Filed 4/19/22 Hebert v. Barnes & Noble, Inc. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or 

ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for 

purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

VICKI HEBERT,

Plaintiff and Appellant,

v.

BARNES & NOBLE, INC.,

Defendant and Respondent.

 D079038

 (Super. Ct. No. 37-2019-

00007178-CU-MC-CTL)

APPEAL from a judgment of the Superior Court of San Diego County, 

Gregory W. Pollack, Judge. Reversed and remanded.

Peter R. Dion-Kindem; The Blanchard Law Group and Lonnie C. 

Blanchard, III for Plaintiff and Appellant.

Quinn Emanuel Urquhart & Sullivan, Shon Morgan, Daniel C. Posner, 

and John W. Baumann for Defendant and Respondent.

I

INTRODUCTION

Vicki Hebert filed a putative class action against Barnes & Noble, Inc. 

(Barnes & Noble), alleging it willfully violated the Fair Credit Reporting Act 
2

(15 U.S.C. § 1681 et seq.; hereafter, the FCRA, or the Act). The FCRA 

requires an employer like Barnes & Noble to provide a job applicant like 

Hebert with a standalone disclosure stating that the employer may obtain 

the applicant’s consumer report when making a hiring decision. (15 U.S.C. 

§§ 1681a(h), 1681b(b)(1)(A).) According to Hebert, Barnes & Noble willfully 

violated the FCRA by providing job applicants with a disclosure that included

extraneous language unrelated to the topic of consumer reports.

Barnes & Noble filed a motion for summary judgment arguing that no 

reasonable jury could find its alleged FCRA violation was willful. It asserted 

it included the extraneous information in its disclosure due to an inadvertent 

drafting error. The trial court agreed with Barnes & Noble, granted the 

company’s motion for summary judgment, and entered judgment in the 

company’s favor. 

Unlike the trial court, we conclude a reasonable jury could find that 

Barnes & Noble’s alleged FCRA violation was willful. Based on the evidence 

presented in the proceedings below, a reasonable jury could find that Barnes 

& Noble acted willfully because it violated an unambiguous provision of the 

FCRA, at least one of the company’s employees was aware of the extraneous 

information in the disclosure before the disclosure was displayed to job 

applicants, the company may not have adequately trained its employees on

FCRA compliance, and/or the company may not have had a monitoring 

system in place to ensure its disclosure complied with the FCRA.

Because a reasonable jury could find that Barnes & Noble’s alleged 

FCRA violation was willful, we reverse the judgment and remand the matter 

with directions that the trial court vacate its order granting the motion for 

summary judgment and enter a new order denying the motion for summary 

judgment.
3

II

BACKGROUND

A

Fair Credit Reporting Act

“In 1970, Congress passed and President Nixon signed the Fair Credit 

Reporting Act. 84 Stat. 1127, as amended, 15 U.S.C. § 1681 et seq. The Act 

seeks to promote ‘fair and accurate credit reporting’ and to protect consumer 

privacy.” (TransUnion LLC v. Ramirez (2021) 141 S.Ct. 2190, 2200; see also 

15 U.S.C. § 1681(b) [“It is the purpose of this title ... to require that consumer 

reporting agencies adopt reasonable procedures for meeting the needs of 

commerce for consumer credit, personnel, insurance, and other information in 

a manner which is fair and equitable to the consumer, with regard to the 

confidentiality, accuracy, relevancy, and proper utilization of such 

information in accordance with the requirements of this title ....”].) To that 

end, “[t]he Act ‘imposes a host of requirements concerning the creation and 

use of consumer reports.’ ”1 (TransUnion, at p. 2200.)

