Tailford v. Experian Information Solutions, Inc.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HERESA

AILFORD

;

ANFORD

BUCKLES; JEFFREY C. RUDERMAN,

and all similarly situated individuals,

Plaintiffs-Appellants,

EXPERIAN INFORMATION SOLUTIONS,

INC.,

Defendant-Appellee.

No. 20-56344

D.C. No.

8:19-cv-02191-

CJC-KES

OPINION

Appeal from the United States District Court

for the Central District of California

Cormac J. Carney, District Judge, Presiding

Argued and Submitted November 18, 2021

Pasadena, California

Filed March 1, 2022

Before: Richard Linn,

Jay S. Bybee, and Mark J. Bennett,

Circuit Judges.

Opinion by Judge Linn

The Honorable Richard Linn, United States Circuit Judge for the

U.S. Court of Appeals for the Federal Circuit, sitting by designation.

2 TAILFORD V. EXPERIAN INFORMATION SOLUTIONS

SUMMARY

Fair Credit Reporting Act

The panel affirmed the district court’s denial of

plaintiffs’ motion for a remand to state court and the district

court’s dismissal of plaintiffs’ class action suit alleging

violations of the Fair Credit Reporting Act by Experian

Information Solutions, Inc., a consumer credit reporting

agency.

Plaintiffs alleged that the FCRA required Experian to

disclose behavioral data from its “ConsumerView”

marketing database, “soft inquiries” from third parties and

affiliates, the identity of certain parties who procured

consumer reports, and the date on which employment data

was reported.

Affirming the district court’s denial of plaintiffs’ motion

to remand the case to the state court, the panel held that

plaintiffs’ pleadings contained sufficient allegations of

injury to support Article III standing. The panel held that as

the party invoking the federal judicial power, Experian had

the burden of establishing the facts necessary to support

standing at the pleading stage. Because plaintiffs’ pleadings

adequately alleged particularized injuries to their individual

privacy and information interests, the panel rejected

plaintiffs’ argument that Experian failed to show that

plaintiffs had Article III standing. Under the Spokeo III test,

these interests were sufficiently concrete to confer standing

because the statutory provisions at issue were established to

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

TAILFORD V. EXPERIAN INFORMATION SOLUTIONS 3

protect a plaintiff’s concrete interests in privacy and

accuracy in the reporting of consumer credit information

(and not merely procedural rights). Distinguishing

TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021), the

panel further concluded that the specific violations alleged

presented a material risk of harm to plaintiffs’ concrete

interest in consumer privacy.

Affirming the district court’s dismissal of plaintiffs’ first

amended complaint, the panel held that none of the data

alleged to be missing from Experian’s consumer reports was

subject to disclosure under 15 U.S.C. § 1681g(a)(1), (3), or

(5), considered individually or in combination. The panel

held that § 1681g(a)(1), requiring disclosure of “all

information in the consumer’s file,” did not require

disclosure of all the information in Experian’s internal-only

“Admin Reports.” The panel held that Experian did not

violate § 1681g by failing to include in its disclosures several

inquiries from third parties. Further, Experian was not

required to disclose the behavioral data included in the

ConsumerView database. Finally, Experian did not violate

§ 1681g(a)(1) by failing to disclose the dates on which

employment dates were reported to it.

4 TAILFORD V. EXPERIAN INFORMATION SOLUTIONS

COUNSEL

Robert S. Green (argued), James Robert Noblin, and Emrah

M. Sumer, Green & Noblin P.C., Larkspur, California, for

Plaintiffs-Appellants.

Meir Feder (argued) and Kelly C. Holt, Jones Day, New

York, New York; John A. Vogt and Ryan D. Ball, Jones

Day, Irvine, California; for Defendant-Appellee.

TAILFORD V. EXPERIAN INFORMATION SOLUTIONS 5

OPINION

LINN, Circuit Judge:

Theresa Tailford, Sanford Buckles, and Jeffrey C.

Ruderman (“Plaintiffs”), appeal from the denial by the

United States District Court for the Central District of

California of their motion to remand to state court their class

action suit alleging violations of the Fair Credit Reporting

Act (“FCRA”), 15 U.S.C. § 1681 et seq. Plaintiffs contend

that Experian Information Solutions, Inc. (“Experian”)

failed to show that Plaintiffs have Article III standing and

further contend that the district court erred in dismissing

with prejudice Plaintiffs’ first amended complaint for failure

to state a claim. Because Plaintiffs’ pleadings contain

sufficient allegations of injury to support Article III

standing, we affirm the district court’s denial of their motion

to remand to state court. Because none of the data alleged

by Plaintiffs to be missing from Experian’s consumer reports

is subject to disclosure under the FCRA, we affirm the

district court’s dismissal with prejudice of Plaintiffs’ first

amended complaint.

