F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

S A R M A D S Y E D , an individual, on behalf of himself and all others similarly situated, Plaintiff-Appellant
,

v

.

M-I
, L L C, a Delaware L imited L iability Company ; P R

E C H E C K , I

N C ., a Tex as Corporation,

Defendants-Appellees

. N o. 14-17186

D.C. No. 1:14-cv-00742- WB S-B AM

OPI NI ON

A ppeal from the United States District Court for the Eastern District of California William B . Shubb, District J udg e, Presiding

A rg ued and Submitted November 17, 2016 San F rancisco, California

F iled J anuary

20, 2017

B efore: Mary

M. Schroeder, Kim McL ane W ardlaw, and J ohn B . Owens, Circuit J udg es.
Opinion by

J udg e W ardlawS Y E D V

. M-I
, L L C

2

SUMMARY *

F air Credit Reporting Act

The p anel r eversed the district court’s dismissal pursuant to F ederal Rule of Civil Procedure 12(b)(6) of an action under the F air Credit Reporting Act.

The p anel held that a prospective employ er v i o l a tes 15 U.S.C. § 1681b(b)(2)(A) w hen it procures a job applica n t ’s

consumer report after including a liability waiver in the same document as a statutorily mandated disc l o s u r e

. The panel also held that, in lig ht of the clear statutory lang uag e that the disclosure document c onsist “solely ” of t h e d isclosure, a prospective employ er’s violation o f § 1681b(b)(2)(A) is “willful” when the employ er includes terms i n ad dition to the disclosure, such a s the liability waiver h e re , before procuringa consumer report or causing one to be procured.

COUNSEL

Peter R. Dion-Kindem (arg ued), Peter R. Dion-Kindem P.C., W o o d l a nd Hills, California; L onnie C. B lanchard, I I I
, The B lanchard L aw Group, L os Ang eles, California; for PlaintiffAppellant.

J ason S. Mills (arg

ued) a nd A lex is M. Gabrielson, Morg an L ewis & B o c k i u s L L P, L os Ang eles, California, for Defendant-Appellee M-I , L L C.

* T h is su m m ary co n stitu

tes n o p art o f th e o pin io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.S Y E D V

. M-I
, L L C 3

E. Michelle Drake and J ohn Albanese, Nichols Kaster PL L P, Minneapol i s, Minnesota, for Amici Curiae National Association of Consumer Advocates and National Consumer L aw Center.

OP INION

W A RDL AW , Circuit J udg e:

The modern information ag e has shi n e d a spotlig ht on information privacy
, and on the widespread use o f consumer credit r e ports to collect information in violation o f consumers’ privacy r i gh t s

. This case presents a question o f first impressi o n i n t he f

ederal courts of appeals: whether a prospective e mploy er may satisfy the F a ir Credit R e p o rting Act’s (“F CRA”) disclosure r equirements by p r o v iding a job applicant with a disclosure that “a consumer re port may be

o btained for employ

ment purposes” which simultaneously serves as a liability

waiver for the prospective employ e r a nd others. 1 See 15 U.S.C. § 1681b(b)(2)(A). W e hold that a prospective employ er v iolates Section 1 6 81b(b)(2)(A) when it procures a job applicant’s consumer r eport after including

a liability waiver in the same document as the statutorily mandated disclosure. W e also hold that, in lig ht of the clear statutory lang uag e that the disclosure document must consist

1 T h e statu to ry pro v isio n at i ss u e, 1 5 U.S.C. § 1 6 8 1 b (b )(2 )(A ),
g o v ern s th e p ro cu rem en t o f co n s u m er rep o rts “ f o r em p lo y m en t p u rp o ses

w ith resp ect t o an

y co n su m er.” T h u s, th e statu te’ s ap p licatio n is n o t lim ited to em

p lo y er- em

p lo y ee relati o n s h i p s. Ho w ev er, f o r t h e sak e of b rev ity
, w e d escrib e th e p arties g o v ern ed b y th e statu te as “ p ro sp ec t iv e

em p l o y ers” an d “

j o b ap p l ican ts,” w

h i le reco g n izin g th at th e statu te in f act ap p lies m ore b ro ad ly

.S Y E D V

. M-I
, L L C

4

“solely ” of the disclosure, a prospective employ er’s violation of the F CRA is “willf

u l” when the employ er includes terms in a d dition to the disclosure, such a s the liability waiver h ere, before procuring a con s u m er r eport or causing one to be procured.

