united-states consumer-protection arbitration credit-report
Is arbitration an &quot;action or proceeding&quot;?
<p>Section 1681h of the Fair Credit Reporting Act grants limited qualified immunity to creditors, stating that:</p>
<blockquote>
<p>[...] no consumer may bring any <em>action or proceeding</em> in the nature of defamation, invasion of privacy, or negligence [...] except as to false information furnished with malice or willful intent&quot;</p>
</blockquote>
<p>It is well-established that such claims are prohibited in litigation. However, this statute was drafted in mid-1990s, prior to the ubiquity of arbitration clauses in consumer contracts. Does 1681h prohibit a consumer from stating such a claim in arbitration?</p>

<p>The statute referenced, <a href="https://www.ftc.gov/system/files/documents/statutes/fair-credit-reporting-act/545a_fair-credit-reporting-act-0918.pdf" rel="nofollow noreferrer">15 USC 1681h(e)</a> (which is Section 610 of the Act), states:</p>
<blockquote>
<p>(e) Limitation of liability. Except as provided in sections 616 and
617 [§§ 1681n and 1681o] of this title, no consumer may bring any
action or proceeding in the nature of defamation, invasion of privacy,
or negligence with respect to the reporting of information against any
consumer reporting agency, any user of information, or any person who
furnishes information to a consumer reporting agency, based on
information disclosed pursuant to section 609, 610, or 615 [§§ 1681g,
1681h, or 1681m] of this title or based on information disclosed by a
user of a consumer report to or for a consumer against whom the user
has taken adverse action, based in whole or in part on the report,
except as to false information furnished with malice or willful intent
to injure such consumer.</p>
</blockquote>
<p>The referenced remedies (and one additional section) are as follows:</p>
<blockquote>
<p>§ 616. Civil liability for willful noncompliance [15 U.S.C. § 1681n]</p>
<p>(a) In general. Any person who willfully fails to comply with any
requirement imposed under this title with respect to any consumer is
liable to that consumer in an amount equal to the sum of</p>
<p>(1) (A) any actual damages sustained by the consumer as a result of
the failure or damages of not less than $100 and not more than $1,000;
or</p>
<p>(B) in the case of liability of a natural person for obtaining a
consumer report under false pretenses or knowingly without a
permissible purpose, actual damages sustained by the consumer as a
result of the failure or $1,000, whichever is greater;</p>
<p>(2) such amount of punitive damages as the court may allow; and</p>
<p>(3) in the case of any successful action to enforce any liability
under this section, the costs of the action together with reasonable
attorney’s fees as determined by the court.</p>
<p>(b) Civil liability for knowing noncompliance. Any person who obtains
a consumer report from a consumer reporting agency under false
pretenses  or knowingly without a permissible purpose shall be liable
to the consumer reporting agency for actual damages sustained by the
consumer reporting agency or $1,000, whichever is greater.</p>
<p>(c) Attorney’s fees. Upon a finding by the court that an unsuccessful
pleading, motion, or other paper filed in connection with an action
under this section was filed in bad faith or for purposes of
harassment, the court shall award to the prevailing party attorney’s
fees reasonable in relation to the work expended in responding to the
pleading, motion, or other paper.</p>
<p>(d) Clarification of willful noncompliance. For the purposes of this
section, any person who printed an expiration date on any receipt
provided to a consumer cardholder at a point of sale or transaction
between December 4, 2004, and the date of the enactment of this
subsection but otherwise complied with the requirements of section
605(g) for such receipt shall not be in willful noncompliance with
section 605(g) by reason of printing such expiration date on the
receipt.</p>
<p>§ 617. Civil liability for negligent noncompliance [15 U.S.C. § 1681o]</p>
<p>(a) In general. Any person who is negligent in failing to comply with
any requirement imposed under this title with respect to any consumer
is liable to that consumer in an amount equal to the sum of</p>
<p>(1) any actual damages sustained by the consumer as a result of the
failure; and</p>
<p>(2) in the case of any successful action to enforce any liability
under this section, the costs of the action together with reasonable
attorney’s fees as determined by the court.</p>
<p>(b) Attorney’s fees. On a finding by the court that an unsuccessful
pleading, motion, or other paper filed in connection with an action
under this section was filed in bad faith or for purposes of
harassment, the court shall award to the prevailing party attorney’s
fees reasonable in relation to the work expended in responding to the
pleading, motion, or other paper.</p>
<p>§ 618. Jurisdiction of courts; limitation of actions [15 U.S.C. §
1681p]</p>
<p>An action to enforce any liability created under this title may be
brought in any appropriate United States district court, without
regard to the amount in controversy, or in any other court of
competent jurisdiction, not later than the earlier of (1) 2 years
after the date of discovery by the plaintiff of the violation  that is
the basis for such liability; or (2) 5 years after the date on which
the violation that is the basis for such liability occurs.</p>
</blockquote>
<p>The intent of Section 610(e) is to make Section 616 and 617 the exclusive remedies for a violation of the Act, without regard to common law.</p>
<p>Normally, there would not be a contract between a consumer and either a credit reporting agency or a user of a report from a credit reporting agency, in which an arbitration clause could be inserted, although arbitration was compelled in one recent case against an employer with an arbitration clause in the face of an argument that the dispute involved pre-contractual conduct of the parties. <em>Alvarado v. Lowe’s Home Centers, LLC,</em> 18-cv-03591, 2018 WL 6697181 (N.D. Cal. June 15, 2018). See also <a href="https://www.manatt.com/Manatt/media/Documents/Articles/Peterson-v-Lyft,-Inc.pdf" rel="nofollow noreferrer">Peterson v. Lyft, Inc.</a>.</p>
<p>But there would often be a contract between the consumer and a business that makes a credit report to the credit reporting agency, and that contract would often contain an arbitration clause. In those cases, arbitration is allowed, but there can be issues over whether the scope of the arbitration agreement includes credit reporting disputes. These tend to be resolved in favor of the party seeking arbitration, however, as was in the case in the 11th Circuit decision in <em><a href="https://www.consumerfinancialserviceslawmonitor.com/2021/04/compelling-arbitration-the-eleventh-circuit-court-of-appeals-reverses-and-remands-a-district-court-holding-denying-defendants-motion-to-compel-arbitration-in-an-fcra-case/" rel="nofollow noreferrer">Hearn v. Comcast Cable Communications, LLC</a></em>.</p>
<p>An arbitration clause that purported to change the substantive law of the FCRA would probably be declared invalid. But if the arbitrator, in fact, ignored the clear terms of the FCRA and ruled incorrectly, there would be no way for the consumer to challenge the ruling.</p>
