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United States District Court 

Northern District of California 

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF CALIFORNIA 

SERGIO MARQUEZ, individually 

and on behalf of others 

similarly situated, 

Plaintiff, 

v. 

BANK OF AMERICA, NATIONAL 

ASSOCIATION, et al., 

Defendants. 

Case No. 17-cv-00555-CW 

ORDER GRANTING DEFENDANT BANK 

OF AMERICA’S MOTION FOR 

PARTIAL SUMMARY JUDGMENT 

(Dkt. No. 78) 

Plaintiff Sergio Marquez brings this putative class action 

lawsuit against Defendants Bank of America, N.A. (BOA), Business 

Information Group, Inc. (BIG), and TALX Corporation, d/b/a 

Equifax Workforces Solutions (TALX). On January 9, 2018, BOA 

brought a motion for partial summary judgment on Plaintiff’s 

First, Third, and Fifth Causes of Action.1

 Plaintiff filed an 

opposition and BOA filed a reply. On March 20, 2018, the parties 

appeared for a hearing. Having considered the papers and the 

arguments of counsel, the Court GRANTS BOA’s motion for partial 

summary judgment. 

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 TALX simultaneously filed a motion to dismiss Plaintiff’s 

Eleventh Cause of Action for lack of subject matter jurisdiction. 

TALX’s motion was heard on the same day as BOA’s motion. On 

March 28, 2018, however, Plaintiff and TALX informed the Court 

that they had reached a settlement in principle and requested 

that the Court defer ruling on TALX’s motion to dismiss, which 

the Court will do. Docket Nos. 102, 104. 
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BACKGROUND 

 In October 2016, Plaintiff applied for employment with BOA 

as a Mortgage Loan Officer. During the application process, 

Plaintiff reviewed and electronically signed forms as part of an 

online background check. Declaration of Cindy Prebil (Prebil 

Decl.) ¶ 14. Plaintiff signed an “FCRA Disclosure and 

Authorization” form (Disclosure Form), a one-page document which 

states: 

In connection with your employment or application for 

employment or contract assignment with Bank of America 

(the “Bank”), the Bank may obtain, where permitted, one 

or more consumer reports as defined in the Fair Credit 

Reporting Act (15 U.S.C. 1681) (“FCRA”). Consumer 

reports may contain information concerning your 

criminal history, fingerprint records, character, 

general reputation, employment history, civil history, 

credit history, education, academic and professional 

credentials, qualifications, motor vehicle record, and 

other background checks, based on the background check 

requirements for the subject position at the Bank. In 

some states, such as California, these reports are 

referred to as “Investigative Consumer Reports.” 

Prebil Decl., Ex. 2 at 1; see also id. ¶ 5. The Disclosure Form 

goes on to provide that the “Bank may obtain consumer reports 

from various entities, including, but not limited to:” “Equifax 

Workforce Solutions, a/k/a TALX Corporation,” and “Business 

Information Group, Inc. (BIG).” Prebil Decl., Ex. 2 at 1. The 

form provides the entities’ addresses, telephone numbers, and 

webpages where additional information and the entities’ privacy 

policies can be found. Id. The form then provides an 

Authorization: 

By signing below, you: 

1. Authorize the Bank to obtain consumer reports about 

you at any time after receipt of this authorization and 

throughout your employment, if applicable; and 

2. Agree, as permitted by law, that notices, documents 
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and communications may be provided electronically and 

will meet the requirements set forth under Federal 

and/or State law, and agree that a fax or photocopy of 

this authorization with your signature should be 

accepted with the same authority as the original. 

By checking the box below you authorize Bank of America 

to obtain, where permitted, one or more consumer 

reports as described above for employment purposes. 

Id. Beneath the authorization is a checkbox next to the 

statement “Yes, I authorize Bank of America to obtain, where 

permitted, one or more consumer reports for employment 

purposes.”; (2) the applicant’s name and date; and (3) a space 

where the applicant can use a mouse to electronically draw his 

signature. Id. 