I.

A. Fair Credit Reporting Act

. Cong r ess enacte d the F CRA in 1970 in response to

conc er ns about corporations’ increasing ly sophisticated use of consumers ’ p e rsonal information in making credit a nd other decisi o n s. F air Credit Reporting Act of 1970, Pub. L

. 91-508, § 602, 84 Stat. 1 114, 1128. Specifically
, Con gr e s s recog niz ed the need to “ens u r e f air and accurate credit reporting
, promote efficiency in t he banking sy stem, a nd protect c onsumer privacy .” Safeco Ins. Co. v. Burr
, 551 U.S. 47, 52 (2007). Cong ress thus required the use of reasonable
p r o c edures in procuring and using a “consumer r eport,” defined as

any w ri t t e n, oral, or other communication o f
any information by a consume r reporting
ag ency bearing o n a c o n s umer’s credit worthiness, credit standing, c redit capacity
, c h a ra c t e r , ge n e r a l r e p u t a t i o n , p e r s o n al characteristics, o r m o d e of living which is used or e x p ec ted to be used or collected in whole o r in part for the purpose of serving as

a factor in es t ablishing the consumer’s elig ibility f

or (A) credit or insurance to be used p rima r i ly f

or personal, family
, o r h o u s e h o l d p u r p o s e s ; ( B ) e m p l o y m e n tS Y E D V

. M-I
, L L C 5

purposes; or (C) any o ther purpose authoriz ed under [ the statute]

. 15 U.S.C. § 1681a(d).

Cong r ess amended the F CRA in 1996. Consumer Credit Reporting Reform Act o f 1996, Pub. L

. 104-208, § 2403, 110 Stat. 3009-426, 3009-431. I t r ecog niz ed “ the sig nificant
amount of inaccurate information that was being reported b y

consumer reporting ag encies and the difficulties that

consumers faced g etting such errors c orrected.” S. Rep. No. 108

- 1 6 6 at 5–6 (2003) (describing 1996 amendments). Cong r ess was specifically concerned that prospect i v e employ e rs were obtaining a n d using consumer reports in a

manner that violated j o b applicants’ p rivacy rig hts. S. Rep. No. 104-185 at 35 (1995). The disclosure and authoriz ation provision codified at 15 U .S.C. § 1681b(b )(2)(A) was intended to address this concern b y r equiring the prospective employ e r to disclose that it may obtain th e applicant’s

consumer report for e mploy ment purposes and providing the

means by which the prospective employ ee mig ht p revent the prospective employ er f rom doing so—withholding o f authoriz ation. S. Rep. No. 104-185 a t 3 5

. This provision furthers Cong r ess’s overarching purposes of ensuring
accurate c r e d i t r e porting
, promoting efficient error correction, and p rotecting privacy

. See Safeco
, 551 U.S. at 52. I ndeed, in addition to securing job a pplicants’ privac y r ig hts b y enabling them to withhold author i z a t i on to obtain their

consumer reports, the provision promotes error correction b y pr o v i ding a

pplicants with an opportunity to warn a prospective employ er of errors in the report be f o r e theS Y E D V

. M-I
, L L C

6

employ e r decides ag ainst hiring the a p plicant on the basis o f information contained in the report. 2

Cong r ess p rohibited procurement of consumer reports unless certain specified procedures were followed:

(2) Disclosure to consum er

(A) In general

Ex cept as provided in subparag raph (B ), a person may not procure a consumer report, o r cause a consumer report to be procured
, for employ

ment purposes with respect to any

consumer, unless—

(i) a clear and conspicuous disclosure has been made in writing to th e consumer at any time before the report is procured or ca u s e d to be procured, i n a document that consists solely of the disclosure, that a

consume r report may be obtained for employ ment purposes; and

(ii) the consumer h as a

uthoriz ed in writing (which authoriz ation may be

2 T h is o pp o rtu n ity is p articu larly im p o rtan t g iv en th at, in p ractice, th e FCRA d o es n o t o th erw ise p ro v i d e an o p p o rtu n ity f o r a j o b ap p lican t or

em p l o y ee to d is p u te h is co n su m er rep o rt b ef

ore ad v erse actio n is tak en

. S ee Rich ard F isch er, A .S. P ratt & So n s , L a w o f Fin a n cia l Priva cy ¶ 1 .0 4 [2 ][F] (2 0 1 4).S Y E D V

. M-I
, L L C 7

made on the document r eferred to in clause (i)) the procurement o f the report by that person.