The FCRA is a specifically tailored federal law enacted

in 1970 “to ensure fair and accurate credit reporting, promote

efficiency in the banking system, and protect consumer

privacy.” Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 52

(2007). It created a mechanism “for investigating and

evaluating the credit worthiness, credit standing, credit

capacity, character, and general reputation of consumers.”

15 U.S.C. § 1681(a)(2). It is not intended to provide broad-

based federal oversight into data-collection practices in

general. It is instead one of several federal and state laws

each designed to regulate the collection and dissemination of

6 TAILFORD V. EXPERIAN INFORMATION SOLUTIONS

specifically identified types of credit data for specifically

identified purposes. The FCRA limits what credit,

employment, and personal information consumer reporting

agencies (“CRAs”) can collect, how CRAs can obtain such

information, and to whom credit reports containing such

information may be disseminated. Id. §§ 1681b, 1681a(d).

The FCRA also specifies the circumstances under which

consumer reports may be distributed by CRAs and the

purposes for which such distribution is authorized. See id.

§§ 1681a, 1681b.

To give consumers the opportunity to verify the accuracy

of data maintained by CRAs, the FCRA requires CRAs to

disclose certain information to the consumer upon request.

See 15 U.S.C. § 1681g; TransUnion LLC v. Ramirez, 141 S.

Ct. 2190, 2213 (2021) (“As the plaintiffs note, the disclosure

and summary-of-rights requirements are designed to protect

consumers’ interests in learning of any inaccuracies in their

credit files so that they can promptly correct the files before

they are disseminated to third parties.”). The willful failure

to comply with such a disclosure request gives rise to a

private cause of action for actual or statutory damages.

15 U.S.C. § 1681n(a). As relevant here, the disclosure must

include the following three categories of information:

(1) All information in the consumer’s file at

the time of the request [subject to some

exceptions not relevant on appeal]

. . .

(3) [E]ach person (including each end-user

identified under section 1681e(e)(1) of

this title) that procured a consumer report

. . .

TAILFORD V. EXPERIAN INFORMATION SOLUTIONS 7

(ii) for any other purpose [than

employment purposes], during the 1-year

period preceding the date on which the

request is made.

. . .

(5) A record of all inquiries received by the

agency during the 1-year period

preceding the request that identified the

consumer in connection with a credit or

insurance transaction that was not

initiated by the consumer.

15 U.S.C. § 1681g(a)(1), (3), (5). We refer herein to the

disclosure required under the FCRA as a “§ 1681g

disclosure.”

Experian is a credit reporting agency that collects

traditional consumer credit data. Experian stores the

collected consumer credit data in a database called “File

One.” This data includes information about credit accounts,

creditors, debts, and credit inquiries. Experian uses its File

One database to respond to credit inquiries made under

§ 1681g of the FCRA, but in doing so does not include

information from its internal-only “Admin Reports.” The

Admin Report summarizes all the information Experian has

on each consumer, including, inter alia, dates that employers

reported employees’ employment information, certain soft

credit inquiries, and non-traditional “behavioral data” such

as “household income, purchase history, whether an

individual is a ‘dog’ or ‘cat’ person,” and thousands of other

marketing attributes. Experian also gathers this behavioral

data in a marketing database called “ConsumerView.”

8 TAILFORD V. EXPERIAN INFORMATION SOLUTIONS

“The ConsumerView database contains data on

thousands of attributes on more than 300 million consumers

and 126 million households, including age, gender, marital

status, presence of children, homeowner status, education,

and occupation.” Tailford v. Experian Info. Sols., Inc., No.

CV 19-02191-CJC (KESx), 2020 WL 6867157, at *1 (C.D.

Cal. Nov. 18, 2020) (order granting motion to dismiss)

(“Dismissal Order”) (quotation marks omitted). Experian

sells this information to affiliates and third parties through a

product called “OmniView.” Experian’s marketing

materials indicate that OmniView may be used to “[t]arget

candidates for invitations to apply for credit.” Tailford v.

