Theresa Tailford v. Experian Information Solutions, Inc.

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. SACV 19-02191JVS(KESx) Date 5/12/20

Title Theresa Tailford et al v. Experian Information Solutions, Inc.

Present: The James V. Selna, U.S. District Court Judge

Honorable

Lisa Bredahl Not Present

Deputy Clerk Court Reporter

Attorneys Present for Plaintiffs: Attorneys Present for Defendants:

Not Present Not Present

Proceedings: [IN CHAMBERS] Order Regarding Motion to Remand and Motion to

Dismiss

Plaintiffs Theresa Tailford, Sanford Buckles, and Jeffrey Ruderman (“Plaintiffs”)

move to remand this action to State court. Mot., ECF No. 12. Defendant Experian

Information Solutions, Inc. opposes the motion (“Experian”). Opp’n., ECF No. 18.

Plaintiffs replied. Reply, ECF No., 20.

Experian also moves to dismiss the complaint. MTD, ECF No., 11. Plaintiffs

oppose the motion. MTD Opp’n., ECF No., 17. Experian replied. MTD Reply, ECF No.

19.

For the following reasons, the Court DENIES the Motion to Remand, and

GRANTS the Motion to Dismiss.

I. BACKGROUND

Plaintiffs filed their class action complaint in the Superior Court of the State of

California, County of Orange (Case No.: 30-2019-01102976-CU-MC-CXC), alleging

that Experian, a Credit Reporting Agency (“CRA”), violated the Fair Credit Reporting

Act (“FCRA”). Compl., ECF No. 1-1. Experian removed the action to Federal Court on

November 12, 2019. Removal, ECF No. 1. The Complaint asserts the following three

claims:

Count One, brought by Plaintiffs and Classes 1, 2, and 4:

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failing to include a list of all “soft” credit pulls on consumer disclosures for

the 1-year period preceding the date of the request.

(2) Violation of 15 U.S.C. §§ 1681g(a)(3) by failing to include the name of

all persons who had procured a consumer report (or end-users of that report

as defined under § 1681e(e)(1)) for the one-year period preceding the date of

the request.

(3) Violation of 15 U.S.C. §§ 1681g(a)(1) by failing to include all of the

credit data it had stored related to consumers.

Count Two, brought by Tailford, and Class 3:

Violation of 15 U.S.C. §§ 1681g(a)(5) by failing to include a record of all

inquiries received by it in the 1-year period that identified the consumer in

connection with a credit or insurance transaction not initiated by the

consumer.

Count Three, brought by Tailford, Ruderman and Class 5:

(1) Violation of 15 U.S.C. §§ 1681g(a)15) by failing to include the

“employment dates” it had stored related to consumers.

See id. ¶¶ 116-134.

Experian collects “traditional” consumer credit data such as inquiries, public

records, employers, and dates of reported employment in its “File One” database for

purposes of determining a consumer’s creditworthiness. Id. at ¶ 27. Experian’s

responses to credit inquiries are “at least in part” derived from this database. Id.

Experian also provides consumer employment dates on another product called

“Employment Insight” that Plaintiffs allege is a “consumer report.” Id. at ¶ 28. Plaintiffs

contend that employment dates are of interest to prospective employers and that

“Experian’s credit-scoring models have also listed the length of an applicant’s job as an

‘Adverse Action Reason,’ demonstrating that it can affect consumer creditworthiness.”

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A. The Behavioral Data

Experian also collects “non-traditional” consumer data such as household income

and purchase history (the “Behavioral Data”). Id. at ¶ 30. The Behavioral Data is sold to

affiliates and third parties through a credit product called “OmniView” which includes a

database called “ConsumerView.” Id. at ¶ 31. ConsumerView includes “thousands of

attributes on more than 300 million consumers and 126 million households.” Id. Such

information is Personally Identifiable Information because it either relates to individual

consumers, or is derived from Personally Identifiable Information “which was stripped

away prior to sale,” or can be combined with other “easily obtainable data to construct a

comprehensive view of individual consumers.” Id. The ConsumerView database was

formerly known as the “InSource Database” and Experian in a past public filing

described it as “consumer socio-demographics, lifestyles, culture and behavior” data

which it analyzes and categorizes into a compilation of datasets. Id. at ¶¶ 32-33.