Two of these requirements are codified in 15 U.S.C. section 

1681b(b)(2)(A). That statutory provision requires an “employer who obtains a 

consumer report about a job applicant first [to] provide the applicant with a 

standalone, clear and conspicuous disclosure of its intention to do so, and [to] 

1 The Act defines “consumer report” as “any written, oral, or other 

communication of any information by a consumer reporting agency bearing 

on a consumer’s credit worthiness, credit standing, credit capacity, character, 

general reputation, personal characteristics, or mode of living which is used 

or expected to be used or collected in whole or in part for the purpose of 

serving as a factor in establishing the consumer’s eligibility for– [¶] (A) credit 

or insurance to be used primarily for personal, family, or household purposes;

[¶] (B) employment purposes; or [¶] (C) any other purpose authorized under 

... [15 U.S.C. section 1681b].” (15 U.S.C. § 1681(d).)
4

obtain the applicant’s consent....” (Walker v. Fred Meyer, Inc. (9th Cir. 2020) 

953 F.3d 1082, 1086.) These disclosure and consent requirements are 

intended to “secur[e] job applicants’ privacy rights by enabling them to 

withhold authorization to obtain their consumer reports,” while also 

“promot[ing] error correction by providing applicants with an opportunity to 

warn a prospective employer of errors in the report before the employer 

decides against hiring the applicant on the basis of information contained in 

the report.” (Syed v. M-I, LLC (9th Cir. 2017) 853 F.3d 492, 497 (Syed).)

The disclosure and authorization requirements state in part as follows:

Disclosure to Consumer

[¶] ... [A] person may not procure a consumer report, or cause a 

consumer report to be procured, for employment purposes with 

respect to any consumer, unless–

(i) a clear and conspicuous disclosure has been made in 

writing to the consumer at any time before the report is 

procured or caused to be procured, in a document that 

consists solely of the disclosure, that a consumer report 

may be obtained for employment purposes; and

(ii) the consumer has authorized in writing (which 

authorization may be made on the document referred to in 

clause (i)) the procurement of the report by that person. 

(15 U.S.C. § 1681b(b)(2)(A).)

“The FCRA provides a private right of action against those who violate 

its statutory requirements in procuring and using consumer reports. The 

affected consumer is entitled to actual damages for a negligent violation.” 

(Syed, supra, 853 F.3d at p. 497, citing 15 U.S.C. § 1681o, italics added.) “For 

a willful violation, however, a consumer may recover statutory damages 

ranging from $100 to $1,000, punitive damages, and attorney’s fees and 

costs.” (Syed, at p. 497, citing 15 U.S.C. § 1681n, italics added.) 
5

Willful violations encompass both knowing statutory violations and 

reckless ones. (Safeco Ins. Co. of Am. v. Burr (2007) 551 U.S. 47, 56–60

(Safeco).) For purposes of the FCRA, the recklessness standard is the same 

as the common law recklessness standard from the civil liability sphere: 

recklessness involves “ ‘action entailing ‘an unjustifiably high risk of harm 

that is either known or so obvious that it should be known.’ ” (Id. at pp. 68, 

69.) Stated differently, a violation of the FCRA is reckless when the 

defendant runs “a risk of violating the law substantially greater than the risk 

associated with a ... merely careless” statutory violation. (Id. at p. 69.)

B

Hebert’s Job Application Process

In 2018, Hebert applied to work for Barnes & Noble. During the 

application process, Barnes & Noble’s consumer reporting agency, First 

Advantage, emailed Hebert a link to a website that displayed Barnes & 

Noble’s consumer report disclosure and requested her authorization to 

procure a consumer report. Hebert clicked the link, viewed the disclosure, 

and authorized Barnes & Noble to procure her consumer report. 