Plaintiff executed the Disclosure Form and Authorization on 

October 29, 2016. Prebil Decl. ¶ 7, Ex. 2 at 2. After signing 

the Authorization, Plaintiff clicked “Continue,” which brought up 

another page entitled “Other Background Check Information,” which 

contained information about: (1) state and local laws and 

ordinances governing background checks; (2) the Bank’s 

fingerprinting and criminal background check process; and 

(3) additional checks for certain positions subject to Financial 

Industry Regulatory Authority (FINRA). Prebil Decl., Ex. 2 at 2. 

This page also allowed Plaintiff to select an option “to indicate 

if [he] would like a copy of [his] consumer report free of 

charge.” Id. at 2. Plaintiff selected this option. Id. 

After submitting his application, on October 31, 2016, 

Plaintiff was offered a position with BOA, which was contingent 

upon a satisfactory background check. Declaration of James 

Treglio (Treglio Decl.), Ex. 1. Ultimately, after conducting a 

background check and interviewing Plaintiff about his employment 
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history, BOA decided not to hire Plaintiff. Prebil Decl. ¶ 18. 

On February 2, 2017, Plaintiff filed this suit. Docket No. 

1. On September 22, 2017, Plaintiff filed a first amended 

complaint (FAC) against Defendants, asserting claims under the 

Federal Credit Reporting Act (FCRA), 15 U.S.C. § 1681; the 

Investigative Consumer Reporting Agencies Act (ICRA), California 

Civil Code section 1786, et seq.; and the California Consumer 

Credit Reporting Agencies Act (CCRA), California Civil Code 

section 1785.1 et seq. 

LEGAL STANDARD 

Summary judgment is properly granted when no genuine and 

disputed issues of material fact remain, and when, viewing the 

evidence most favorably to the non-moving party, the movant is 

clearly entitled to prevail as a matter of law. Fed. R. Civ. P. 

56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); 

Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th Cir. 

1987). 

 The moving party bears the burden of showing that there is 

no material factual dispute. Therefore, the court must regard as 

true the opposing party’s evidence, if supported by affidavits or 

other evidentiary material. Celotex, 477 U.S. at 324; Eisenberg, 

815 F.2d at 1289. The court must draw all reasonable inferences 

in favor of the party against whom summary judgment is sought. 

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 

587 (1986); Intel Corp. v. Hartford Accident & Indem. Co., 952 

F.2d 1551, 1558 (9th Cir. 1991). 

 Material facts which would preclude entry of summary 

judgment are those which, under applicable substantive law, may 
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affect the outcome of the case. The substantive law will 

identify which facts are material. Anderson v. Liberty Lobby, 

Inc., 477 U.S. 242, 248 (1986). 

 Where the moving party does not bear the burden of proof on 

an issue at trial, the moving party may discharge its burden of 

production by either of two methods: 

The moving party may produce evidence negating an 

essential element of the nonmoving party’s case, or, 

after suitable discovery, the moving party may show 

that the nonmoving party does not have enough evidence 

of an essential element of its claim or defense to 

carry its ultimate burden of persuasion at trial. 

Nissan Fire & Marine Ins. Co., Ltd., v. Fritz Cos., Inc., 210 

F.3d 1099, 1106 (9th Cir. 2000). 

 If the moving party discharges its burden by showing an 

absence of evidence to support an essential element of a claim or 

defense, it is not required to produce evidence showing the 

absence of a material fact on such issues, or to support its 

motion with evidence negating the non-moving party’s claim. Id.; 

see also Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 885 (1990); 

Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991). 

If the moving party shows an absence of evidence to support the 

non-moving party’s case, the burden then shifts to the non-moving 

party to produce “specific evidence, through affidavits or 

admissible discovery material, to show that the dispute exists.” 

Bhan, 929 F.2d at 1409. 

 If the moving party discharges its burden by negating an 

essential element of the non-moving party’s claim or defense, it 

must produce affirmative evidence of such negation. Nissan, 210 

F.3d at 1105. If the moving party produces such evidence, the 
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burden then shifts to the non-moving party to produce specific 

evidence to show that a dispute of material fact exists. Id. 

 If the moving party does not meet its initial burden of 

production by either method, the non-moving party is under no 

obligation to offer any evidence in support of its opposition. 

Id. This is true even though the non-moving party bears the 

ultimate burden of persuasion at trial. Id. at 1107. 

