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Desiree Gilberg v. California Check Cashing Stores, LLC

Date: 01-30-2019

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:

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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:

About This Case

What was the outcome of Desiree Gilberg v. California Check Cashing Stores, LLC?

The outcome was: 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.

Which court heard Desiree Gilberg v. California Check Cashing Stores, LLC?

This case was heard in United States Court of Appeals for the Ninth Circuit on appeal from the Eastern District of California (Sacramento County), CA. The presiding judge was Raymond C. Fisher.

Who were the attorneys in Desiree Gilberg v. California Check Cashing Stores, LLC?

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.

When was Desiree Gilberg v. California Check Cashing Stores, LLC decided?

This case was decided on January 30, 2019.