ConsumerView also includes Experian’s “Premier Aggregated Summarized Credit

Statistics” which is a “series of aggregated credit attributes and proprietary scores that

represent “the entire U.S. credit population.” Id. at 39. The product brochure from the

Premier Aggregated Summarized Credit Statistics indicates that it is derived from

“Experian’s National Consumer Credit File” and identifies its data source as the File One

database. Id. at ¶ 40-42. It also states that the product “incorporates credit reporting

agency data elements” such as available credit, collection activity, credit capacity, etc.

Id. at ¶ 42. Plaintiffs contend that Experian offers the ConsumerView information “for

the purpose of serving as a factor in determining eligibility for credit” because one

offering of the product states that “summarized credit statistics are ‘calculated by

aggregating the available consumer credit data in each Zip+4 and are most useful to

identify prospects for invitations to apply for credit . . . offers.” Id. at ¶ 44. The data can

be applied to “[t]arget candidates for invitations to apply for credit.” Id.

Plaintiffs allegations as to the Behavioral Data contained in the ConsumerView

product are best summarized in paragraph 45 of the Complaint:

Although ConsumerView is purportedly a marketing database,

the foregoing allegations make clear that the information

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purposes related to determining consumers’ eligibility for

credit, employment, insurance, or other purposes articulated

under Section 1681b of the FCRA. The non-traditional

consumer information collected by Experian – including but not

limited to education, income, and the type of residence a

consumer lives in – has been used as a factor in determining

consumer creditworthiness, in addition to its use as a marketing

tool.

Id. at ¶ 45.

Experian also sells the consumer Behavioral Data through a suite of services called

“Collection Advantage.” Id. at ¶ 36. Collection Advantage “permit[s] the user to

combine data from Experian’s File One database and the database known as “MetroNet.”

Id. MetroNet contains demographic information from “INSOURCE” the “nation’s

largest repository of consumer marketing demographic data.” Id.

B. Data Breach

On October 6, 2017, UpGuard, a cyber-security research firm, discovered an

Amazon cloud storage space that allegedly contained information regarding 123 million

American households. Id. at ¶¶ 56-57. This data, allegedly placed in cloud storage by

data analytics company Alteryx, was stored so as to be accessible to over one million

specified users. Id. The information did not include the names of individual consumers;

however, it included 248 columns of specific data points, among them address, phone

number, number of adults and children living in the dwelling unit, length of residence,

and other, more detailed consumer purchasing data. Id. The data could be cross-

referenced with voter registration data and associated with specific individuals. Id. at ¶

57. The information was provided to Alteryx by Experian through its “ConsumerView”

product. Id. at ¶ 37-39, 57.

The existence of this information was made public by UpGuard on December 19,

2017, and news stories regarding the information were published later that day. Id.

Through these news stories, Plaintiffs became aware for the first time that Alteryx

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C. The Individual Plaintiffs

Tailford procured a disclosure of her own information from Experian pursuant to

Section 1681g of the FCRA on October 10, 2017, which allegedly did not include

behavioral information, employment data, including the dates of her employment, or

inquiry information indicating that Alteryx had procured her data from Experian. Id. at ¶

62. Tailford’s Administrative or “Admin” Report1, an internal Experian document

produced in discovery, listed third party inquiries from Charter Communication on

February 17, 2017; Loanme Inc. on October 5, 2017; and Cap One NA on September 16,

2017. Id. at ¶ 63. Further, other third-party inquiries listed in the Admin Report included

numerous dates of inquiry that did not appear on her October 10, 2017 disclosure. Id.

Buckles procured a §1681g disclosure from Experian on April 5, 2018, which

allegedly did not include behavioral information or inquiry information indicating that

Alteryx had procured his data from Experian. Id. at ¶ 65. Buckles’s Admin Report

listed, among others, inquiries from Synchrony Bank on August 31, 2017, and other dates

of inquiry from other third parties that did not appear on his April 5, 2018 disclosure. Id.

at ¶ 66.