Experian Info. Sols., Inc., No. SACV 19-02191JVS (KESx),

2020 WL 2464797, at *2 (C.D. Cal. May 12, 2020) (order

denying motion to remand and granting motion to dismiss)

(“Remand Order”). OmniView also includes credit statistics

aggregated by zip code, the raw data for which Plaintiffs

allege is sourced from the File One database. Experian does

not include the information in its ConsumerView database

in its § 1681g disclosures. Experian additionally collects

information about consumers’ employers and dates of

employment. This information is used in another product

called “Employment Insight.”

In late 2017, a data breach in an Amazon cloud storage

location revealed information on millions of households in a

spreadsheet titled “ConsumerView_10_2013.yxdb.”

Plaintiffs allege that this information was placed in cloud

storage by data analytics company Alteryx, Inc. that

allegedly bought it from Experian. Following this breach,

each of the three Plaintiffs requested and received from

Experian various § 1681g disclosures. Plaintiffs contend

these disclosures were incomplete. Plaintiffs do not allege

that Experian failed to include in its § 1681g disclosures any

the information in its File One database responsive to

TAILFORD V. EXPERIAN INFORMATION SOLUTIONS 9

Plaintiffs’ requests. Plaintiffs do contend, however, that

Experian failed to include in its § 1681g disclosures several

pieces of information they allege Experian was required by

the FCRA to provide, including behavioral data from its

ConsumerView database, inquiries from third parties and

affiliates, the identity of certain parties who procured

consumer reports, and the date on which employment data

was reported.

III

Plaintiffs sought to remedy Experian’s alleged violation

of the FCRA by joining a putative class action initially filed

by Terry Carson before the United States District Court for

the Central District of California, alleging violations of

§ 1681g(a)(1), (3), (5), and § 1681e(b) of the FCRA. Carson

v. Experian Info. Sols., Inc., No. 8:17-cv-02232-JVS-KES,

2019 U.S. Dist. LEXIS 118387, at *2–3 (C.D. Cal. July 9,

2019). In that action, Experian filed a motion to dismiss, a

motion for judgment on the pleadings, and a motion to stay

discovery. Id. at *3–4. Plaintiffs opposed the motions. The

district court, Judge Selna, granted the motion to dismiss,

holding that “Plaintiffs fail[ed] to show how Defendant’s

alleged violation of the FCRA amount[ed] to more than a

‘bare procedural violation,’” and thus did not plead “a

concrete injury sufficient to confer Article III standing to

bring their § 1681g claims.” Id. at *20–21. The district

court also granted in part the motion for judgment on the

pleadings and dismissed the motion to stay discovery as

moot. Plaintiffs did not appeal Carson.

Instead, Plaintiffs filed a separate class action suit in state

court, again alleging violations of § 1681g. Experian, in a

turnabout from the position it took in Carson, removed the

case to the Central District. Experian then filed a motion to

dismiss the Original Complaint for failure to state a claim.

10 TAILFORD V. EXPERIAN INFORMATION SOLUTIONS

Plaintiffs countered with a motion for remand to state court.

Plaintiffs argued in their remand motion that Experian had

not met its burden of establishing Article III standing, but

did not expressly argue, as they did in Carson, that standing

was lacking. Judge Selna denied Plaintiffs’ motion, holding

that removal under § 1441 was proper because “[t]there

[was] no question that Plaintiffs’ complaint raised issue[s]

under the FCRA, a federal law,” and that there was no initial

requirement for Experian to prove subject matter jurisdiction

in order to remove an action. Remand Order, 2020 WL

2464797, at *4. Judge Selna also granted Experian’s motion

to dismiss, holding that none of the information missing

from the § 1681g disclosures sent to Plaintiffs was required

to be disclosed under the FCRA. Id. at *4–6. Judge Selna

then allowed Plaintiffs leave to amend.

The case was reassigned to Judge Carney. Plaintiffs filed

a First Amended Complaint (“FAC”), in which they repeated

and expanded their original allegations and added a stand-

alone claim that Experian violated § 1681b by sharing

consumer report information for non-authorized marketing

purposes. Plaintiffs specifically alleged that the disclosures

they received from Experian failed to include: (1) certain

behavioral data; (2) certain so-called “soft inquiries,”

namely those not initiated by a consumer; (3) the identity of

parties procuring consumer reports; and (4) the dates on

which their employers reported Plaintiffs’ employment

history. Plaintiffs also alleged that the § 1681g disclosures

did not show that Experian had given the Plaintiffs’ data to

Alteryx. Experian again filed a motion to dismiss for failure

to state a claim.

