Sarmad Syed v. M-I, LLC

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SARMAD SYED, an individual, on No. 14-17186

behalf of himself and all others

similarly situated, D.C. No.

Plaintiff-Appellant, 1:14-cv-00742-

WBS-BAM

v.

M-I, LLC, a Delaware Limited OPINION

Liability Company; PRECHECK, INC.,

a Texas Corporation,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of California

William B. Shubb, District Judge, Presiding

Argued and Submitted November 17, 2016

San Francisco, California

Filed January 20, 2017

Before: Mary M. Schroeder, Kim McLane Wardlaw,

and John B. Owens, Circuit Judges.

Opinion by Judge Wardlaw

2 SYED V. M-I, LLC

SUMMARY*

Fair Credit Reporting Act

The panel reversed the district court’s dismissal pursuant

to Federal Rule of Civil Procedure 12(b)(6) of an action under

the Fair Credit Reporting Act.

The panel held that a prospective employer violates 15

U.S.C. § 1681b(b)(2)(A) when it procures a job applicant’s

consumer report after including a liability waiver in the same

document as a statutorily mandated disclosure. The panel

also held that, in light of the clear statutory language that the

disclosure document consist “solely” of the disclosure, a

prospective employer’s violation of § 1681b(b)(2)(A) is

“willful” when the employer includes terms in addition to

the disclosure, such as the liability waiver here, before

procuring a consumer report or causing one to be procured.

COUNSEL

Peter R. Dion-Kindem (argued), Peter R. Dion-Kindem P.C.,

Woodland Hills, California; Lonnie C. Blanchard, III, The

Blanchard Law Group, Los Angeles, California; for Plaintiff-

Appellant.

Jason S. Mills (argued) and Alexis M. Gabrielson, Morgan

Lewis & Bockius LLP, Los Angeles, California, for

Defendant-Appellee M-I, LLC.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

SYED V. M-I, LLC 3

E. Michelle Drake and John Albanese, Nichols Kaster PLLP,

Minneapolis, Minnesota, for Amici Curiae National

Association of Consumer Advocates and National Consumer

Law Center.

OPINION

WARDLAW, Circuit Judge:

The modern information age has shined a spotlight on

information privacy, and on the widespread use of consumer

credit reports to collect information in violation of

consumers’ privacy rights. This case presents a question of

first impression in the federal courts of appeals: whether a

prospective employer may satisfy the Fair Credit Reporting

Act’s (“FCRA”) disclosure requirements by providing a job

applicant with a disclosure that “a consumer report may be

obtained for employment purposes” which simultaneously

serves as a liability waiver for the prospective employer and

others.1 See 15 U.S.C. § 1681b(b)(2)(A). We hold that a

prospective employer violates Section 1681b(b)(2)(A) when

it procures a job applicant’s consumer report after including

a liability waiver in the same document as the statutorily

mandated disclosure. We also hold that, in light of the clear

statutory language that the disclosure document must consist

1

The statutory provision at issue, 15 U.S.C. § 1681b(b)(2)(A),

governs the procurement of consumer reports “for employment purposes

with respect to any consumer.” Thus, the statute’s application is not

limited to employer-employee relationships. However, for the sake of

brevity, we describe the parties governed by the statute as “prospective

employers” and “job applicants,” while recognizing that the statute in fact

applies more broadly.

4 SYED V. M-I, LLC

“solely” of the disclosure, a prospective employer’s violation

of the FCRA is “willful” when the employer includes terms

in addition to the disclosure, such as the liability waiver here,

before procuring a consumer report or causing one to be

procured.

I.

A. Fair Credit Reporting Act.

Congress enacted the FCRA in 1970 in response to

concerns about corporations’ increasingly sophisticated use

of consumers’ personal information in making credit and

other decisions. Fair Credit Reporting Act of 1970, Pub. L.

91-508, § 602, 84 Stat. 1114, 1128. Specifically, Congress

recognized the need to “ensure fair and accurate credit

reporting, promote efficiency in the banking system, and

protect consumer privacy.” Safeco Ins. Co. v. Burr, 551 U.S.

47, 52 (2007). Congress thus required the use of reasonable

procedures in procuring and using a “consumer report,”

defined as

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; (B) employment

SYED V. M-I, LLC 5

purposes; or (C) any other purpose authorized

under [the statute].

15 U.S.C. § 1681a(d).

Congress amended the FCRA in 1996. Consumer Credit

Reporting Reform Act of 1996, Pub. L. 104-208, § 2403, 110

Stat. 3009-426, 3009-431. It recognized “the significant

amount of inaccurate information that was being reported by

consumer reporting agencies and the difficulties that

consumers faced getting such errors corrected.” S. Rep.

No. 108-166 at 5–6 (2003) (describing 1996 amendments).

Congress was specifically concerned that prospective

employers were obtaining and using consumer reports in a

manner that violated job applicants’ privacy rights. S. Rep.