15 U.S.C. § 1681b(b)(2)( A ). Cong r ess amended the statute in 1 998 to add lang u ag e p roviding that the authoriz ation may be made on the same document as the d isclosure. Consumer Reporting Employ

ment Clarification Act of 1 9 9 8
, Pub. L

. 105-347, § 2, 112 Stat. 3208, 3208.

The F CRA provides a private rig ht of action ag ainst those who violate its statutory requirements in procuring and using

consumer reports. The affected c onsumer is entitled to actual damag es for a neg lig ent violation. 15 U.S.C. § 1681 o

. F or a willful violation, however, a c o nsumer may recover statutory damag es rang ing from $100 to $1,000, punitive damag es, a nd attorney ’s fees and costs. 15 U.S.C. § 1681n.

B. Syed’s Lawsuit Against M-I

. Sy ed ap p l i e d f

o r a job with M-I in 2011. M-I provided Sy e d with a document labeled “Pre-employ ment Disclosure Release.” See Appendix A. The Disclosure Rele a s e informed Sy ed that his cred i t h i s tory and o ther information could be collected and u sed as a basis for t h e e mploy ment decision, authoriz ed M-I to procure Sy ed’s consumer report, and stipulated that, by sig ning the document, Sy e d was waiving his rig hts to sue M-I and its ag ents for violations o f the F CRA. Sy ed’s sig nature served si m u l t a neously as an authoriz ation for M-I

to procure his consumer report, and as a broad release of liability

.

The liability waiver at t h e h e a r t of the present dispute reads as follows:S Y E D V

. M-I
, L L C

8

I understand the information obtained will be used as one basis for employ ment or denial o f employ ment. I hereby

discharg e, release and indemnify prospective employ er, PreCheck, I nc., their ag ents, servants and employ ees, a nd all parties that r ely on thi s release and/or the information ob tained with this release f rom

a n y and all liability and claims arising by

reason of the use of this releas e a nd dissemination of information that is false a nd

u ntrue if obtained b y a third party without verification.

Appendix A

. Sy ed a lleg es that the Disclosure Release failed to satisfy the disclosure requ i r e m ents mandated by 15 U .S.C. § 1681b(b)(2)(A). Sy ed does not c on t e n d that M-I ’s form contained too little information. I nstead, h e arg ues that it contained too much. Specifically
, he alle g es that M-I ’s inclusion of the liability waiver v iolated th e statutory requirement that the disclosure document consist “solely ” o f the d isclosure. See § 1681b(b)(2)(A)(i). Sy ed alleg es that he realiz e d M-I h ad violated the stat u t e w hen, upon reviewing h i s p e rs o nnel file, he noticed that M-I had procured his

consumer report, in spite of the alleg edly deficient disclosure with which it had provided him. H e alleg es that he filed the complaint within two y ears of reviewing his file.

On May 19, 2014, S y e d filed a putative class action in district c ourt on b ehalf of h imself and any person whose

consumer r ep o r t was obtained by M-I after receiving a d i s closure in violation of Section 1681b(b)(2)(A)(i) w ithin the two-y ear limitations period. He soug ht statutory damag e sS Y E D V

. M-I
, L L C 9

pursuant to Section 1 6 8 1n(a)(1)(A), punitive damag e s pursuant to Section 1681n(a)(2), a n d attorney ’s fees and costs pursuant to Section 1681n(a)(3). 3 Sy ed did not seek actual damag es, which would h ave required proof of actual h a r m

. S e e Crabill v. Trans Union, L.L.C.
, 259 F .3d 662, 6 6 4 ( 7 t h Cir. 2001) (citing cases).

The o rig inal complaint a lleg ed th a t M-I ’s statutory violation had been “willful,” the predicate for Sy ed’s claimed statutory and punitive damag es. See 15 U.S.C. § 1681n; see also S afeco
, 551 U.S. at 53. On Aug ust 28, 2014, the district
court dismissed Sy ed’s complaint for failure to state a c laim, with leave to amend. I t held that the alleg ation of willfulness consisted only of “labels and conclusions.” S e e B ell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007).