This time, the district court dismissed the FAC with

prejudice. Dismissal Order, 2020 WL 6867157, at *7.

Regarding the missing “behavioral data,” the district court

TAILFORD V. EXPERIAN INFORMATION SOLUTIONS 11

concluded that Experian was not obligated to include that

data in its § 1681g disclosure because it was not part of the

consumer’s “file” under the FCRA and was not information

that was or might be furnished in a consumer report,

notwithstanding the fact that some ConsumerView data

contained aggregated information from the File One

database. Id. at *3. Concerning the soft inquiries, the district

court held that Experian was not obligated to include those

inquiries in its § 1681g disclosure because such inquiries

were never included in consumer reports. Id. at *4. The

district court next concluded that the dates on which

employment was reported to Experian has nothing to do with

a consumer’s eligibility for credit, insurance, or employment

information and is not the kind of information that might be

furnished in a consumer report. Id. The district court also

held that while Experian was required by the FCRA to

disclose those who procured a consumer report, Plaintiffs

had failed to plausibly allege that Alteryx was a procuring

party. Id. at *5. Finally, the district court held that Experian

was not obligated under the Act to identify the particular

end-users omitted from the § 1681g report. Id.

Plaintiffs appealed the denial of their motion to remand

and the dismissal for failure to state a claim. This Court has

jurisdiction over a final decision of the district court under

28 U.S.C. § 1291. This Court also has “both the inherent

authority and the responsibility to consider [its] own

jurisdiction.” Hoffmann v. Pulido, 928 F.3d 1147, 1151 (9th

Cir. 2019).

We review the district court’s denial of Plaintiffs’ motion

to remand to state court de novo. D-Beam Ltd. P’ship v.

Roller Derby Skates, Inc., 366 F.3d 972, 974 n.2 (9th Cir.

2004). We also consider whether there is constitutional

12 TAILFORD V. EXPERIAN INFORMATION SOLUTIONS

standing de novo. Bernhardt v. County of Los Angeles,

279 F.3d 862, 867 (9th Cir. 2002). Likewise, we review the

grant of a motion to dismiss de novo. Knievel v. ESPN,

393 F.3d 1068, 1072 (9th Cir. 2005).

All parties agree that because this case arises out of a

well-pleaded complaint alleging a violation of a federal law,

there is federal question jurisdiction in the district courts

under 28 U.S.C. § 1331 and § 1441. Plaintiffs argue,

however, that Experian failed to satisfy its burden of

establishing Article III standing. We note that Plaintiffs did

not file a motion to dismiss for lack of standing and do not

actually argue that standing does not exist, just that Experian

failed to meet its burden to show Plaintiffs’ standing in its

motion to remove this case from state to federal court.

Standing is a constitutional requirement for the exercise

of subject matter jurisdiction over disputes in federal court.

Spokeo, Inc. v. Robins, 578 U.S. 330, 339 (2016) (“Spokeo

II”). A key component of standing is satisfaction of the

injury-in-fact requirement: that Plaintiff has “suffered ‘an

invasion of a legally protected interest’ that is ‘concrete and

particularized’ and ‘actual or imminent, not conjectural or

hypothetical.’” Id. (quoting Lujan v. Defenders of Wildlife,

504 U.S. 555, 560 (1992)). Plaintiffs’ pleadings adequately

Plaintiffs appear to argue that the district court’s failure to include

an analysis of standing requires reversal and remand. This argument is

baseless. The relevant question is whether standing exists, not whether

the district court analyzed the question vel non. Cf. Weissman v. Quail

Lodge, Inc., 179 F.3d 1194, 1200 (9th Cir. 1999) (“[F]ederal appellate

courts review decisions, judgments, orders, and decrees—not opinions,

factual findings, reasoning, or explanations . . . .” (quoting In re

Williams, 156 F.3d 86, 90 (1

Cir. 1998))).

TAILFORD V. EXPERIAN INFORMATION SOLUTIONS 13

allege particularized injuries to their individual privacy and

informational interests. The only question is whether the

interests allegedly violated are sufficiently concrete to

confer standing.

As the party invoking the federal judicial power,

Experian has the burden of establishing the facts necessary

to support standing “with the manner and degree of evidence

required at the successive stages of the litigation.”

