Dutta v. State Farm Mutual Automobile Insurance Company

          Submitted March 14, 2018 ^[*] San Francisco, California

          Appeal from the United States District Court for the Northern District of California Charles R. Breyer, Senior District Judge, Presiding D.C. No. 3:14-cv-04292-CRB

          James A. Francis, David A. Searles, John Soumilas, and Jordan M. Sartell, Francis & Mailman P.C., Philadelphia, Pennsylvania; Deborah L. Raymond, Law Offices of Deborah L. Raymond, Del Mar, California; Robert S. Sola, Robert S. Sola P.C., Portland, Oregon; Micah S. Adkins, The Adkins Firm P.C., Birmingham, Alabama; for Plaintiff-Appellant.

          Tiffany L. Powers, Lisa H. Cassilly, and Brooks A. Suttle, Alston & Bird LLP, Atlanta, Georgia; Douglas R. Hart and Jennifer B. Zargarof, Sidley Austin LLP, Los Angeles, California; for Defendant-Appellee.

          Before: Richard A. Paez and Sandra S. Ikuta, Circuit Judges, and Eric N. Vitaliano, ^[**] District Judge.

         SUMMARY^[***]

         Fair Credit Reporting Act / Standing

         The panel affirmed the district court's summary judgment in favor of the defendant in an action under the Fair Credit Reporting Act.

         The plaintiff alleged that the defendant violated the FCRA's procedural requirement that a prospective employer provide a job applicant with a copy of his consumer credit report, notice of his FCRA rights, and an opportunity to challenge inaccuracies in the report "before taking any adverse action based in whole or in part on the report."

         The panel held that the district court did not err in considering a declaration filed with the defendant's summary judgment reply papers because the plaintiff failed to object and thus waived any challenge to the admissibility of the declaration.

         Following Spokeo, Inc. v. Robins, 136 S.Ct. 1540 (2016), and Robins v. Spokeo, Inc., 867 F.3d 1108 (9th Cir. 2017), the panel held that the plaintiff lacked Article III standing. The plaintiff showed that the statutory provision was established to protect his concrete interests in ensuring that employment determinations are not affected by incorrect credit information. He did not, however, demonstrate how the specific violation of 15 U.S.C. § 1681b(b)(3)(A) alleged in the complaint actually harmed or presented a material risk of harm to him.

          OPINION

          VITALIANO, DISTRICT JUDGE.

         Bobby S. Dutta appeals the district court's grant of summary judgment to State Farm Mutual Automobile Insurance Company ("State Farm") on his claim that State Farm violated provisions of the Fair Credit Reporting Act of 1970 ("FCRA"). The relevant FCRA provisions require a prospective employer to provide a job applicant with a copy of his consumer credit report, notice of his FCRA rights, and an opportunity to challenge inaccuracies in the report "before taking any adverse action based in whole or in part on the report." 15 U.S.C. § 1681b(b)(3)(A). In granting State Farm's motion for summary judgment, the district court did not reach the merits of Dutta's claim because it determined that Dutta failed to establish an injury-in-fact, and, as a consequence, lacked Article III standing. Dutta argues that the district court erroneously applied relevant case law regarding Article III standing and also erred in relying upon facts set forth only in a declaration that State Farm submitted as an exhibit to its reply brief. We disagree with both arguments and affirm.

         I.

         FCRA was 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). By 1996, though, Congress became concerned that FCRA had so enabled "employers to obtain consumer reports on current and prospective employees" that employees might be "unreasonably harm[ed] . . . if there [were] errors in their reports." S. Rep. No. 104-185, at 35 (1995); see also S. Rep. No. 108-166, at 5-6 (2003) (noting that in 1996 Congress recognized "the significant amount of inaccurate information that was being reported by consumer reporting agencies and the difficulties that consumers faced getting such errors corrected"). Responding to these concerns, Congress adopted remedial amendments requiring employers to provide job applicants with a copy of their credit report and to afford job applicants the opportunity to respond to the report before taking any adverse action based on it. See S. Rep. No. 104-185, at 35. The relevant amendment is codified at 15 U.S.C. § 1681b(b)(3)(A), and reads, in pertinent part:

[I]n using a consumer report for employment purposes, before taking any adverse action based in whole or in part on the report, the person intending to take such adverse action shall ...