 Federal Rule of Civil Procedure 56(d) provides that a court 

may defer considering a motion for summary judgment, deny it, or 

issue any other appropriate order if “a nonmovant shows by 

affidavit or declaration that, for specified reasons, it cannot 

present facts essential to justify its opposition.” 

DISCUSSION 

BOA brings a motion for summary judgment with respect to 

Plaintiff’s First, Third, and Fifth Causes of Action. 

I. First Cause of Action: Violation of the FCRA 

Section 1681b(b)(2)A requires that a person may not procure 

a consumer report for employment purposes 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. 

In his First Cause of Action, Plaintiff alleges that BOA 

violated 15 U.S.C. § 1681b(b)(2)(A) because the Disclosure Form 

was not a stand-alone document in that it contained: 

(1) extraneous information such as state law disclosures and 
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(2) a liability waiver. Both arguments lack merit. 

Plaintiff alleges that the Disclosure Form was not a standalone document and instead appeared alongside other documents as 

part of BOA’s job application process, including other 

information related to his background check, such as California 

state law disclosures. Section 1681b(b)(2)(A) requires that the 

disclosure be “clear and conspicuous” and “in a document that 

consists solely of the disclosure.” As the Federal Trade 

Commission has noted, the “the reason for specifying a standalone disclosure was so that consumers will not be distracted by 

additional information at the time the disclosure is given.” 

Letter from Cynthia Lamb, Investigator, Div. of Credit Practices, 

Fed. Trade Comm’n, to Richard Steer, Division of Credit 

Practices, 1997 WL 33791227, at *1 (Oct. 21, 1997). The 

disclosure may be accompanied by the authorization for 

procurement of a report required by § 1681b(b)(2)(B). Id. BOA 

has provided a screenshot showing that the Disclosure Form and 

Authorization appeared as a stand-alone electronic page. Prebil 

Decl. ¶¶ 4-5, Ex. 1. This complies with § 1681b(b)(2)(A). 

Plaintiff alleges that the Disclosure Form and Authorization 

was not a stand-alone document because it was displayed as part 

of BOA’s online application process, which included other 

information such as various state law disclosures and 

requirements for Plaintiff’s signature. But the Disclosure and 

Authorization appeared as a separate and distinct web page 

separated from the rest of the documents. Id., Ex. 1. No other 

information was displayed on the screen alongside the Disclosure 

and Authorization. Plaintiff was required to click “Continue” to 
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view the rest of the online application. Id. ¶ 8. This 

qualifies as a stand-alone document for purposes of 

§ 1681b(b)(2)(A). See Burnthorne-Martinez v. Sephora USA, Inc., 

No. 16-CV-02843-YGR, 2016 WL 6892721, at *6 (N.D. Cal. Nov. 23, 

2016) (noting that the FCRA requires a separate and distinct 

writing and, “[b]y analogy, the web page would also need to be 

separate and distinct.”). As stated by a Central District of 

California court considering an almost identical BOA disclosure 

form provided as part of an online application, the “FCRA does 

not prohibit an employer from providing an FCRA disclosure as 

part of the employer’s job application process. Nor does the 

FCRA prohibit an employer from providing an FCRA disclosure at 

the same time the employer provides other employment documents.” 

Newton v. Bank of Am., 2015 WL 10435907, at *8 (C.D. Cal. May 12, 

2015). 

Plaintiff also alleges that the Disclosure Form improperly 

includes a liability waiver. As the Ninth Circuit has found, 

“the FCRA unambiguously bars a prospective employer from 

including a liability waiver on a disclosure document provided a 

job applicant pursuant to Section 1681b(b)(2)(A).” Syed v. M-I, 

LLC, 853 F.3d 492, 503 (9th Cir.), cert. denied, 138 S. Ct. 447, 

(2017). 

In Syed, the liability waiver read: 

I understand the information obtained will be used as 

one basis for employment or denial of employment. I 

hereby discharge, release and indemnify prospective 

employer, PreCheck, Inc., their agents, servants and 

employees, and all parties that rely on this release 

and/or the information obtained with this release from 

any and all liability and claims arising by reason of 

the use of this release and dissemination of 

information that is false and untrue if obtained by a 
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third party without verification. 