See

Lujan, 504 U.S. at 561. “At the pleading stage, general

factual allegations of injury resulting from the defendant's

conduct may suffice, for on a motion to dismiss we

‘presum[e] that general allegations embrace those specific

facts that are necessary to support the claim.’” Id. (alteration

in original) (quoting Lujan v. Nat’l Wildlife Fed’n, 497 U.S.

871, 889 (1990)).

This Court has adopted a two-step framework to

determine whether alleged violations of FCRA provisions

are sufficiently concrete to confer standing: “(1) whether the

statutory provisions at issue were established to protect [a

plaintiff’s] concrete interests (as opposed to purely

procedural rights), and if so, (2) whether the specific

procedural violations alleged in this case actually harm, or

present a material risk of harm to, such interests.” Robins v.

Spokeo, Inc., 867 F.3d 1108, 1113 (9th Cir. 2017) (“Spokeo

In their opening brief, Plaintiffs argued that Experian must satisfy

its burden on the basis of averments in its arguments against remand

rather than in the complaint. Plaintiffs’ argument is misplaced as

standing is predicated on allegations in the complaint and is not limited

to averments in the arguments against remand. See Maya v. Centex

Corp., 658 F.3d 1060, 1067 (9th Cir. 2011); see also Spokeo II, 578 U.S.

at 333–34 (considering plaintiff’s allegations). Plaintiffs essentially

conceded this point at oral argument. Oral Argument at 1:57–2:10,

https://www.ca9.uscourts.gov/media/video/?20211118/20-56344/.

14 TAILFORD V. EXPERIAN INFORMATION SOLUTIONS

III”) (adopting the standard set forth in Strubel v. Comenity

Bank, 842 F.3d 181, 190 (2d Cir. 2016)). In this case, both

prongs of the Spokeo III test are satisfied.

Regarding the first prong, Plaintiffs’ complaint, as noted

infra, alleges the violation of specific provisions of the

FCRA established to protect concrete interests of privacy

and accuracy in the reporting of consumer credit

information, and not merely procedural rights. One of the

two principal reasons for enactment of the FCRA was the

protection of consumers’ interests in “fair and accurate credit

reporting” and to “protect consumer privacy.” Spokeo III,

867 F.3d at 1113 (quoting Safeco Ins. Co., 551 U.S. at 52)).

The interest in consumer privacy “resemble[s] other

reputational and privacy interests that have long been

protected in the law.” Id. at 1114; see also Nayab v. Capital

One Bank, 942 F.3d 480, 492 (9th Cir. 2019) (holding that

being “deprived of the right to keep private the sensitive

information about [one’s] person” is historically considered

a harm protected by common law).

As to the second prong of Spokeo III, Plaintiffs’

complaint contains sufficient allegations of non-disclosure

of information under § 1681g to “present a material risk of

harm” to Plaintiffs’ concrete interest in consumer privacy.

Plaintiffs here alleged, inter alia, that Experian’s failure to

disclose consumer report information in their § 1681g

statements was a violation of a right to privacy “because

while their PII [(“personal identifiable information”)] was

made readily available . . . , Plaintiffs had no knowledge of

or opportunity to disagree with the provision of their PII to

third parties. This violated Plaintiffs’ rights to privacy,

which, once lost, can never be regained.”

In Syed v. M-I, LLC, 853 F.3d 492 (9th Cir. 2017), this

court recognized that an employee had standing to sue an

TAILFORD V. EXPERIAN INFORMATION SOLUTIONS 15

employer for a violation of an FCRA procedural rule,

namely, 15 U.S.C. § 1681b(b)(2)(A). That rule allowed a

prospective employer to obtain a consumer report only after

disclosing to the prospective employee that it was seeking to

obtain the report and receiving the prospective employee’s

authorization. Syed, 853 F.3d at 497–98. In relevant part,

this court explained that this procedural rule protected the

consumer’s substantive right to control who received their

credit report and identify any violation of their rights of

privacy and information. Violation of the rule was thus

considered “more than a ‘bare procedural violation.’” Id.

at 499 (quoting Spokeo II, 578 U.S. at 341). This case is

substantially similar, in that the alleged procedural

violations protected substantive rights by requiring

disclosures necessary for informed decision-making. Just as

the alleged violation in Syed was sufficient to confer

standing, the alleged violations of § 1681g here are similarly

sufficient. Where, as here, Congress has identified a

concrete interest deserving of protection, a violation of

procedure may demonstrate a sufficient “risk of real harm”

to the underlying interest to establish concrete injury without

the “need [to] allege any additional harm beyond the one

Congress has identified.” Spokeo II, 578 U.S. at 341–42.

