The Fair Credit Reporting Act allows persons to access a consumer’s credit report it they have a “legitimate business need for the information . . . in connection with a business transaction that is initiated by the consumer.” 15 U.S.C. § 1681b(a)(3)(F). In a case decided by the Ninth Circuit today in Bultemeyer v. CenturyLink, competing concurrences offered different views as to what it means for a consumer to initiate a transaction–though it ultimately proved irrelevant as both judges agreed that any violation was not objectively unreasonable, and thus non-willful.
Lydia Bultemeyer started, but did not complete, the process for ordering services from CenturyLink–leaving the transaction before CenturyLink provided pricing information. CenturyLink nonetheless pulled her credit report. Bultemeyer then brought a putative class action against CenturyLink for violating the FCRA. CenturyLink responded that it was entitled to access the credit report as Bultemyer had “initiated” a business transaction. After a jury entered a $140 million verdict in favor of the plaintiff class, CenturyLink appealed.
On appeal, in a per curiam opinion, the Ninth Circuit reversed, holding that CenturyLink was protected by the safe harbor recognized in Safeco Insurance Co. of America v. Burr, 551 U.S. 47 (2007), which prevents a finding of a willful violation of the FCRA where a defendant establishes that (1) its reading has “a foundation in the statutory text,” (2) it has construed a provision without “the benefit of guidance from the courts of appeals,” and (3) no agency’s “authoritative guidance” “might have warned it away” from its construction. The panel recognized that the statute did not find the term “initiated,” that no court of appeals had addressed the question, and that a 1998 informal FTC staff opinion directed at automobile sellers was not sufficiently specific to provide CenturyLink notice.
The per curiam opinion explicitly did not resolve whether the FCRA had indeed been violated in this case. And two concurring opinions provided different answers–and disagreed as to whether it was appropriate for the court not to answer the question. Judge Clifton agreed that it was appropriate to not resolve the question, while indicating he would have held that “once an online shopper has expressed sufficient interest in a service or product by voluntarily visiting a company’s website and completing all but the final step of a multi-step process required to purchase that service or product, she has initiated a business transaction within the meaning of FCRA.” Judge Bybee, on the other hand, thought it was unwise for the panel to not answer the statutory question, suggesting that the Court should not have reached the Safeco question without first answering the statutory question. And, in his view, “that initiating a ‘business transaction’ is closer to some form of offer and acceptance than comparison shopping.” Since the plaintiff had not even gotten a price yet, he would have held, she had not “initiated” a transaction.