Sy ed filed his F irs t Amended Complaint (“F AC”) on September 2, 2014. T he F AC sets forth the same factual a nd leg al a lleg ations as did the orig inal complaint. However, it also includes citations to F ederal Trade Commission (“F TC”) staff opinion letters and district c o u r t opinions that Sy ed
asserts support his position that M- I “ k new or should have known about its leg a l oblig ations under the F CRA,” thus rendering its statutory

violation willful.

On October 2 3, 2014, t h e district court ag ain dismissed Sy ed’s F AC for failure to state a claim, this time without leave to amend. The district c o u rt r e asoned that Sy e d h ad still not sufficiently pleaded willfulness. The court concluded that the F TC letters could not have “warned [ M-I ] away from

3 Sy ed also n am ed P reCh eck
, th e co m p an y h ired by M- I to o b tain h is

co n su m er rep o rt, as a def

en d an t. Sy ed h as sin ce s ettled h is claim s ag ain st P reCh eck . T h u s, o n ly

h i s claim s ag ain st M- I are at issu e in th is ap p eal.S Y E D V

. M-I
, L L C

10

the view it took” b ecause they were informal staff o pinions,
not authoritative g uidance. See S a f e c o , 5 51 U .S. at 7 0, 70 n.19. S i m ilarly
, the c ourt found that the judicial o p inions cited by Sy ed did not demonstrate that M-I ’s conduct h ad bee n willful because the opinions issued after M-I h ad provided Sy ed the Disclosure Release in 2011.

II.

W e have jurisdiction under 28 U.S.C. § 1291 to r eview the district court’s final judg ment dismissing wi t h prejudice Sy ed’s claims ag ainst M-I

.

W e r eview d e novo the g r ant of a motion to dismiss pursuant to F e deral Rule of Civil Procedure 12(b)(6). Fayer

v. Vaughn
, 649 F .3d 1061, 1063–64 (9 t h C i r. 2011). I n so doing
, w e a ccept “all factual a lleg ations in the complaint a s true and construe the pleading s in the lig ht most favorable to t he nonmoving party .” Knievel v. ESPN
, 393 F .3 d 1 0 6 8
, 1072 (9th Cir. 2005). I n a ddition, “th e d i strict court’s interpretation of a statute is a questio n o f l aw which we review de novo.” Pakootas v. Teck C o m i n co Metals, Ltd.
, 830 F .3d 975, 980 (9th Cir. 20 1 6 ) (internal quotation marks omitted).

III.

Sy ed h as established Article I I I standing

. A plaintiff w ho alleg es a “bare procedural violation” of the F CRA, “divorced from any concret e h arm,” f ails to satisfy Article I I I ’s injury

in-fact requirement. S

pokeo, Inc. v. R obins
, —

U.S.—, 136 S. Ct. 1540, 1 549 (2016). H owever, Sy ed alleg es more than a

“ b are procedural violation.” The disclosure requirement a t issue, 15 U.S.C. § 1681b(b)( 2 ) ( A ) (i), creates a rig h t toS Y E D V

. M-I
, L L C 11

information b y requiring p rospective employ ers to inform job applicants that they

intend to procure their consumer reports

as part o f the empl oy ment a pplication process. The authoriz ation requirement, § 1681b(b)(2)(A)(ii), creat e s a rig ht to privacy by enabling applicants to wi t h h o l d permission to o b tain the report f r om the prospective employ e r, and a concrete injury w hen applicants are deprived of their ability to meaning fully authoriz e the credit check. B y pr o v i d i ng a private cause o f action for violations of Section 1681b(b)(2)(A), Cong ress h a s recog niz ed the harm such violations cause, thereby articulating a “chain[ ] o f causation that will g ive rise to a case or controversy .” See Spokeo
, 136 S. Ct. at 1549 (q u o ting Lujan v. Defs. o f W ildlife
, 504 U.S. 555, 580 ( 1992) (Kennedy
, J
., c oncurring )). Therefore, Sy ed has Article I I I standing to bring thi s lawsuit. See Thomas v

. FTS U SA, LLC
, —F

. Supp. 3 d—, No. 3:13–cv–825, 2 016 W L 3653878, at *4–12 (E.D. Va. J une 30, 2016) (holding that an improper disclosure under 15 U.S.C. § 1 681b(b ) ( 2 )(A) causes “a concrete injury

sufficient to confer standing ”).

