Pintos v. PACIFIC CREDITORS ASS'N

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARIA E. PINTOS, 

Plaintiff-Appellant,

v. No. 04-17485

PACIFIC CREDITORS ASSOCIATION;  D.C. No.

EXPERIAN INFORMATION SOLUTIONS, CV-03-05471-CW

INC.,

Defendants-Appellees.



MARIA E. PINTOS,  No. 04-17558

Plaintiff-Appellee, D.C. No.

v. CV-03-05471-CW

PACIFIC CREDITORS ASSOCIATION, ORDER

Defendant,  AMENDING

and OPINION AND

DENYING

EXPERIAN INFORMATION SOLUTIONS, REHEARING AND

INC., AMENDED



Defendant-Appellant. OPINION

Appeal from the United States District Court

for the Northern District of California

Claudia Wilken, District Judge, Presiding

Argued and Submitted

January 9, 2007—San Francisco, California

Filed April 30, 2009

Amended May 21, 2010

7271

7272 PINTOS v. PACIFIC CREDITORS ASS’N

Before: Mary M. Schroeder, Richard R. Clifton, and

Carlos T. Bea, Circuit Judges.*

Order;

Dissent to Order by Chief Judge Kozinski;

Dissent to Order by Judge Gould;

Opinion by Judge Clifton;

Dissent by Judge Bea

*George P. Schiavelli, who was previously a member of this panel sit-

ting by designation while serving as a United States District Judge for the

Central District of California, resigned on October 5, 2008. Judge Bea was

drawn by lot to replace him, pursuant to our General Order 3.2(g).

PINTOS v. PACIFIC CREDITORS ASS’N 7275

COUNSEL

Andrew J. Ogilvie (argued), Kemnitzer, Anderson, Barron,

Ogilvie & Brewer, LLP, San Francisco, California, for

appellant/cross-appellee Maria E. Pintos.

Daniel J. McLoon (argued), Jones Day, Los Angeles, Califor-

nia, Adam R. Sand and Marc S. Carlson, Jones Day, San

Francisco, California, for appellee/cross-appellant Experian

Information Solutions, Inc.

Andrew M. Steinheimer (argued) and Mark E. Ellis, Ellis

Coleman Poirier LaVoie & Steinheimer, LLP, Sacramento,

California, for appellee Pacific Creditors Association.

ORDER

This court’s opinion, filed April 30, 2009, is amended by

adding additional language to footnote 2 (565 F.3d at 1114).

The existing text in footnote 2 will become the first paragraph

of the footnote and the new language follows, such that the

entire footnote reads:

In this appeal of a summary judgment, PCA and

Experian argued only that § 1681b(a)(3)(A) autho-

rized PCA to obtain Pintos’s credit report. Thus, we

need not determine whether PCA had a permissible

7276 PINTOS v. PACIFIC CREDITORS ASS’N

purpose under any other § 1681b subsection. On

remand, Defendants may argue that PCA was autho-

rized to obtain Pintos’s report under a different sub-

section.

In the briefs on the merits, oral argument, petitions

for rehearing, and response to petitions for rehearing,

there was no argument based on 15 U.S.C.

§§ 1681a(m) and 1681b(c). The parties did not

appear to view those provisions to be relevant to this

case. During our court’s consideration of the peti-

tions for rehearing en banc, it was suggested that

these provisions, though drafted at a different time

and aimed at a different situation, might shed light

on the meaning of the relevant statute,

§ 1681b(a)(3)(A), so we requested supplemental

briefs on that subject. The supplemental briefs have

not persuaded us to change our opinion.

Those other provisions, §§ 1681a(m) and

1681b(c), were added in 1996 to permit lenders and

insurance companies to solicit for business by pur-

chasing lists and limited information about custom-

ers who match certain criteria (such as zip code and

credit score) from credit reporting agencies. The

“prescreened” customers could then be sent, for

example, a “pre-approved” credit card solicitation.

Pintos did not authorize the reporting agency to sup-

ply her report and the transaction did not consist of

“a firm offer of credit or insurance,” under

§ 1681b(c). Nobody contends otherwise.

At the same time, it should be clear that we do not

opine on the meaning or scope of 15 U.S.C.

§§ 1681a(m) and 1681b(c) or on the practice of

obtaining information from credit reporting agencies

to permit the extension of offers to prescreened cus-

tomers, which the parties to our case agree is autho-

PINTOS v. PACIFIC CREDITORS ASS’N 7277

rized by those statutes. A case presenting those

questions is not before us.

A judge of the court called for a vote on the petitions for

rehearing en banc. A vote was taken, and a majority of the

active judges of the court failed to vote for en banc rehearing.

Fed. R. App. P. 35.

The petitions for rehearing en banc are DENIED. No fur-

ther petitions for rehearing may be filed.

Chief Judge KOZINSKI, with whom Judges

O’SCANNLAIN, KLEINFELD, GOULD, TALLMAN,

CALLAHAN and BEA join, dissenting from the denial of

rehearing en banc:

Judge Bea’s dissent persuasively explains why the majority

opinion conflicts with Ninth Circuit precedent, and I would

join it if I could. Pintos v. Pac. Creditors Ass’n, 565 F.3d

1106, 1117-18 (9th Cir. 2009) (Bea, J., dissenting). I write

separately to point out another problem with the opinion: Its

interpretation of the Fair Credit Reporting Act (FCRA) is

foreclosed by the plain language of the statute.

