Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.
Help support the publication of case reports on MoreLaw
Date: 01-30-2019
Case Style:
Desiree Gilberg v. California Check Cashing Stores, LLC
Case Number: 17-16263
Judge: Raymond C. Fisher
Court: United States Court of Appeals for the Ninth Circuit on appeal from the Eastern District of California (Sacramento County)
Plaintiff's Attorney: H. Scott W. Leviant, Thomas Segal, and Shaun Setareh
Defendant's Attorney: Timothy W. Snider, Chrystal S. Chase and Bryan L. Hawkins
Description:
The widespread use of credit reports and background
checks led Congress to pass the Fair Credit Reporting Act
(FCRA) to protect consumers’ privacy rights. FCRA
requires employers who obtain a consumer report on a job
applicant to provide the applicant with a “clear and
conspicuous disclosure” that they may obtain such a report
(the “clear and conspicuous requirement”) “in a document
that consists solely of the disclosure” (the “standalone
document requirement”) before procuring the report.
15 U.S.C. § 1681b(b)(2)(A)(i). This appeal requires us to
decide two questions: (1) whether a prospective employer
may satisfy FCRA’s standalone document requirement by
providing job applicants with a disclosure containing
extraneous information in the form of various state
disclosure requirements, and (2) whether the specific
disclosure provided by the employer in this case satisfied the
clear and conspicuous requirement.
4 GILBERG V. CAL. CHECK CASHING STORES
We held in Syed v. M-I, LLC, 853 F.3d 492 (9th Cir.
2017), that FCRA contains “clear statutory language that the
disclosure document must consist ‘solely’ of the disclosure.”
Id. at 496. Consistent with Syed, we now hold that a
prospective employer violates FCRA’s standalone document
requirement by including extraneous information relating to
various state disclosure requirements in that disclosure. We
also hold that the disclosure at issue here is conspicuous but
not clear. Accordingly, we affirm in part, vacate in part and
remand.1
I. Background
In the process of applying for employment with
CheckSmart Financial, LLC, Desiree Gilberg completed a
three-page form containing an employment application, a
math screening and an employment history verification.
Two weeks later, Gilberg signed a separate form, entitled
“Disclosure Regarding Background Investigation,” that is
the subject of this litigation. A copy of the disclosure is
appended to this opinion. The form appears to have been
printed in Arial Narrow, size 8 font.
Because the legal sufficiency of the FCRA disclosure
provided to Gilberg is in question, we include the full text of
the disclosure:
1We address Gilberg’s remaining contentions in a concurrently filed
memorandum disposition.
GILBERG V. CAL. CHECK CASHING STORES 5
DISCLOSURE REGARDING
BACKGROUND INVESTIGATION
DISCLOSURE AND
ACKNOWLEDGMENT
[IMPORTANT – PLEASE READ
CAREFULLY BEFORE SIGNING
ACKNOWLEDGMENT]
CheckSmart Financial, LLC may obtain
information about you from a consumer
reporting agency for employment purposes.
Thus, you may be the subject of a ‘consumer
report’ and/or an ‘investigative consumer
report’ which may include information about
your character, general reputation, personal
characteristics, and/or mode of living, and
which can involve personal interviews with
sources such as your neighbors, friends, or
associates. These reports may include
employment history and reference checks,
criminal and civil litigation history
information, motor vehicle records (‘driving
records’), sex offender status, credit reports,
education verification, professional
licensure, drug testing, Social Security
Verification, and information concerning
workers’ compensation claims (only once a
conditional offer of employment has been
made). Credit history will only be requested
where such information is substantially
related to the duties and responsibilities of the
position for which you are applying. You
have the right, upon written request made
6 GILBERG V. CAL. CHECK CASHING STORES
within a reasonable time after receipt of this
notice, to request whether a consumer report
has been run about you, and the nature and
scope of any investigative consumer report,
and request a copy of your report. Please be
advised that the nature and scope of the most
common form of investigative consumer
report obtained with regard to applicants for
employment is an investigation into your
education and/or employment history
conducted by Employment Screening
Services, 2500 Southlake Park, Birmingham,
AL 35244, toll-free 866.859.0143,
www.es2.com or another outside
organization. The scope of this notice and
authorization is all-encompassing; however,
allowing CheckSmart Financial, LLC to
obtain from any outside organization all
manner of consumer reports and investigative
consumer reports now and, if you are hired,
throughout the course of your employment to
the extent permitted by law. As a result, you
should carefully consider whether to exercise
your right to request disclosure of the nature
and scope of any investigative consumer
report.
