In a case of first impression in its circuit, the Second Circuit held that a business may not be liable under the Fair Credit Reporting Act (FCRA) for publishing false information unless it specifically intended the report to be a “consumer report.” Kidd v. Thompson Reuters, —F.3d — (2019 WL 2292190, 5/30/19). It then held that  defendant Thompson Reuters established it did not have the requisite specific intent by showing that at each step in its processes it instructed its users and potential subscribers that its platform was not to be used for FCRA purposes, such as employment eligibility–but only for the non-FCRA purposes of law enforcement, fraud prevention and identity verification–and required them to affirm their understanding of that restriction. Accordingly, the Second Circuit Court of Appeals affirmed the granting of summary judgment to Thompson Reuters, even though its subscriber had used its inaccurate report to determine a job applicant’s employment eligibility.

The take-away: If your business regularly assembles consumer information, distributes it to third parties, and fears it may be used for a FCRA-related end that is not intended, your business should forbid such uses in its subscriber contract, monitor the actual uses of that information, and take adequate measures to stop FCRA-related uses when it learns of them.  

The Second Circuit  noted that other circuits have also held that a business may not be liable under the Fair Credit Reporting Act for publishing false information unless it specifically intended the report to be a “consumer report.”  Zabriskie v. Fed. Nat’l Mortg. Assoc., 912 F.3d 1192 (9th Cir. 2019)(Fannie Mae’s Desktop Underwriter platform is not a consumer report);  Tierney v. Advocate Health & Hosps. Corp., 797 F. 3d 449 (7th Cir. 2015)(computerized patient data).