The issue is whether Pacific Creditors Association (PCA)

had a permissible purpose for seeking Maria Pintos’s credit

report. Id. at 1110 (maj. op.). PCA argued it had one under 15

U.S.C. § 1681b(a)(3)(A), which allows a consumer reporting

agency to give a report to a person it has reason to believe

“intends to use the information in connection with a credit

transaction involving the consumer on whom the information

is to be furnished and involving the extension of credit to, or

review or collection of an account of, the consumer.” The

majority disagreed, holding that a person isn’t “involved” in

a credit transaction unless he “initiates” the transaction. Pin-

tos, 565 F.3d at 1112-13. Because Pintos didn’t ask to have

7278 PINTOS v. PACIFIC CREDITORS ASS’N

her car towed, she didn’t initiate her debt and there was no

permissible purpose. Id. at 1113.

The majority’s interpretation can’t be squared with 15

U.S.C. § 1681b(c). This section provides that “[a] consumer

reporting agency may furnish a consumer report relating to

any consumer pursuant to subparagraph (A) . . . of subsection

(a)(3) [section 1681b(a)(3)(A)] of this section in connection

with any credit . . . transaction that is not initiated by the con-

sumer only if” certain conditions are met. (Emphasis added.)

Section 1681b(c) restricts the permissible purpose established

in section 1681b(a)(3)(A) when transactions aren’t consumer-

initiated. And by limiting access to reports under section

1681b(a)(3)(A) in situations where the consumer didn’t initi-

ate the transaction, section 1681b(c) clues us in on the fact

that section 1681b(a)(3)(A) doesn’t itself require that consum-

ers initiate anything.

Moreover, debt collectors like PCA don’t even need to

meet section 1681b(c)’s special conditions. Title 15 U.S.C.

§ 1681a(m) defines “credit . . . transaction that is not initiated

by the consumer,” and it specifically excludes “the use of a

consumer report by a person with which the consumer has an

account . . . for purposes of . . . collecting the account” from

the definition of non-consumer-initiated transactions. 15

U.S.C. § 1681a(m). And “collection of a debt is considered to

be the ‘collection of an account.’ ” Hasbun v. County of Los

Angeles, 323 F.3d 801, 803 (9th Cir. 2003). Because PCA

was collecting Pintos’s debt, the transaction here isn’t one

“not initiated by the consumer” that has to meet section

1681b(c)’s conditions. Indeed, independent of the conflict

with section 1681b(a)(3)(A), the majority’s decision can’t be

reconciled with section 1681a(m): The majority holds that

there was no permissible purpose because Pintos didn’t initi-

ate the transaction, but under section 1681a(m), Pintos did ini-

tiate the transaction by owing the debt.

Putting sections 1681b(a)(3)(A), 1681b(c) and 1681a(m)

together, then, it’s clear that: (1) Consumers can be “in-

PINTOS v. PACIFIC CREDITORS ASS’N 7279

volved” in credit transactions under section 1681b(a)(3)(A)

that they didn’t initiate; (2) section 1681b(c) provides certain

restrictions on access to reports under section 1681b(a)(3)(A)

when the consumer didn’t initiate the transaction; and (3)

those limitations don’t apply here because section 1681a(m)

says that Pintos initiated the transaction.

The majority must have read these provisions, yet still dis-

agrees. Its mistake is plain. If subparagraph A of a statute said

“all fruit shall be inspected before it can be put into a dessert,”

and subparagraph B said “in the case of tomatoes inspected

under subparagraph A, authorities shall perform extra special

inspections,” we’d know that subparagraph A covers toma-

toes. Section 1681b(c) provides special limits on access to

credit reports sought under section 1681b(a)(3)(A) when

transactions aren’t initiated by consumers. We therefore know

that section 1681b(a)(3)(A) covers transactions not initiated

by consumers. And if a statute expressly excluded golf from

its definition of “fun sports,” we couldn’t hold that golf is a

fun sport. Section 1681a(m) expressly excludes debt-

collection transactions from its definition of non-consumer-

initiated transactions. We therefore can’t say that a debt-

collection transaction was non-consumer-initiated. In holding

otherwise, the majority flunks Statutory Interpretation 101.

GOULD, Circuit Judge, dissenting from denial of rehearing

en banc:

I also dissent from denial of rehearing en banc. With Chief

Judge Kozinski, I agree with the reasoning of Judge Bea in his

panel dissent. I also agree with the reasoning of the Chief

Judge in his dissent from denial of rehearing en banc. I add

this idea: Uniformity of treatment of creditors is useful and

likely leads to lower credit enforcement costs to the benefit

ultimately of consumers. I don’t see a virtue in distinguishing

Hasbun and establishing different categories of creditors,

7280 PINTOS v. PACIFIC CREDITORS ASS’N

some of whom can gain access to a credit report and some of

whom can’t. Use of credit reports expedites collections,

reducing collection costs, and because such costs may be

shifted to consumers, permitting the credit reports to be relied

upon by creditors may decrease costs to citizens who are so

unfortunate as to leave their unregistered cars parked on the

street and subject to towing. If a collection agency standing

in the shoes of the towing company is not allowed to request

and see a credit report, then the costs of collection are going

to increase, then correspondingly the costs of towing are

going to increase, and finally the scope of fines for violators

would likely be increased. In my view, permitting credit

reports to go to creditors, whether they have a judgment or

not, will be less expensive for both debtors and creditors.