Plaintiffs in their reply brief rely on TransUnion, 141 S.

Ct. 2190, to support their argument that the ability to protect

privacy interests is insufficient to satisfy the concrete-harm

requirement. But the § 1681g claim at issue in this case is

distinguishable from the disclosure claims that the

TransUnion Court found lacked standing because the

plaintiffs here have alleged a sufficiently concrete injury—

they alleged that without complete information in their

§ 1681g disclosures, they are unable to adequately opt out of

certain disclosures to other parties and ensure fair and

accurate reporting of their credit information. See id. at 2213

16 TAILFORD V. EXPERIAN INFORMATION SOLUTIONS

(noting that “the disclosure and summary-of-rights

requirements are designed to protect consumers’ interests in

learning of any inaccuracies in their credit files so that they

can promptly correct the files before they are disseminated

to third parties”). Unlike the plaintiffs here, who alleged that

certain information was missing from Experian’s §1681g

disclosures, the plaintiffs in TransUnion lacked standing

because their only allegation of non-disclosure was improper

formatting of the information. Id. at 2214 (“The plaintiffs

did not allege that they failed to receive any required

information. They argued only that they received it in the

wrong format.”).

For the above reasons, we conclude that the allegations

of injury to Plaintiffs’ informational and privacy interests as

recited in the FAC are sufficiently concrete to support

Article III standing at this pleading stage. The district

court’s denial of Plaintiffs’ motion to remand to state court

is affirmed.

Plaintiffs contend that the district court erred in granting

Experian’s motion to dismiss.

They argue that various

combinations of § 1681g(a)(1), (3), and (5) require that “all

information” in a consumer’s file must be disclosed when

requested and that four specific categories of data should

have been included in Experian’s § 1681g disclosures:

ConsumerView data and the identity of parties receiving that

information, soft inquiries by third parties, the identity of all

parties procuring credit reports (including Experian

affiliates), and the date on which employment dates were

Plaintiffs do not appeal the dismissal of their stand-alone claim

under § 1681b.

TAILFORD V. EXPERIAN INFORMATION SOLUTIONS 17

reported. Experian responds that its § 1681g disclosures

were in full compliance with the FCRA and that nothing

required was omitted. For the reasons that follow, we hold

that none of the information Plaintiffs contend Experian

failed to include in its § 1681g disclosures is subject to

disclosure under § 1681g(a)(1), (3) or (5), considered

individually or in combination.

Plaintiffs first argue that § 1681g(a)(1) encompasses “all

information” maintained by a CRA, contending that the

statutory language, “[a]ll information in the consumer’s file

at the time of the [§ 1681g] request,” is entitled to “a liberal

construction in favor of consumers when interpreting the

FCRA,” and thus includes all the information in Experian’s

Admin Reports. Experian contends that § 1681g(a)(1)

cannot and should not be read so broadly. We agree with

Experian.

A consumer’s “file,” for purposes of the FCRA, is “all of

the information on that consumer recorded and retained by a

consumer reporting agency regardless of how the

information is stored.” 15 U.S.C. §1681a(g). In Shaw v.

Experian Information Solutions, Inc., we held that “[a]

consumer’s file includes ‘all information on the consumer

that is recorded and retained by a [CRA] that might be

furnished, or has been furnished, in a consumer report on that

consumer.” 891 F.3d 749, 759 (9th Cir. 2018) (alteration in

original) (emphasis added) (quoting Cortez v. Trans Union,

LLC, 617 F.3d 688, 711–12 (3d Cir. 2010)) (citing Gillespie

v. Trans Union Corp., 482 F.3d 907, 909 (7th Cir. 2007)).