Id. at 497–98 (emphasis added). District courts have similarly 

found that clear waivers of all liability associated with the 

background check process violate the FCRA. See, e.g., Cunha v. 

IntelliCheck, LLC, 254 F. Supp. 3d 1124, 1130 (N.D. Cal. 2017). 

Here, Plaintiff contends that the following statement 

appearing in the Authorization constitutes an illegal liability 

waiver: 

By signing below, you: 

[ . . .] 

2. Agree, as permitted by law, that notices, documents 

and communications may be provided electronically and 

will meet the requirements set forth under Federal 

and/or State law, and agree that a fax or photocopy of 

this authorization with your signature should be 

accepted with the same authority as the original. 

Prebil Decl., Ex. 2 (emphasis added). Plaintiff contends that 

this constitutes a waiver of liability under the FCRA, ICRA, and 

CCRA, which is illegal under Syed. 

Plaintiff’s reading of the Authorization as a liability 

waiver is strained. As both parties agree, contracts should be 

“construed as a whole” and should “be interpreted to give effect 

to the mutual intention of the parties.” Opp. at 12, Reply at 3; 

see also Leo F. Piazza Paving Co. v. Found. Constructors, Inc., 

128 Cal. App. 3d 583, 591 (1981). In Syed, the liability waiver 

clearly and unambiguously served as a “broad release of 

liability” for all violations of the FCRA. Syed, 853 F.3d at 

498. By contrast, the portion of the Authorization pointed out 

by Plaintiff serves to advise Plaintiff that notices, documents 

and communications may be provided electronically and that such 

notices, documents and communications should not violate the law 
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simply because they are provided electronically. Read in 

context, this advises that the Disclosure Form’s digital nature 

does not affect its validity. The Authorization lacks the 

“clear, unambiguous, and explicit” language necessary to 

effectuate a waiver of all liability. R.H. v. Los Gatos Union 

Sch. Dist., 33 F. Supp. 3d 1138, 1166 (N.D. Cal. 2014). 

Because the Disclosure Form was a stand-alone document that 

contained no extraneous information or liability waiver, it 

complies with § 1681b(b)(2)(A). 

II. Third Cause of Action: Violation of the ICRA 

The ICRA, California Civil Code section 1786.16, provides 

that a person may procure an investigative consumer report only 

if the person: 

procuring or causing the report to be made provides a 

clear and conspicuous disclosure in writing to the 

consumer at any time before the report is procured or 

caused to be made in a document that consists solely of 

the disclosure, that: 

(i) An investigative consumer report may be obtained. 

(ii) The permissible purpose of the report is 

identified. 

(iii) The disclosure may include information on the 

consumer’s character, general reputation, personal 

characteristics, and mode of living. 

(iv) Identifies the name, address, and telephone number 

of the investigative consumer reporting agency 

conducting the investigation. 

(v) Notifies the consumer in writing of the nature and 

scope of the investigation requested, including a 

summary of the provisions of Section 1786.22. 

(vi) Notifies the consumer of the Internet Web site 

address of the investigative consumer reporting agency 

identified in clause (iv), or, if the agency has no 

Internet Web site address, the telephone number of the 

agency, where the consumer may find information about 

the investigative reporting agency’s privacy practices, 
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including whether the consumer’s personal information 

will be sent outside the United States or its 

territories and information that complies with 

subdivision (d) of Section 1786.20. 

Plaintiff asserts that the Disclosure Form violates the ICRA 

in two respects: (1) the disclosure was not provided in a 

document consisting “solely” of the disclosure (repeating many of 

the same arguments asserted in his FCRA claim) and (2) the 

disclosure did not identify the “investigative consumer reporting 

agency conducting the investigation,” as identified in subsection 

(iv). 

