by Jeff Sovern
As I prepare to teach consumer law in the spring, I’m leaning towards adding a new case to the course, Bibbs v. TransUnion, LLC, 43 F.4th 331 (3rd Cir. 2022). First, take a look at what the court called a snapshot of the plaintiff’s credit report:
Do you understand it (if it’s hard to read because of its size, try zooming in on your browser)? If not, you may not be a reasonable reader, the standard the Bibbs court applied in determining that the credit report satisfied the FCRA’s accuracy requirement for credit bureaus.
The FCRA requires that credit bureaus “follow reasonable procedures to assure maximum possible accuracy of the information . . . .” Plaintiffs in Bibbs claimed that the report did not meet that requirement because the report indicated on the one hand that the account had been closed and that the plaintiff didn’t owe anything and on the other that the account was 120 days past due. They argued that if nothing was owed, the account could not be past due. Bibbs rejected plaintiff’s accuracy argument, concluding that while courts should ask whether a reasonable reader would find the report misleading, such a reasonable reader would not find that particular report misleading. A reasonable reader, the court found, would understand from the entirety of the report that the account had been 120 days past due when it was closed and that nothing was currently due precisely because the account had been closed. Accordingly, the court reasoned, the credit report met the maximum possible accuracy requirement.
I think the case worth teaching for several reasons. One is the adoption of the reasonable reader standard. The court rejected the argument that courts should use the reasonable creditor standard because the text of the statute refers to “any person” (but wouldn’t “any person” also include unreasonable readers? And does this illustrate the limits of the plain meaning approach to statutory interpretation? But I digress). Another is that it enables students to see what credit reports look like, how courts interpret them, and just how much clarity maximum accuracy does or does not require. The court acknowledged that the report could have been clearer but didn’t see that as an issue; in other words, maximum accuracy does not require maximum clarity in the court’s view. A third is that the court concludes discovery on the issue is not necessary, which suggests that courts will be able to decide these cases on motion before discovery has taken place, making litigation in such cases cheaper.