New York and Maine applicants or
employees only: You have the right to inspect
and receive a copy of any investigative
consumer report requested by CheckSmart
Financial, LLC by contacting the consumer
reporting agency identified above directly.
You may also contact the Company to
request the name, address and telephone
GILBERG V. CAL. CHECK CASHING STORES 7
number of the nearest unit of the consumer
reporting agency designated to handle
inquiries, which the Company shall provide
within 5 days.
New York applicants or employees only:
Upon request, you will be informed whether
or not a consumer report was requested by
CheckSmart Financial, LLC, and if such
report was requested, informed of the name
and address of the consumer reporting
agency that furnished the report.
Oregon applicants or employees only:
Information describing your rights under
federal and Oregon law regarding consumer
identity theft protection, the storage and
disposal of your credit information, and
remedies available should you suspect or find
that the Company has not maintained secured
records is available to you upon request.
Washington State applicants or employees
only: You also have the right to request from
the consumer reporting agency a written
summary of your rights and remedies under
the Washington Fair Credit Reporting Act.
ACKNOWLEDGMENT AND AUTHORIZATION
I acknowledge receipt of the NOTICE
REGARDING BACKGROUND
INVESTIGATION and A SUMMARY OF
YOUR RIGHTS UNDER THE FAIR
CREDIT REPORTING ACT and certify that
8 GILBERG V. CAL. CHECK CASHING STORES
I have read and understand both of those
documents. I hereby authorize the obtaining
of “consumer reports” and/or “investigative
consumer reports” at any time after receipt of
this authorization and, if I am hired,
throughout my employment. To this end, I
hereby authorize, without reservation, any
law enforcement agency, administrator, state
or federal agency, institution, school or
university (public or private), information
service bureau, employer, or insurance
company to furnish any and all background
information requested by ESS, 2500
Southlake Park, Birmingham, AL 35244, toll
free 866.859.0143, www.es2.com, or another
outside organization acting on behalf of
CheckSmart Financial, LLC, I agree that a
facsimile (“fax”), electronic or photographic
copy of this Authorization shall be as valid as
the original.
California applicants or employees only: By
signing below, you also acknowledge receipt
of the DISCLOSURE REGARDING
BACKGROUND INVESTIGATION
PURSUANT TO CALIFORNIA LAW.
Please check this box if you would like to
receive a copy of an investigative consumer
report or consumer credit report if one is
obtained by the Company at no charge
whenever you have a right to receive such a
copy under California law.
[ ]
Minnesota and Oklahoma applicants or
employees only: Check this box if you would
GILBERG V. CAL. CHECK CASHING STORES 9
like to receive a free copy of a consumer
report if one is obtained by the Company.
[ ]
New York applicants or employees only: By
signing below, you also acknowledge receipt
of Article 23-A of the New York Correction
Law.
After receiving Gilberg’s signed disclosure form,
CheckSmart obtained a criminal background report, which
confirmed that Gilberg did not have a criminal record.
CheckSmart did not obtain a credit report. CheckSmart
hired Gilberg, who worked for CheckSmart for five months
before voluntarily terminating her employment.
Gilberg then brought this putative class action against
CheckSmart, alleging two claims relevant here: (1) failure to
make a proper FCRA disclosure and (2) failure to make a
proper disclosure under California’s Investigative Consumer
Reporting Agencies Act (ICRAA).
FCRA prohibits an employer from obtaining an
applicant’s consumer report without first providing the
applicant with a standalone, clear and conspicuous
disclosure of its intention to do so and without obtaining the
applicant’s consent:
Except as provided in subparagraph (B), a
person may not procure a consumer report, or
cause a consumer report to be procured, for
employment purposes with respect to any
consumer, unless –
(i) a clear and conspicuous disclosure has
been made in writing to the consumer at any
time before the report is procured or caused
10 GILBERG V. CAL. CHECK CASHING STORES
to be procured, in a document that consists
solely of the disclosure, that a consumer
report may be obtained for employment
purposes; and
(ii) the consumer has authorized in writing
(which authorization may be made on the
document referred to in clause (i)) the
procurement of the report by that person.