Ruderman procured a §1681g disclosure from Experian on May 14, 2018, which

allegedly did not include behavioral information or inquiry information indicating that

Alteryx had procured his data from Experian. Id. at ¶ 67.

Plaintiffs seek to represent five different classes. Id. at ¶¶ 84-115.

II. LEGAL STANDARD

A. Remand

Under 28 U.S.C. § 1441(a), a defendant may remove a civil action from state court

to federal court if the parties may have originally filed the case in federal court.  City of

Chicago v. Int’l Coll. of Surgeons, 522 U.S. 156, 163, (1997).

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The Ninth Circuit has directed courts to “strictly construe the removal statute

against removal jurisdiction,” so that any doubt as to the right of removal is resolved in

favor of remanding the case to state court.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th

Cir. 1992). This “‘strong presumption’ against removal jurisdiction means that the

defendant always has the burden of establishing that removal is proper.” Id. (quoting

Nishimoto v. Federman-Bachrach & Assocs., 903 F.2d 709, 712 n.3 (9th Cir. 1990)).

B. Federal Rule of Civil Procedure 12(b)(6)

Under Rule 12(b)(6), a defendant may move to dismiss for failure to state a claim

upon which relief can be granted. A plaintiff must state “enough facts to state a claim to

relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007). A claim has “facial plausibility” if the plaintiff pleads facts that “allow[] the

court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

In resolving a 12(b)(6) motion under Twombly, the Court must follow a two-

pronged approach. First, the Court must accept all well-pleaded factual allegations as

true, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. Nor must the Court

“‘accept as true a legal conclusion couched as a factual allegation.’” Id. at 678-80

(quoting Twombly, 550 U.S. at 555). Second, assuming the veracity of well-pleaded

factual allegations, the Court must “determine whether they plausibly give rise to an

entitlement to relief.” Id. at 679. This determination is context-specific, requiring the

Court to draw on its experience and common sense, but there is no plausibility “where the

well-pleaded facts do not permit the court to infer more than the mere possibility of

misconduct.” Id.

III. DISCUSSION

A. Remand

Plaintiffs argue that notice of removal was insufficient to establish jurisdiction

because Experian did not definitively prove that Plaintiffs have Article III standing.

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federal question jurisdiction given that the case alleges claims under the FCRA. Opp’n.,

1.

“Except as otherwise expressly provided by Act of Congress, any civil action

brought in a State court of which the district courts of the United States have original

jurisdiction, may be removed by the defendant or the defendants, to the district court of

the United States for the district and division embracing the place where such action is

pending.” 28 U.S.C. § 1441. A district court has “original jurisdiction of all civil actions

arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331.

“It is long settled law that a cause of action arises under federal law only when the

plaintiff’s well-pleaded complaint raises issues of federal law.” Metro. Life Ins. Co. v.

Taylor, 481 U.S. 58, 63 (1987).

There is no question that Plaintiffs’ complaint raised issued under the FCRA, a

federal law. Thus, removal was proper. Contrary to Plaintiffs’ assertions, defendants

seeking removal on the basis of federal question jurisdiction are not required to establish

a plaintiff’s Article III standing. Plaintiffs have not provided any controlling precedent to

the contrary. Although it is true that cases must be remanded “if at any time before final

judgment it appears that the district court lacks subject matter jurisdiction” (28 U.S.C. §

1447(c)), an affirmative requirement to prove subject matter jurisdiction is not initially

required for a defendant to remove an action.

Accordingly, Plaintiffs’ motion to remand is DENIED.

B. Motion to Dismiss

1. The Behavioral Data Claims

Experian argues that the CRFA does not require that Experian disclose the

Behavioral Data under Section 1681g because it “does not bear on a consumer’s

eligibility for credit, employment, or insurance, [and] its transmission does not constitute

a consumer report.” Mot., 8. Plaintiffs argue that information does not need to

“independently be a consumer report in and of itself, but must appear on a consumer

report” and that if it is, it is subject to the disclosure requirements of Section 1681g. See

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Under Section 1681g, consumer reporting agencies are required to clearly and

accurately provide consumers with all “information in the consumer’s file” upon their

request subject to certain exceptions. Fundamentally then, the question the Court must

answer is whether Plaintiffs theory of liability plausibly states a claim under Section

1681g given that it is an attenuated theory that the ConsumerView product contains

information derived in part from the File One database which itself contains information

that “might” be used in a credit report and therefore is subject to disclosure requirements.