No. 104-185 at 35 (1995). The disclosure and authorization

provision codified at 15 U.S.C. § 1681b(b)(2)(A) was

intended to address this concern by requiring the prospective

employer to disclose that it may obtain the applicant’s

consumer report for employment purposes and providing the

means by which the prospective employee might prevent the

prospective employer from doing so—withholding of

authorization. S. Rep. No. 104-185 at 35. This provision

furthers Congress’s overarching purposes of ensuring

accurate credit reporting, promoting efficient error correction,

and protecting privacy. See Safeco, 551 U.S. at 52. Indeed,

in addition to securing job applicants’ privacy rights by

enabling them to withhold authorization to obtain their

consumer reports, the provision promotes error correction by

providing applicants with an opportunity to warn a

prospective employer of errors in the report before the

6 SYED V. M-I, LLC

employer decides against hiring the applicant on the basis of

information contained in the report.2

Congress prohibited procurement of consumer reports

unless certain specified procedures were followed:

(2) Disclosure to consumer

(A) In general

Except as provided in subparagraph

(B), a person may not procure a consumer

report, or cause a consumer report to be

procured, for employment purposes with

respect to any consumer, unless—

(i) a clear and conspicuous

disclosure has been made in writing to

the consumer at any time before the

report is procured or caused to be

procured, in a document that consists

solely of the disclosure, that a

consumer report may be obtained for

employment purposes; and

(ii) the consumer has authorized in

writing (which authorization may be

2

This opportunity is particularly important given that, in practice, the

FCRA does not otherwise provide an opportunity for a job applicant or

employee to dispute his consumer report before adverse action is taken.

See Richard Fischer, A.S. Pratt & Sons, Law of Financial Privacy ¶

1.04[2][F] (2014).

SYED V. M-I, LLC 7

made on the document referred to in

clause (i)) the procurement of the

report by that person.

15 U.S.C. § 1681b(b)(2)(A). Congress amended the statute

in 1998 to add language providing that the authorization may

be made on the same document as the disclosure. Consumer

Reporting Employment Clarification Act of 1998, Pub. L.

105-347, § 2, 112 Stat. 3208, 3208.

The FCRA provides a private right of action against those

who violate its statutory requirements in procuring and using

consumer reports. The affected consumer is entitled to actual

damages for a negligent violation. 15 U.S.C. § 1681o. For a

willful violation, however, a consumer may recover statutory

damages ranging from $100 to $1,000, punitive damages, and

attorney’s fees and costs. 15 U.S.C. § 1681n.

B. Syed’s Lawsuit Against M-I.

Syed applied for a job with M-I in 2011. M-I provided

Syed with a document labeled “Pre-employment Disclosure

Release.” See Appendix A. The Disclosure Release

informed Syed that his credit history and other information

could be collected and used as a basis for the employment

decision, authorized M-I to procure Syed’s consumer report,

and stipulated that, by signing the document, Syed was

waiving his rights to sue M-I and its agents for violations of

the FCRA. Syed’s signature served simultaneously as an

authorization for M-I to procure his consumer report, and as

a broad release of liability.

The liability waiver at the heart of the present dispute

reads as follows:

8 SYED V. M-I, LLC

I understand the information obtained will be

used as one basis for employment or denial of

employment. I hereby discharge, release and

indemnify prospective employer, PreCheck,

Inc., their agents, servants and employees, and

all parties that rely on this release and/or the

information obtained with this release from

any and all liability and claims arising by

reason of the use of this release and

dissemination of information that is false and

untrue if obtained by a third party without

verification.

Appendix A.

Syed alleges that the Disclosure Release failed to satisfy

the disclosure requirements mandated by 15 U.S.C.

§ 1681b(b)(2)(A). Syed does not contend that M-I’s form

contained too little information. Instead, he argues that it

contained too much. Specifically, he alleges that M-I’s

inclusion of the liability waiver violated the statutory

requirement that the disclosure document consist “solely” of

the disclosure. See § 1681b(b)(2)(A)(i). Syed alleges that he

realized M-I had violated the statute when, upon reviewing

his personnel file, he noticed that M-I had procured his

consumer report, in spite of the allegedly deficient disclosure

with which it had provided him. He alleges that he filed the

complaint within two years of reviewing his file.

On May 19, 2014, Syed filed a putative class action in

district court on behalf of himself and any person whose

consumer report was obtained by M-I after receiving a

disclosure in violation of Section 1681b(b)(2)(A)(i) within

the two-year limitations period. He sought statutory damages

SYED V. M-I, LLC 9

pursuant to Section 1681n(a)(1)(A), punitive damages

pursuant to Section 1681n(a)(2), and attorney’s fees and costs

pursuant to Section 1681n(a)(3).3 Syed did not seek actual

damages, which would have required proof of actual harm.

See Crabill v. Trans Union, L.L.C., 259 F.3d 662, 664 (7th

Cir. 2001) (citing cases).

