In Corby v. American Exp. Co., 2011 WL 4625719 (C.D.Cal. 2011), Judge Wright found that, under Nelson, a consumer can only recover under FCRA for a section 1681s-2(b) claim – meaning, the consumer must first dispute the claim with the credit reporting agency. Judge Wright as a corollary therefore held that a consumer can not recover for wrongful or inaccurate reporting, but only for damages caused by the furnisher’s improper re-investigation. Declarations by the consumer that improper reporting caused damage may lead to summary judgment for the furnisher. Judge Wright explained:
As to the Bedrosians Marble & Tile Project in May 2010, while it occurred after April 4, 2010, Plaintiff specifically admits that it was caused by American Express’s alleged wrongful reporting, for which Plaintiff cannot sustain a private right of action under § 1681 s–2(a). Specifically, Plaintiff states in his declaration: “My avenue of credit was cut off starting in June 2009 with the erroneous credit reporting by American Express. This prevented me from expanding my business … [and] contributed to at least the following … Bedrosians Marble & Tile Project in May 2010.” (Corby Decl. ¶ 19d. (emphasis added.) In light of this admission, the Court finds that Corby’s damages related to the Bedrosians Marble & Tile Project are precluded because they arise from an alleged violation of § 1681s–2(a), for which Plaintiff cannot maintain a private right of action. ¶ As to the remaining damages, in the absence of an admission as described above, it is questionable whether these damages were sustained as a result of American Express’s alleged wrongful reporting or as a result of American Express’s failure to investigate after receiving notice from Experian. Furthermore, to the extent American Express argues that Plaintiff fails to present evidence of a causal link between his damages and American Express’s alleged conduct, the Court finds that disputed issues of material fact exist. On one hand, Plaintiff presents declarations, which he contends indicate that American Express’s conduct caused his damages. (See generally Corby Decl.; M. Corby Decl.) On the other hand, American Express interprets these declarations to attribute Plaintiff’s damages to the “nationwide economic shutdown” and Plaintiff’s own “financial situation.” (Reply at 10 .) These conflicting interpretations as to whether Plaintiff’s damages were caused by American Express’s conduct, in whole or in part, cannot be resolved at this stage of the litigation. See Anderson, 477 U.S. at 248–49 (“the issue of material fact required by Rule 56(c) to be present to entitle a party to proceed to trial is not required to be resolved conclusively in favor of the party asserting its existence; rather, all that is required is that sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial.”).
As to the Rosenthal Act claim, Judge Wright found the claim pre-empted by FCRA, explaining:
Plaintiff brings claims under both the FCRA and the RFDCPA. The FCRA, however, contains an express preemption clause which states: “[n]o requirement or prohibition may be imposed under the laws of any State … relating to the responsibilities of persons who furnish information to consumer reporting agencies, except with respect to section 54(a) of chapter 93 of the Massachusetts Annotated Laws; or with respect to section 1785.25(a) of the California Civil Code ….“ 15 U.S.C. § 1681t(b)(1) (F). This constitutes an express preemption of any state law that regulates liability for furnishers of information to the credit reporting agencies. Plaintiff’s state law claim under the RFDCPA incorporates section 1692e(8) of the Fair Debt Collection Practices Act, which proscribes “[c]ommunicating … to any person credit information which is known or which should be known to be false, including the failure to communicate that a disputed debt is disputed.” 15 U.S.C. 1692e(8). The plain language of the FCRA clearly preempts such a state claim, unless it is brought under California Civil Code section 1785.25(a). See 15 U.S.C. § 1681t(b)(1)(F). Because Plaintiff expressly states his second claim is grounded in the RFDCPA, not California Civil Code section 1785.25(a), (Compl. at 8), it is preempted by the FCRA. See, e.g. Johnson v. JP Morgan Chase Bank, 536 F.Supp.2d 1207, 1215 (E.D.Cal.2008) (holding that the FCRA “precludes all statutory or common law causes of action that would impose any requirement or prohibition on the furnishers of credit”); Roybal v. Equifax, 405 F.Supp.2d 1177, 1181 (E.D.Cal.2008) (“[o]n its face, the FCRA precludes all state statutory or common law causes of action that would impose any requirement or prohibition on the furnishers of credit information”); Pacheco v. Citibank (South Dakota), N.A., No. C 07–01276 JSW, 2007 WL 1241934, at *5–7 (N.D.Cal. Apr.27, 2007) (“[a]ny state statutory or common law claims premised on the provision of inaccurate or false information to a consumer reporting agency are … preempted by the FCRA”); Davis v. Md. Bank, N.A., No. C 00–04191 SBA, 2002 WL 32713429, at *36–40 (N.D.Cal. June 19, 2002) (“section 1681t(b)(1)(F) preempts both state statutory and common law causes of action which implicate the subject matter of section 1681s–2”).