OPINION

CLIFTON, Circuit Judge:

Maria E. Pintos appeals the district court’s summary adju-

dication of her claims under the Fair Credit Reporting Act

(“FCRA”), 15 U.S.C. § 1681 et seq. Pintos contends that

Pacific Creditors Association (“PCA”) violated the FCRA by

obtaining, without any FCRA-sanctioned purpose, a credit

report on her from Experian Information Solutions, Inc., a

credit reporting agency. Pintos also argues that Experian vio-

lated the FCRA by furnishing the report to PCA.

The district court granted summary judgment in favor of

the defendants, concluding that PCA was authorized to obtain

Pintos’s credit report under the FCRA, which allows for the

furnishing of reports “in connection with a credit transaction

involving the consumer . . . and involving the . . . collection

of an account of[ ] the consumer.” 15 U.S.C.

§ 1681b(a)(3)(A). The district court determined that the trans-

action involved the collection of an account, relying upon our

PINTOS v. PACIFIC CREDITORS ASS’N 7281

decision in Hasbun v. County of Los Angeles, 323 F.3d 801

(9th Cir. 2003). We conclude that Hasbun is more limited,

however. Because the current case involves neither a transac-

tion for which Pintos sought credit nor the collection of a

judgment debt, we conclude that § 1681b(a)(3)(A) did not

authorize PCA to obtain the credit report on Pintos. Thus, we

vacate the judgment of the district court and remand for fur-

ther proceedings regarding the defendants’ liability. We also

vacate the district court’s order regarding Experian’s motion

to seal certain documents and remand for consideration under

the proper legal standard.

I. Background

Police officers found a sport utility vehicle belonging to

Pintos parked on the street in San Bruno, California, on May

29, 2002. The vehicle’s registration was expired. At police

direction, the vehicle was towed, and the towing company,

P&S Towing, obtained a lien on the vehicle for towing and

impound costs. P&S later sold the vehicle when Pintos failed

to reclaim it or pay the outstanding charges. Since the vehi-

cle’s sale price did not cover the amount owed, P&S asserted

a deficiency claim against Pintos and later transferred that

claim to PCA, a collection agency.1

PCA sought and obtained a credit report on Pintos from

1

California Civil Code § 3068.1(a) provides for liens “dependent upon

possession for the compensation to which [a] person is legally entitled for

towing, storage, or labor associated with recovery or load salvage of any

vehicle subject to registration that has been authorized to be removed by

a public agency.” The statute also allows for lien sales with varying proce-

dures dependant on the value of the vehicle towed and stored. See id.

§§ 3068.1(b)-3068.1(c). In addition, a tow truck operator with a lien pur-

suant to § 3068.1 “has a deficiency claim against the registered owner of

the vehicle if the vehicle is not leased or leased with a driver for an

amount equal to the towing and storage charges, not to exceed 120 days

of storage . . . less the amount received from the sale of the vehicle.” Id.

§ 3068.2(a).

7282 PINTOS v. PACIFIC CREDITORS ASS’N

Experian on December 5, 2002, in connection with its effort

to collect on the debt assigned by P&S. Pintos subsequently

filed a complaint against PCA and Experian under the FCRA.

She alleged that PCA violated the FCRA by obtaining her

credit report without any FCRA-sanctioned purpose and that

Experian was liable for providing the report to PCA.

PCA and Experian filed separate motions for summary

judgment. Both argued that, under 15 U.S.C.

§ 1681b(a)(3)(A), PCA had a permissible purpose for obtain-

ing Pintos’s credit report because it was seeking to collect a

debt, the towing deficiency claim. Experian further argued

that it was not liable for a violation because it had fulfilled its

obligations under 15 U.S.C. § 1681e, which immunizes a

reporting agency against FCRA violations by the agency’s

subscribers so long as the agency takes certain steps.

Pintos filed a cross-motion for partial summary judgment

on the issues of permissible purpose and Experian’s alleged

negligence. She attached to that motion several Experian doc-

uments detailing the company’s internal procedures for com-

plying with its FCRA obligations. Claiming these documents

were confidential and proprietary, Experian filed a motion to

seal them.

The district court granted the defendants’ motions for sum-

mary judgment on November 9, 2004. Citing Hasbun, the

court agreed that § 1681b(a)(3)(A) permitted PCA to obtain

Pintos’s credit report. The court denied Experian’s motion to

seal documents, without explanation.

Pintos filed a timely notice of appeal on December 8, 2004.

Experian cross-appealed the district court’s denial of its

motion to seal on December 9, 2004. It also sought reconsid-

eration by the district court of the denial of that motion. On

April 29, 2005, the district court held that it lacked jurisdic-

tion over the matter since Experian already appealed the order

to this court. Nevertheless, the court stated that, if it had juris-

PINTOS v. PACIFIC CREDITORS ASS’N 7283

diction, it would grant Experian’s motion under Phillips ex

rel. Estates of Byrd v. General Motors Corp., 307 F.3d 1206

(9th Cir. 2002), and it stayed its prior order on the subject

pending the appeal.

II. Discussion

We review grants of summary judgment de novo. ACLU v.

City of Las Vegas, 466 F.3d 784, 790 (9th Cir. 2006). Cross-

motions for summary judgment are evaluated separately

under this same standard. Id. at 790-91; Hoopa Valley Indian

Tribe v. Ryan, 415 F.3d 986, 989-90 (9th Cir. 2005).