The original complaint alleged that M-I’s statutory

violation had been “willful,” the predicate for Syed’s claimed

statutory and punitive damages. See 15 U.S.C. § 1681n; see

also Safeco, 551 U.S. at 53. On August 28, 2014, the district

court dismissed Syed’s complaint for failure to state a claim,

with leave to amend. It held that the allegation of willfulness

consisted only of “labels and conclusions.” See Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 555 (2007).

Syed filed his First Amended Complaint (“FAC”) on

September 2, 2014. The FAC sets forth the same factual and

legal allegations as did the original complaint. However, it

also includes citations to Federal Trade Commission (“FTC”)

staff opinion letters and district court opinions that Syed

asserts support his position that M-I “knew or should have

known about its legal obligations under the FCRA,” thus

rendering its statutory violation willful.

On October 23, 2014, the district court again dismissed

Syed’s FAC for failure to state a claim, this time without

leave to amend. The district court reasoned that Syed had

still not sufficiently pleaded willfulness. The court concluded

that the FTC letters could not have “warned [M-I] away from

3

Syed also named PreCheck, the company hired by M-I to obtain his

consumer report, as a defendant. Syed has since settled his claims against

PreCheck. Thus, only his claims against M-I are at issue in this appeal.

10 SYED V. M-I, LLC

the view it took” because they were informal staff opinions,

not authoritative guidance. See Safeco, 551 U.S. at 70, 70

n.19. Similarly, the court found that the judicial opinions

cited by Syed did not demonstrate that M-I’s conduct had

been willful because the opinions issued after M-I had

provided Syed the Disclosure Release in 2011.

II.

We have jurisdiction under 28 U.S.C. § 1291 to review

the district court’s final judgment dismissing with prejudice

Syed’s claims against M-I.

We review de novo the grant of a motion to dismiss

pursuant to Federal Rule of Civil Procedure 12(b)(6). Fayer

v. Vaughn, 649 F.3d 1061, 1063–64 (9th Cir. 2011). In so

doing, we accept “all factual allegations in the complaint as

true and construe the pleadings in the light most favorable to

the nonmoving party.” Knievel v. ESPN, 393 F.3d 1068,

1072 (9th Cir. 2005). In addition, “the district court’s

interpretation of a statute is a question of law which we

review de novo.” Pakootas v. Teck Cominco Metals, Ltd.,

830 F.3d 975, 980 (9th Cir. 2016) (internal quotation marks

omitted).

III.

Syed has established Article III standing. A plaintiff who

alleges a “bare procedural violation” of the FCRA, “divorced

from any concrete harm,” fails to satisfy Article III’s injury-

in-fact requirement. Spokeo, Inc. v. Robins, —U.S.—, 136 S.

Ct. 1540, 1549 (2016). However, Syed alleges more than a

“bare procedural violation.” The disclosure requirement at

issue, 15 U.S.C. § 1681b(b)(2)(A)(i), creates a right to

SYED V. M-I, LLC 11

information by requiring prospective employers to inform job

applicants that they intend to procure their consumer reports

as part of the employment application process. The

authorization requirement, § 1681b(b)(2)(A)(ii), creates a

right to privacy by enabling applicants to withhold

permission to obtain the report from the prospective

employer, and a concrete injury when applicants are deprived

of their ability to meaningfully authorize the credit check. By

providing a private cause of action for violations of Section

1681b(b)(2)(A), Congress has recognized the harm such

violations cause, thereby articulating a “chain[ ] of causation

that will give rise to a case or controversy.” See Spokeo, 136

S. Ct. at 1549 (quoting Lujan v. Defs. of Wildlife, 504 U.S.

555, 580 (1992) (Kennedy, J., concurring)). Therefore, Syed

has Article III standing to bring this lawsuit. See Thomas v.

FTS USA, LLC, —F. Supp. 3d—, No. 3:13–cv–825, 2016 WL

3653878, at *4–12 (E.D. Va. June 30, 2016) (holding that an

improper disclosure under 15 U.S.C. § 1681b(b)(2)(A) causes

“a concrete injury sufficient to confer standing”).

IV.

A. M-I violated the FCRA by including a liability waiver on

the same document as its disclosure.

Neither the Supreme Court nor any circuit court of

appeals has addressed whether a prospective employer may

satisfy 15 U.S.C. § 1681b(b)(2)(A) by providing a disclosure

on a document that also includes a liability waiver. The

district court avoided this interpretive question, holding only

that M-I’s view that it had not violated the FCRA, whether

correct or not, was “not objectively unreasonable,” and that

M-I therefore could not be held liable for statutory or punitive

damages. See Safeco, 551 U.S. at 69–70. We conclude that

12 SYED V. M-I, LLC

the inclusion of the liability waiver did violate the FCRA, and

next consider whether that violation was willful.

1. Section 1681b(b)(2)(A) unambiguously requires a

document that “consists solely of the disclosure.”

We must begin with the text of the statute. Where

congressional intent “has been expressed in reasonably plain

terms, that language must ordinarily be regarded as

conclusive.” Griffin v. Oceanic Contractors, Inc., 458 U.S.