This requires answering another question – is the ConsumerView data information in a

consumer’s file?

“The term ‘file’, when used in connection with information on any consumer,

means all of the information on that consumer recorded and retained by a consumer

reporting agency regardless of how the information is stored.” 15 U.S.C.A. § 1681a(g).

However, the Ninth Circuit in Shaw v. Experian Info. Sols., Inc., clarified that a

“consumer’s file includes ‘all information on the consumer that is recorded and retained

by a [CRA] that might be furnished, or has been furnished, in a consumer report on that

consumer.’” 891 F.3d 749, 759 (9th Cir. 2018) (citing Cortez v. Trans Union, LLC, 617

F.3d 688, 711-12 (3d Cir. 2010) (quoting Gillespie v. Trans Union Corp., 482 F.3d 907,

909 (7th Cir. 2007)). “A consumer, or credit, report is a CRA-prepared report that a CRA

issues to third parties for certain qualifying purposes.” Id. at 755, n.3. The FCRA

clarifies that:

[t]he term “consumer report” means any written, oral, or other

communication of any information by a consumer reporting

agency bearing on a consumer’s credit worthiness, credit

standing, credit capacity, character, general reputation, personal

characteristics, or mode of living which is used or expected to

be used or collected in whole or in part for the purpose of

serving as a factor in establishing the consumer's eligibility

for--

(A) credit or insurance to be used primarily for personal,

family, or household purposes;

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(C) any other purpose authorized under section 1681b of

this title.

15 U.S.C.A. § 1681a(d)(1).

Plaintiffs focus on to the word “might” in Shaw to argue that they only need to

allege that the “information stored in File One, ConsumerView, or other databases that

might be contained on a consumer report is subject to Section 1681g(a)(1)’s disclosure

requirement.” Opp’n., 17-19.

However, this Court agrees with the interpretation of the Steinmetz v. Am. Honda

Fin. Court that noted that Shaw’s definition of a consumer file “does not open the door

for every shred of information to be included in a consumer disclosure simply because

there is some slight chance it might someday be in a consumer report.” 2019 WL

4415090, at *7 (D. Nev. Sept. 16, 2019) (appeal pending); see also Gillespie, 482 F.3d at

909-910 (explaining that the word “file” has a narrow meaning – “information included

in a consumer report”). To find in the alternative would essentially mean that any and all

information ever retained by a CRA even if it is not data that would appear in a credit

report could be considered “consumer report” data. Plaintiffs alleging that information

“might be furnished” must do more than make conclusory or speculative statements.

They must show that defendants included similar information in a consumer report in the

past or plan to do so in the future. See Gillespie, 482 F.3d at 909. No such, allegations

exist here as to the Behavioral Data.2

Plaintiffs have provided no binding precedent for their apparent position that

Behavioral Data constitutes information that might be in a consumer report. In Shaw the

Court rejected an assertion that Experian was required to disclose upon a consumer

request that Fannie Mae had mishandled its data because it was “not information retained

by Experian in any credit report [and therefore,] falls outside the bounds of a ‘file’ for

purposes of § 1681g(a).” 891 F.3d at 760. Similarly here, Behavioral Data is not alleged

2The Court notes that Experian misrepresents the extent of Steinmetz’s holding as to behavioral

data. Steinmetz said nothing as to whether behavioral health is regulated by the FCRA holding only that

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to be information retained for use in a credit report and therefore is not part of the

consumer file.

Separately, Experian also argues that the Behavioral Data would fall under an

FCRA exemption in 15 U.S.C. § 1681g(a)(1)(B). Mot., 10. The Court is unconvinced by

this argument. Specifically, the exemption applies to “information concerning credit

scores or any other risk scores or predictors relating to the consumer.” 15 U.S.C. §

1681g(a)(1)(B). Section 1681g(f)(2)(A) then defines credit score to mean “a numerical

value or a categorization derived from a statistical tool or modeling system used by a

person who makes or arranges a loan to predict the likelihood of certain credit behaviors,

including default (and the numerical value or the categorization derived from such

analysis may also be referred to as a “risk predictor” or “risk score”). This would suggest

that the “risk scores or predictors” effectively refer to the credit scores themselves and

not the underlying data used to create such scores or predictors.