A. 15 U.S.C. § 1681b(a)(3)(A)

[1] “Congress enacted the FCRA in 1970 to promote effi-

ciency in the Nation’s banking system and to protect con-

sumer privacy.” TRW Inc. v. Andrews, 534 U.S. 19, 23

(2001). Those two goals lie in tension, and the FCRA strikes

a balance between them. The Act authorizes credit reporting

agencies to “furnish . . . consumer report[s]” because

“[c]onsumer reporting agencies have assumed a vital role in

assembling and evaluating consumer credit and other infor-

mation on consumers.” 15 U.S.C. §§ 1681(a)(3), 1681b(a). At

the same time, the FCRA “requir[es] credit reporting agencies

to maintain reasonable procedures designed to assure maxi-

mum possible accuracy of the information contained in credit

reports.” Andrews, 534 U.S. at 23 (citations and internal quo-

tation marks omitted). Importantly for this case, the FCRA

permits agencies to furnish credit reports only for “certain sta-

tutorily enumerated purposes.” Id.

The statutory limitation on the furnishing of credit reports

is particularly relevant here, as the parties dispute whether

PCA had a permissible purpose in obtaining Pintos’s credit

report. Defendants contend that it did, under 15 U.S.C.

§ 1681b(a)(3)(A):

7284 PINTOS v. PACIFIC CREDITORS ASS’N

(a) In general

Subject to subsection (c) of this section, any con-

sumer reporting agency may furnish a consumer

report under the following circumstances and no

other:

***

(3) To a person which it has reason to

believe—

(A) intends to use the information in con-

nection with a credit transaction involv-

ing the consumer on whom the

information is to be furnished and

involving the extension of credit to, or

review or collection of an account of, the

consumer;

[2] To qualify under § 1681b(a), the “credit transaction”

must both (1) be “a credit transaction involving the consumer

on whom the information is to be furnished” and (2) involve

“the extension of credit to, or review or collection of an

account of, the consumer.” Concluding that the transaction

here involved the “collection of an account,” the district court

held that the statute authorized PCA to obtain Pintos’s credit

report. But the district court did not address whether the trans-

action was “a credit transaction involving” Pintos. That may

have been because Hasbun did not separately discuss that

requirement, but our court has discussed it in other cases and

it is clearly set out in the statute.

One decision in which we discussed that requirement was

Andrews v. TRW, Inc., 225 F.3d 1063, 1067 (9th Cir. 2000),

rev’d on other grounds, TRW, Inc. v. Andrews, 534 U.S. 19

(2001), in which we addressed whether the plaintiff, a victim

of identity theft, was “involved” in credit transactions initi-

PINTOS v. PACIFIC CREDITORS ASS’N 7285

ated by an imposter posing as the plaintiff. The imposter had

obtained the plaintiff’s social security number and birth date

and used that information to apply for credit from various

companies. Id. at 1064-65. The companies in turn requested

and obtained the plaintiff’s credit report from TRW. Id. at

1065. The plaintiff sued TRW, claiming that it furnished her

credit report “without reasonable grounds for believing that

she was the consumer whom the credit applications

involved.” Id. (internal quotation marks omitted). The district

court granted summary judgment in TRW’s favor on this

claim, ruling that TRW’s disclosures “were made for a pur-

pose permissible under § 1681b(a)(3)(A), because the Plain-

tiff, even against her will, was ‘involved’ in the credit

transaction initiated by the Imposter.” Id. at 1066.

On appeal, we concluded that the plaintiff was not “in-

volved” in the credit transaction and reversed the summary

judgment ruling. We held that the word “involve” in this con-

text had to be read narrowly:

The district court held that the Plaintiff was

involved in the transaction because her [social secur-

ity] number was used. The statutory phrase is “a

credit transaction involving the consumer.”

15 U.S.C. § 1681b(a)(3)(A). “Involve” has two dic-

tionary meanings that are relevant: (1) “to draw in as

a participant” or (2) “to oblige to become associat-

ed.” The district court understood the word in the

second sense. We are reluctant to conclude that Con-

gress meant to harness any consumer to any transac-

tion where any crook chose to use his or her number.

The first meaning of the statutory term must be pre-

ferred here. In that sense the Plaintiff was not

involved.

Id. at 1067. Thus, a person is “involved” in a credit transac-

tion for purposes of § 1681b(a)(3)(A) where she is “draw[n]

7286 PINTOS v. PACIFIC CREDITORS ASS’N

in as a participant” in the transaction, but not where she is

“oblige[d] to become associated” with the transaction. See id.

[3] Here, Pintos did not participate in seeking credit from

the towing company. She owned the car that was towed, so

she was not as completely distant from the transaction as the

victim of identity theft in Andrews, but neither was she a par-

ticipant in the typical transaction where an extension of credit

is requested. She had no contact with P&S or PCA until P&S

towed her car. She never asked to have the vehicle towed;

P&S simply towed the car by direction of the police then tried

to collect the charges. Pintos did not initiate the transaction

that resulted in PCA requesting her credit report. As the Sev-

enth Circuit held in Stergiopoulos v. First Midwest Bancorp,

Inc., 427 F.3d 1043, 1047 (7th Cir. 2005), § 1681b(a)(3)(A)

can be relied upon by the party requesting a credit report

“only if the consumer initiates the transaction.”

[4] The requirement that the consumer initiate the transac-

tion is not satisfied simply because the consumer did some-

thing that arguably led to the creditor’s claim. In Mone v.

