Financial Services Litigation Bulletin-September 2010
Fair Credit Reporting Act Preemption in the Ninth and Tenth Circuits
The Fair Credit Reporting Act (“FCRA”) (15 U.S.C. § 1681 et seq.) contains two separate provisions addressing the extent to which state law claims are preempted by the FCRA. Courts have had some difficulty in reconciling the application of these competing preemption provisions as applied to state law causes of action alleged against furnishers of information, as defined by the FCRA, who report information regarding consumers to the various credit reporting agencies. As discussed more fully below, a split may be developing in the Ninth Circuit with respect to whether, and under what circumstances, the FCRA completely preempts all state law claims alleged as against furnishers of information. Nevertheless, the prevailing view of a majority of district courts within the Ninth Circuit is that the FCRA completely preempts all such state law statutory and common law claims. This view is also advanced in an unpublished Tenth Circuit Court of Appeals decision. As such, a practitioner defending a complaint arising out of the conduct of a furnisher in the context of reporting information to consumer reporting agencies that alleges common law causes of action should give strong consideration to asserting that any such state law claims are completely preempted by the FCRA.