While we agree with Plaintiffs that a consumer’s “file” is not

limited to information previously contained on a consumer

report, the word “file” cannot be given the expansive

definition suggested at first glance by the phrase “might be

18 TAILFORD V. EXPERIAN INFORMATION SOLUTIONS

furnished.” As the Seventh Circuit recognized in Gillespie,

§ 1681g(a) includes several enumerated categories of

information that must be disclosed apart from information in

the consumer’s file under § 1681g(a)(1): the name of each

person that received a consumer report, certain inquiries,

original payees, and amounts of any checks that form the

basis of an adverse credit entry. 482 F.3d at 909. We agree

with the Seventh Circuit that these enumerated categories of

information would fall within an expansive definition of

“file” and that we should thus avoid an interpretation of

“file” that would render the enumerated categories

duplicative. See id. As the district court here persuasively

reasoned, to treat “might be furnished” as an open-ended

possibility of future use would categorize huge swaths of

information as consumer information and “would essentially

mean that any and all information ever retained by a CRA,

even if it is not data that would appear in a credit report,

could be considered ‘consumer report’ data.” Remand

Order, 2020 WL 2464797, at *5. Information that “might be

furnished” in the sense of Shaw is instead more reasonably

interpreted to mean information similar to that shown to

have been included by the CRA in a consumer report in the

past or planned to be included in the future. On this record,

none of the information Plaintiffs contend Experian failed to

disclose is of the type that has been included in a consumer

report in the past or is planned to be included in such a report

in the future.

Plaintiffs next argue that Experian violated

§ 1681g(a)(1), (3), and (5) by failing to include in its § 1681g

disclosures several inquiries from third parties. Plaintiffs

focus their appeal on Experian’s failure to disclose inquiries

from American Mercury and the U.S. Department of

TAILFORD V. EXPERIAN INFORMATION SOLUTIONS 19

Housing in Plaintiff Buckles’s reports (under § 1681g(a)(1)

and (3)); the Providence Mutual inquiry in Plaintiff

Ruderman’s report (under § 1681g(a)(1) and (3)); and the

Loanme and Credit One Bank inquiries in Plaintiff

Tailford’s report (under § 1681g(a)(1), (3), and (5)). The

FCRA does not require Experian to disclose any of these

inquiries under any subsection.

Section 1681g(a)(1) is inapposite because there is no

dispute that the listed inquiries were “soft inquiries” that by

definition “cannot be viewed by third parties who request a

consumer’s credit report” and “cannot be taken into

consideration in the lending process.” Dismissal Order,

2020 WL 6867157, at *4 n.2. Plaintiffs do not contest this

definition of soft inquiries or argue that the soft inquiries at

issue were included in consumer reports in the past or

planned to be included in the future. Soft inquiries are not

part of Plaintiffs’ “file[s]” under § 1681g(a)(1), and

therefore do not need to be disclosed.

Plaintiffs are incorrect in contending that the inquiries

must be disclosed under § 1681g(a)(3). CRAs must disclose

“each person (including each end-user identified under

section 1681e(e)(1) of this title) that procured a consumer

report.” 15 U.S.C. § 1681g(a)(3) (emphasis added). A

prerequisite of a necessary disclosure under that section is

the actual procurement of a consumer report by an identified

party. Plaintiffs nowhere allege that Experian actually sent

the inquiring parties anything, or that whatever was sent was

a consumer report. Moreover, even though Plaintiff

Buckles’s and Plaintiff Ruderman’s inquiries requested the

identification of “end-users” of information obtained by

another party, § 1681a(g)(3) applies only to end-users

identified under § 1681e(e)(1), which is limited to reports

obtained by the end-user through a reseller of consumer

20 TAILFORD V. EXPERIAN INFORMATION SOLUTIONS

reports, who has identified the end-user to Experian.

Plaintiffs do not allege that the information was obtained in

such a manner.

Plaintiffs further allege that Experian violated

§ 1681g(a)(5) with respect to two promotional inquiries

made with respect to Plaintiff Tailford by Loanme and

Credit One Bank. Although that section requires disclosure

of “inquiries” without reference to “consumer report,” that

section is limited to “inquiries received by the agency during

the 1-year period preceding the request that identified the

consumer in connection with a credit or insurance

transaction that was not initiated by the consumer.” Id.

§ 1681g(a)(5) (emphasis added). As this section refers

explicitly to a “transaction,” it is limited to inquiries leading

to a firm offer of credit. Plaintiffs nowhere allege that these

two inquiries led to an offer made to Tailford. Plaintiffs

therefore failed to sufficiently plead a violation of

§ 1681g(a)(5) based on the non-disclosure of the Loanme

and Credit One Bank inquiries.