15 U.S.C. § 1681b(b)(2)(A) (emphasis added).
California imposes its own FCRA-like disclosure
requirements. See Cal. Civ. Code §§ 1785.20(5)(a),
1786.16(a)(2)(B). Under ICRAA:
(2) If, at any time, an investigative consumer
report is sought for employment purposes
other than suspicion of wrongdoing or
misconduct by the subject of the
investigation, the person seeking the
investigative consumer report may procure
the report, or cause the report to be made,
only if all of the following apply:
. . .
(B) The person procuring or causing the
report to be made provides a clear and
conspicuous disclosure in writing to the
consumer at any time before the report is
procured or caused to be made in a
document that consists solely of the
disclosure, that:
GILBERG V. CAL. CHECK CASHING STORES 11
(i) An investigative consumer report
may be obtained.
. . .
(C) The consumer has authorized in
writing the procurement of the report.
Id. § 1786.16(a)(2) (emphasis added). As relevant here, the
ICRAA and FCRA provisions are identical.
CheckSmart moved for summary judgment on both
claims. The district court entered summary judgment
against Gilberg, concluding that CheckSmart’s disclosure
form complied with FCRA and ICRAA. Gilberg timely
appealed.
II. Jurisdiction and Standard of Review
We have jurisdiction under 28 U.S.C. § 1291. We
review de novo an order granting summary judgment. See
Travelers Cas. & Sur. Co. of Am. v. Brenneke, 551 F.3d
1132, 1137 (9th Cir. 2009).
III. FCRA and ICRAA Standalone Document
Requirements
A. The Relevant Disclosure Form
Gilberg contends the relevant document for our analysis
includes every form she filled out in the employment process
– a total of four pages. We disagree. Gilberg does not offer
any judicial authority, legislative history or dictionary
definition to support her argument that the word
“document,” as used in FCRA, encompasses the universe of
employment application materials furnished by an employer
12 GILBERG V. CAL. CHECK CASHING STORES
to a prospective employee. She relies instead on California
contract law, under which “[s]everal contracts relating to the
same matters, between the same parties, and made as parts
of substantially one transaction, are to be taken together.”
Cal. Civ. Code § 1642. Gilberg, however provides no
persuasive reason to extend this contract law principle to
FCRA’s definition of a document, and we decline to do so.
Moreover, under Gilberg’s proposed interpretation, it is
difficult to see how an employer could ever provide an
applicant written application materials without violating
FCRA’s standalone document requirement.
Gilberg’s three-page employment packet was distinct
from the one-page disclosure document. The relevant form
for our analysis, therefore, is the disclosure form alone, not
the entire four pages.
B. CheckSmart’s disclosure form violates FCRA’s
standalone document requirement.
Gilberg contends CheckSmart’s disclosure form violates
FCRA’s standalone document requirement. We agree.
We analyzed FCRA’s standalone document requirement
in Syed v. M-I, LLC, 853 F.3d 492 (9th Cir. 2017). Syed held
that “a prospective employer violates Section
1681b(b)(2)(A) when it procures a job applicant’s consumer
report after including a liability waiver in the same document
as the statutorily mandated disclosure.” Id. at 496. We
concluded the statute meant what it said: the required
disclosure must be in a document that “consist[s] ‘solely’ of
the disclosure.” Id. We based this holding on the statute’s
plain language, noting “[w]here congressional intent ‘has
been expressed in reasonably plain terms, that language must
ordinarily be regarded as conclusive.’” Id. at 500 (quoting
Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 570
GILBERG V. CAL. CHECK CASHING STORES 13
(1982)). “That other FCRA provisions mandating disclosure
omit the term ‘solely’ is further evidence that Congress
intended that term to carry meaning in 15 U.S.C.
§ 1681b(b)(2)(A)(i).” Id. at 501.
CheckSmart contends Syed is not applicable here,
because the surplusage in Syed was a liability waiver, which
did “not comport with the FCRA’s basic purpose” because
it pulled “the applicant’s attention away from his privacy
rights protected by the FCRA by calling his attention to the
rights he must forego if he signs the document.” Id. at 502.
CheckSmart argues its disclosure is distinguishable because
all of the extraneous information consists of other, statemandated
disclosure information, which furthers rather than
undermines FCRA’s purpose.
We disagree. Syed’s holding and statutory analysis were
not limited to liability waivers; Syed considered the
standalone requirement with regard to any surplusage. See
id. at 501. Syed grounded its analysis of the liability waiver
in its statutory analysis of the word “solely,” noting that
FCRA should not be read to have implied exceptions,
especially when the exception – in that case, a liability
waiver – was contrary to FCRA’s purpose. See id. at 501–
03. Syed also cautioned “against finding additional, implied
exceptions” simply because Congress had created one
express exception. Id. at 501.2 Consistent with Syed, we
decline CheckSmart’s invitation to create an implied
exception here.
