Bobby S. Dutta, Plaintiff-Appellant,
State Farm Mutual Automobile Insurance Company, Defendant-Appellee.
Submitted March 14, 2018 [*] San Francisco, California
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
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.
Credit Reporting Act / Standing
panel affirmed the district court's summary judgment in
favor of the defendant in an action under the Fair Credit
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."
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.
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.
VITALIANO, DISTRICT JUDGE.
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.
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