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Martin Flumenbaum and Brad S. Karp Martin Flumenbaum and Brad S. Karp

In Kidd v. Thomson Reuters, No. 17-3550, 2019 WL 2292190 (2d Cir. May 30, 2019), the U.S. Court of Appeals for the Second Circuit determined for the first time that an entity must specifically intend to furnish a “consumer report” to qualify as a consumer reporting agency under the Fair Credit Reporting Act (FCRA). In a unanimous opinion, written by Judge Guido Calabresi, and joined by Judges Christopher F. Droney and Stefan R. Underhill (sitting by designation), the Second Circuit held that the specific and subjective intent to act as a consumer reporting agency is required to bring such an entity within the purview of the FCRA.

Background

Lindsey Kidd applied for a job with the Georgia State Department of Public Health (the department) and part of the application process included passing a background check. Kidd was informed that she was a top candidate for the job and received an expected start date, pending the results of her background check. Kidd’s background check was conducted using Thomson Reuters’s research platform, Consolidated Lead Evaluation and Reporting (CLEAR). The CLEAR report inaccurately indicated that Kidd had a previous conviction for theft. Relying on the report, the department rejected Kidd’s application and informed Kidd that she would no longer be considered for the position because of the purported theft conviction.

 

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