Barnes & Noble’s consumer report disclosure read as follows:

“[IMPORTANT -- PLEASE READ CAREFULLY BEFORE 

SIGNING AUTHORIZATION] DISCLOSURE REGARDING 

BACKGROUND INVESTIGATION

“Barnes & Noble, Inc. (‘the Company’) may obtain information 

about you for employment purposes from a third party consumer 

reporting agency such as First Advantage Background Services 

Corp. (‘First Advantage’), P.O. Box 105292, Atlanta GA 30348, 

1-800-845-6004. Thus, you may be the subject of a ‘consumer 

report’ and/or an ‘investigate consumer report’ which may include 

information about your character, general reputation, personal 

characteristics, and/or mode of living, and which can involve 

personal interviews with sources such as your neighbors, friends, 

or associates. You have the right, upon written request made 
6

within a reasonable time after receipt of this notice, to request 

disclosure of the nature and scope of any investigative consumer 

report. The scope of this notice and authorization is continuing 

allowing the Company to obtain consumer reports and 

investigative consumer reports now and throughout the course of 

your employment to the extent permitted by law.

“Please note: Nothing contained herein should be 

construed as legal advice or guidance. Employers should 

consult their own counsel about their compliance 

responsibilities under the FCRA and applicable state law. 

First Advantage expressly disclaims any warranties or 

responsibility or damages associated with or arising out 

of information provided herein.”

(Bolding added.)

The final paragraph of the disclosure (the bolded paragraph beginning 

with “Please note”) includes the extraneous information giving rise to the 

alleged FCRA violation at issue here.

C

Hebert’s Lawsuit

In 2019, Hebert sued Barnes & Noble on behalf of a putative class of 

individuals as to whom the company had procured or caused to procure a 

consumer report in the preceding five years. The operative complaint 

asserted a single cause of action for willful violation of the FCRA’s standalone 

disclosure requirement. It alleged the company willfully violated this

requirement because its consumer report disclosure contained extraneous 

information unrelated to the procurement of a consumer report. It sought

statutory damages, punitive damages, and attorney’s fees and costs. 

i

Barnes & Noble’s Motion for Summary Judgment

Barnes & Noble moved for summary judgment. It asserted it was 

entitled to judgment as a matter of law because Hebert could not establish 
7

one of the elements of her cause of action—namely, that Barnes & Noble’s 

violation of the standalone disclosure requirement was willful. Barnes & 

Noble argued the extraneous language in the disclosure was the result of an 

inadvertent drafting error that occurred while Barnes & Noble was revising 

the disclosure to ensure it complied with the FCRA. Additionally, Barnes & 

Noble argued it reasonably and in good faith relied on the advice of outside 

legal counsel when it included the extraneous language in its disclosure, thus 

precluding a finding of willfulness.2

Together with its motion for summary judgment, Barnes & Noble filed 

declarations and/or deposition testimony from the following individuals: 

(1) Allison Spivak, Director of Legal Affairs–Human Resources for Barnes & 

Noble; (2) Kevin Vilke, Director of Employee Relations for Barnes & Noble; 

(3) Ryan Cardwell, Manager of Employee Relations for Barnes & Noble; 

(4) Daniel Jacobs, a principal at Jackson Lewis P.C. (Jackson Lewis), Barnes 

& Noble’s outside legal counsel; (5) Richard Greenberg, another principal at

Jackson Lewis; and (6) Sierra Bazemore, an employee of First Advantage. 

Collectively, this evidence established the following undisputed facts.

In 2009, Barnes & Noble and First Advantage executed a contract 

whereby First Advantage agreed to provide Barnes & Noble with background 

screening services for employment purposes. First Advantage provided 

Barnes & Noble with a model consumer report disclosure and authorization 

form that, according to First Advantage, complied with the FCRA and state 

laws and regulations. First Advantage also agreed to provide Barnes & 

2 Barnes & Noble asserted other arguments in its motion for summary 

judgment, but it does not raise those arguments on appeal as an alternative 

basis upon which this court may affirm the judgment. 
8

Noble with an updated model disclosure and authorization form if revisions 

to laws or regulations necessitated changes to the existing form. 