Dranow, 945 F.2d 306 (9th Cir. 1991), a credit report on

Mone was obtained by his former employer, who sued Mone

for unfair competition after he quit and established a compet-

ing firm. The report was obtained for the purpose of determin-

ing whether Mone had sufficient assets to pay a judgment. Id.

at 308. Arguably, it was Mone’s alleged unfair competition

that initiated the chain of events, but we held that the request

for the report did not qualify as being “in connection with a

credit transaction involving the consumer,” under

§ 1681b(a)(3)(A). Id.

[5] Similarly, that Pintos owned the car that was towed did

not mean that she initiated the credit transaction. Like the vic-

tim in Andrews, Pintos was not a “participant” in the credit

transaction, but was “oblige[d] to become associated” with it

after her car was towed and the towing deficiency claim

arose. See Andrews, 225 F.3d at 1067.

PINTOS v. PACIFIC CREDITORS ASS’N 7287

[6] Our decision in Hasbun did not supersede our prior

decisions. The holding of that case is properly understood to

be that a judgment creditor is authorized under the statute to

obtain a credit report in connection with collection efforts.

Hasbun, 323 F.3d 801.

In Hasbun a child support enforcement agency obtained a

credit report of a father who had fallen behind in paying

court-ordered child support. We made reference to the “court-

ordered” nature of the debt on every page of that decision. We

also did so in stating the question posed by the case (“when

and how a child support enforcement agency may lawfully

obtain the consumer credit report of an individual who has

fallen behind in paying court-ordered child support”) and in

summarizing our holding (“We affirm the district court’s

grant of summary judgment in favor of defendants and hold

that child support enforcement agencies need not comply with

the certification requirements of 15 U.S.C. § 1681b(a)(4)

when seeking to collect court-ordered child support.”). Id. at

801 (emphasis added). We explicitly adopted and quoted

extensively from a Federal Trade Commission commentary

which made repeated reference to the permissible purpose of

a “judgment creditor” to obtain a credit report. Id. at 803 (“[a]

judgment creditor has a permissible purpose to receive a con-

sumer report on the judgment debtor for use in connection

with collection of the judgment debt”) (emphasis added). To

be sure, our opinion did not include that qualifier in every

statement, but our holding involved a debt that had already

been adjudicated. If a debt has been judicially established,

there is a “credit transaction involving the consumer” no mat-

ter how it arose. The obligation is established as a matter of

law, and the statute is satisfied. Hasbun extended no further.

Application of Hasbun to permit a credit report to be obtained

to assist the collection of a claim that had not yet been adjudi-

cated is not supported by the logic of that decision nor by our

other precedents.

7288 PINTOS v. PACIFIC CREDITORS ASS’N

[7] PCA was not a judgment creditor. Its claim against Pin-

tos did not result from a transaction initiated by Pintos. We

conclude, therefore, that § 1681b(a)(3)(A) did not authorize

PCA to obtain the credit report on Pintos. Accordingly, we

reverse the grant of summary judgment in defendants’ favor.2

B. 15 U.S.C. § 1681e

We next consider whether Experian is also liable for any

violation of the FCRA committed by PCA. The district court

2

In this appeal of a summary judgment, PCA and Experian argued only

that § 1681b(a)(3)(A) authorized PCA to obtain Pintos’s credit report.

Thus, we need not determine whether PCA had a permissible purpose

under any other § 1681b subsection. On remand, Defendants may argue

that PCA was authorized to obtain Pintos’s report under a different sub-

section.

In the briefs on the merits, oral argument, petitions for rehearing, and

response to petitions for rehearing, there was no argument based on 15

U.S.C. §§ 1681a(m) and 1681b(c). The parties did not appear to view

those provisions to be relevant to this case. During our court’s consider-

ation of the petitions for rehearing en banc, it was suggested that these

provisions, though drafted at a different time and aimed at a different situ-

ation, might shed light on the meaning of the relevant statute,

§ 1681b(a)(3)(A), so we requested supplemental briefs on that subject.

The supplemental briefs have not persuaded us to change our opinion.

Those other provisions, §§ 1681a(m) and 1681b(c), were added in 1996

to permit lenders and insurance companies to solicit for business by pur-

chasing lists and limited information about customers who match certain

criteria (such as zip code and credit score) from credit reporting agencies.

The “prescreened” customers could then be sent, for example, a “pre-

approved” credit card solicitation. Pintos did not authorize the reporting

agency to supply her report and the transaction did not consist of “a firm

offer of credit or insurance,” under § 1681b(c). Nobody contends other-

wise.

At the same time, it should be clear that we do not opine on the meaning

or scope of 15 U.S.C. §§ 1681a(m) and 1681b(c) or on the practice of

obtaining information from credit reporting agencies to permit the exten-

sion of offers to prescreened customers, which the parties to our case

agree is authorized by those statutes. A case presenting those questions is

not before us.

PINTOS v. PACIFIC CREDITORS ASS’N 7289

did not reach this issue, as it determined that PCA had a per-

missible purpose to obtain Pintos’s credit report. Experian

argues that because 15 U.S.C. § 1681e immunizes it from

subscribers’ FCRA violations, the statute offers an alternative

basis to affirm the summary judgment with respect to its lia-

bility.

A credit reporting agency may be liable for its subscriber’s

violation when the agency fails to comply with the statutory

obligations imposed by 15 U.S.C. § 1681e. See Guimond v.