IV.

A. M-I violated the FCRA by including a liability waiver on the same document as its disclosure.

Neither the Supreme Court nor a ny circuit co u r t o f appeals h a s addressed whether a p rospective employ er may satisfy 15 U.S.C. § 1681b(b)(2)(A) by providing a disclosure

on a document that also includes a liability wai v e r

. The district court avoided this interpretive question, holding only that M-I ’s view that it had not v iolated the F CRA, whether
correct o r not, was “not objectively unrea s o n a b l e,” a nd that M-I therefore could not be h eld liable for statutory or punitive damag es. See Safeco , 551 U.S. at 69–70. W e conclude thatS Y E D V

. M-I
, L L C

12

the inclusion o f the liability waiver did violate the F CRA, a nd

nex t consider whether that violation was willful.

1. Section 168 1 b(b)(2)(A) unambig uously requires a document that “consists solely of the disclosure.”

W e must b e gi n with the tex t of the statute. W here
cong ressional intent “ h a s been ex p ressed in reasonably plain terms, that lang uag e must ordinarily be reg a rd e d a s conclusive.” Griffin v. Oceanic Contractors, Inc.
, 458 U.S. 564, 570 (1982) ( internal quotation marks omitted). A nd when “the meaning of the words seems to us to be intellig ible
upon a simple reading,

. . . w e shall spend no time upon g eneralities concerning the principles o f [ statutory ] interpretation.” U

nited States v. M.H. Pulaski Co.
, 243 U.S. 97, 106 (1917).

The o rdinary meaning of “solely ” is “ [ a] lone; sing ly ” o r “[ e] ntirely ; ex clusively .” American Herit a ge Dictionary of the English Language 1666 (5th ed. 201 1 ). M-I arg ues that the statute’s requirement that the discl osure appear on a “document that consists solely of the disclo s u r e” is ambig uous because subsection (ii) of the provision provides that the consu m e r m ay authoriz e the procurement o f a

consumer r e port on the d ocument c o n taining the disclosure. See 15 U.S.C. § 1681b(b)(2)(A). I f the statute allows for an authoriz ation on the same document as the disc l o s u r e , M-I
reasons, then the statute must not really require the document
to “consist[ ] solely of the disclosure.” See § 1681b(b)(2)(A). M-I thus urg es u s t o find that Section 1681b(b)(2)(A) is internally inconsistent, a

n d to g ive no effect to Cong ress’s use of the term “solely .”S Y E D V

. M-I
, L L C 13

However, contrary to M-I ’s contention, the statutory allowance f

or the consumer to “authoriz e in writing ” the procurement of a c o nsumer report on the same d o cu m e nt a s the d isclosure does not undermine the requirement that t he document c onsist “solely of the disclosure.” The two clauses

are consistent because the authoriz ation clause is an ex press

ex c e ption to the requirement that the document consist “solely of the disclosure.” W hile the sta t u t e d oes not specifically d e s i gnate it as such, the a uthoriz a tion clause immediately follows the d isclosu r e clause, and makes ex press reference to it. See § 1681b(b)(2)( A ) (i i). This is n ot a case where we must rationaliz e two pl a i n l y inconsistent subsections, or smooth o ver a “m i stake in draftsmanship.” Russello v

. U

nited States
, 464 U .S. 16, 23 ( 1 9 8 3 ). To the contrary , it is cle ar that Cong r e ss intended the two subsections to work tog ether.

Allowing an authoriz ation on the same documen t a s the disclosure is consistent with the purp o s e o f the statute. Cong r ess passed Section 1681b(b)(2)(A) i n order to protect

consumers from “improper invasion[ s] of privacy ,” S. Rep. No. 104-185 a t 35 (1995), and th e disclosure a nd authoriz ation r equirements f i t hand in g love to achieve that
purpose. I n deed, each w ould b e la r g ely ineffective o n its

own. Ha d the statute required disclosure without conditioning the procurement of a consumer report on the job applicant’s author i z a t ion, it would have failed to g ive the
ap p l i c a nt control over the p rocurement of the personal information c o n t a ined in the consumer report. On the other hand, had the statute conditioned the procurement o f a report

on the job applicant’s authoriz ation without mandating clear disclosure by the prospect i ve employ er, Cong r ess’s purpose would h ave b een frustrated because applicants w ould not understand what they w er e a u t horiz ing

. The disclosure a ndS Y E D V

. M-I
, L L C

14

authoriz ation clauses therefore work in tandem to further the
cong ressional purpose o f protect i n g consumers from “improper invasion[ s] of privacy .” See id.