Several years later, Barnes & Noble’s in-house counsel Allison Spivak

received an email with a legal update concerning the FCRA. She forwarded 

the legal update and Barnes & Noble’s then-existing consumer report 

disclosure form to Daniel Jacobs of Jackson Lewis, and asked whether he was 

comfortable with the company’s form. He responded he was not comfortable 

with the form for reasons not pertinent to this litigation. He recommended 

that Spivak reach out to First Advantage for an updated model disclosure 

form. Soon after these communications, Spivak went on maternity leave and 

tasked Barnes & Noble employees Kevin Vilke and Ryan Cardwell with 

ensuring that the company’s disclosure form was updated. Vilke, in turn, 

delegated this responsibility to his subordinate Cardwell. 

At Cardwell’s request, First Advantage employee Sierra Bazemore sent 

her company’s latest model disclosure form to Cardwell to reference as a 

template. First Advantage’s model disclosure form included one paragraph of 

text, which generally informed the consumer that he or she may be the 

subject of a consumer report and advised the consumer of his or her rights in 

connection with the procurement of the consumer report. It also included a 

footnote that stated: 

“Please note: Nothing contained herein should be construed as 

legal advice or guidance. Employers should consult their own 

counsel about their compliance responsibilities under the FCRA 

and applicable state law. First Advantage expressly disclaims 

any warranties or responsibility or damages associated with or 

arising out of information provided herein.”

Bazemore told Cardwell to work with his company’s legal team to ensure the 

model disclosure form met his company’s needs. She also told him First 

Advantage could not advise on the content of his company’s disclosure form. 
9

Cardwell sent the model disclosure form to Jacobs, who reviewed it and 

told Cardwell it was “generally fine,” subject to certain modifications. Soon 

after, Jacobs went on paternity leave and asked fellow Jackson Lewis 

principal Richard Greenberg to provide revisions to the model disclosure 

form. Greenberg revised the text of the model disclosure form and sent a 

redlined version of the form to Cardwell and Vilke. However, he did not alter 

or comment on the footnote in the model disclosure form. He understood the 

footnote was business-to-business language—not part of the disclosure form 

that would be displayed to job applicants. Greenberg likened the footnote to 

a watermark embedded in a draft document undergoing revision. 

Cardwell accepted Greenberg’s proposed edits to the text of the 

consumer report disclosure and emailed a clean copy of the revised disclosure 

form (as well as a revised consumer report authorization form) to Bazemore 

to “replace [Barnes & Noble’s] current disclosure & authorization” forms. 

The revised disclosure form still included the footnote with the business-tobusiness language. 

Bazemore sent Barnes & Noble’s consumer report disclosure form to 

her company’s information technology department to be uploaded onto the 

First Advantage website. At some point during the upload process, the 

business-to-business language was moved from the footnote of the disclosure 

form into the body of the disclosure form. 

First Advantage uploaded the new disclosure form—which now

included the business-to-business language in the body of the disclosure—

onto a staging website that was not viewable to members of the public. It 

granted Vilke and Cardwell access to the staging website so they could

review the disclosure form before it went live. A few weeks after the 

disclosure form was uploaded to the staging website, it went live and was 
10

displayed to Barnes & Noble’s job applicants as part of the company’s 

employment application process. 

Approximately two years later, Barnes & Noble switched consumer 

reporting agencies for reasons unrelated to the present litigation. At that 

time, it stopped using the consumer report disclosure form with the

extraneous business-to-business language. 

ii

Hebert’s Opposition to the Motion for Summary Judgment

Hebert opposed Barnes and Noble’s motion for summary judgment. 

She argued there was, at minimum, a disputed issue of material fact on the 

element of willfulness. She claimed the issue was disputed for the following 

reasons: Barnes and Noble “knowingly approved and implemented a revised 

disclosure form that included ... extraneous and confusing language” in 

violation of the FCRA; Barnes & Noble delegated the task of updating its 

disclosure form to Cardwell, who—in the words of Vilke—did not “know what 

the legalities of FCRA” were; Cardwell viewed the disclosure form while it 

was pending on First Advantage’s staging website, yet permitted it to go live 

notwithstanding the extraneous business-to-business language; Barnes & 

Noble relied on First Advantage to ensure its disclosure form was correct, 

even though First Advantage said it could not advise on the content of the 

disclosure form; and Barnes & Noble allowed the disclosure form to be 

displayed to job applicants for nearly two years. 