564, 570 (1982) (internal quotation marks omitted). And

when “the meaning of the words seems to us to be intelligible

upon a simple reading, . . . we shall spend no time upon

generalities concerning the principles of [statutory]

interpretation.” United States v. M.H. Pulaski Co., 243 U.S.

97, 106 (1917).

The ordinary meaning of “solely” is “[a]lone; singly” or

“[e]ntirely; exclusively.” American Heritage Dictionary of

the English Language 1666 (5th ed. 2011). M-I argues that

the statute’s requirement that the disclosure appear on a

“document that consists solely of the disclosure” is

ambiguous because subsection (ii) of the provision provides

that the consumer may authorize the procurement of a

consumer report on the document containing the disclosure.

See 15 U.S.C. § 1681b(b)(2)(A). If the statute allows for an

authorization on the same document as the disclosure, M-I

reasons, then the statute must not really require the document

to “consist[ ] solely of the disclosure.” See § 1681b(b)(2)(A).

M-I thus urges us to find that Section 1681b(b)(2)(A) is

internally inconsistent, and to give no effect to Congress’s use

of the term “solely.”

SYED V. M-I, LLC 13

However, contrary to M-I’s contention, the statutory

allowance for the consumer to “authorize in writing” the

procurement of a consumer report on the same document as

the disclosure does not undermine the requirement that the

document consist “solely of the disclosure.” The two clauses

are consistent because the authorization clause is an express

exception to the requirement that the document consist

“solely of the disclosure.” While the statute does not

specifically designate it as such, the authorization clause

immediately follows the disclosure clause, and makes express

reference to it. See § 1681b(b)(2)(A)(ii). This is not a case

where we must rationalize two plainly inconsistent

subsections, or smooth over a “mistake in draftsmanship.”

Russello v. United States, 464 U.S. 16, 23 (1983). To the

contrary, it is clear that Congress intended the two

subsections to work together.

Allowing an authorization on the same document as the

disclosure is consistent with the purpose of the statute.

Congress passed Section 1681b(b)(2)(A) in order to protect

consumers from “improper invasion[s] of privacy,” S. Rep.

No. 104-185 at 35 (1995), and the disclosure and

authorization requirements fit hand in glove to achieve that

purpose. Indeed, each would be largely ineffective on its

own. Had the statute required disclosure without

conditioning the procurement of a consumer report on the job

applicant’s authorization, it would have failed to give the

applicant control over the procurement of the personal

information contained in the consumer report. On the other

hand, had the statute conditioned the procurement of a report

on the job applicant’s authorization without mandating clear

disclosure by the prospective employer, Congress’s purpose

would have been frustrated because applicants would not

understand what they were authorizing. The disclosure and

14 SYED V. M-I, LLC

authorization clauses therefore work in tandem to further the

congressional purpose of protecting consumers from

“improper invasion[s] of privacy.” See id.

Congress reasonably could have concluded that

permitting the consumer to provide an authorization on the

same page as the disclosure would enhance the effectiveness

of each clause. A job applicant may read a disclosure more

closely if he understands that the potential employer may

obtain his consumer report only if he signs an authorization

for it to do so. The decision to authorize or deny the

prospective employer’s use of his report to accept or reject

his employment application may be better informed if the

authorization immediately follows the disclosure.

We thus reject M-I’s argument that Section

1681b(b)(2)(A) is internally inconsistent. “It is our duty to

give effect, if possible, to every clause and word of a statute.”

United States v. Menasche, 348 U.S. 528, 538–39 (1955)

(internal quotation marks omitted). M-I’s interpretation fails

to give effect to the term “solely,” violating the precept that

“statutes should not be construed to make surplusage of any

provision.” Wilshire Westwood Assocs. v. Atl. Richfield

Corp., 881 F.2d 801, 804 (9th Cir. 1989) (alterations and

internal quotation marks omitted). That other FCRA

provisions mandating disclosure omit the term “solely” is

further evidence that Congress intended that term to carry

meaning in 15 U.S.C. § 1681b(b)(2)(A)(i). See 15 U.S.C.

§§ 1681d, 1681s-3.

SYED V. M-I, LLC 15

2. The statute does not implicitly authorize the inclusion

of a liability waiver in a disclosure document.

Congress’s express exception to the “solely” requirement,

allowing the disclosure document to also contain the

authorization to procure a consumer report, does not mean

that the statute contains other implicit exceptions as well. See

United States v. Johnson, 529 U.S. 53, 58 (2000). Indeed, in

light of Congress’s express grant of permission for the

inclusion of an authorization, the familiar judicial maxim

expressio unius est exclusio alterius counsels against finding

additional, implied, exceptions. See Tenn. Valley Auth. v.

Hill, 437 U.S. 153, 188 (1978). We therefore reject M-I’s

contention that a liability waiver is an implicit exception to

the “solely” requirement in 15 U.S.C. § 1681b(b)(2)(A)(i).

