NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 25 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JESUS JARAS, No. 17-15201
Plaintiff-Appellant, D.C. No. 5:16-cv-03336-LHK
v.
MEMORANDUM*
EQUIFAX INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Lucy H. Koh, District Judge, Presiding
WILBUR GREEN, No. 17-15987
Plaintiff-Appellant, D.C. No. 3:16-cv-05679-WHA
v.
EXPERIAN INFORMATION
SOLUTIONS, INC.; et al.,
Defendants-Appellees.
HOWARD RYDOLPH, No. 17-15990
Plaintiff-Appellant, D.C. No. 3:16-cv-05694-WHA
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
v.
EXPERIAN INFORMATION
SOLUTIONS, INC.; et al.,
Defendants-Appellees.
KIMBERLY CONTRERAS, No. 17-15991
Plaintiff-Appellant, D.C. No. 3:16-cv-06315-WHA
v.
EXPERIAN INFORMATION
SOLUTIONS, INC.; et al.,
Defendants-Appellees.
SCOTT HUNTER, No. 17-15992
Plaintiff-Appellant, D.C. No. 3:16-cv-06335-WHA
v.
EXPERIAN INFORMATION
SOLUTIONS, INC.; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
William Alsup, District Judge, Presiding
Argued and Submitted September 5, 2018
San Francisco, California
2
Before: BERZON and FRIEDLAND, Circuit Judges, and DOMINGUEZ, **
District Judge.
The Plaintiffs in these related cases—Wilbur Green, Howard Rydolph,
Kimberly Contreras, Scott Hunt, and Jesus Jaras (collectively, “Plaintiffs”)—filed
for bankruptcy between 2011 and 2014 under Chapter 13 of the Bankruptcy Code.
After the bankruptcy court confirmed their Chapter 13 plans, Plaintiffs requested
their credit reports and noticed that some account information was being reported
in a manner that they allege is inconsistent with the treatment of those claims in
their confirmed bankruptcy plans. Plaintiffs asked the three largest credit reporting
agencies—Experian Information Solutions, Inc., Equifax, Inc., and Transunion,
LLC—to update the information to match their confirmed bankruptcy plans. But
when Plaintiffs requested their credit reports again after allowing the credit
reporting agencies adequate time to reinvestigate and update the information, they
allege that several inaccuracies remained.
Plaintiffs subsequently sued credit reporting agencies and creditors
providing the allegedly inaccurate information under the federal Fair Credit
Reporting Act (“FCRA”), 15 U.S.C. § 1681s-2(b), and its California law
counterpart, the California Consumer Credit Report Agencies Act (“CCRAA”),
**
The Honorable Daniel R. Dominguez, United States District Judge for
the District of Puerto Rico, sitting by designation.
3
Cal. Civ. Code § 1785.25(a), alleging that a confirmed Chapter 13 bankruptcy plan
changes the legal status of prior debts, and that such changes must be reflected in
the credit report in order for the report to be accurate and not misleading. The
district courts granted Defendants’ motions to dismiss or for judgment on the
pleadings, holding that the challenged statements were not inaccurate so FCRA did
not require changing them. On review, we affirm the dismissal of these
complaints, but on the grounds that Plaintiffs—a group of individuals in
bankruptcy who gave no indication that they had tried to engage in or were
imminently planning to engage in any transactions for which the alleged
misstatements in their credit reports made or would make any material
difference—lack standing to pursue their claims.
In Spokeo, Inc. v. Robins, the Supreme Court held that a plaintiff does not
“automatically satisf[y] the injury-in-fact requirement whenever a statute grants a
person a statutory right and purports to authorize that person to sue to vindicate
that right.” 136 S. Ct. 1540, 1549 (2016). Rather, “Article III standing requires a
concrete injury even in the context of a statutory violation.” Id. The Supreme
Court offered a specific example to show that “not all inaccuracies cause harm or
present any material risk of harm”—stating that “[i]t is difficult to imagine how the
dissemination of an incorrect zip code, without more, could work any concrete
harm.” Id. at 1550. The Court then remanded to our court to determine whether
4
the alleged FCRA violations “entail[ed] a degree of risk sufficient to meet the
concreteness requirement.” Id.