Hebert also contended that Barnes & Noble could not rely on an adviceof-counsel defense. She claimed the defense was unavailable because 

Jackson Lewis never rendered a legal opinion about the extraneous businessto-business language that originated in the footnote of First Advantage’s 

model disclosure form. Alternatively, to the extent Barnes & Noble actually 
11

believed that Jackson Lewis had sanctioned the inclusion of the extraneous

language in the disclosure form, Hebert argued that such advice would be 

“patently implausible,” and Barnes & Noble’s reliance thereon would be 

reckless. 

Together with her opposition, Hebert filed transcript excerpts from the 

depositions of Spivak, Vilke, Cardwell, Greenberg, and Bazemore, in addition 

to documents obtained during discovery. Of relevance here, Cardwell 

testified in his deposition that he reviewed all of the documents that were 

uploaded to First Advantage’s staging website before they went live to the 

public. Spivak and Vilke testified in their depositions that they did not view 

the documents that were uploaded to the staging website. 

iii

Barnes & Noble’s Reply in Support of the Motion for Summary Judgment

Barnes & Noble filed a reply in support of its motion for summary 

judgment. It reiterated its claim that there was no genuine dispute that the 

extraneous language in its disclosure form was a drafting mistake. Barnes & 

Noble argued it was not reckless for failing to train its employees on the 

FCRA, as its employees were “familiar enough with the FCRA to recognize an 

issue and to engage experienced outside counsel to address it.” It argued it 

was not reckless for using the disclosure form for two years either, since it 

never received complaints about the form that would have prompted further 

review. Finally, it argued it could rely on the advice-of-counsel defense, 

irrespective of whether its outside counsel commented specifically on the 

business-to-business language in the footnote of the form, because its counsel 

rendered legal advice about the disclosure form as a whole. 
12

iv

Order Granting the Motion for Summary Judgment

After a hearing, the trial court granted Barnes & Noble’s motion for 

summary judgment. It reasoned Hebert could not establish the element of 

willfulness because “the facts here show[ed] nothing more than a mistake.” 

The court noted that “outside counsel assumed the language at issue was 

business-to-business language but did not communicate that to [Barnes & 

Noble],” and the Barnes & Noble “employees who were tasked with carrying 

out the updates relied on the edits made by counsel.” The court concluded 

“the alleged violations resulted from a miscommunication over what 

amounted to a document stamp or watermark on a vendor-supplied form.” 

Additionally, the court ruled that Barnes & Noble’s “good-faith reliance on 

the advice of counsel negate[d] a showing of willfulness.” 

After granting the motion for summary judgment, the court entered 

judgment for Barnes & Noble. Hebert appeals. 

III

DISCUSSION

A

Summary Judgment Standards

“[G]enerally, from commencement to conclusion, the party moving for 

summary judgment bears the burden of persuasion that there is no triable 

issue of material fact and that he is entitled to judgment as a matter of law. 

... There is a triable issue of material fact if, and only if, the evidence would 

allow a reasonable trier of fact to find the underlying fact in favor of the party 

opposing the motion in accordance with the applicable standard of proof.” 

(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) A

defendant who moves for summary judgment “bears the burden of persuasion 
13

that ‘one or more elements of’ the ‘cause of action’ in question ‘cannot be 

established,’ or that ‘there is a complete defense’ thereto.” (Ibid.)