Trans Union Credit Info. Co., 45 F.3d 1329, 1333 (9th Cir.

1995). Experian argues that because PCA gave it a “blanket

certification” — a written promise to use Experian’s credit

reports only for permissible purposes — the agency satisfied

its statutory obligations under § 1681e. We disagree.

[8] Section 1681e requires more from a credit reporting

agency than merely obtaining a subscriber’s general promise

to obey the law. After prospective subscribers “certify the

purposes for which [credit] information is sought, and certify

that the information will be used for no other purpose,” the

reporting agency must make “a reasonable effort” to verify

the certifications and may not furnish reports if “reasonable

grounds” exist to believe that reports will be used impermiss-

ibly. 15 U.S.C. § 1681e(a). Under the plain terms of

§ 1681e(a), a subscriber’s certification cannot absolve the

reporting agency of its independent obligation to verify the

certification and determine that no reasonable grounds exist

for suspecting impermissible use.3 Blanket certification can-

3

Experian suggests that Davis v. Asset Servs., 46 F. Supp. 2d 503, 508

(M.D. La. 1998), Boothe v. TRW Credit Data, 557 F. Supp. 66, 71

(S.D.N.Y. 1982), and Hiemstra v. TRW, Inc., 195 Cal. App. 3d 1629, 1634

(Cal. Ct. App. 1987) support the contention that blanket certifications will

satisfy a credit reporting agency’s obligations under § 1681e(a). While

these cases hold that credit reporting agencies may rely on blanket certifi-

cations rather than having to verify credit requests individually, none pro-

vides that a blanket certification by itself is sufficient to satisfy the

7290 PINTOS v. PACIFIC CREDITORS ASS’N

not eliminate all genuine issues of material fact with regard to

Experian’s liability.

C. Experian’s Motion to File Documents Under Seal

[9] Two standards generally govern motions to seal docu-

ments like the one at issue here.4 First, a “compelling reasons”

standard applies to most judicial records. See Kamakana v.

City & County of Honolulu, 447 F.3d 1172, 1178 (9th Cir.

2006) (holding that “[a] party seeking to seal a judicial record

. . . bears the burden of . . . meeting the ‘compelling reasons’

standard”); Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d

1122, 1135-36 (9th Cir. 2003). This standard derives from the

common law right “to inspect and copy public records and

documents, including judicial records and documents.” Kama-

kana, 447 F.3d at 1178 (citation and internal quotation marks

omitted). To limit this common law right of access, a party

seeking to seal judicial records must show that “compelling

reasons supported by specific factual findings . . . outweigh

the general history of access and the public policies favoring

disclosure.” Id. at 1178-79 (internal quotation marks and cita-

tions omitted).

§ 1681e inquiry. See, e.g., Davis, 46 F. Supp. 2d at 508 (holding that the

defendant complied with the requirements of § 1681e(a) because it

obtained a blanket certification and because the plaintiff did not submit

“any evidence to prove that the [defendant] knew or should have had rea-

son to know that [the subscriber] would access the report for an impermis-

sible purpose”); Boothe, 577 F. Supp. at 71 (finding no violation where the

primary business of the requesting entity used reports for a permissible

purpose and there was “no showing that TRW knew of the improper pur-

pose for the report issued”). Even if Experian did not have to verify PCA’s

request for Pintos’s credit report individually, § 1681e(a) still required

proper verification of PCA generally.

4

A third standard covers the “narrow range of documents” such as

“grand jury transcripts” and certain “warrant materials” that “traditionally

[have] been kept secret for important policy reasons.” Kamakana, 447

F.3d at 1178 (citation and internal quotation marks omitted). No party

asserts that this third standard is relevant here.

PINTOS v. PACIFIC CREDITORS ASS’N 7291

Second, a different standard applies to “private materials

unearthed during discovery,” as such documents are not part

of the judicial record. Id. at 1180. Rule 26(c) of the Federal

Rules of Civil Procedure governs here, providing that a trial

court may grant a protective order “to protect a party or per-

son from annoyance, embarrassment, oppression, or undue

burden or expense.”

The relevant standard for purposes of Rule 26(c) is whether

“ ‘good cause’ exists to protect th[e] information from being

disclosed to the public by balancing the needs for discovery

against the need for confidentiality.” Phillips ex rel. Estates

of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1213 (9th Cir.

2002). This “good cause” standard presents a lower burden

for the party wishing to seal documents than the “compelling

reasons” standard. The cognizable public interest in judicial

records that underlies the “compelling reasons” standard does

not exist for documents produced between private litigants.

See Kamakana, 447 F.3d at 1180 (holding that “[d]ifferent

interests are at stake with the right of access than with Rule

26(c)”); Foltz, 331 F.3d at 1134 (“When discovery material is

filed with the court . . . its status changes.”).

The “good cause” standard is not limited to discovery. In

Phillips, we held that “good cause” is also the proper standard

when a party seeks access to previously sealed discovery

attached to a nondispositive motion. 307 F.3d at 1213 (“when

a party attaches a sealed discovery document to a nondisposi-

tive motion, the usual presumption of the public’s right of

access is rebutted”). Nondispositive motions “are often ‘unre-

lated, or only tangentially related, to the underlying cause of

action,” and, as a result, the public’s interest in accessing dis-

positive materials does “not apply with equal force” to non-

dispositive materials. Kamakana, 447 F.3d at 1179. In light of

the weaker public interest in nondispositive materials, we

apply the “good cause” standard when parties wish to keep

them under seal. Applying the “compelling interest” standard

under these circumstances would needlessly “undermine a

7292 PINTOS v. PACIFIC CREDITORS ASS’N

district court’s power to fashion effective protective orders.”