On remand, we accordingly considered whether the alleged FCRA
violations—Spokeo’s publication on the internet of a credit report that falsely
stated the plaintiff’s age, marital status, wealth, education level, and profession, in
violation of 15 U.S.C. § 1681e(b)—were more material than a zip code error and
thus amounted to a sufficiently concrete injury to support Article III standing.
Robins v. Spokeo, Inc., 867 F.3d 1108, 1111 (9th Cir. 2017). The plaintiff alleged
that the inaccuracies harmed his chances of making a favorable impression on
prospective employers and that he was actively looking for a job. Id. at 1117. In
holding that the plaintiff did have standing, we emphasized that the inaccuracies in
the credit report at issue had already been requested and obtained by at least one
third party, and that they were of a type likely enough to cause harm to his
employment prospects at a time when he was unemployed and actively looking for
work. Id. at 1116-17.
By contrast, Plaintiffs here do not make any allegations about how the
alleged misstatements in their credit reports would affect any transaction they tried
to enter or plan to try to enter—and it is not obvious that they would, given that
Plaintiffs’ bankruptcies themselves cause them to have lower credit scores with or
without the alleged misstatements. They have therefore said nothing that would
5
distinguish the alleged misstatements here from the inaccurate zip code example
discussed by the Supreme Court in Spokeo. Indeed, Plaintiffs have not alleged that
they tried to enter any financial transaction for which their credit reports or scores
were viewed at all, or that they plan to imminently do so, let alone that the alleged
inaccuracies in their credit reports would make a difference to such a transaction.
Unlike the plaintiff in Spokeo, Plaintiffs did not say anything about what kind of
harm they were concerned about, other than making broad generalizations about
how lower FICO scores can impact lending decisions generally—without any
specific allegation that lower FICO scores impact lending decisions regarding
individuals who are already in Chapter 13 bankruptcy. Without any allegation of
the credit report harming Plaintiffs’ ability to enter a transaction with a third party
in the past or imminent future, Plaintiffs have failed to allege a concrete injury for
standing.1
1
The absence of allegations of an actual or imminent concrete harm also causes
Plaintiffs’ claims to be too amorphous to litigate. As the Supreme Court has
explained:
The gist of the question of standing is whether the party seeking relief has
‘alleged such a personal stake in the outcome of the controversy as to assure
that concrete adverseness which sharpens the presentation of issues upon
which the court so largely depends . . . [Standing] is demanded so that
federal courts will not be asked to decide illdefined controversies over . . .
issues . . . or a case which is of a hypothetical or abstract character.
Flast v. Cohen, 392 U.S. 83, 99-100 (1968) (citations and internal quotation marks
omitted).
6
The absence of allegations that Plaintiffs have suffered or imminently will
suffer a concrete injury compels dismissal of the Complaints in this case for lack of
standing. Spokeo, 136 S. Ct. at 1547-48. But such dismissals should be without
prejudice. See Missouri ex rel. Koster v. Harris, 847 F.3d 646, 656 (9th Cir. 2017)
(“Plaintiffs have not satisfied the requirements [for] . . . standing. In theory,
Plaintiffs could allege . . . facts that might support standing. As a result, the
complaint should have been dismissed without prejudice.”); Hampton v. Pac. Inv.
Mgmt. Co. LLC, 869 F.3d 844, 846 (9th Cir. 2017) (“Dismissals for lack of . . .
jurisdiction . . . must be without prejudice.”).
AFFIRMED in part and VACATED in part. REMANDED with instructions
to enter dismissals without prejudice.
7
FILED
Jaras v. Equifax, Inc., No. 17-15201+
MAR 25 2019
BERZON, Circuit Judge, partially dissenting: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I respectfully dissent from the majority’s holding that Plaintiffs have not
alleged a concrete injury sufficient to establish standing. The majority requires
Plaintiffs to allege that the inaccuracies in their credit reports affected a specific
previous or imminent transaction. No such requirement exists in our case law, nor
should it.
To plead a concrete injury in a FCRA action for correction of an inaccurate
credit report, individuals must allege that a violation of FCRA “actually harm[s],
or present[s] a material risk of harm” to their concrete interests. Robins v. Spokeo,
Inc., 867 F.3d 1108 (9th Cir. 2017). Nearly all Plaintiffs state that inaccuracies in
the reporting of their confirmed bankruptcy lowered their credit score. 1 Those
allegations satisfy the concrete harm requirement.