“[T]he party moving for summary judgment bears an initial burden of 

production to make a prima facie showing of the nonexistence of any triable 

issue of material fact ....” (Aguilar, supra, 25 Cal.4th at p. 850.) Where the 

plaintiff would bear the burden of proof by a preponderance of the evidence at 

trial, a defendant moving for summary judgment “must present evidence that 

would require a reasonable trier of fact not to find any underlying material 

fact more likely than not—otherwise, he [the defendant] would not be entitled 

to judgment as a matter of law, but would have to present his evidence to a 

trier of fact.” (Id. at p. 851.) If the moving party satisfies the initial burden 

of production, “he causes a shift, and the opposing party is then subjected to a 

burden of production of his own to make a prima facie showing of the 

existence of a triable issue of material fact.” (Id. at p. 850.) For purposes of 

the summary judgment law, “[a] prima facie showing is one that is sufficient 

to support the position of the party in question.” (Id. at p. 851.)

“ ‘Because this case comes before us after the trial court granted a 

motion for summary judgment, we take the facts from the record that was 

before the trial court when it ruled on that motion. [Citation.] “ ‘We review 

the trial court’s decision de novo, considering all the evidence set forth in the 

moving and opposing papers except that to which objections were made and 

sustained.’ ” [Citation.] We liberally construe the evidence in support of the 

party opposing summary judgment and resolve doubts concerning the 

evidence in favor of that party.’ ” (Conroy v. Regents of University of Cal. 

(2009) 45 Cal.4th 1244, 1249–1250.)
14

B

There Is a Triable Issue of Material Fact 

Whether Barnes & Noble Willfully Violated the FCRA

Barnes & Noble urges this court to affirm the judgment for the same 

reason the trial court entered summary judgment in its favor—it claims no 

reasonable jury could find its alleged FCRA violation was willful. It asserts 

its alleged violation was not willful, as a matter of law, because it was an 

“innocent mistake” that resulted “from a miscommunication” among its 

employees (Cardwell, Vilke, and Spivak), its outside counsel (Jackson Lewis), 

and its consumer reporting agency (First Advantage).

Courts in the Ninth Circuit “ ‘have found that “[w]illfullness under the 

FCRA is generally a question of fact for the jury.” ’ ” (Snell v. G4S Secure 

Solutions (USA) Inc. (E.D. Cal. 2019) 424 F.Supp.3d 892, 902, quoting Taylor 

v. First Advantage Background Servs. Corp. (N.D. Cal. 2016) 207 F.Supp.3d 

1095, 1110–1111; see also Hargrett v. Amazon.com DEDC, LLC (M.D. Fla. 

2017) 235 F.Supp.3d 1320, 1327 [“Willfulness is typically a question of fact 

for the jury.”]; Wood v. Credit One Bank (E.D. Va. 2017) 277 F.Supp.3d 821, 

846 [“ ‘Because “summary judgment is ‘seldom appropriate’ on whether a 

party possessed a particular state of mind,” courts have frequently held that 

willfulness is a question of fact for the jury.’ ”].) 

For reasons we will explain, this case is no exception to the general rule 

that willfulness presents a question of fact properly reserved for the jury.

i

There Is Evidence From Which a Reasonable Jury Could Find a 

Reckless Violation of the FCRA

As noted, willfulness under the FCRA includes reckless statutory 

violations, in addition to knowing statutory violations. (Safeco, supra, 551

U.S. at pp. 56–60.) Given that a reckless FCRA violation is a willful FCRA 
15

violation, summary judgment would only be warranted in this case if a 

reasonable jury would be unable to find that Barnes & Noble’s alleged FCRA 

violation was reckless—i.e., if “no reasonable jury could find that [Barnes & 

Noble’s] conduct created a ‘risk [of a violation] substantially greater than that 

which is necessary to make [its] conduct negligent.’ ” (Edwards v. Toys ‘R’ Us 

(C.D. Cal. 2007) 527 F.Supp.2d 1197, 1210 (Edwards).) Unlike the trial 

court, we conclude Hebert adduced sufficient evidence from which a 

reasonable jury could indeed find that Barnes & Noble’s alleged FCRA 

violation was willful.