However, there are allegations in the complaint that ConsumerView incorporated

the Premier Aggregated Credit Statistics data which included “credit reporting agency

data elements” such as available credit, collection activity, and credit capacity. Compl. at

¶ 42. Taking these allegations as true, they would constitute information that might or

could be included in a consumer report given that the Non-Behavioral Data is information

that would normally be included in a credit report pursuant to allegations in the

complaint. See Compl., ¶ 27; see also 15 USC § 1681a (d)(1).

Throughout their complaint Plaintiffs appear to allege that Experian’s

ConsumerView reports in themselves (including Behavioral Data) constituted a consumer

report. See e.g., Compl., ¶ 59. Plaintiffs have alleged that this information was

independently used as a factor to determine eligibility for credit since a product brochure

indicated one use of the product was “identify[ing] prospects for invitations to apply for

credit ... offers.” Id. at ¶ 44. The Court finds this theory unavailing because using

information to identify a pool of potential credit applicants is not the same as using

information to determine credit eligibility. The ConsumerView reports are not alleged to

be “used or expected to be used or collected in whole or in part for the purpose of serving

as a factor in establishing the consumer’s eligibility for– (A) credit or insurance to be

used primarily for personal, family, or household purposes; (B) employment purposes. . .

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At oral argument Plaintiffs argued that Trans Union Corp. v. F.T.C., 245 F.3d 809

(D.C. Cir. 2001), supported its conclusion that the ConsumerView reports could

constitute consumer reports because the information was collected in whole or in part

with the expectation that it would be used by credit grantors for the purpose of

determining eligibility. However, the circumstances in Trans Union are distinct from

those alleged here. First, Trans Union was an appeal from a Federal Trade Commission

Order that considered whether the Commission’s decision was unsupported by substantial

evidence, but did not consider non-constitutional challenges to the interpretation fo the

FCRA, and therefore sheds no light on this issue. Id. at 814-15. Additionally, Trans

Union was creating marketing lists based on trade line information (information that is

collected and transmitted in consumer reports). This sheds no light as to the Behavioral

Data.

Experian next argues that Plaintiffs have not alleged that Experian has maintained

or communicated data about them specifically. Mot., 11. The Court disagrees. Plaintiffs

have alleged that Alteryx obtained information from the ConsumerView product which

includes “a series of aggregated credit attributes and Experian proprietary scores that

represent the entire U.S. credit population.” Compl., ¶¶ 38-39. Although aggregated

credit attributes are not the same as data pertaining to individuals, Plaintiffs have also

alleged that the data was granular enough including personally identifiable information

which “could be cross-referenced with a voter registration database, for example, to

procure essential details about individual consumers.” Id. at ¶¶ 57-58. As to the

individual Plaintiffs, the Complaint alleges that their disclosures “did not contain any

indication that Alteryx had procured data either directly or indirectly from Experian.”

See e.g., id. at ¶ 63. Taking these allegations as true, as is required under Iqbal, Plaintiffs

have adequately and logically pled that Experian did not satisfy the Section 1681g

disclosure requirements by failing to include information in the disclosure that it derived

from the FileOne database and provided to Alteryx through its ConsumerView product,

as was allegedly done with “the entire U.S. credit population.” Id. at 39.

Unlike Johnson v. Experian Info. Sols., Inc., where the plaintiff had pled entirely

conclusory allegations on information and belief and did not “identify any specific

information that was wrongfully withheld, nor [did] he provide any basis for his belief

that defendants failed to provide him with all information in his file,” Plaintiffs here have

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(E.D. Cal. Feb. 27, 2019). Plaintiffs’ allegations are also different from those in Diaz

where the Plaintiff had concluded that “because Experian stores ‘data on ‘more than 300

million individuals,’ on information and belief’ Experian also stores information

regarding [Plaintiff] in its databases.” 2019 WL 6340155, at *4. Unlike in Diaz, Plaintiff

has pled that Experian’s database included information on the entire U.S. credit

population which would logically include Plaintiffs, that the information was not

provided on their Section 1681g disclosures, and specified what information was not

included.

