In Ramirez v. Trans Union, LLC, — F.Supp.2d —-, 2012 WL 4954120 (N.D.Cal. 2012), Judge Corley found no impediment to a Plaintiff maintaining a class action under both FCRA and the CCRAA. The Action arose from a CRA’s alleged failure to include OFAC alerts in credit reports provided to consumers, even though such OFAC alerts allegedly appeared in consumer reports provided to potential providers of credit.
Defendant is a credit reporting agency that sells consumer reports about millions of consumers every year. (Dkt. No. 1 ¶¶ 6–7.) Such reports sometimes include what is known as an “OFAC alert.” An OFAC alert “is a specific type of data provided by consumer reporting agencies on credit reports signifying that the subject of the report is purportedly included in the list of the Office of Foreign Assets Control, Specifically Designated National and Blocked Persons, which includes terrorists, money launderers and narcotic traffickers.” (Id. ¶¶ 15–16.) Defendant fails to include in a consumer’s files an OFAC alert that Defendant reports about that consumer to a third party. . . .Plaintiff was denied an auto loan after Defendant provided an inaccurate consumer report to a car company, Dublin Nissan (“Nissan”), on or about February 27, 2011. (Id. ¶¶ 48–49, 55.) The consumer report Defendant provided to Nissan included an OFAC alert, suggesting that Plaintiff is listed as a specially designated or blocked person. (Id. ¶¶ 52–53.) Defendant created the OFAC alert by using a “name only” matching system comparing Plaintiff’s name against OFAC’s database. (Id. ¶¶ 15–16.) Defendant included the alert because two names similar to Plaintiff’s are in the OFAC database: “Sergio Humberto Ramirez Aguirre” and “Sergio Alberto Cedula Ramirez Rivera.” (Id. ¶ 54.) Plaintiff, in fact, is not an individual included on the OFAC list, and is not related to either of the two individuals in the database. (Id. ¶ 54.) ¶ When Plaintiff called Defendant to complain and request a copy of his consumer file, Defendant indicated that his consumer file did not include an OFAC alert and he could not dispute information that did not appear in his file. (Id. ¶ ¶ 56–57.) At Plaintiff’s request, Defendant subsequently mailed Plaintiff a copy of his consumer file, dated February 28, 2011. The file did not include any OFAC information.” (Id. ¶¶ 58–62.) A few days later Plaintiff received a letter from Defendant advising him of the names, location, and birth date of those on the OFAC list who are considered a potential match to Plaintiff. (Id. ¶¶ 65–67.)
The District Court found no pre-emption by the Federal Anti-Terrorism laws. Nor did the the District Court find any impediment to simultaneously maintaining FCRA and CCRAA causes of action.
Defendant first argues that Plaintiff’s CCRAA claims are barred by the plain language of the CCRAA itself. The Act provides that “[a] ny consumer reporting agency or user of information against whom an action brought pursuant to Section 1681n or 1681o of Title 15 of the United States Code is pending shall not be subject to suit for the same act or omission under Section 1785.31.” FN2 Cal. Civil Code § 1785.34(a). Defendant argues that Plaintiff’s CCRAA claims are barred because the FCRA claims “are pending” by virtue of having been filed in this case, or, in the alternative, were pending when Plaintiff filed a FCRA action in the Eastern District of Pennsylvania which he dismissed without prejudice before filing this action. ¶ The only California appellate court to address § 1785.34(a) held that it does not bar simultaneously filed claims. Cisneros v. U.D. Registry, Inc., 39 Cal.App.4th 548, 581, 46 Cal.Rptr.2d 233 (1995). The court “agree[d] with the trial court’s assessment” that the “plain meaning” of § 1785.34(a) applies to “a circumstance where there is a prior action pending under the federal law, and someone brings a later action under the state law.” Id. (internal quotation marks and citation omitted). This Court is required to follow Cisneros absent “convincing evidence” the California Supreme Court would hold otherwise. Carvalho v. Equifax Info. Services, LLC, 629 F.3d 876, 889 (9th Cir.2010); see also Alvarez v. Chevron Corp., 656 F.3d 925, 932 n. 7 (9th Cir.2011) (holding that the federal court was bound by a decision of the California Court of Appeal because there was no contrary California Supreme Court case on point and no convincing evidence that the California Supreme Court would reach a decision contrary to that of the California Court of Appeal). Thus, in Guillen v. Bank of America Corp., 2011 WL 4071996 *4 (N.D.Cal. Aug.31, 2011), the district court relied on Cisneros to deny defendants’ motion to dismiss a CCRAA claim that was filed simultaneously with FCRA claims. The court reasoned that it “must defer to the interpretation of the California Court of Appeal [in Cisneros ] absent convincing evidence the California Supreme Court would decide the matter differently.” Id. This Court must do the same. ¶ Defendant’s reliance on Drew v. Equifax Info. Servs., LLC, 2009 WL 595459 *11 (N.D.Cal. Mar.5, 2009) is unavailing. Although the court applied § 1785.34(a) to dismiss plaintiff’s concurrently pled CCRAA claims as “duplicative,” 2009 WL 595459 at *11, order vacated in part on reconsideration, 2010 WL 1136434 (N.D.Cal. Mar.20, 2010) aff’d in part, rev’d in part, 690 F.3d 1100 (9th Cir.2012), the court did not did not mention, let alone address, Cisneros. The trial court’s decision in Legge v. Nextel Commc’ns., Inc., 2004 WL 5235587 (C.D.Cal. June 25, 2004), is unpersuasive for the same reason. Id. at *12 n. 16 (stating while considering a class certification motion that § 1785.34(a) “bar[s] dual recovery” without mentioning Cisneros ). Regardless of whether Defendant’s interpretation of § 1785.34(a) is reasonable, or even the “most logical,” this Court is bound by Cisneros absent convincing evidence the California Supreme Court would rule otherwise. Defendant offers none.