In Syed, the Ninth Circuit Court of Appeals held that 15 U.S.C. 

section 1681b(b)(2)(A) clearly and unambiguously prohibits a prospective 

employer from including terms on a disclosure form in addition to those 

mandated by the FCRA. (Syed, supra, 853 F.3d at pp. 503–505.) In light of 

the unambiguous nature of the statutory prohibition, the Syed court 

concluded “a prospective employer’s violation of the FCRA is ‘willful’ when 

the employer includes terms in addition to the disclosure ....” (Id. at p. 496; 

id. at p. 505 fn. 7 [“where a party’s action violates an unambiguous statutory 

requirement, that fact alone may be sufficient to conclude that its violation is 

reckless, and therefore willful”]; see also Newsome v. Graybar Elec. Co. (N.D. 

Cal. Oct. 18, 2021) 2021 U.S. Dist. Lexis 250198, at *10 [“The Ninth Circuit...

has held that a violation of the ‘standalone’ requirement is willful as a matter 

of law.”]; Arnold v. DMG Mori USA, Inc. (N.D. Cal. Mar. 31, 2021) 2021 U.S. 

Dist. Lexis 62890, at *11 [granting FCRA plaintiffs’ motion for summary 

judgment, reasoning that willfulness inquiry was “straightforward” because 

defendant’s disclosure form included information in addition to the FCRA 

disclosure].) In accordance with this persuasive authority, Barnes & Noble’s 
16

inclusion of extraneous language on its disclosure form, and its ostensible 

violation of the FCRA’s unambiguous prohibition, is indicative of willfulness.

Further, Hebert adduced evidence from which a jury could find that at 

least one of Barnes & Noble’s employees—Cardwell—was aware the 

extraneous language would be included in the disclosure form. During his 

deposition, Cardwell testified he was aware the language was contained in

the disclosure form before he sent it to First Advantage. Thereafter, First 

Advantage loaded the disclosure form onto its staging website and told

Cardwell to “check the system and verify that [it was] as expected.” In his 

deposition, Cardwell testified he reviewed all of the documents on First 

Advantage’s system before they went live on its website, per his usual custom 

and practice. From this evidence, a reasonable jury could find that Barnes & 

Noble (through Cardwell) knew its disclosure form included the extraneous 

language that is alleged to violate Title 15 U.S.C. section 1681b(b)(2)(A).

Barnes & Noble does not dispute there is evidence from which a jury 

could find that Cardwell was aware of the extraneous language before the 

disclosure went live. However, it contends Cardwell was a “non-lawyer” who 

“was not versed in (or tasked with knowing) the FCRA’s requirements,” in an 

apparent attempt to show the company did not knowingly violate the FCRA’s 

standalone disclosure requirements. Further, it points to statements from 

Cardwell (made in his declaration and at his deposition) in which he asserted

he was only vaguely aware of the FCRA’s disclosure requirements, he did not 

remember the statute’s specifics, and he received only “general” training on 

the FCRA in his capacity as a human resource employee. 

Far from helping Barnes & Noble, this evidence tends to establish the 

existence of a triable issue of material fact concerning willfulness. For 

instance, a jury could find that Barnes & Noble acted recklessly by delegating
17

all of its FCRA compliance responsibilities to a human resources employee 

who, by his own admission, knew very little about the FCRA. Similarly, a 

reasonable jury could find that Barnes & Noble took excessive risks by

allowing its final disclosure form to go live without any form of review or 

oversight from any other employees such as Vilke or Spivak, who testified in 

deposition that they never viewed the documents that were uploaded to First 

Advantage’s staging website. A reasonable jury could also find that Barnes & 

Noble was reckless insofar as it failed to provide adequate FCRA training to 

its employees who bore responsibility for ensuring the company’s FCRA 

compliance, thus resulting in a statutory violation like the one at issue here.