Experian also argues that Plaintiffs have not adequately alleged a willful violation

because they have not made factual allegations concerning Experian’s state of mind.

Mot., 13-18. “The FCRA imposes civil liability on any consumer reporting agency

which is either negligent or willful in failing to comply with any requirement imposed

under the FCRA.” Banga v. Experian Info. Sols., Inc., No. C 09-04867 SBA, 2013 WL

5539690, at *6 (N.D. Cal. Sept. 30, 2013). However, the FCRA does not require strict

liability. Guimond v. Trans Union Credit Info. Co., 45 F.3d 1329, 1333 (9th Cir. 1995)

(“[A]n agency can escape liability if it establishes that an inaccurate report was generated

despite the agency’s following reasonable procedures.”). A willful violation is proven by

a consumer if he shows that a CRA “either knowingly or recklessly violated the

requirements of the Act.” Banga, 2013 WL 5539690, at *6 (citing Safeco Insurance

Company of America v. Burr, 551 U.S. 47, 57 (2007)).

Plaintiffs have alleged that “Experian does, or should, recognize the disclosure

failures outlined” in their complaint. Compl., ¶¶ 81-82. However, such allegations are

unsupported by facts pertaining to Experian’s mens rea. The fact that Experian has “full

control over the composition and presentation” of its consumer disclosures and other

similar allegations included in the complaint does not support that it acted knowingly or

recklessly. Id. Without more than bare conclusory allegations, Plaintiffs fail to

“sufficiently plead willfulness, recklessness, and negligence.” See Diaz, 2019 WL

6340155, at *5; Jenkins v. AmeriCredit Fin. Svcs., Inc., 2017 WL 1325369 at *7

(E.D.N.Y. Feb. 14, 2017); Braun v. Client Servs. Inc., 14 F. Supp. 3d 391, 398 (S.D.N.Y.

2014); Mnatsakanyan v. Goldsmith & Hull APC, 2013 WL 10155707, at *7 (C.D. Cal.

May 14, 2013).

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the theory that a CRA is required to disclose Behavioral Data on a Section 1681g

disclosure.

2. Inquiry-Based Claims

Experian argues that Plaintiff’s inquiry based claims fail because the FCRA does

not require a CRA to disclose “soft credit” inquiries in response to a consumer request for

a file disclosure and because they have failed to allege that the inquiries at issue were

consumer reports. Mot, 18-20. Plaintiffs respond that Experian was obligated to make

all 1681g disclosures to Plaintiffs and offer as an example that “Tailford’s consumer

report in response to Loanme’s promotional inquiry easily fell under Section

1681g(a)(5).” Opp’n., 13. Plaintiffs contend that Experian’s argument runs contrary to

Section 1681j. Id.

“[T]he FCRA does not require Experian to disclose soft credit inquiry

information.” Foskaris v. Experian Info. Sols., Inc., 2020 WL 1815743, at *2 (9th Cir.

Apr. 9, 2020). Section 1681g(a)(3) requires a CRA to disclose the identity of each person

that procures a “consumer report” for employment purposes within a two year period that

the request is made or any other purpose within a one year period that the request is

made. Plaintiffs allege that each of them individually received disclosures which did not

show inquiries from a series of different parties although they are alleged to have been

within the one or two year period preceding the consumer disclosure request. See e.g.,

Compl. ¶¶ 63-68. What Plaintiffs have not alleged is why these inquiries are required

disclosures under Section 1681g(a)(1), (3), or (5). Plaintiffs have alleged that Experian

“concealed over 40 account-review consumer reports,” as to Ruderman, but has not

alleged any facts to support that account reviews are in fact consumer reports versus non-

disclosure required soft credit inquiry information. See e.g., Compl., ¶ 68. Similarly for

Tailford and Buckles, Plaintiffs only allege that their admin reports showed a number of

inquiries (for which certain examples are provided in a chart) that had occurred and that

these inquiries were not included in their disclosures. Id. at ¶¶ 63, 66. These conclusory

allegations are devoid of facts supporting that the inquiries constituted consumer reports

and were therefore required to have been disclosed in a Section 1681g disclosure. Nor

have Plaintiffs alleged for example that the inquiries were not made in connection with a

transaction that the Plaintiffs did not initiate with the third parties (1681g(a)(5)).

