In Aargon Agency, Inc. v. O’Laughlin, No. 22-15352, 2023 U.S. App. LEXIS 14874, at *21-24 (9th Cir. June 15, 2023), the Court of Appeals for the 9th Circuit held that Nevada’s SB 248 survived FCRA pre-emption.
Plaintiffs contend that § 1681t(b)(1)(F) broadly preempts any state law “relating to” a furnisher’s duties. We decline to read § 1681t(b)(1)(F) this broadly. The Supreme Court has told us that the use of the phrase “with respect to” “massively limits the scope of preemption” to only those state laws that “concern” the phrase’s referents. See Dan’s City Used Cars, Inc. v. Pelkey, 569 U.S. 251, 261, 133 S. Ct. 1769, 185 L. Ed. 2d 909 (2013) (interpreting the Federal Aviation Administration Authorization Act’s preemption provision). Section 1681t(b)(1)(F) limits its preemptive effect to state laws “with respect to any subject matter regulated under . . . section 1681s-2,” making clear that its preemptive effect is limited by the requirements imposed by § 1681s-2. We therefore agree with the Second Circuit that “§ 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.” Galper v. JP Morgan Chase Bank, N.A., 802 F.3d 437, 446 (2d Cir. 2015); see also Consumer Data Indus. Ass’n v. Frey, 26 F.4th 1, 6-8 (1st Cir. 2022) (interpreting an analogous FCRA preemption provision, 15 U.S.C. § 1681t(b)(1)(E), narrowly). S.B. 248 does not fall within the exception to § 1681t(a) set out in § 1681t(b)(1)(F), because it does not affect furnishers’ obligations to provide accurate information to CRAs as regulated by § 1681s-2(a), nor does it affect their obligations upon notice of consumer disputes as regulated by § 1681s-2(b). It is true that § 1681s-2 includes some requirements relating to the timing of furnishers’ reporting obligations. For example, furnishers must “promptly notify” a CRA if they regularly furnish information to CRAs about a consumer and have furnished information to the CRA that they then determine is “not complete or accurate,” id. § 1681s-2(a)(2)(B), and furnishers must report a date of delinquency to a CRA within 90 days after furnishers have provided information to the CRA about delinquent accounts, id. § 1681s-2(a)(5)(A). See also id. §§ 1681s-2(a)(8)(E)(iv), (b)(1)(E), (b)(2). However, § 1681s-2 nowhere sets out a deadline for when furnishers must report a debt to a CRA. S.B. 248’s 60-day notification period in no way interferes with furnishers’ reporting obligations as spelled out in § 1681s-2. . . .Plaintiffs argue that S.B. 248 interferes with the accuracy of credit reporting by building in an artificial reporting delay. However, S.B. 248 does not interfere with debt collectors’ responsibility to furnish fair and accurate information to CRAs. If anything, allowing medical debtors a brief window of time—60 days—after receiving a collection agency’s notification under S.B. 248 to verify their debt may improve the accuracy of the information that debt collectors furnish to CRAs. Our dissenting colleague objects that we do not cite any evidence in the record showing that, by providing additional time to debtors to verify their medical debt, S.B. 248 increases accuracy of the information possessed by debt collectors. Dissent at 50-51. We recognize that ultimately, how S.B. 248 affects the accuracy of credit reporting is an empirical question that is not really answered in the record before us. But plaintiffs, not the Commissioner, have the burden to demonstrate a likelihood of success on the merits. See Preminger v. Principi, 422 F.3d 815, 823 n.5 (9th Cir. 2005). Plaintiffs fail to provide any factual or legal support for their bald assertion that S.B. 248 “impermissibly blurs the clear credit picture.”