2 FCRA’s one express exception to the standalone document
requirement, specified in 15 U.S.C. § 1681b(b)(2)(A)(ii), allows the
applicant to “authorize in writing” the procurement of a consumer report
on the same document as the disclosure.
14 GILBERG V. CAL. CHECK CASHING STORES
Although CheckSmart contends its disclosure form is
consistent with the congressional purpose of FCRA because
it helps applicants understand their state and federal rights,
purpose does not override plain meaning. As Syed
explained, congressional intent “has been expressed in
reasonably plain terms” and “that language must ordinarily
be regarded as conclusive.” Id. at 500 (quoting Griffin,
458 U.S. at 570). The ordinary meaning of “solely” is
“[a]lone; singly” or “[e]ntirely; exclusively.” The American
Heritage Dictionary of the English Language 1666 (5th ed.
2011). Because CheckSmart’s disclosure form does not
consist solely of the FCRA disclosure, it does not satisfy
FCRA’s standalone document requirement.
CheckSmart, moreover, fails to explain how the surplus
language in its disclosure form comports with FCRA’s
purpose. Its disclosure refers not only to rights under FCRA
and under ICRAA applicable to Gilberg, but also to rights
under state laws inapplicable to Gilberg and to extraneous
documents that are not part of the FCRA-mandated
disclosure – e.g., a “Notice Regarding Background
Investigation” and a “Summary of Your Rights Under the
Fair Credit Reporting Act.” Because the presence of this
extraneous information is as likely to confuse as it is to
inform, it does not further FCRA’s purpose.
CheckSmart urges us to follow the district court’s
decision in Noori v. Vivint, Inc., No. CV 16-5491 PA
(FFMX), 2016 WL 9083368 (C.D. Cal. Sept. 6, 2016), aff’d
on other grounds, 726 F. App’x 624 (9th Cir. 2018), which
reasoned that the inclusion of information “closely related”
to FCRA’s disclosure requirements does not violate the
standalone document requirement. Id. at *5. Our
subsequent decision in Syed, however, forecloses that
approach. Noori, moreover, did not explain how to
GILBERG V. CAL. CHECK CASHING STORES 15
determine what information would be “closely related” to
FCRA’s disclosure requirements. Indeed, even “related”
information may distract or confuse the reader.
In sum, Syed holds that the standalone requirement
forecloses implicit exceptions. The statute’s one express
exception does not apply here, and CheckSmart’s disclosure
contains extraneous and irrelevant information beyond what
FCRA itself requires. The disclosure therefore violates
FCRA’s standalone document requirement. Even if
congressional purpose were relevant, much of the surplusage
in CheckSmart’s disclosure form does not effectuate the
purposes of FCRA. The district court therefore erred in
concluding that CheckSmart’s disclosure form satisfies
FCRA’s standalone document requirement.
C. CheckSmart’s disclosure form also violates ICRAA’s
standalone document requirement.
As the parties appear to agree, the standalone document
requirements under FCRA and ICRAA are identical. Thus,
because we conclude CheckSmart’s disclosure violates
FCRA, we conclude it violates ICRAA’s standalone
document requirement as well.
IV. CheckSmart’s disclosure form was not “clear and
conspicuous.”
FCRA and ICRAA require a disclosure form to be “clear
and conspicuous.” 15 U.S.C. § 1681b(b)(2)(A)(i); Cal. Civ.
Code § 1786.16(a)(2)(B). Neither statute, however, defines
the term “clear and conspicuous.”
Like other circuits, we “draw upon the wealth of
[Uniform Commercial Code (UCC)] and [Truth in Lending
Act (TILA)] case law in determining the meaning of ‘clear
16 GILBERG V. CAL. CHECK CASHING STORES
and conspicuous’ under the FCRA.” Cole v. U.S. Capital,
389 F.3d 719, 730 (7th Cir. 2004); see also Stevenson v.
TRW Inc., 987 F.2d 288, 295–96 (5th Cir. 1993) (interpreting
“clear and conspicuous” language used in 15 U.S.C.
§ 1681i(d) with reference to TILA and UCC cases). We
adopt our “clear and conspicuous” analysis from Rubio v.
