Court of Appeal (NJ) Says, with Colorful Language, that FCRA Pre-empts Defamation Claim — Malice or Not

In Dabney v. Total Relocation Services, LLC, Not Reported in A.3d, 2013 WL 68727 (N.J.Super.A.D. 2013), the New Jersey appellate court found, in an unpublished decision, complete preemption of common defamation claims by FCRA.

Having canvassed the vast array of judicial opinions dealing with FCRA preemption, we conclude that the straight forward total preemption approach of these courts of appeal is most faithful to Congress’s purpose in having a national system for credit reporting. We eschew other methodologies that require unnecessary and unwarranted legalistic gymnastics to parse the contorted and sometimes opaque language of the FCRA. To engage in an endless semantic misadventure just brings more complexity to an already arcane statute. We do not wish to contribute to the “disarray” that litters the decisional landscape. See Gorman, 584 F.3d at 1166. We elect to follow Macpherson and Purcell not because they are easy, but because they are correct. See Ilodianya v. Capital One Bank USA NA, 853 F.Supp.2d 772, 775 (E.D.Ark.2012) (declaring that “ Purcell and Macpherson are well reasoned and persuasive”). We also reject Dabney’s argument that Congress made a preemption distinction between state statutory and common law claims. See Premium Mortg. Corp. v. Equifax, Inc., 583 F.3d 103, 106–07 (2d Cir.2009) (stating that “[p]laintiff’s distinction between statutory and common-law claims under this section of the FCRA’s express preemption provision is … unpersuasive” and holding that the word “laws” in § 1681t(b) encompasses state statutory and common law claims). “Common law claims, by their nature, refine the contours of liability over time. And, with each state ruling on its own common law claims, national furnishers would likely be subject to inconsistent obligations in the various states.” Cosmas v. Am. Express Centurion Bank, 757 F.Supp.2d 489, 501 (D.N.J.2010). If such a crazy-quilt came to be, the congressional goal of ensuring consistent, accurate collection and dissemination of credit information would be compromised. Ibid.