The roller coaster of employer liability under the background check provisions of the Fair Credit Reporting Act (FCRA) recently took an upswing with the California Court of Appeals’ decision in Culberson v. Walt Disney Parks & Resorts.  The Culberson court considered two class claims, both of which are now-familiar spindles ready to prick the fingers of unwitting employers.  First, Culberson alleged that he received a pre-background check notice from Disney that contained extraneous information, in violation of the FCRA’s requirement that the notice be provided in a document that “consists solely of the disclosure” (commonly known as the “standalone … Continue Reading

On Jan. 29, 2019, the 9th U.S. Circuit Court of Appeals, in a strikingly broad decision, raised the bar for employers’ compliance with the Fair Credit Reporting Act (FCRA). In Gilberg v California Check Cashing Stores LLC, the court held that an employer violates the FCRA by including, in a pre-background check notice form, information about a job applicant’s rights under various state laws. This decision will require significant revision of many employers’ FCRA consent forms.

The Gilberg court’s opinion focused on the FCRA’s pre-background check notice requirement, one of several notice and disclosure obligations the FCRA imposes on

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LA-based commercial litigator Arsen Kourinian has provided us with some timely notes from last week’s consumer finance litigation conference in Chicago:

On July 16 and 17, 2018, the American Conference Institute (ACI) hosted its 30th National Forum on Consumer Finance Class Actions and Government Enforcement in Chicago. The 2018 conference was well attended by many legal professionals, including in-house counsel, defendants’ and plaintiffs’ counsel, state and federal prosecutors and regulators, and federal judges. Themes covered at the conference included in-house counsel perspectives on aligning litigation costs with business goals, the nature of federal and state enforcement actions by state … Continue Reading

With one or two significant exceptions, I usually write about settlement tactics that don’t work. I do that for two reasons: (1) settlement tactics that work often lead to perfunctory opinions that do not discuss the tactics themselves, and (2) settlement is one of those areas where it’s better to know what to avoid.

This week, however, I’d like to focus in on a tactic that worked for the parties.

The Trans Union Corp Privacy Litigation–which involves allegations that the company violated the Fair Credit Reporting Act ("FCRA")–has been around in one form or another for 16 years, … Continue Reading

 Going through bankruptcy is traumatic enough; doing so and still having your credit report still list your discharged debts as "delinquent" is enough to drive some people to litigation. And that’s how several credit agencies found themselves on the receiving end of a series of Fair Credit Reporting Act class actions.

In this case, the defendants settled, offering the plaintiffs injunctive relief and some pro-rated monetary relief, as well as paying attorneys fees and some incentive awards for the named plaintiffs.

The settlement drew objections, however. The trial court approved the settlement nonetheless, but on appeal, in Radcliffe v. Experian Continue Reading

Two cases in the past few years involved a similar issue, but opposite outcomes. In the first, Murray v. GMAC Corp., the defendant argued that a family that had brought fifty Fair Credit Reporting Act lawsuits were "professional plaintiffs," and therefore inadequate to represent a class.  The Seventh Circuit, in an opinion by Judge Easterbrook, held that that the plaintiffs’ "professional" status did not disqualify them from being adequate class plaintiffs. By contrast, in Gordon v. Virtumondo, Inc., the Ninth Circuit held that an individual plaintiff who set up an email account in order to collect emails … Continue Reading

 When a defendant is faced with a class action complaint, sometimes the best strategy appears to be to settle quickly, before having to engage in costly litigation or burdensome discovery. But, as readers of this blog know, that strategy is not always as straightforward as it first seems.  In today’s case, we have another example, where what first appeared to be a quick-and-painless settlement wound up taking eight years and visiting the Seventh Circuit Court of Appeals three times.

In 2000, a group of class-action plaintiffs sued Fleet Mortgage claiming that it had sold their personal information to … Continue Reading