Foltz, 331 F.3d at 1135.

[10] Experian wishes to seal documents attached to Pintos’s

cross-motion for summary judgment. Rule 26(c) does not

govern these documents because they are not “private materi-

als unearthed during discovery” but have become part of the

judicial record. Kamakana, 447 F.3d at 1180. Additionally,

the documents do not fall within the Phillips exception to the

general presumption of access because Pintos’s motion was dis-

positive.5 See Foltz, 331 F.3d at 1135 (holding that the Phil-

lips exception is “expressly limited to the status of materials

. . . attached to a non-dispositive motion”) (emphasis in origi-

nal). Consequently, Experian must overcome a strong pre-

sumption of access by showing that “compelling reasons

supported by specific factual findings . . . outweigh the gen-

eral history of access and the public policies favoring disclo-

sure.” Kamakana, 447 F.3d at 1178-79 (internal quotation

marks and citations omitted).

[11] Under the “compelling reasons” standard, a district

court must weigh “relevant factors,”6 base its decision “on a

compelling reason,” and “articulate the factual basis for its

ruling, without relying on hypothesis or conjecture.”

5

This case differs slightly from Phillips, in which a nonparty sought

access to court records previously filed under seal. Phillips, 307 F.3d at

1209. Here no third party seeks access to previously sealed documents, but

this is a distinction without a difference. It is undisputed that a “strong pre-

sumption of access to judicial records applies fully to dispositive plead-

ings.” Kamakana, 447 F.3d at 1179. Accordingly, whether a third party

has sought access is immaterial when a party moves to seal documents

already filed with the court. See id. at 1179 (holding simply that “ ‘com-

pelling reasons’ must be shown to seal judicial records attached to a dispo-

sitive motion”).

6

“Relevant factors” include the “public interest in understanding the

judicial process and whether disclosure of the material could result in

improper use of the material for scandalous or libelous purposes or

infringement upon trade secrets.” Hagestad, 49 F.3d at 1434 (quoting

EEOC v. Erection Co., Inc., 900 F.2d 168, 170 (9th Cir. 1990)).

PINTOS v. PACIFIC CREDITORS ASS’N 7293

Hagestad v. Tragesser, 49 F.3d 1430, 1434 (9th Cir. 1995).

A proper analysis is reviewed for abuse of discretion. Foltz,

331 F.3d at 1135. An order that fails to articulate its reasoning

must be vacated and remanded because “meaningful appellate

review is impossible” when the appellate panel has no way of

knowing “whether relevant factors were considered and given

appropriate weight.” Hagestad, 49 F.3d at 1434-35 (internal

quotation marks omitted).

[12] The district court’s November 9, 2004, denial of

Experian’s motion to seal offered no explanation for the deci-

sion. The explanation provided in the court’s April 29, 2005,

order denying Experian’s motion to alter or amend judgment

did not fill the gap. With the case already on appeal, the dis-

trict court denied Experian’s motion on jurisdictional grounds

but suggested that it would grant Experian’s motion if it still

had jurisdiction, staying its prior order to file the documents

in the public record pending our resolution of the appeal.

According to the district court, Phillips would govern the

motion and good cause existed for placing Experian’s docu-

ments under seal.

[13] Because the documents at issue here were attached to

a dispositive motion, however, Phillips does not provide the

proper standard. A determination by the district court that

good cause exists for sealing Experian’s documents does not

establish that there are “compelling reasons” to do so. See

Kamakana, 447 F.3d at 1180 (holding that “a ‘good cause’

showing . . . will not suffice to fulfill the ‘compelling reasons’

standard that a party must meet to rebut the presumption of

access to dispositive pleadings and attachments”). Instead, the

court must decide whether compelling reasons exist to seal

the documents. Foltz, 331 F.3d at 1135-36. We vacate and

remand “for the making of findings in support of an[ ] order

on this issue,” Hagestad, 49 F.3d at 1435, in light of the

proper legal standard.

7294 PINTOS v. PACIFIC CREDITORS ASS’N

III. Conclusion

We reverse the district court’s summary judgment in favor

of defendants and remand for further proceedings. Addition-

ally, we vacate the district court’s order denying Experian’s

motion to seal documents and remand for consideration in

light of the proper legal standard.

REVERSED AND REMANDED; JUDGMENT

VACATED.

PINTOS v. PACIFIC CREDITORS ASS’N 7295

BEA, Circuit Judge, dissenting:

The majority concludes that because this case involves nei-

ther a transaction for which Pintos sought a loan nor the col-

lection of a judgment debt, 15 U.S.C. § 1681b(a)(3)(A) did

not authorize the Pacific Creditors Association (“PCA”) to

obtain Maria Pintos’s credit report or Experian Information

Solutions, Inc. (“Experian”) to release it. Because I disagree

with the majority’s conclusion that Pintos’s decision to leave

her unregistered car on a public street where she knew it

might be towed did not “involve” her in a credit transaction,

I respectfully dissent.