Moreover, “[a]n implied exception to an express statute

is justifiable only when it comports with the basic purpose of

the statute.” Walker v. Fairbanks Inv. Co., 268 F.2d 48, 53

(9th Cir. 1959). Here, an implied exception permitting the

inclusion of a liability waiver on the same document as the

disclosure does not comport with the FCRA’s basic purpose.

To the contrary, it would frustrate Congress’s goal of

guarding a job applicant’s right to control the dissemination

of sensitive personal information. See 15 U.S.C.

§ 1681(a)(4); S. Rep. No. 104-185 at 35. An authorization

requiring the job applicant’s signature focuses the applicant’s

attention on the nature of the personal information the

prospective employer may obtain, and the employer’s

inability to obtain that information without his consent. But

a liability waiver does just the opposite—it pulls the

applicant’s attention away from his privacy rights protected

by the FCRA by calling his attention to the rights he must

forego if he signs the document. Indeed, by reading M-I’s

16 SYED V. M-I, LLC

Disclosure Release, a job applicant could reasonably

conclude that his signature was not consent to the

procurement of the consumer report, but to a broad release of

the employer from claims arising from the totality of the

“investigative background inquiries” referenced in the first

sentence of the form. See Appendix A. Thus, 15 U.S.C.

§ 1681b(b)(2)(A) does not contain an implied exception

allowing a prospective employer to include a liability waiver

on the same document as the statutorily mandated disclosure.

3. The statute’s explicit language cannot be interpreted

as permitting the inclusion of a liability waiver.

M-I also argues that the statute contains an explicit

exception allowing for the inclusion of a liability waiver,

positing that a liability waiver is one type of authorization.

But we need not speculate about how broadly Congress

intended us to read the term “authorization,” because

Congress told us exactly what it meant when it described the

authorization as encompassing only “the procurement of [a

consumer] report.” 15 U.S.C. § 1681b(b)(2)(A)(ii). Further,

even assuming the statute were not as clear as it is, M-I’s

interpretation is inconsistent with the plain meaning of the

term “authorize.” To authorize is to “grant authority or

power to.” American Heritage Dictionary 120. To waive is

to “give up . . . voluntarily” or “relinquish.” Id. at 1947.

Authorization bestows, whereas waiver abdicates. A

consumer may authorize the procurement of a consumer

report or waive an employer’s liability, but he may not

“authorize” a “waiver.” We decline to so harry the English

language. See Int’l Primate Prot. League v. Adm’rs of Tulane

Educ. Fund, 500 U.S. 72, 82 (1991). We thus reject M-I’s

SYED V. M-I, LLC 17

argument that the statute somehow explicitly permits the

inclusion of a liability waiver on the disclosure document.4

4. Whether the disclosure is “clear and conspicuous” is

irrelevant to the analysis.

Next, M-I suggests that its inclusion of a liability waiver

was permissible because even with the waiver, the disclosure

was still “clear and conspicuous.” M-I cites Smith v. Waverly

Partners, LLC, No. 3:10–CV–00028–RLV–DSC, 2012 WL

3645324, at *6 (W.D.N.C. Aug. 23, 2012), for the proposition

that a disclosure made pursuant to Section 1681b(b)(2)(A) is

valid despite the inclusion of a liability waiver where the

waiver is “not so great a distraction as to discount the

effectiveness of the disclosure.” The district court in Smith

concluded that “in order to give Congress’s inclusion of the

word ‘solely’ meaningful effect, . . . inclusion of the waiver

provision was statutorily impermissible and . . . the waiver is

therefore invalid.” Id. Only then, analyzing the single,

separated sentence releasing the company from liability, did

the court hold that the waiver was “not so great a distraction

as to discount the effectiveness of the disclosure.” Id. It is

inexplicable to us that a court would find that including a

waiver violated the FCRA, but because the disclosure was

“clear and conspicuous,” an additional requirement under the

FCRA, see 15 U.S.C. § 1681b(b)(2)(A)(i), the disclosure was

nonetheless “adequate.” See Smith, 2012 WL 3645324, at *6.

4

M-I’s argument that the legislative history supports its interpretation

of the statute is also misguided. M-I’s reading is in fact inconsistent with

Congress’s intent, because the inclusion of a liability waiver tends to

distract from the disclosure’s clarity. In any event, “it is well-settled that

‘reference to legislative history is inappropriate when the text of the

statute is unambiguous.’” United States v. Sioux, 362 F.3d 1241, 1246

(9th Cir. 2004). Thus, we look no further than the statutory text.

18 SYED V. M-I, LLC

Because the question of whether a disclosure is “clear

and conspicuous” within the meaning of Section

1681b(b)(2)(A)(i) is separate from the question of whether a

document consists “solely” of a disclosure, and is not one that

is before us here, we decide only that including the waiver

violated the statute’s “solely” requirement. Further, we

question whether the Smith court’s approach comports with

the clear mandate and purpose of the FCRA’s disclosure

procedures.

