By Brandi O. Brown, J.D.
Section 1681e(b) seeks to ensure that procedures assure the "maximum possible accuracy" and a technical accuracy standard is not sufficient to satisfy that requirement.
In an appeal by an Uber driver whose Fair Credit Reporting Act suit alleging a credit reporting agency’s haphazard reporting of state car-accident data cost him his job was dismissed, the U.S. Court of Appeals for the Sixth Circuit ruled that he could state a claim by alleging the agency’s report contained misleading information. Reversing the district court’s judgment, the appeals court rejected the idea that technical inaccuracy was the only way to state a claim. Judge Bush dissented (Twumasi-Ankrah v. Checkr, Inc., April 2, 2020, Moore, K.).
Reported three accidents, driver fired. As an Uber driver, the plaintiff was subject to background checks, for which Uber used Checkr, Inc., a consumer reporting agency. As part of that check, the agency asked the Ohio Bureau of Motor Vehicles for any information it had about the plaintiff’s driving history and learned, among other things, that he had been involved in three "accidents." According to the driver’s complaint, the agency then passed that information along to Uber without investigating further, even though it knew that the Ohio bureau included all accidents regardless of who was at fault. Uber fired the driver shortly thereafter, allegedly because it assumed he was responsible for all three of the reported accidents.
Two weren’t his fault. However, when the driver later acquired the report, he learned that of the three reported accidents, two were ones in which he was not at fault. In fact, one of the accidents was a hit and run where he was the victim. His asked the agency to supplement or amend its report, without avail. He then sued Checkr under the Fair Credit Reporting Act, asserting that it "failed to take any steps to verify that all material information regarding the accidents was included in [his] report before furnishing it to Uber," which resulted in Checkr sending Uber information that "was so misleading as to be inaccurate."
"Technical accuracy" standard applied. In dismissing the driver’s claim, the district court found he failed to allege the agency had reported "factually inaccurate" information about him under 15 U.S.C. §1681e(b), a standard that does not encompass information that is simply "misleading or incomplete in some sense." The district court purported to apply "clear" Sixth Circuit precedent establishing this "technical inaccuracy" standard and found that although the report was not necessarily complete, it was technically accurate because the driver was nevertheless involved in the accidents.
Maximum possible accuracy. In order to state a claim under section 15 U.S.C. §1681e(b) against the agency, the appeals court explained, a plaintiff has to establish four elements. First, he must show that it reported inaccurate information about him. Second, he must show that it either negligently or willfully failed to follow reasonable procedures in order to ensure the maximum possibly accuracy of that information. Third, he must show that he was injured. Fourth, he must show that the agency’s conduct proximately caused his injury. The relevant portion of the statutory text requires consumer reporting agencies to "follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates."
"Ongoing confusion" in courts. At the heart of the appeal, the court explained, was the first element—the inaccuracy element. The agency contended that the element could only be satisfied if the information it provided was technically inaccurate. On the other hand, the driver contended, some kinds of misleading information can constitute inaccurate information under the section, and he had alleged that the agency reported that kind of misleading information. The dispute between the parties, the court noted, reflected "ongoing confusion" among the courts, particularly the district courts, about the proper definition of "inaccuracy." Attempting to set aside that confusion, the appeals court held that under section 1681e(b), a plaintiff could allege that a consumer reporting agency reported either "patently incorrect" information or information that was "misleading in such a way and to such an extent that it [could have been] expected to have an adverse effect [on the consumer]."
Misleading information included. In so ruling, the court explained that its holding accorded with the text of the statute, its case law relating to adjacent sections of the FCRA, and the rulings of other circuit courts. Section 1681e(b) calls for "maximum possible accuracy," which indicated that Congress wanted to hold consumer reporting agencies to a higher standard than simple technical accuracy. And Congress’s treatment of other provisions supported the idea that it was concerned about "incomplete" credit reporting.
Likewise, in other decisions of the Sixth Circuit, such as ones dealing with section 1681s-2(b), the court had concluded that "incomplete or inaccurate" information encompasses "‘correct information’ that nevertheless ‘create[s] a materially misleading impression.’" Finally, the court noted that every circuit to have considered whether to apply a technical accuracy standard to section 1681e(b) has declined to do so. To the extent that two previous decisions from the Sixth Circuit, both of which were of questionable precedential value because they remained unpublished, had suggested that the circuit adopt a technical accuracy standard, the court concluded it was error.
Applying this understanding, the appeals court found the driver stated a plausible claim under Section 1681e(b) and thus it reversed and remanded the matter. Judge Kethledge concurred separately.
Judge John Bush’s dissent. Judge Bush dissented from the court’s conclusion, although he agreed that the words "maximum possible accuracy" required consumer reporting agencies to produce reports that were more than just technically accurate. However, he would have affirmed the dismissal because he believed the amended complaint did not plausibly allege that the report contained misleading information regarding the accidents or that the misleading information caused Uber to fire the driver.
The case is No. 19-3771.
Attorneys: Sergei Lemberg (Lemberg Law) for Christopher Twumasi-Ankrah. Cindy D. Hanson (Troutman Sanders) for Checkr, Inc.
Companies: Checkr, Inc.
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