Cong r ess reasonably could have concluded that
p ermitting the consumer to provide an authoriz ation o n t h e

same pag e as the disclosure w ould enhance the e ffectiveness of each clause. A job applicant may r ead a disclosure more closely if he understands th a t the potential e mploy er may obtain his consumer report only i f h e sig ns an authoriz ation fo r it to do so. The d ecision to a uthoriz e o r deny the prospective employ er’s u s e o f his r eport to accept or reject his e mploy

ment applic a t i o n may be better informed if the authoriz ation immediately follows the disclosure.

W e thus reject M-I ’s arg ument that Section 1681b(b)(2)(A) is i n t e r

nally inconsistent. “I t is our duty to g ive effect, if possible, to every clause and word o f a statute.” United States v. Menasche
, 348 U.S. 528, 538–39 (1955) (internal quotation marks omitted). M-I ’s interpretation f ails
to g ive effect to the term “solely ,” violating the p r e cept that “statutes should not be construed to make surplusag e of any provision.” W

ilshire W estwood Assocs. v

. Atl. Rich f ield Corp.
, 881 F .2d 801, 804 (9th Cir. 1989) (a l t e ra t ions a nd i n t e r nal quotation marks o mitted). That o ther F CR A provisions mandating disclosure omit the term “ s olely ” is further evidence that Cong r ess i ntended that term to carry meaning in 1 5 U .S.C. § 1681b(b)(2)(A)(i). See 15 U .S.C. §§ 1681d, 1681s-3.S Y E D V

. M-I
, L L C 15

2. The statute does not implicitly authoriz e the inclusion of a liability

waiver in a disclosure document.

Cong r ess’s ex press ex ce p t ion to the “solely ” requirement, allowing the d i s c l osure document to also contain the authoriz ation to procure a c onsumer report, does not mean that the statute contains other implicit ex ceptions as w ell. See United States v. J

ohnson
, 529 U.S. 53, 58 (2000). I ndeed, in lig ht of Cong ress’s ex press g rant of permission f or the inclusion o f an authoriz ation, the f amiliar judi c i a l max im expressio unius est exclusio alterius counsels ag ainst finding addi t ional, implied, ex ceptions. See Tenn. Valley Auth. v

. Hill
, 437 U.S. 153, 188 (1978). W e therefore reject M-I ’s contention that a liability waiver is an impli c i t e x ception to the “solely ” requirement in 15 U.S.C. § 1681b(b)(2)(A)(i).

Moreover, “[ a] n implied ex c eptio n to an ex p r e ss statute is justifiable only when it comports with the b asic p u rpose o f the statute.” W

alker v. Fairbanks Inv. Co.
, 268 F .2d 48, 53 (9th Cir. 1959). Here, an implied e x ce p t i on p ermitting the inclusion of a liability waiver on the same document as the disclosure does not comport with the F CRA’s basic purpose. To the contrary , it w o u l d f rustrate Cong ress’s g oal o f
g uarding a job appl i cant’s rig ht to control the dissemination of sensi tive personal information. See 15 U .S.C. § 1681(a)(4); S. Rep. No. 104-18 5 a t 35. An authoriz ation requiring the job applicant’s sig nature focuses the applicant’s attention on the nature of the p ersonal information the
p rospective e mploy e r may o btain, and the employ er’s inability to obtain that information without his consent. B ut

a liability waiver does just the opposite—it pulls the applicant’s attention away from his privac y r ig hts protected by the F CRA by c a lling hi s a t t e ntion to the rig hts h e must foreg o if he sig ns the d o c u m e nt. I n deed, by reading M-I ’sS Y E D V

. M-I
, L L C

16

Disclosure Release, a j o b applicant could reasonably conclude that his sig nature was n o t consent to the procurement of the consumer report, but to a broad release o f the employ er from claim s a r i s ing from the totality of the

“ investig ative backg round inquiries” referenced in the fi r s t sentence of the f

orm. S ee Appen dix A. Thus, 1 5 U .S.C. § 1 681b(b)(2)(A) does not contain a n implied ex c eption allowing a prospective employ er to include a liability w aiver

on the same document as the statutorily mandated disclosure.

