PHILADELPHIA – A Dec. 22 opinion issued by the U.S. District
Court for the Eastern District of Pennsylvania found that the Fair Credit
Reporting Act (FCRA) requirement that a credit reporting agency must submit
“complete and up to date” information on a job candidate does not refer to
accuracy or identifying information on the consumer in question.
The accuracy issue arose in the case of Kelly v. Business Information Group. In this case, lead plaintiff
Michael Kelly claimed that he was denied employment as a result of a consumer
report that actually included information about his son, rather than Kelly
Since the information provided to the employer was about
someone else, Kelly said the credit agency did not provide “complete and up to
However, the court disagreed. According to the opinion, the
court “determined that this section requires that the consumer have been the
subject of a report that was not ‘complete and up to date’ and that
‘completeness’ refers not to accuracy nor to inclusion of identifying
information as to the consumer but rather the current public record status of
the item that is attributed to the consumer.”
“The court was trying to interpret different sections of the
Fair Credit Reporting Act,” David N. Anthony, Alan D. Wingfield, David M.
Gettings and Timothy J. St. George of Troutman Sanders LLP wrote to the Pennsylvania Record. “The court reasoned
that section 1681k(a)(2) (of the FCRA) seeks to have a consumer reporting
agency report the current public record status of an item in a report, but it
does not ensure that the current information is necessarily accurate.”
The attorneys said accuracy is covered by a different
section of the FCRA. Specifically, they said section 1681e(b) of the FCRA is
concerned with “maximum possible accuracy” of reports.
Anthony said he and his colleagues were not surprised by the
ruling, as “courts have previously wrestled with the contours of §1681k.” For
instance, Anthony said the U.S. District Court for the Southern District of New
York “similarly cautioned against conflating the obligations under §1681k and
§1681e(b) of the FCRA.”
Still, the attorneys said the decision is an important one
for consumer recording agencies.
“Its holding is significant for consumer reporting agencies
that provide public record information for employment screening because it
adopts a narrow interpretation of § 1681k(a)(2),” they said. “Claims under
Sections 1681k and 1681e(b) are different, which can have different challenges
when trying to certify a class action under each section.”
According to Anthony, a substantial amount of litigation against
credit reporting agencies exists, “but that litigation comes in a variety of
claims under the FCRA and is brought against a variety of different entities,
including consumer reporting agencies, furnishers of consumer information and background
The attorneys said the district court’s ruling may not be
the final word on the Kelly case.
“We would not be surprised if the plaintiff appeals the
decision, as the court granted the defendant’s motion for partial judgment on
the pleadings,” they said.