In Galper v. JP Morgan Chase Bank, N.A., 2015 WL 5711882, at *5-8 (C.A.2 (N.Y.),2015), the Court of Appeals for the Second Circuit held that New York’s ID Theft Laws were not preempted by FCRA with respect to furnisher misconduct that was not regulated by 15 USC 1681(s)-2 of FCRA.

Here, the language of the provision expresses Congress’s intent to preempt claims which are “with respect to any subject matter regulated under … section 1681s–2 of this title, relating to the responsibilities of persons who furnish information to consumer reporting agencies.” 15 U.S.C. § 1681t(b)(1)(F). This provision, therefore, must be read to preempt only those claims against furnishers that are “with respect to” the subject matter regulated under § 1681s–2.  What does the phrase “with respect to” mean in this context? . . . Accordingly, we hold that § 1681t(b)(1)(F) preempts only those claims that concern a furnisher’s responsibilities. Put differently, § 1681t(b)(1)(F) does not preempt state law claims against a defendant who happens to be a furnisher of information to a consumer reporting agency within the meaning of the FCRA if the claims against the defendant do not also concern that defendant’s legal responsibilities as a furnisher of information under the FCRA.  The question, then, is this: do Galper’s claims against Chase concern Chase’s responsibilities as a furnisher of information under the FCRA? We conclude that, when viewed in the light most favorable to Galper, the complaint plausibly alleges identity theft claims that do not concern Chase’s responsibilities as a furnisher. Instead, the complaint advances a theory that Chase is vicariously liable—presumably under a respondeat superior theory—for the identity theft allegedly perpetrated by its employees. See Compl. ¶ 5 (alleging that “[i]n participating in, aiding, abetting, and facilitating the Money Laundering Scheme … [the] Chase employees acted within the scope of their employment and for the benefit and profit of Chase,” and that Chase is therefore “liable for the theft of Galper’s identity perpetrated by” its employees). . . We are not persuaded by Chase’s argument that § 1681t(b)(1)(F) preempts all claims “relating to the responsibilities” of furnishers in any way, and regardless of the capacity in which the furnisher is acting. This broad argument overlooks the language of the statute. In this statutory context, the phrase “relating to” is not used to describe the scope of preemption. Instead, the phrase exists as a shorthand reference to describe the subject matter governed by § 1681s–2.8 If Congress had intended to preempt claims that relate in any way to someone furnishing information to a consumer reporting agency, it could easily have drafted the statute to say that state laws “relating to the furnishing of information to consumer reporting agencies are preempted.”  . . . All that said, we do not conclude that § 1681t(b)(1)(F) is altogether inapplicable to this case in view of the somewhat confusing nature of the complaint. While the theory of liability we have set forth above strikes us as the most natural reading of Galper’s complaint, there are other possible interpretations. After all, the paragraphs of the complaint setting forth the identity theft claims (¶¶ 29–36) do not actually mention the concept of vicarious liability or respondeat superior, and they could arguably be read to include the theory that Chase is liable for damages (at least in part) because it furnished false information. To the extent that such claims would even be viable under the New York law, they are preempted under the FCRA because they plainly concern Chase’s legal responsibilities as a furnisher.  And in her “prayer for relief,” Galper seeks punitive damages to “punish Chase for its wanton, reckless, and malicious acts.” Compl., Prayer for Relief ¶ B. Galper cannot base any punitive damages recovery on wrongdoing that Chase may have committed when furnishing information to consumer reporting agencies. This is so because § 1681t(b)(1)(F) preempts any recovery for damages based on allegations of erroneous or otherwise improper furnishing-regardless of the particular statute or common law theory that plaintiff utilizes to advance her claim. See Macpherson, 665 F.3d at 47–48.