Another factor that could indicate recklessness is Barnes & Noble’s 

continuous use of the allegedly problematic disclosure form for nearly two 

years. Barnes & Noble argues it did not know, and had no reason to know, 

that its disclosure form violated the FCRA because it received no complaints 

from job applicants about its disclosure form while it was in use. Be that as 

it may, Barnes & Noble’s continuous and prolonged use of the disclosure form 

suggests it had no proactive monitoring system in place to ensure its 

disclosure was FCRA-compliant. Further, the evidence showed the company 

stopped using the disclosure form only because it switched consumer 

reporting agencies—not because it discovered the flaws in its disclosure form. 

Like the factors discussed above, a finding that Barnes & Noble lacked a 

routine monitoring system to guarantee FCRA compliance could give rise to a 

finding of recklessness. (Edwards, supra, 527 F.Supp.2d at p. 1214 [“a 

reasonable jury could conclude that the fact that [defendant] did not discover 

the violation until suit was filed indicates that its monitoring processes (or 

lack thereof) created an ‘unjustifiable risk’ that it would violate the statute”].)
18

ii

The Advice-of-Counsel Defense Does Not Mandate 

Entry of Summary Judgment in Favor of Barnes & Noble

Barnes & Noble contends no reasonable jury could find its alleged 

violation was willful because it relied in good faith on the advice of counsel 

when adopting its disclosure form. It argues its reliance on the advice of 

counsel “negates any showing of willfulness,” thus requiring us to affirm the 

judgment. Barnes & Noble does not direct us to case law approving the use of 

an advice-of-counsel defense in a FCRA case. However, we assume for 

purposes of this appeal, without deciding, that a FCRA defendant may invoke 

the advice-of-counsel defense to try to rebut a showing of willfulness.

Even so, we disagree with Barnes & Noble’s assertion that its reliance 

on the advice of counsel mandates affirmance of the judgment. Certainly, 

Barnes & Noble’s procurement of legal advice regarding its consumer report 

disclosure is strong evidence that its alleged violation of the FCRA was 

merely negligent, not willful. However, even in contexts where an advice-ofcounsel defense is recognized, a defendant’s good faith reliance on the advice 

of counsel “is not a complete defense, but only one factor for consideration.” 

(Markowski v. S.E.C. (2d Cir. 1994) 34 F.3d 99, 105; see also United States v. 

Wenger (10th Cir. 2005) 427 F.3d 840, 853 [“Good faith reliance on counsel...

is not a complete defense, but is merely one factor a jury may consider when 

determining whether a defendant acted willfully.”]; but see Albertson v. 

Raboff (1960) 185 Cal.App.2d 372, 386 [advice of counsel “may afford the 

[client] a complete defense to an action for malicious prosecution”].)

Thus, evidence of Barnes & Noble’s asserted reliance on advice of 

counsel does not singlehandedly preclude a finding of willfulness as a matter 

of law. Rather, it must be considered with all of the evidence pertinent to the 

willfulness inquiry–including the evidence that Barnes & Noble may have 
19

violated the FCRA’s unambiguous standalone disclosure mandate, the 

evidence suggesting Cardwell (and hence, Barnes & Noble) may have been

aware of the extraneous language yet permitted the disclosure form to be 

displayed to job applicants anyway, the evidence concerning the company’s

FCRA training efforts, and the evidence concerning the existence (or nonexistence) of a monitoring system designed to ensure FCRA compliance.

Considered collectively, this evidence gives rise to a triable issue of 

material fact concerning the element of willfulness. Therefore, the trial court 

erred in granting the motion for summary judgment and entering judgment 

in favor of Barnes & Noble.

IV

DISPOSITION

The judgment is reversed. The matter is remanded with directions that 

the trial court vacate its order granting the motion for summary judgment

and enter a new order denying the motion for summary judgment. Hebert is 

entitled to her costs on appeal.

McCONNELL, P. J.

WE CONCUR:

O’ROURKE, J.

DO, J.