B. M-I’s statutory violation was willful as a matter of law.

Syed seeks statutory and punitive damages only, not

actual damages. Statutory and punitive damages are available

under the FCRA only where a defendant “willfully fails to

comply” with the statute. 15 U.S.C. § 1681n(a). Therefore,

we must decide whether M-I willfully failed to comply with

Section 1681b(b)(2)(A) by procuring Syed’s consumer report

after including a liability waiver on the same document as the

statutorily mandated disclosure. We may resolve this

question as a matter of law, as the parties acknowledge.

The Supreme Court has clarified that, under

Section 1681n, willfulness reaches actions taken in “reckless

disregard of statutory duty,” in addition to actions “known to

violate the Act.” Safeco, 551 U.S. at 56–57. A party does not

act in reckless disregard of the FCRA “unless the action is not

only a violation under a reasonable reading of the statute’s

terms, but shows that the company ran a risk of violating the

law substantially greater than the risk associated with a

reading that was merely careless.” Id. at 69.

SYED V. M-I, LLC 19

1. M-I’s interpretation of the statute was not objectively

reasonable.

M-I contends that, even if it violated the statute by

procuring Syed’s consumer report, its interpretation of 15

U.S.C. § 1681b(b)(2)(A) was not so erroneous that its

non-compliance was willful within the meaning of

Section 1681n. Indeed, M-I argues that its reading was not

“objectively unreasonable” because the statutory text was

“less[ ]than[ ]pellucid.” See id. at 70.

M-I’s arguments on this score track its contentions as to

why its actions did not violate the statute at all. However, for

the reasons outlined above, we conclude that the FCRA

unambiguously bars a prospective employer from including

a liability waiver on a disclosure document provided a job

applicant pursuant to Section 1681b(b)(2)(A).

M-I also contends that its interpretation of the statute is

objectively reasonable in light of the dearth of guidance from

federal appellate courts and administrative agencies. No

court of appeals has spoken to the issue of whether a

disclosure document provided pursuant to Section

1681b(b)(2)(A) may permissibly include a liability waiver.

Nor has an administrative agency promulgated authoritative

guidance on the issue.5

5

The FTC has released three informal staff opinion letters relevant

to the issue at hand, each supporting Syed’s interpretation of Section

1681b(b)(2)(A). See FTC, Opinion Letter, 1997 WL 33791227, at *1

(Oct. 21, 1997) (“[The] document should include nothing more than the

disclosure and the authorization for obtaining a consumer report.”); FTC,

Opinion Letter, 1998 WL 34323748, at *2 (Feb. 11, 1998) (disclosure may

describe the “nature of the consumer reports” it covers, but otherwise

should “not be encumbered with extraneous information”); FTC, Opinion

20 SYED V. M-I, LLC

A lack of “guidance,” however, does not itself render M-

I’s interpretation reasonable. The Supreme Court has

analogized the assessment of whether a FCRA violation may

give rise to a claim for statutory damages to the determination

of whether government employees may be held personally

liable in suits for damages. Safeco, 551 U.S. at 70. In the

qualified immunity context, we have held that “when an

officer’s conduct is so patently violative of the constitutional

right that reasonable officials would know without guidance

from the courts that the action was unconstitutional, closely

analogous pre-existing case law is not required to show that

the law is clearly established.” Boyd v. Benton Cty., 374 F.3d

773, 781 (9th Cir. 2004) (internal quotation marks omitted).

Similarly, at least one circuit court of appeals has concluded

that, in the FCRA context, a “lack of definitive authority does

not, as a matter of law, immunize [a party] from potential

liability” for statutory damages. Cortez v. Trans Union, LLC,

617 F.3d 688, 721 (3d Cir. 2010).

Despite the apparent dearth of guidance on the issue at the

time M-I procured Syed’s consumer report, M-I’s inclusion

of a liability waiver in the statutorily mandated disclosure

document comports with no reasonable interpretation of

15 U.S.C. § 1681b(b)(2)(A). Therefore, we conclude that M-

I’s interpretation was “objectively unreasonable.”

Letter, 1998 WL 34323756, at *1 (June 12, 1998) (inclusion of a waiver

in a disclosure form violates Section 1681b(b)(2)(A)). However, informal

opinion letters do not constitute authoritative guidance. See Safeco, 551

U.S. at 70 n.19. Therefore, we do not rely on them here.

SYED V. M-I, LLC 21

2. M-I’s non-compliance was willful.

The parties appear to assume that, under Safeco, an

objectively unreasonable interpretation of the FCRA is by

definition a reckless one, as well. However, this

interpretation improperly conflates recklessness and

negligence. In tort law, negligent actions are those which do

not meet the standard of objective reasonableness. See

Restatement (Second) of Torts § 283 comment c (Am. Law

Inst. 1965); W. Page Keeton et al., Prosser and Keaton on

The Law of Torts § 32, at 173–74 (5th ed. 1984). On the

other hand, one acts recklessly when he creates an

“unreasonable risk of physical harm to another” that is

“substantially greater than that which is necessary to make his

conduct negligent.” See Restatement (Second) Torts § 500.