For the reasons stated in the previous section, Plaintiff’s 

first assertion lacks merit. The Disclosure Form was a standalone document and did not contain extraneous information. As 

for Plaintiff’s second assertion, BOA points out that it properly 

disclosed the information for the two parties that would provide 

investigative consumer reports, namely, TALX and BIG. Plaintiff 

responds that BOA did not disclose that, while the investigative 

consumer report on Plaintiff was contracted to BIG, it was 

actually performed by third parties Fieldprint, Inc. (which in 

turn requested a report from the FBI) and Transunion, LLC, as 

stated in a declaration provided by BIG. See also Declaration of 

Timothy Gaudreau (Gaudreau Decl.) ¶¶ 13-14. But the plain 

language of section 178616(a)(2)(iv) only requires that BOA 

identify “the investigative consumer reporting agency conducting 

the investigation.” Here, BIG is the “investigative consumer 

reporting agency conducting the investigation.” That BIG 

obtained information from several different repositories, such as 

Fieldprint, Transunion, and the FBI, does not take away from this 

fact. BOA was only obliged to disclose BIG, the agency it 
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engaged to provide a report, and not the various sources that BIG 

used in conducting its investigation. 

III. Fifth Cause of Action: Violation of the CCRA 

The CCRA, California Civil Code section 1785.20.5 states: 

Prior to requesting a consumer credit report for 

employment purposes, the user of the report shall 

provide written notice to the person involved. The 

notice shall inform the person that a report will be 

used, and shall identify the specific basis under 

subdivision (a) of Section 1024.5 of the Labor Code for 

use of the report. The notice shall also inform the 

person of the source of the report, and shall contain a 

box that the person may check off to receive a copy of 

the credit report. If the consumer indicates that he or 

she wishes to receive a copy of the report, the user 

shall request that a copy be provided to the person 

when the user requests its copy from the credit 

reporting agency. The report to the user and to the 

subject person shall be provided contemporaneously and 

at no charge to the subject person. 

 In his Fifth Cause of Action, Plaintiff asserts that BOA 

violated this section because it did not disclose that a consumer 

credit report would be used, why it would be used, and who would 

issue the report. 

 As a preliminary matter, BOA asserts that it was excused 

from compliance with section 1785.20 because of an exemption in 

California Civil Code section 1024.5. Section 1024.5 provides 

that an employer or prospective employer shall not use a consumer 

credit report for employment purposes unless the position is one 

that is listed in subsection (a). Section 1024.5(b) states: 

(b) This section does not apply to a person or business 

subject to Sections 6801 to 6809, inclusive, of Title 

15 of the United States Code and state and federal 

statutes or regulations implementing those sections if 

the person or business is subject to compliance 

oversight by a state or federal regulatory agency with 

respect to those laws. 

BOA asserts that it is subject to the Title 15 code sections 
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referenced here and is thus exempt under section 1024.5(b). The 

exemption of section 1024.5(b), however, appears to apply only to 

the restrictions of “this section,” i.e., section 1024.5, and not 

section 1785.20. 

 In any event, Plaintiff’s arguments that the Disclosure Form 

does not comply with the CCRA lack merit. The Disclosure Form 

disclosed that a consumer credit report would be used. See 

Prebil Decl., Ex. 2 at 1 (“Consumer reports may contain 

information concerning your . . . credit history . . . ”). It 

also disclosed the source of the consumer credit report requested 

by BOA. Id. (“Bank may obtain consumer reports from various 

entities, including, but not limited to” TALX and BIG). Again, 

Plaintiff’s argument that BIG pulled information from other 

sources in compiling its consumer credit report goes too far. 

The statute requires BOA to disclose the source of the report it 

requested, not all of the various repositories of information 

that the source used in compiling its report. BOA was not 

required to disclose why it requested the report. Nor was BOA 

required to disclose which basis provided in section 1024.5(a) 

applied, because BOA is exempt under section 1024.5(b), which 

Plaintiff does not contest. 

IV. Plaintiff’s Rule 56(d) Request 

Plaintiff requests that the Court defer ruling on BOA’s 

summary judgment motion, arguing that additional discovery is 

needed. Plaintiff has not explained why the requested discovery 

is essential to his defense. Accordingly, his request is denied. 

 
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CONCLUSION 

 BOA’s motion for summary judgment on Plaintiff’s First, 

Third, and Fifth Causes of Action is GRANTED. Plaintiff’s Second 

and Fourth Causes of Action against BOA remain in the case. 

IT IS SO ORDERED. 

Dated: April 25, 2018 

CLAUDIA WILKEN 

United States District Judge