Plaintiffs allege that § 1681g(a)(1), (3), and (5) require

Experian to disclose the behavioral data included in the

ConsumerView database in the § 1681g disclosures sent to

Plaintiffs. None of these sections so require. Plaintiffs make

a number of arguments why the behavioral information in

the ConsumerView database is part of a consumer’s “file”

and for that reason should have been disclosed. First,

Plaintiffs contend that because the ConsumerView database

sources some of its data from the File One credit database

and because File One data was collected for credit purposes,

that data should be considered part of a consumer’s file that

might be used in a consumer report. The problem with this

argument is that despite the sourcing of some of the data

TAILFORD V. EXPERIAN INFORMATION SOLUTIONS 21

from the File One database, the data maintained in the

ConsumerView database is aggregate data, organized by zip-

code and not individualized to any consumer. Such

aggregate data is not information that ever has been or might

arguably be included in an individual consumer report. The

aggregate information contained in Experian’s

ConsumerView database is thus not part of a consumer’s

“file” and is therefore not subject to disclosure under

§ 1681g(a)(1) of the FCRA.

Second, Plaintiffs argue that the OmniView product,

which incorporates the ConsumerView database, is itself a

consumer report because Experian markets it to “target

candidates for invitations to apply for credit” and insurance.

Plaintiffs assert that these are credit purposes.

Notwithstanding the uses identified by Plaintiffs, OmniView

is not itself a consumer report. The FCRA defines a

“consumer report” as follows:

[A]ny 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 purposes; or

22 TAILFORD V. EXPERIAN INFORMATION SOLUTIONS

section 1681b of this title.

15 U.S.C. § 1681a(d)(1). The marketing of ConsumerView

data to identify “target candidates for invitations to apply for

credit,” is not using that information to establish a

consumer’s eligibility for credit, employment or any other

purpose authorized under § 1681b. The ConsumerView

information therefore does not meet the definition in

§ 1681a(d)(1) of a consumer report.

Plaintiffs next argue that § 1681g(a)(3) required

Experian to disclose “each person . . . that procured a

consumer report” and that Experian was thus required to

include the identity of all persons including Alteryx who

purchased ConsumerView information including Plaintiffs’

information. This argument fails for the same reason as

Plaintiffs’ argument with respect to § 1681g(a)(1):

ConsumerView information is not a consumer report for

purposes of the FCRA. The FCRA thus did not require

Experian to disclose the identity of those persons under

§ 1681g(a)(3).

Plaintiffs also allege that Experian failed to disclose that

Experian affiliates and Alteryx received consumer reports

that included information from the File One database. As

relevant here, § 1681g(a)(3) is limited to persons procuring

a report during the one-year period prior to the consumer’s

§ 1681g request. Plaintiffs have not alleged that Experian

shared consumer reports with its affiliates within the

applicable time-period, and Plaintiffs’ allegations with

respect to Alteryx relate to information obtained in 2013,

several years before any of the Plaintiffs’ § 1681g requests.

Plaintiffs have thus failed to sufficiently allege a violation of

TAILFORD V. EXPERIAN INFORMATION SOLUTIONS 23

the FCRA based on Experian’s information sharing with its

affiliates or Alteryx.

Finally, Plaintiffs argue that Experian violated

§ 1681g(a)(1) by failing to disclose the dates on which

Tailford’s and Ruderman’s employment dates were reported

to Experian. To be clear, Plaintiffs do not allege that the

dates of employment were not included in Experian’s

§ 1681g disclosures—only the dates on which those

employment dates were reported to Experian. This

information was included in Experian’s Admin Report and

Plaintiffs allege that it is also included in the Employment

Insight report that Experian markets for sale.

The date on which employment was reported to Experian

is not part of the consumer’s “file” and need not be disclosed.

The district court did not err in dismissing Plaintiffs’

employment reporting date allegations. Plaintiffs argue that

the reported date of employment is included in Experian’s

Employment Insight report, which is itself a consumer report

that should be disclosed. But even assuming that the

Employment Insight report is a consumer report, the date

employment dates were reported can have no “bearing on a

consumer’s credit worthiness, credit standing, credit

capacity, character, general reputation, personal

characteristics, or mode of living.” 15 U.S.C. § 1681a(d)(1).

That information therefore need not be included in a § 1681g

disclosure.

VII

For the above reasons, we affirm the district court’s

denial of Plaintiffs’ motion to remand to state court and its

24 TAILFORD V. EXPERIAN INFORMATION SOLUTIONS

dismissal with prejudice of Plaintiffs’ first amended

complaint for failure to state a claim.

Because we conclude that none of the data alleged by Plaintiffs to

be missing from Experian’s § 1681g disclosures is subject to disclosure

under the FCRA, we need not and do not address Plaintiffs’ contention

that Experian acted in willful violation of the FCRA.