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Safeco Insurance Company of America, et al. v. Charles Burr, et al.
No. 06-84
    Safeco Insurance Company of America, et al. v. Charles Burr, et al.
    (Argued with GEICO General Insurance Company, et al. v. Ajene Edo)


    Fair Credit Reporting Act, Willful Violation, Mens Rea, Consumer Credit, Adverse Action
    In 06-100:

    The Fair Credit Reporting Act ("FCRA" or the "Act") requires a user of consumer credit information to notify a consumer when the consumer has been treated adversely on the basis of his or her credit information. To enforce this requirement, Congress provided two tiers of civil remedies. Under section 1681o of the Act, if a consumer shows that a user's failure to send an adverse-action notice was negligent, the consumer is entitled to recover actual damages. But under section 1681n of the Act, if the consumer makes a higher showing and proves that the user's failure to send an adverse-action notice was "willful," the consumer is entitled to recover statutory damages between $100 and $1,000 (in lieu of actual damages) and punitive damages.

    A conflict exists between the Fourth, Fifth, Sixth, Seventh, and Eighth Circuits, and the Third and (now) Ninth Circuits over the mens rea required for a "willful" violation of FCRA. Separating itself from any other circuit to have decided the issue and compounding the circuit split, the Ninth Circuit held that a company may be deemed to have acted recklesslyand thereby willfully under the Actif the company relied, even in good faith, upon an interpretation of the Act that a court later determines to be "unreasonable []," "implausible," "creative," or "untenable," even if that interpretation was derived from a legal opinion that the company sought for the very purpose of ensuring compliance with the law.

    Two questions are presented:

  1. Whether the Ninth Circuit's construction of "willfully" under section 1681n of FCRA impermissibly permits a finding of willfulness to be based upon nothing more than negligence, gross negligence, or a completely good-faith but incorrect interpretation of the law, and upon conduct that is objectively reasonable as a matter of law, rather than requiring proof of a defendant's knowledge that its conduct violated FCRA or, at a minimum, recklessness in its subjective form?

  2. Whether the Ninth Circuit improperly expanded section 1681m of FCRA by holding that an "adverse action" has occurred and notice is required thereunder, even when a consumer's credit information has had either no impact or a favorable impact on the rates and terms of the insurance that would otherwise have been offered or provided?
    In 06-84:

    Whether the Ninth Circuit erred in holding that a defendant can be found liable for a "willful" violation of the Fair Credit Reporting Act (FCRA) upon a finding of "reckless disregard" for FCRA's requirements, in conflict with the unanimous holdings of other circuits that "willfulness" requires actual knowledge that the defendant's conduct violates FCRA.


  • Docket Sheet From the U.S. Supreme Court.
  • Northwestern University - Medill School of Journalism: On the Docket
Counsel of Record

For Petitioners Safeco, et al.:

Michael K. Kellogg
Kellogg, Huber, Hansen, Todd,
Evans & Figel, P.L.L.C.

Washington, DC
For Respondents Burr, et al.:
Scott A. Shorr
Stoll Stoll Berne Lokting & Schlachter PC
Portland, OR


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