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as they appear to rely on the same conclusory paragraphs in the complaint as the

Behavioral Data claims to allege a “willfull” violation. See Compl., ¶¶ 81-82; supra

Section III(B)(2).

Accordingly, the inquiry based claims are DISMISSED both for failure to plead

facts supporting the claim and for failure to sufficiently plead a willful violation.

3. Employment Date Claims

Experian also argues that Plaintiffs’ claims that Experian violated the FCRA by

failing to include “reported dates of employment” fail because they have no statutory

footing. Mot., 20-21. Section 1681g(a)(1) requires that a CRA disclose information that

has or might appear on a consumer report. See Shaw, 891 F.3d at 759. Plaintiffs have

not alleged that the employment dates have ever appeared on or might appear on a

consumer report. Comp., ¶¶ 61-62, 67, 70. Instead Plaintiffs allege that they are entitled

to “all” Section 1681g Disclosures and that although the disclosures they received listed

several current or former employers they did not disclose “any of the reported dates of

employment”. Id. at ¶¶ 61-62. As a result, Plaintiffs were allegedly unable to determine

“whether the date ranges actually coincided with [their] actual dates of employment, with

any prospective gaps threatening to suggest that Experian would imply [Tailford or

Rutherford were] unemployed during times when” they were not. Id. at ¶ 62, 67. While

Plaintiffs argue that “Employment-related date information appears on at least one type

of Section 1681a(d)(1)(B) consumer report Experian offers,” a conclusory allegation that

the “Employment Insight” report is a “consumer report” does not make it so. See

Compl., ¶ 28; see also Opp’n., 18. Furthermore, the Employment Insight product reports

are not alleged to have been the report wherein the employment dates that the individual

Plaintiffs allege were not included in their Section 1681g disclosures appear.

Additionally, the employment date based claims are also devoid of any allegations

as to willfulness because they appear to rely on the same conclusory paragraphs in the

complaint as the Behavioral Data claims to allege a “willfull” violation. See Compl., ¶¶

81-82; supra Section III(B)(2).

Accordingly, the employment date based claims are DISMISSED both for failure

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. SACV 19-02191JVS(KESx) Date 5/12/20

Title Theresa Tailford et al v. Experian Information Solutions, Inc.

4. Leave to Amend

Leave to amend a complaint should be “freely given when justice so requires.”

Fed. R. Civ. P. 15(a)(2). In determining whether leave to amend should be granted, four

factors are considered: (1) undue delay, (2) bad faith or dilatory motive, (3) prejudice to

the opposing party, and (4) futility of amendment. Ditto v. McCurdy, 510 F.3d 1070,

1079 (9th Cir. 2007); Foman v. Davis, 371 U.S. 178, 182 (1962).

Here, there has been no undue delay, bad faith or dilatory motive. Additionally,

the Court does not believe amendment of the action would be futile. The Court

acknowledges Experian’s argument that “Plaintiffs have now advanced the same flawed

theories five times.” Mot., 21. However, Experian refers to a prior action brought by

Plaintiffs that this Court dismissed both for lack of subject matter jurisdiction as to the

asserted violations of Section 1681g and for failure to state a claim for a violation of

Section 1681e(b). Carson v. Experian Info. Sols., Inc., 2019 WL 3073993, at *7 (C.D.

Cal. July 9, 2019). This Court has not previously addressed whether Plaintiffs have pled

plausible claims for relief on their Section 1681g claims. Accordingly, the Court finds

adequate reason to grant leave. Plaintiffs are GRANTED thirty (30) days leave to amend

their pleading to address deficiencies identified in this order.

IV. CONCLUSION

For the foregoing reasons, the Court DENIES the Motion to Remand, and

GRANTS the Motion to Dismiss. Plaintiffs are granted thirty (30) days leave to amend

their pleading to address deficiencies identified in this order.

IT IS SO ORDERED.

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