In Garcia v. Equifax Info. Servs. LLC, No. 2:17-cv-03123-JAD-VCF, 2019 U.S. Dist. LEXIS 58217, at *2-5 (D. Nev. Apr. 4, 2019), Judge Dorsey granted a motion to dismiss, rejecting an FCRA plaintiff’s claim that no inaccuracy was required.
Under FCRA, a credit reporting agency (CRA) must “conduct a reasonable reinvestigation” upon receiving a dispute notice from a consumer concerning the accuracy of information in a consumer report. Upon completion of this reinvestigation, a CRA must either notify the consumer in writing that it determined the dispute is frivolous under § 1681i(a)(3)(B) or of the results of the reinvestigation under § 1681i(a)(6). The plaintiffs do not challenge Equifax’s reinvestigation procedures; their only claim is that Equifax violated these so-called “prompt-notice” requirements. To state a claim under § 1681i, the consumer must make a prima [*3] facie showing of inaccurate reporting. The plaintiffs argue, however, that they are not required to allege that the reporting they believed to be inaccurate was actually inaccurate. They argue that a claim under the prompt-notice requirements does not require the same showing of inaccuracy that is required for all other § 1681i claims and that holding otherwise would render the prompt-notice provisions superfluous. But the Ninth Circuit’s precedent requires plaintiffs to plead and prove an inaccuracy on their credit report to state any § 1681i claim. In Carvalho v. Equifax Information System, LLC, the Ninth Circuit considered a district court order granting summary judgment in the defendant’s favor on claims brought under two provisions of California’s state-law analog to the FCRA: one that requires CRAs to conduct a reinvestigation after a consumer notifies it of a believed inaccuracy, and another requiring notice of the results of the reinvestigation be sent to the consumer. After determining that the California law was “substantially based on the [FCRA],” the court turned to the question of whether the plaintiff was required to show inaccuracies for her claim to survive. The court found that, “although the FCRA‘s reinvestigation provision . . . does not on its face require that an actual inaccuracy exist for a plaintiff to state a claim, many courts, including [the Ninth Circuit], have imposed such a requirement.” This requirement “comports with the purpose of the FCRA, which is to ‘protect consumers from the transmission of inaccurate information about them.'” The Ninth Circuit held that, for a plaintiff’s § 1681i claim to survive, he or she must make a prima facie showing of inaccuracy. The court applied this rule without distinguishing between the plaintiff’s claims that the reinvestigation procedures were inadequate and her claim that she received no notice after the reinvestigation’s conclusion. The plaintiffs here attempt to distinguish Carvalho, but their distinction cherry picks from the district court order that Carvalho affirms. That order questioned the inaccuracy requirement but ultimately applied it to the prompt-notice provisions because “[t]hose provisions are tied to the underlying reinvestigation requirements, and a plaintiff who cannot state a claim for inadequate reinvestigation procedures logically cannot state a claim for failure to provide notice [*5] of alleged defects in those procedures.” The plaintiffs cite no authority that has applied Carvalho‘s requirement to some claims under § 1681i and not to others. The cases they cite do not support their proposed rule because the presence of inaccuracies was not disputed in those cases. Plus, courts in this district have found that an actual inaccuracy is an element of all claims under § 1681i. The plaintiffs are therefore required to allege not only that they believed Equifax reported an inaccuracy in their credit files, but also that the reporting actually was inaccurate.