Capital One Bank, 613 F.3d 1195 (9th Cir. 2010), a TILA
disclosure case. In Rubio, we explained that clear means
“reasonably understandable.” Id. at 1200 (citation omitted);
accord Applebaum v. Nissan Motor Acceptance Corp.,
226 F.3d 214, 220 (3d Cir. 2000) (holding in the TILA
context that “clear” means the “language used in a disclosure
must be cast in [a] reasonably understandable form.”
(internal quotation marks omitted)). Conspicuous means
“readily noticeable to the consumer.” Rubio, 613 F.3d at
1200 (citation omitted). Because the parties do not argue
that ICRAA’s clear and conspicuous requirement differs
from FCRA’s, we apply those definitions to Gilberg’s
ICRAA claim as well.
Although the “clear and conspicuous” requirement
imposes a single statutory obligation, we may analyze each
prong separately, see, e.g., In re Bassett, 285 F.3d 882, 885
(9th Cir. 2002) (interpreting 11 U.S.C. § 524), and we do so
here. In the TILA context, we have said that clarity and
conspicuousness are questions of law. See Rubio, 613 F.3d
at 1200. Because neither party suggests we should treat
FCRA differently, we assume for the purposes of our
analysis, without deciding, that clarity and conspicuousness
under FCRA present questions of law rather than fact.
A. CheckSmart’s disclosure form was not clear.
CheckSmart’s disclosure form is not reasonably
understandable for two distinct reasons. First, the disclosure
GILBERG V. CAL. CHECK CASHING STORES 17
form contains language that a reasonable person would not
understand. It says:
The scope of this notice and authorization is
all-encompassing; however, allowing
CheckSmart Financial, LLC to obtain from
any outside organization all manner of
consumer reports and investigative consumer
reports now and, if you are hired, throughout
the course of your employment to the extent
permitted by law.
The beginning of this sentence does not explain how the
authorization is all-encompassing and how that would affect
an applicant’s rights. The second half of the sentence,
following the semicolon, lacks a subject and is incomplete.
It suggests that there may be some limits on the allencompassing
nature of the authorization, but it does not
identify what those limits might be.
Second, the disclosure would confuse a reasonable
reader because it combines federal and state disclosures.
The disclosure, for example, states: “New York and Maine
applicants or employees only: You have the right to inspect
and receive a copy of any investigative consumer report
requested by CheckSmart Financial, LLC by contacting the
consumer reporting agency identified above directly.” A
reasonable reader might think that only New York and
Maine applicants could contact the consumer reporting
agency to get a copy of the report. Such an understanding
would be contrary to both FCRA and ICRAA. See 15 U.S.C.
§ 1681m(3)–(4); Cal. Civ. Code § 1786.22.
We hold, therefore, that the district court erred by
deeming CheckSmart’s disclosure form clear.
18 GILBERG V. CAL. CHECK CASHING STORES
B. CheckSmart’s disclosure form was conspicuous.
The district court properly concluded, however, that
CheckSmart’s disclosure form is conspicuous. As noted,
conspicuous means “readily noticeable to the consumer.”
Rubio, 613 F.3d at 1200. CheckSmart capitalized, bolded
and underlined the headings for each section of the
disclosure and labeled the form so an applicant could see
what she was signing. Although the font is small and
cramped (we think inadvisably so), it is legible. All relevant
information appears on the front of the page and the headings
help applicants understand the purpose of the form. The
disclosure, therefore, is conspicuous.
Nevertheless, because CheckSmart’s disclosure form
was not both clear and conspicuous, the district erred in
granting CheckSmart’s motion for summary judgment with
regard to the FCRA and ICRAA “clear and conspicuous”
requirements.
* * *
Appendix A
Case 2:15-cv-02309-JAM-AC Document 49-1 Filed 05/09/17 Page 40 of 49
Outcome: We hold that the district court erred by concluding that
the standalone document requirements of FCRA and ICRAA
were satisfied here. We further hold that CheckSmart’s
disclosure satisfies the FCRA and ICRAA requirements for
conspicuousness but not for clarity. For these reasons, and
the reasons stated in our contemporaneously filed
memorandum disposition, we affirm in part and vacate in
part the judgment of the district court, and we remand for
further proceedings consistent with these dispositions. Each
party shall bear its own costs of appeal.
AFFIRMED IN PART; VACATED IN PART;
REMANDED.
Plaintiff's Experts:
Defendant's Experts:
Comments: