US District Ct Opinion - must read!

The USDC in the case listed below decided that the FCRA does not preempt state law tort claims such as defamation. This is a good case to know about because theoretically you could lose a FCRA claim but win on a defamation claim.



Defamation - Fair Credit Reporting Act

A plaintiff who alleges defendant bank has violated the Fair Credit Reporting Act, 16 U.S.C. Sect. 1681 et seq., by failing to remove false information regarding plaintiff from his credit report after plaintiff furnished information supporting his claim the information was false, may sue defendants for defamation.

Defendant bank argues that plaintiff's state defamation claim is preempted by the FCRA. Its position is that the FCRA totally preempts any state law claim premised upon a credit furnisher's conduct taken after the plaintiff provides notice of a dispute to a credit-reporting agency, pursuant to Sect. 1681t(b)(1)(F) of the FRCRA.

This court finds the opinions in Carlson v. Trans Union LLC, 259 F. Supp. 2d 517 (N.D. Tex 2003), and Gordon v. Greenpoint Credit, (S.D. Iowa June 11, 2003), to be persuasive. Further, the plain language of Sect. 1681t also supports the conclusion that Sect. 1681t(b)(1)(F) does not apply to state tort claims. The language of Sect. 1681t(b) states that no requirement or prohibition may be imposed under the laws of any state. Several sections refer to any state law in effect on the date of enactment. Section 1681t(b)(1)(F), at issue in this matter, and Sect. 1681t(b)(2), refer to several state statutes, specifically, those of Massachusetts, Vermont and California. Section 1681t(d)(2) also uses the term "state law."

Also, a recent 4th Circuit case, Beattie v. NationsCredit Fin. Servs. Corp., 65 Fed. Appx. 893 (4th Cir. 2003), which was not selected for publication, is nevertheless instructive. Without any discussion of the two preemption provisions, the 4th Circuit noted the district court's application of Sect. 1681h(e) to the plaintiffs-consumers' libel claim against NationsCredit. The district court granted NationsCredit's motion for summary judgment on plaintiffs' libel claim, stating that they failed to prove that NationsCredit submitted false information to consumer reporting agencies with malice or willful intent, as required by the FCRA, 15 U.S.C. Sect. 1681h(e). The Court of Appeals then applied South Carolina law to determine the issue of malice or willful intent, pursuant to Sect. 1681h(e)'s language - except as to false information provided with malice or willful intent to injure such consumer.

There are also several district court cases within the 4th Circuit that have considered preemption with the context of the FCRA.

In sum, the language of the statutes, the principles of statutory construction and the case law that the court finds to be well-reasoned and persuasive, including case law within the 4th Circuit, support plaintiff's position, Accordingly, the court finds that Sect. 1681h(e) - and not Sect. 1681t(b)(1)(F) - applies to the defamation claim. The court further finds that plaintiffs have properly alleged a claim of defamation.

Defendants' motion for judgment on the pleadings is denied.

Jeffery v. Trans Union LLC (Williams R., J.) No. 3:03cv243, July 24, 2003; USDC at Richmond, Va.; Leonard A. Bennett, Richard Y. Atlee Jr. for plaintiff; Stanley P. Wellman, Bruce S. Luckman for defendants · VLW 003-3-171, 8 pp.