One of 2017’s more significant Fair Credit Reporting Act court opinions was the Ninth Circuit’s January 20 decision in Syed v. M-I, LLC, a putative FCRA class action. In its decision, the Ninth Circuit Court of Appeals held that a prospective employer willfully violated the FCRA by including a liability waiver in its background check disclosure form. The Court’s pronouncement was significant because it was, in a case of first impression, an appellate ruling that a particular course of conduct was willful violation of the statute as a matter of law.

The underlying case concerned a pre-employment background check disclosure form that included a waiver to discharge and release M-I from any potential liability related to the background check process. The district court dismissed the claims, finding there were insufficient allegations of willfulness. The Ninth Circuit reversed, relying on Section 1681b(b)(2)(A)’s “unambiguous” language that a disclosure must consist “solely of the disclosure.”

After the Ninth Circuit denied a request for rehearing, M-I, in papers filed in June, sought review by the Supreme Court, arguing Syed lacked standing and that the Ninth Circuit’s willfulness holding was incorrect. M-I argued the case raised important issues for the industry. The case also drew a handful of amicus briefs.

On November 13, in a miscellaneous orders list, the Supreme Court denied M-I’s petition for certiorari, providing no explanation for its reason for doing so. As such, the Ninth Circuit’s decision stands as the pronouncement of the issue of willfulness in the case.

We will continue monitoring and reporting on the FCRA issue of willfulness and on further developments in this case, which now returns to the district court for further adjudication.