In Pintos v. Pacific Creditors Ass’n, 2011 WL 3880411 (N.D.Cal. 2011), Judge Wilken addressed Plaintiff’s summary judgment on her claim alleging a negligent violation of FCRA. The procedural history is as follows:
In its original motion for summary judgment, PCA asserted that, by obtaining Plaintiff’s credit report to collect on the deficiency, it did so in connection with the “collection of an account,” as provided under 15 U.S.C. § 1681b(a)(3)(A). On November 9, 2004, the Court granted PCA’s motion for summary judgment, concluding that PCA had a legally permissible purpose when it obtained Plain-tiff’s credit report. ¶ The Ninth Circuit reversed the Court’s judgment, concluding that § 1681b(a)(3)(A) applies only when a consumer’s credit report is furnished in connection with a credit transaction initiated by the consumer. Pintos v. Pac. Creditors Ass’n, 605 F.3d 665, 675–76 (9th Cir.2010). Because Plaintiff had not initiated the credit transaction, inasmuch as she did not ask P & S Towing to tow the vehicle, the Ninth Circuit held that § 1681b(a)(3)(A) did not apply. Id. at 676. Petitions for rehearing en banc were denied; seven circuit judges dissented from the denial. See generally Pintos, 605 F.3d at 670–72. On June 1, 2010, the Ninth Circuit’s mandate issued. ¶ Plaintiff has dismissed her claim against PCA for a willful violation of FCRA. She asserts only a claim against PCA for a negligent violation of the statute.
Judge Wilken denied Plaintiff’s summary judgment motion, explaining the standards set forth by the SCOTUS in Safeco:
The FCRA does not define what constitutes negligence. However, under common law principles, negligence refers to “conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm.” Restatement (Second) of Torts § 282. The “standard of conduct required to avoid negligence [is] that of a reasonably prudent person under similar circumstances .” Almaraz v. Universal Marine Corp., 472 F.2d 123, 124 (9th Cir.1972). “In order that an act may be negligent it is necessary that the actor should realize that it involves a risk of causing harm to some interest of another.” Restatement (Second) of Torts § 289, cmt. b. An actor is deemed to have knowledge of what a reasonable person would know at that time under the circumstances. See, e.g., Martin v. Cincinnati Gas & Elec. Co., 561 F.3d 439, 444 (6th Cir.2009) (citing Restatement (Second) of Torts § 290). “ ‘[I]n determining whether conduct is negligent, the customs of the community, or of others under like circumstances, are factors to be taken into account but are not controlling where a reasonable man would not follow them.’ “ Oregon ex rel. State Highway Comm’n v. Tug Go–Getter, 468 F.2d 1270, 1275 n. 4 (9th Cir.1972) (quoting Restatement (Second) of Torts § 295(A)). Absent contrary congressional intent, negligence must be given its common law meaning. Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 58, 127 S.Ct. 2201, 167 L.Ed.2d 1045 (2007) (citing Beck v. Prupis, 529 U.S. 494, 500–01, 120 S.Ct. 1608, 146 L.Ed.2d 561 (2000)). ¶ Plaintiff reads Safeco, a case in which the Supreme Court determined what constitutes a willful violation of the FCRA, to create a negligence standard that deviates from the common law. Plaintiff argues that, under Safeco, a defendant negligently violates the FCRA if it “obtains a credit report under a reasonable but erroneous construction of the FCRA.” . . . ¶ This language does not reflect a departure from negligence’s common law definition. Safeco did not substantively address negligence under the FCRA, let alone dispense with the term’s common law mean-ing. The Court simply stated that, to commit a willful violation of the FCRA, a company’s action must: (1) be a violation under a reasonable reading of the stat-ute and (2) exhibit “a risk of violating the law substantially greater than the risk associated with a reading that was merely careless.” In other words, a careless reading, on its own, does not suffice to show recklessness. However, a corollary of this principle is not, as Plaintiff insists, that a reasonable but erroneous reading must be deemed negligent. Such a standard would eliminate the reasonableness inquiry generally associated with negligence and make negligence in the context of the FCRA akin to strict liability. Plaintiff identifies no congressional intent to create such a standard. Although she cites congressional findings made in support of the statute, none of them evinces an intent to displace the common law definition of negligence. See 15 U.S.C. § 1681(a)(1) and (4). Giving negligence its common law meaning, the proper inquiry in this case is whether a reasonably prudent collection agency would have, in December 2002, obtained Plaintiff’s consumer credit report to collect on a towing deficiency, despite the FCRA and authority interpreting the statute at that time. ¶ As Safeco noted, “The actor’s conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.” 551 U.S. at 69 (quoting Restatement (Second) of Torts § 500). In other words, the distinction between willful and negligent conduct is the degree of unreasonable risk of harm created by the actor’s conduct. Thus, while evidence that a defendant’s reading of the FCRA was objectively unreasonable may be probative of both a willful and negligent violation, this does not mean that the two are the same. Indeed, as Safeco suggests, a merely careless reading of the statute may be insufficient to constitute a willful violation, but may support liability for a negligent violation. ¶ Finally, Plaintiff points to Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, which concerned the Fair Debt Collection Practices Act ( FDCPA). ––– U.S. ––––, ––––, 130 S.Ct. 1605, 1624, 176 L.Ed.2d 519 (2010). Unlike the FCRA, the FDCPA is a strict liability statute; however, “it excepts from liability those debt collectors who satisfy the ‘narrow’ bona fide error defense.” McCollough v. Johnson, Rodenburg & Lauinger, LLC, 637 F.3d 939, 948 (9th Cir.2011). In Jerman, the Supreme Court concluded that a debt collector could not assert a mistakeof-law defense under the bona fide error provision of the FDCPA. 130 S.Ct. at 1624. This principle is inapplicable here. As Safeco teaches, a reasonable, but mistaken, reading of the FCRA can preclude liability.