The Supreme Court has specifically distinguished

recklessness from negligence in the FCRA context, noting

that a violation is only reckless (and therefore willful) where

an employer adopts a reading of the statute that runs a risk of

error “substantially greater than the risk associated with a

reading that was merely careless.” Safeco, 551 U.S. at 69

(emphasis added); see also id. at 70 (“Safeco’s reading was

not objectively unreasonable, and so falls well short of raising

the ‘unjustifiably high risk’ of violating the statute necessary

for reckless liability.”)

Moreover, equating negligence with recklessness would

fail to give effect to the FCRA’s allowance of actual damages

for negligent violations, on the one hand, and statutory and

punitive damages for willful ones, on the other. See 15

U.S.C. §§ 1681n, 1681o; Safeco, 551 U.S. at 69–70; see also

Menasche, 348 U.S. at 538–39 (“It is our duty to give effect,

if possible, to every clause and word of a statute . . . .”)

(internal quotation marks omitted). Accordingly, if M-I’s

22 SYED V. M-I, LLC

interpretation of the FCRA is merely objectively

unreasonable, it does not follow that Syed is entitled to

statutory damages.

We must determine whether M-I’s interpretation of

15 U.S.C. § 1681b(b)(2)(A) to permit a liability waiver in a

disclosure document crossed the “negligence/recklessness

line.” See Safeco, 551 U.S. at 69. It is possible to imagine an

interpretation of 15 U.S.C. § 1681b(b)(2)(A) that would be

objectively unreasonable without rising to the level of

recklessness. For instance, the Seventh Circuit has held that

a company did not recklessly disregard the FCRA’s mandate

of “clear and conspicuous” disclosure by using six-point type,

even if the company’s actions were negligent. Murray v. New

Cingular Wireless Servs., Inc., 523 F.3d 719, 726–27 (7th

Cir. 2008) (Easterbrook, J.) (qualifying that such a practice

“would be reckless today,” given intervening legal authority).

Here, however, the term we are called upon to construe is

not subject to a range of plausible interpretations. To the

contrary, 15 U.S.C. § 1681b(b)(2)(A) unambiguously

forecloses the inclusion of a liability waiver in a disclosure

document. Thus, we need not consider M-I’s subjective

interpretation of the FCRA in determining whether it acted in

reckless disregard of the statutory language, and therefore

willfully. Indeed, M-I concedes that this question may be

resolved purely as a matter of law.6 Because the statute

6

In Safeco, the Supreme Court did not foreclose the possibility that

a party’s subjective interpretation of the FCRA may be relevant in some

circumstances. 551 U.S. at 70 n.20; see also In re Seagate Tech., LLC,

497 F.3d 1360, 1384 (Fed. Cir. 2007), abrogated on other grounds by

Halo Elecs., Inc. v. Pulse Elecs., Inc., —U.S.—, 136 S. Ct. 1923 (2016)

(a FCRA defendant’s “subjective beliefs may become relevant . . . if [the

plaintiff] successfully makes [a] showing of objective unreasonableness”).

SYED V. M-I, LLC 23

unambiguously bars M-I’s interpretation, whether or not M-I

actually believed that its interpretation was correct is

immaterial. See Reardon v. ClosetMaid Corp., No.

2:08–cv–01730, 2013 WL 6231606, at *11 (W.D. Pa. Dec. 2,

2013) (holding that there was “no issue of material fact”

about whether defendant violated 15 U.S.C. § 1681b(b)(2)(A)

willfully and granting plaintiff summary judgment).7

Notwithstanding that we are the first federal appellate court

to construe Section 1681b(b)(2)(A), this is not a “borderline

case.” See Cortez, 617 F.3d at 722. An employer “whose

conduct is first examined under [a] section of the Act should

not receive a pass because the issue has never been decided.”

Id.

However, where a party’s action violates an unambiguous statutory

requirement, that fact alone may be sufficient to conclude that its violation

is reckless, and therefore willful. We observe that, in tort law, from which

the Safeco Court drew its interpretation of willfulness under the FCRA,

recklessness may be determined by objective evidence alone. Keeton et

al., supra, § 34 at 213–14.

7

We are persuaded by the opinions of a number of other district

courts rejecting the argument that a prospective employer’s inclusion of

a liability waiver in a disclosure made pursuant to 15 U.S.C.

§ 1681b(b)(2)(A) was not willful as a matter of law. Harris v. Home

Depot U.S.A., Inc., 114 F. Supp. 3d 868, 870–71 (N.D. Cal. 2015); Speer

v. Whole Foods Mkt. Grp., Inc., No. 8:14–cv–3035–T–26TBM, 2015 WL

1456981, at *3 (M.D. Fla. March 30, 2015); Avila v. NOW Health Grp.,

Inc., No. 14 C 1551, 2014 WL 3537825, at *3 (N.D. Ill. July 17, 2014);

see also Ramirez v. Midwest Airlines, Inc., 537 F. Supp. 2d 1161, 1171

(D. Kan. 2008) (holding that defendant could not avoid liability for willful

violation as a matter of law under the FCRA, 15 U.S.C. § 1681c(g),

because there was “no plausible alternative reading of the statute in the

foundation of the statutory text”). For the reasons described in Part

IV.A.4, we disagree with the contrary analysis of the court in Smith, 2012

WL 3645324, at *6.