Unlike an erroneous zip code, see Spokeo, Inc. v. Robins, 136 S. Ct. 1540,
1550 (2016), the alleged inaccuracies in Plaintiffs’ credit reports harm or present a
material risk of harm to their concrete interests. Credit reports exist to convey
information to third parties and are used in a wide variety of transactions, from
1
Because Plaintiff Jaras did not sufficiently allege that inaccuracies in his credit
report adversely affected his creditworthiness, I concur with the majority that his
complaint should be dismissed.
1
applying for a home loan to purchasing a cell phone.2 In most instances, third
parties need not give notice before accessing an individual’s credit report, 15
U.S.C. § 1681b(2)(A) (requiring notice only when requesting credit reports for
employment purposes); and in some instances, third parties can access credit
reports without the consumer taking any action to instigate a transaction—pre-
screening individuals for offers of credit or insurance, for example. See 15 U.S.C.
§ 1681b(c)(1)(B). It is thus often difficult to predict when a credit report may be
accessed or to know when it has been accessed, and inaccuracies that are
discovered may take up to 30 days to investigate and correct. See 15 U.S.C.
§ 1681i(a)(1)(A).
Given their “ubiquity and importance . . . in modern life—in employment
decisions, in loan applications, in home purchases, and much more—the real–
world implications of material inaccuracies in [credit] reports seem patent on their
face.” Robins, 867 F.3d at 1114. That is because “[t]he threat to a consumer’s
livelihood is caused by the very existence of inaccurate information in his credit
report and the likelihood that such information will be important to one of the
many entities who make use of such reports.” Id.
2
See Beth Braverman, Getting a new cellphone? Expect a credit check,
Creditcards.com (Feb. 2, 2016), https://www.creditcards.com/credit-card-
news/cellphone-credit-check-1270.php.
2
As a result, adverse information on a credit report, often resulting in a lower
credit rating, constitutes a reputational injury creating a material risk of harm,
whether or not an individual contemplates a specific, imminent transaction. Our
decision on remand from the Supreme Court in Robins v. Spokeo, Inc. so
recognizes, and does not demand an allegation of known access by a third party or
of a past, or imminent, specific transaction. The plaintiff in Robins alleged only
that a website’s posting of inaccurate information about his personal life “caused
actual harm to [his] employment prospects” because he was “actively seeking
employment.” First Amended Complaint at ¶¶ 34-35, Robins, 867 F.3d 1108. He
did not state what specific transactions he was undertaking to look for
employment, or whether any prospective employer had looked at the allegedly
inaccurate reports.
Nonetheless, we held that he had alleged a sufficiently concrete injury to
establish standing. Id. at 1118. We did not require the plaintiff to be more specific
because we recognized that “determining whether any given inaccuracy in a credit
report would help or harm an individual (or perhaps both) is not always easily
done.” Id at 1117. Moreover, we rejected the argument that Robins lacked standing
because he had only “asserted that such inaccuracies might hurt his employment
prospects, but not that they present a material or impending risk of doing so.” Id. at
3
1118. We held that making available “a materially inaccurate consumer report”
was injury enough. Id.
Plaintiffs’ allegations in this case are just as specific and just as concrete as
the ones we accepted in Robins. For that reason, I would hold that Plaintiffs have
standing.
I note that establishing constitutional standing is separate from answering
the substantive question, as required by FCRA, of whether Plaintiffs’ credit reports
are “patently incorrect, or . . . misleading in such a way and to such an extent that it
can be expected to adversely affect credit decisions.” Gorman v. Wolpoff &
Abramson, LLP, 584 F.3d 1147, 1163 (9th Cir. 2009). The original dispute in this
case—before the panel asked for supplemental briefing on the standing issue—was
whether any error in those credit reports meets this standard, given that the
Plaintiffs’ pre-petition bankruptcy debts were not yet discharged and the Chapter
13 plans, even if accurately reported, might have the same consequences for future
transactions as the current reporting method. In my view, that bankruptcy-focused
issue is the one we should be addressing, as the plaintiffs do have standing. But as
the majority does not address this substantive question, I do not either.
I respectfully dissent.
4