes the report to be procuredthe only interaction between the consumer and the person inconnection with that employment application has been bymail, telephone, computer, or other similar means.” 15 U.S.C. § 1681b(b)(3)(C) (emphasis added). Walker,however, alleged that his “job was not one regulated by theDepartment of Transportation.”

Nor do the other relevant FCRA provisions provide aright to discuss a consumer report directly with an employerprior to adverse action. As discussed above, 15 U.S.C.§ 1681b(b)(3)(A) mandates that, before an employer maytake adverse action against an employee or job applicantbased on a consumer report, the employer must provide the


consumer with “a description in writing of the rights of theconsumer under this subchapter, as prescribed by the Bureauunder section 1681g(c)(3) of this title.” 15 U.S.C.§ 1681b(b)(3)(A). In turn, the referenced § 1681g(c)provides that the summary of rights shall include, amongother things, a description of “the right of a consumer todispute information in the file of the consumer under section1681i of this title.” Id. § 1681g(c)(1)(B)(iii). Section 1681i,in turn, deals with the procedures that must be followed whena consumer seeks to dispute with a consumer reportingagency the completeness or accuracy of any item ofinformation contained in the consumer’s file at the consumerreporting agency. See id. § 1681i (“Procedure in case ofdisputed accuracy”); see also id. § 1681m(a)(4)(B) (requiring,if adverse action is taken against a consumer, an employer toprovide “notice of the consumer’s right . . . to dispute, undersection 1681i of this title, with a consumer reporting agencythe accuracy or completeness of any information in aconsumer report furnished by the agency” (emphasis added)). Section 1681i, however, does not provide any rights orprocedures for discussing a report directly with anemployer.16 See generally id. § 1681i. Nor does Walker citeany other provision that does so.

Beyond failing to cite a particular provision of the FCRAthat establishes a right to dispute a report with an employerdirectly, as opposed to with a consumer reporting agency,Walker also does not cite any binding case law that suggeststhat the right to dispute is broader than what is set forth in the

16 Even in its provisions that discuss the deletion of disputed orinaccurate information, § 1681i states that the consumer reporting agencymust notify employers that information has been deleted only if theconsumer makes a request that it do so. See id. § 1681i(d).


statute. To support his argument, Walker cites several districtcourt cases and FTC advisory opinions, but none of thesesources is binding. Moreover, while Walker quotes somefavorable language from these sources, the cited materials donot directly address the precise issue raised here, nor do theyexplicitly hold that the right to dispute includes a right todiscuss an accurate but negative consumer report directlywith one’s employer. See Thomas v. FTS USA, LLC, 193 F.Supp. 3d 623, 637–38 (E.D. Va. 2016) (citing to 15 U.S.C.§ 1681b(b)(3) and holding that the plaintiff had allegedconcrete injuries on behalf of an adverse action sub-classbecause, where the defendants had “[taken] adverseemployment action without providing the informationguaranteed by the statute,” the sub-class members were“deprived of the opportunity to explain any negative recordsin their consumer reports and discuss the issues raised in theirreports with Defendants before suffering adverse employmentaction”); Magallon v. Robert Half Int’l, Inc., 311 F.R.D. 625,633–34 (D. Or. 2015) (explaining, for purposes of classcertification motion in a case where defendant failed toprovide plaintiff any pre-adverse action notice, that the FCRArequires an employer to provide a pre-adverse action noticefar enough in advance before taking adverse action to give theapplicant a “real” opportunity to respond and “meaningfullycontest or explain the contents of the report” so that theapplicant may attempt to “change the employer’s mind”);U.S. Fed. Trade Comm’n, Advisory Opinion to Lewis, 1998WL 34323760, at *1 (June 11, 1998) (referencing, in thecontext of addressing “how long . . . the employer [must] waitafter providing a copy of the report before taking the adverseaction,” that the purpose of the relevant provisions is “toallow consumers to discuss the report with employers beforeadverse action is taken”); U.S. Fed. Trade Comm’n, AdvisoryOpinion to Coffey, 1998 WL34323748, at *2 (same); U.S.


Fed. Trade Comm’n, Advisory Opinion to Weisberg, 1997WL 33791228, at *1 (June 27, 1997) (noting that “[t]hedispute rights are among the most important the FCRA givesto consumers,” but referencing “the consumer’s right todispute inaccurate or incomplete information with the[consumer reporting agency]” (emphasis added)).17

In short, Walker does not show that, despite theseemingly unambiguous text of the statute, there is precedentthat nonetheless requires that a consumer be given anopportunity to discuss his consumer report directly with hisemployer prior to adverse action. In fact, our cases andvarious legislative history materials track the language of thestatute and indicate that the FCRA’s right to dispute wasaimed at correcting errors in consumer reports, which perhapsexplains why the statute provides a right to disputeinaccuracies with the consumer reporting agency, but doesnot explicitly require an opportunity to discuss the report withthe employer itself.

For example, we have explained that the FRCA’sdisclosure provision, 15 U.S.C. § 1681b(b)(2)(A), “promoteserror correction by providing applicants with an opportunityto warn a prospective employer of errors in the report beforethe employer decides against hiring the applicant on the basisof information contained in the report.” Syed, 853 F.3dat 497. We noted that “[t]his opportunity is particularlyimportant given that, in practice, the FCRA does nototherwise provide an opportunity for a job applicant or

17 Here, the parties did not raise, and we therefore do not decide,whether an employer must wait a reasonable period of time after sendinga pre-adverse action notice before making a final decision and takingadverse action. See, e.g., Magallon, 311 F.R.D. at 633–34.


employee to dispute his consumer report before adverseaction is taken.” Id. at 497 n.2.

Similarly, the legislative history explains that “[t]hedriving force behind the [1996 amendments to the FCRA]was the significant amount of inaccurate information that wasbeing reported by consumer reporting agencies and thedifficulties that consumers faced getting such errorscorrected.” S. Rep. No. 108-166, at 5–6 (2003). To addressthis issue, the FCRA amendments “require[d] that employers,before taking an adverse action based on a consumer report,provide the current or prospective employee with . . . areasonable opportunity to respond to any information that isdisputed by the consumer.” S. Rep. No. 104-185, at 35(1995); see also H.R. Rep. No. 103-486 (1994) (explainingsame under “Explanation of Legislation” – Section 103 –“Employment Purposes”). These sources, however, do notmention any right to discuss directly with an employer aconsumer report that is accurate but contains negativeinformation.

Because the text of the statute, the legislative history, andour precedent do not require that a consumer be provided anopportunity to discuss his consumer report directly with hisemployer before adverse action is taken against him, we holdthat the pre-adverse action notice that Walker received didnot violate the FCRA.

IV.

Because the fourth and fifth paragraphs of the Disclosureviolate the FCRA’s standalone disclosure requirement, wereverse the district court’s dismissal of Walker’s claim under15 U.S.C. § 1681b(b)(2)(A). We leave for the district court


to decide in the first instance whether the remaining languageof the Disclosure satisfies the separate “clear andconspicuous” requirement provided in that same section. Weaffirm, however, the district court’s dismissal of Walker’spre-adverse action notice claim under 15 U.S.C.§ 1681b(b)(3)(A), because no authority provides the allegedright on which that claim rests.

AFFIRMED in part, REVERSED in part, andREMANDED. No Costs.

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