24 SYED V. M-I, LLC

M-I ran an “unjustifiably high risk of violating the

statute.” See Safeco, 551 U.S. at 70 (internal quotation marks

omitted). In other words, M-I acted in “reckless disregard of

statutory duty.” Its violation of the FCRA was therefore

willful under 15 U.S.C. § 1681n. See Safeco, 551 U.S. at

56–57.

C. The complaint’s factual allegations preclude dismissal on

statute of limitations grounds.

In the alternative, M-I urges us to affirm the district

court’s dismissal of Syed’s complaint on the ground that

Syed’s claims are barred by the FCRA’s two-year statute of

limitations. The FCRA requires a plaintiff to bring an action

within the earlier of “(1) 2 years after the date of discovery by

the plaintiff of the violation that is the basis for [the

employer’s] liability; or (2) 5 years after the date on which

the violation that is the basis for such liability occurs.” 15

U.S.C. § 1681p. The district court dismissed Syed’s action

because he failed to state a claim under Federal Rule of Civil

Procedure 12(b)(6), not because the claim was time-barred.

However, we may “affirm on any basis fairly supported by

the record.” Corrie v. Caterpillar, Inc., 503 F.3d 974, 979

(9th Cir. 2007).

M-I argues that Syed “discovered” the violation within

the meaning of 15 U.S.C. § 1681p when he signed M-I’s

allegedly deficient Disclosure Release form upon applying

for a job in 2011. Because Syed challenges only the

disclosure document, and not the manner in which M-I used

his consumer report, M-I contends that the date of disclosure

is the relevant one here.

SYED V. M-I, LLC 25

However, a prospective employer does not violate Section

1681b(b)(2)(A) by providing a disclosure that violates the

FCRA’s disclosure requirement. See Harris v. Home Depot

U.S.A., Inc., 114 F. Supp. 3d 868, 869 (N.D. Cal. 2015);

Singleton v. Domino’s Pizza, LLC, No. DKC 11-1823, 2012

WL 245965, at *7 (D. Md. Jan. 25, 2012). The employer

violates the FCRA only where, after violating its disclosure

procedures, it “procure[s] or cause[s] to be procured” a

consumer report about the job applicant. See 15 U.S.C.

§ 1681b(b)(2)(A)(i).

M-I urges a contrary interpretation, relying on cases

construing statutes of limitations involving inadequate

disclosures on loan documents under the Fair and Accurate

Credit Transactions Act of 2003 (“FACTA”), Pub. L. 108-

159, 111 Stat. 1952, which amended the FCRA, and the Truth

in Lending Act of 1968 (“TILA”), Pub. L. 90-321, 82 Stat.

146 (codified at 15 U.S.C. § 1601 et seq). M-I is correct that

the statutes of limitations under FACTA and TILA generally

begin to run when the disclosure is made. However, this is

so because the disclosure and transaction usually occur

simultaneously in the lending context. See Ancheta v. Golden

Empire Mortg., Inc., No. 10-CV-05589-LHK, 2011 WL

826177, at *4 (N.D. Cal. March 7, 2011) (“FACTA claims

presumptively accrue on the date of the loan transaction,

because it should be clear on this date whether or not a credit

score disclosure is made.”).

Here, Syed does not allege that M-I procured his

consumer report at the same time it made its disclosure,

which would have meant that he could have discovered the

statutory violation when he received the Disclosure Release.

To the contrary, he alleges that he was unaware M-I had

procured his consumer report until he reviewed his personnel

26 SYED V. M-I, LLC

file “within the last two years.” Because we must treat this

allegation as true at the motion-to-dismiss stage, Syed

adequately pleaded that his claim fell within the FCRA’s two-

year statute of limitations. See Supermail Cargo, Inc. v.

United States, 68 F.3d 1204, 1207 (9th Cir. 1995) (“[A]

complaint cannot be dismissed [for untimeliness] unless it

appears beyond doubt that the plaintiff can prove no set of

facts that would establish the timeliness of the claim.”).

Therefore, dismissal of Syed’s complaint was not warranted

on the ground that his claim was time-barred.

V.

The FCRA’s employment disclosure provision “says what

it means and means what it says.” See Simmons v.

Himmelreich, —U.S.—, 136 S. Ct. 1843, 1848 (2016). The

statute unambiguously bars the inclusion of a liability waiver

on the same document as a disclosure made pursuant to

15 U.S.C. § 1681b(b)(2)(A). M-I willfully violated the

statute by procuring Syed’s consumer report without

providing a disclosure “in a document that consist[ed] solely

of the disclosure.” § 1681b(b)(2)(A)(i). Therefore, the

district court erred in dismissing Syed’s complaint.

REVERSED and REMANDED.

SYED V. M-I, LLC 27

APPENDIX A