9th Cir. Says FCRA Plaintiff Complaining About Post-Discharge Reporting of Auto Loan Failed Art. III Standing Requirements

In Hogue v Silver State Schools Credit Union, the Court of Appeals for the Ninth Circuit affirmed dismissal of an FCRA case due to lack of Article III standing.

First, Hogue has not shown actual harm to his concrete interests. The district court found that “no third parties made an adverse credit decision as to [Hogue] based on this disputed information.” When DirecTV conducted a “soft inquiry” on Hogue’s credit report, there is no evidence the inquiry included the disputed Silver State account information, but even if it had, there was no harm: Hogue became a DirecTV customer. When the account came up in Hogue’s 2012 work background check, there was no harm: Hogue’s job was not affected. And although Hogue feared the account would be considered again in his 2017 work background check, it “fell off” his credit report one year before the background check. As for other damages, the district court discounted Hogue’s claims of out- of-pocket expenses and emotional distress because he did not provide supporting evidence of those damages and could not show that his expenses and distress were the result of an FCRA violation. Second, Hogue has not shown a material risk of harm to his concrete interests. The district court found that Hogue “failed to show Experian disclosed the disputed credit information to a third party.” Although, as we held in Ramirez v. TransUnion, 951 F.3d 1008, 1027 (9th Cir. 2020), actual dissemination to a third party is not always required to establish standing under the FCRA, the plaintiff still must show a risk that the disputed information could be disseminated and that such dissemination would present a material risk of harm to his concrete interests. Here, there was no risk of dissemination to third parties. As the district court found, the “disputed, negative information at issue here was not published in a consumer report, viewable b[y] third parties.” And even if there was a risk of dissemination, Hogue did not allege a material risk that such dissemination would harm him. Although Hogue’s consumer disclosure report listed the Silver State account as “past due,” it also described the account as having been discharged by Hogue’s bankruptcy. Thus, the district court found that the inclusion of the account was not “materially misleading.”