On October 13, Judge Christina A. Snyder of the United States District Court for the Central District of California granted summary judgment in favor of Bank of America and other defendants in a putative Fair Credit Reporting Act class action. In Robert Berrellez v. Pontoon Solutions, Inc. et al., No. 2:15-cv-01898, the plaintiff alleged that the defendants procured a consumer report about the plaintiff without providing an FCRA-compliant disclosure and without informing the plaintiff of his right to receive a summary of his rights under the statute. In response to a motion to dismiss, the plaintiff amended his case to include claims under California's Investigative Consumer Reporting Agencies Act and Consumer Credit Reporting Agencies Act.
As part of a June 2012 application to do temporary contract work for Bank of America, a contract staffing agency provided Berrellez with a background check authorization and release form as part of a standard employment packet. Berrellez did not sign that authorization, and it was not the basis for any subsequent action by any defendant. Instead, Bank of America independently provided its own background check disclosure and authorization form, which Berrellez signed and which was the basis for procuring a consumer report about him. Nonetheless, Berrellez's claims were based only on the form provided by the staffing agency, not Bank of America's own forms.
Berrellez alleged that the staffing agency's form violated the 15 U.S.C. § 1681b(b)(2)(A) requirement that a disclosure form consist "solely" of the disclosure because it contained a release of liability. He also alleged that the defendants procured investigative consumer reports about him without informing him, under 15 U.S.C. § 1681d(a)(1), of his right to request a written summary of his statutory rights.
Judge Snyder granted summary judgment for the defendants on all claims. She concluded that Berrellez had not proven he had Article III standing because he could not show a link between the defendants' conduct and any harm he suffered. Specifically, she found that because Berrellez's claims were based entirely on a disclosure and authorization form that he never signed and upon which no defendant took action, any legal failures in that release were unrelated to his alleged injuries.
The court also found that the claims were barred by the FCRA's two-year statute of limitations. Berrellez argued that the statute began to run only when he discovered that the defendants had procured a report about him, which he learned within the two years preceding his lawsuit. The court disagreed. Judge Snyder noted that (1) the disclosure forms all stated that successfully passing a background check was a prerequisite to employment, and (2) that Berrellez did, in fact, get the job. Therefore, she reasoned, Berrellez should have known—at least by the time he began his employment—that Bank of America had actually procured a consumer report about him. Moreover, the court recognized that Berrellez had been contacted by the background check company and had gone for fingerprinting as part of the report process, all of which put him on notice that the defendants had procured a consumer report.
The court ultimately concluded that the Article III and statutory time bars warranted judgment for the defendants on all claims and dismissed the case in its entirety. Judge Snyder also rejected the plaintiff's suggestion that if the court found a lack of standing, it should dismiss the case without prejudice to allow him to pursue his claims in state court.
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