Fair Credit Reporting Act Protection For Outdated and Obsolete Information

Welcome to the first post of our Fair Credit Reporting Act (FCRA) blog. It is our hope that this blog will provide a useful resource regarding current FCRA litigation issues.

One of the FCRA’s core protections for consumers is the FCRA’s prohibition on reporting outdated and obsolete information. 15 U.S.C. § 1681c(a). An issue that has been the subject of recent litigation is whether old, dismissed criminal charges can be reported. The FCRA allows “records of convictions of crimes” to be reported indefinitely, but does not allow the reporting of “records of arrest” or “any other adverse item of information” older than seven years. 15 U.S.C. § 1681c(a)(2), (5). Based on the language of the statute, it would seem that an old, dismissed charge cannot be reported because that is an “adverse item of information” that is not a “record of conviction.”

Consumer reporting agencies, however, have set forth various arguments seeking to justify the practice of reporting old, dismissed charges. Some consumer reporting agencies have argued unsuccessfully that “records of convictions” includes all charges relating to a criminal incident that resulted in at least one conviction regardless of whether some of the charges were dismissed. See Haley v. TalentWise, Inc., 9 F. Supp. 3d 1188, 1192 (W.D. Wash. 2014). Lawyers from Berger Montague represented the plaintiff in the Haley case and successfully defeated that argument. Others have posited that the FCRA’s restrictions on reporting obsolete information are contrary Free Speech protections of the First Amendment. This argument has also been rejected. See King v. Gen. Info. Servs., Inc., 903 F. Supp. 2d 303 (E.D. Pa. 2012)

Still others have argued that they are allowed to report old information if their client requests that it be reported. The last scenario was the case in Hawkins v. S2Verify, No. C 15-03502 WHA, 2016 WL 3999458 (N.D. Cal. July 26, 2016). In Hawkins, the court certified a class of consumers on whom the consumer reporting agency had reported outdated information for “16 or 17 clients” who had demonstrated some sort of need for the information. In certifying the class, the court expressed doubt about whether such a defense was plausible: “Even if a client asked that stale non-conviction history be included in background reports, it is not clear how that would change S2Verify’s obligations under the FCRA.” Id. at *4. Given the court’s statement, it seems unlikely that the “client asked me to” defense will prove a winner.

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John Albanese, Esq.

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John Albanese, Attorney with Berger & Montague, P.C.

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