In Krosch v. Equifax Info. Servs., LLC, No. 19-CV-2784 (NEB/KMM), 2020 U.S. Dist. LEXIS 99150, at *5-9 (D. Minn. June 5, 2020), Judge Brasel held that a consumer stated no FCRA claim against a CRA due to the CRA’s alleged failure not to report all furnishers’ tradelines.
Experian argues that the Complaint fails to allege either of these elements because the FCRA does not require CRAs to report every account or tradeline of a consumer; rather, the FCRA requires only that the information contained in a credit report be accurate. In 1990, and again in 2011, the FTC commented that CRAs “are not required to include all existing derogatory or favorable information about a consumer in their reports.” Statement of General Policy or Interpretation; Commentary on the Fair Credit Reporting Act, 55 Fed. Reg. 18804-01 (May 4, 1990) (“1990 Commentary”); Fed. Trade Comm’n, 40 Years of Experience with the Fair Credit Reporting Act: An FTC Staff Report with Summary of Interpretations, 67-68 (2011) (“Staff Summary”) available at https://www.ftc.gov/sites/default/files/documents/reports/40-years-experience-fair credit-reporting-act-ftc-staff-report-summary-interpretations/110720fcrareport.pdf. Courts have agreed. While the FTC’s commentary has no binding effect, the Eighth Circuit and other courts “have accorded it weight as a policy statement of the primary agency responsible for enforcing the FCRA.” Staff Summary at 6-7 (citing Davenport v. Farmers Ins. Grp., 378 F. 3d 839, 843 (8th Cir. 2004)). Relying on the commentary, then, courts have held that the “FCRA does not specifically require a reporting agency to affirmatively add credit data to a report.” Davis v. Equifax Info. Servs. LLC, 346 F. Supp. 2d 1164, 1171 (N.D. Ala. 2004) (citing 1990 Commentary at 492-519); see Hammer v. Equifax Info. Servs., LLC, No. 3:18-CV-1502-C, 2019 U.S. Dist. LEXIS 225460, 2019 WL 7602463, at *3 (N.D. Tex. Jan. 16, 2019) (dismissing FCRA claims based on CRA’s alleged failure to include consumers credit card account on his credit report, explaining “the FCRA does not impose an affirmative duty upon credit reporting agencies to include all relevant information about Plaintiff”). Krosch does not dispute Experian’s assertion that CRAs are not required to affirmatively add all credit data to a credit report. (Pl’s Br. at 8.) Instead, he argues that the “missing” Nationwide data makes the credit report misleading (and thus inaccurate) under § 1681e(b). (Id. at 8-9, see id. at 5 (citing Gorman v. Wolpoff & Abramson, LLP, 584 F.3d 1147, 1162 (9th Cir. 2009).) Courts in other jurisdictions have held that a credit report may be inaccurate under § 1681e(b) “either because it is patently incorrect, or because it is misleading in such a way and to such an extent that it can be expected to adversely affect credit decisions.” Sepulvado v. CSC Credit Servs., Inc., 158 F.3d 890, 896 (5th Cir. 1998) (finding CRA’s report may have been incomplete, but was not facially misleading or inaccurate when prepared); see Gorman, 584 F.3d at 1163 (“[A] credit entry can be ‘incomplete or inaccurate’ within the meaning of the FCRA ‘because it is patently incorrect, or because it is misleading in such a way and to such an extent that it can be expected to adversely affect credit decisions.'”). The Eighth Circuit has not decided this issue.”The Eighth Circuit has no binding precedent on whether a technically accurate but misleading report can qualify as inaccurate for the purposes of § 1681e(b) of the FCRA.” Beseke v. Equifax Info. Servs. LLC, 420 F. Supp. 3d 885, 901 (D. Minn. 2019); see Taylor v. Tenant Tracker, Inc., 710 F.3d 824, 827 n.2 (8th Cir. 2013) (“We do not agree with the district court that the ‘technical accuracy’ standard . . . states the law of this circuit.”). Courts in this district have been persuaded by the holdings of other circuits finding misleading reports or omissions actionable under the FCRA. E.g., Beseke, 420 F. Supp. 3d at 901 (finding plaintiff raised a triable issue of fact as to whether omitting information from a credit report “was sufficiently misleading to warrant a willful or negligent violation of § 1681e(b)”).The plain language of § 1681e(b) requires “maximum possible accuracy.” This high standard supports the FCRA‘s stated purpose of requiring CRAs to “adopt reasonable procedures for meeting the needs of commerce for consumer credit, personnel, insurance, and other information in a manner which is fair and equitable to the consumer, with regard to the confidentiality, accuracy, relevancy, and proper utilization of such information.” 15 U.S.C. § 1681(b) (emphasis added); see Wharram v. Credit Servs. Inc., No. 02-CV-4853 (MJD/JGL), 2004 U.S. Dist. LEXIS 8517, 2004 WL 1052970, at *2 (D. Minn. Mar. 12, 2004) (denying summary judgment where CRA deleted a disputed account from plaintiff’s credit report). Assuming the broader “materially misleading” standard applies, Krosch’s claim nonetheless fails. In his opposition brief, Krosch argues that Experian included credit-line inquiries made by Nationstar but failed to include the Nationstar mortgage account as a tradeline on his credit report. This, he maintains, renders the credit report incomplete and misleading. But “a credit report is not ‘inaccurate’ or ‘materially misleading’ simply because it does not mention a particular tradeline.” Desautel, 2020 U.S. Dist. LEXIS 80754, 2020 WL 2215736, at *3 (citing Hammer, 2019 U.S. Dist. LEXIS 225460, 2019 WL 7602463, at *2-*3, Davis, 346 F. Supp. 2d at 1171-72, n.10, n.11, Peterson v. Equifax Info. Servs., LLC, No. 1:16-CV-3528-WMR-LTW, 2018 U.S. Dist. LEXIS 222604, 2018 WL 7348859, at *8-*9 (N.D. Ga. Dec. 27, 2018)). Moreover, the Complaint fails to include any allegation relating to credit-line inquiries made by Nationstar; it merely alleges that Experian failed to include the Nationstar mortgage account on Krosch’s credit report, which Krosch effectively acknowledges is not, in itself, a violation of § 1681e(b). (See Pl’s Br. at 8 (“Plaintiff is not advocating that a CRA has an affirmative duty to report all information concerning a customer.” (emphasis in original).) The Complaint fails to allege any facts supporting a plausible inference that the information reported by Experian was materially misleading, and thus, inaccurate under § 1681e(b). As such, Experian’s motion to dismiss the § 1681e(b) claim is granted.