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Gilberg v. Cal. Check Cashing Stores, LLC

United States Court of Appeals for the Ninth Circuit

November 15, 2018, Argued and Submitted, San Francisco, California; January 29, 2019, Filed

No. 17-16263


 [*1171]  FISHER, Circuit Judge:

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 [**3]  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.

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.3

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 [**4]  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.

 [*1172]  Because the legal sufficiency of the FCRA disclosure provided to Gilberg is in question, we include the full text of the disclosure:

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913 F.3d 1169 *; 2019 U.S. App. LEXIS 2940 **

DESIREE GILBERG, on behalf of herself, all others similarly situated, Plaintiff-Appellant, v. CALIFORNIA CHECK CASHING STORES, LLC, a California corporation; CHECKSMART FINANCIAL, LLC, a Delaware limited liability company, Defendants-Appellees.

Subsequent History: Decision reached on appeal by, Remanded by Gilberg v. Cal. Check Cashing Stores, LLC, 749 Fed. Appx. 658, 2019 U.S. App. LEXIS 2967 (9th Cir. Cal., Jan. 29, 2019)

Motion granted by Gilberg v. Cal. Check Cashing Stores, LLC, 2019 U.S. App. LEXIS 4549 (9th Cir. Cal., Feb. 14, 2019)

Prior History:  [**1] Appeal from the United States District Court for the Eastern District of California. D.C. No. 2:15-cv-02309-JAM-AC. John A. Mendez, District Judge, Presiding.



disclosure, consumer report, conspicuous, disclosure form, standalone, procured, authorization, consumer, rights, violates, consumer reporting agency, employees, notice, disclosure requirements, district court, extraneous, purposes, signing

Banking Law, Consumer Protection, Fair Credit Reporting, Consumer Reports, Civil Procedure, Appeals, Summary Judgment Review, Standards of Review, Governments, Legislation, Interpretation