Title 15, Section 1681b(a)(3)(A) of the United States Code

permits a credit reporting agency to furnish a consumer’s

credit report to a person it has reason to believe “intends to

use the information in connection with a credit transaction

involving the consumer . . . and involving the extension of

credit to, or review or collection of an account of, the con-

sumer.” Relying on Andrews v. TRW, Inc., 225 F.3d 1063,

1067 (9th Cir. 2000), the majority concludes that because Pin-

tos did not ask for her car to be towed, ante at 7286, she was

not “involved” in the transaction.

This case bears little resemblance to Andrews. In Andrews,

the plaintiff was a victim of identity theft—she was passive

and guiltless, not even negligent. Pintos, by contrast, was no

innocent bystander in the chain of events that resulted in her

debt to P&S Towing (“P&S”). Pintos chose—for two consec-

utive years—not to pay the automobile registration fees

required by California law. Pintos chose instead to break the

law by driving her car on expired tags. See Cal. Veh. Code

§ 4000(a)(1) (“No person shall drive, move, or leave standing

upon a highway . . . any motor vehicle . . . unless it is regis-

tered and the appropriate fees have been paid. . . .”); see also

id. § 42001.8 (making it an infraction to violate § 4000). Pin-

tos chose to leave her car on a public street, subjecting it to

towing. See id. § 22651(o)(1)(A) (permitting law enforce-

7296 PINTOS v. PACIFIC CREDITORS ASS’N

ment to tow a car whose registration is six months overdue).

And Pintos chose not to pay the fees assessed by P&S or

retrieve her car in a timely manner, resulting in the lien sale

and deficiency claim. See Cal. Civil Code §§ 3068.1, 3068.2

(providing that a towing company has a lien dependent upon

possession and a deficiency claim for unpaid towing charges).

With all respect both to Pintos and the majority, refusing to

pay required vehicle registration fees and parking one’s car on

a public street is asking to have one’s car towed.

The majority rightly observes that the fact Pintos’s actions

resulted in P&S’s claim is, alone, insufficient to justify P&S

requesting her credit report. In Mone v. Dranow, 945 F.2d 306

(9th Cir. 1991), Dranow, Mone’s former employer, concluded

Mone was engaged in unfair competition by running a rival

business, and obtained Mone’s credit report in order to deter-

mine whether suing Mone might be worthwhile. We held that

Dranow did not intend to use the credit report “in connection

with a credit transaction involving” Mone. Id. at 308 (quoting

15 U.S.C. § 1681b(3)(A) (1982)).

But P&S’s relationship to Pintos is more than that of mere

prospective litigation adversary; P&S is a creditor entitled to

access Pintos’s credit report in order to collect the debt. See

Hasbun v. County of Los Angeles, 323 F.3d 801, 803 (9th Cir.

2003) (“[T]he limited case law addressing this issue has uni-

formly held that creditors have a permissible purpose in

receiving a consumer report to assist them in collecting a

debt.”).

The moment P&S towed Pintos’s car, P&S became Pin-

tos’s creditor; Pintos owed P&S a definite, legally recognized

debt for the services P&S rendered—loaned—to Pintos until

Pintos paid for those services. Under the California Civil

Code, when P&S towed Pintos’s car at the direction of the

San Bruno Police Department, P&S obtained “a lien depen-

dent upon possession for the compensation to which [P&S] is

legally entitled for towing, storage, or labor associated with

PINTOS v. PACIFIC CREDITORS ASS’N 7297

the recovery or load salvage” of Pintos’s vehicle. See Cal.

Civil. Code § 3068.1. This code section entitled P&S to sell

Pintos’s car to recover its fees without seeking judicial

approval or intervention; the code certainly does not require

P&S to obtain a judgment. And any tow-truck operator who

has such a lien “has a deficiency claim against the registered

owner of the vehicle.” Id. § 3068.2 (emphasis added). A defi-

ciency claim is a debt. That Pintos’s debt was created by oper-

ation of law rather than contract is of no moment.

The majority concludes Hasbun is inapplicable because

that case involved a judgment debt. See 323 F.3d at 803-04.

But Hasbun is not so limited.1 Hasbun concerned child sup-

port payments and the only way a person becomes obligated

to make such payments is through a judicial decree. It does

not follow that judicial adjudication is the only way an indi-

vidual may become obligated as a debtor. The cited California

Civil Code sections automatically make the owner of a towed

vehicle liable for towing charges and automatically create a

lien and a deficiency claim in favor of the towing company.

The towing company has no need to reduce its lien to a court

judgment to establish Pintos’s obligation to pay. There is a

creditor-debtor relationship established by the operation of the

lien law regardless whether an action to collect the deficiency

is commenced. P&S Towing is thus much more like the judg-

ment creditor in Hasbun than the prospective litigation claim-

ant in Mone.

1

Indeed, Hasbun concluded that judgment creditors have a permissible

purpose in obtaining a credit report because such a creditor “ ‘is in the

same position as any creditor attempting to collect a debt from a consum-

er.’ ” Id. at 803 (emphasis added) (quoting 16 C.F.R. § 600, App. at 509

(2002)). The principle that a creditor may access a debtor’s credit report

in order to collect upon a delinquent account is recognized by both the

Federal Trade Commission, 16 C.F.R. Pt. 600, App. at 59, and by the

Sixth Circuit, see Duncan v. Handmaker, 149 F.3d 424, 427-28 (6th Cir.

1998).

7298 PINTOS v. PACIFIC CREDITORS ASS’N

For these reasons, I would affirm the decision of the district

court. I concur, however, in part C of the majority opinion.