3. The statute’s e x plicit lang uag e can n o t be interpreted as permitting the inclusion of a liability waiver.

M-I also a r gu e s that the statute contains an e xplicit

ex c e ption allowing for the inclusion of a liability wa i v e r, positing that a liability waiver is one ty pe of authoriz ation. B ut we need not speculate about how broad l y Cong ress intended us to read the term “authoriz ation,” because Cong r ess told us ex actly what it meant when it described the authoriz ation as encompassing o nly “the procurement of [ a consumer] report.” 15 U.S.C. § 1681b(b)(2)(A)(ii). F urther,

even assuming the statute were no t as clear as it is, M-I ’s interpretation is inconsist e n t with the plain meaning of the
term “ authoriz e.” To authoriz e is to “g ran t authority o r power to.” American Heritage D ictionary 120. To waive is
to “gi v e u p

. . . voluntarily ” or “ relinquish.” Id. at 1947. Authoriz ation bestows, whereas waiver abdicates. A

consum er may a

uthoriz e the p r ocurement of a consumer report or waive an employ er’s liabili t y , b u t he may not “authoriz e” a “ waiver.” W e decline to so harry the Eng lish lang uag e. See Int’l Primate Prot. League v. Adm’rs o f Tulane E d uc. Fund
, 500 U.S. 72, 82 ( 1991). We thus r eject M

- I ’sS Y E D V

. M-I
, L L C 17

arg ument that the statute somehow ex plici t ly permits the inclusion of a liability

waiver on the disclosure document. 4

4. W h ether the disclosure is “clear and conspicuous” is irrelevant to the analy sis.

Nex t, M-I sug g e sts that its inclusion of a liability w aiver

was permissible because even with the waiver, the disclosure

was still “clear and conspicuous.” M-I cites Smith v. W averly Partners, LLC
, No. 3 :10–CV–00028–RL V–DSC, 2012 W L 3645324, at *6 (W

. D.N.C. Aug

. 23, 2012), for the proposition that a disclosure made p ursuant to Section 1681b(b)(2)(A) is

v a l i d despite the inclusion o f a liability waiver where the waiver is “not so g reat a d i straction as to discount the effectiveness of the d isclosure.” T h e d i strict court in Smith

co n cluded that “in order to g ive Cong ress’s inclusion of the word ‘solely ’ meaning ful effect,

. . . inclusion of the w aiver provision was statutorily impermissible and

. . . the waiver is therefore invalid.” Id. O nly then, an a l y z i n g the sing le, separated sentence releasing the company f rom liability
, did the court hold that the waiver was “not so g reat a distraction

as to d iscount the e ffectiveness of the disclosu r e. ” I d

. I t is inex plicable to us that a cour t would find that including a waiver violated the F CRA, but because the disclosure w a s “clear and conspicuous,” an additional requirement under the F CRA, see 15 U.S.C. § 1681b(b)(2)(A)(i), the disclosure was nonetheless “adequate.” See Smith
, 2 012 W L 3645324, at *6

.

4 M- I’ s arg u m en t th at th e leg islativ e h isto ry su p p o rts its i n terp retatio n

o f th e statu te i s also m isg u id ed

. M- I’ s read in g is in f act in co n sisten t w i th Co n g ress’ s in ten t, b ecau se th e in clu sio n o f a liab ility w aiv er ten ds to d istract f ro m th e disclo su

re’ s clarity

. In an y ev en t, “ it is w ell- settled th at ‘ref eren ce t o leg islativ e h isto ry is i n ap pro p riate w h en th e tex t o f t h e statu te is u n am

b i g u o u s.’ ” Un ited S t

a t es v. S i o u x , 3 6 2 F.3 d 1 2 41
, 1 2 4 6 (9 th Cir. 2 00 4 ). T h u s, w e lo o k n o f u rth er th an

th e statu to ry

tex t.S Y E D V

. M-I
, L L C

18

B ecause the question of wheth er a disclosure is “ clear

a n d c o n s p i c u ous” w ithin the meaning of Secti o n 1681b(b)(2)(A)(i) is separate from the question o f whether a document consists “solely ” of a disclosure, and is not o ne that is before us here, w e d ec i d e o nly that including the w aiver violated the statute’s “s olely ” requirement. F urther, we question w hether the Smith court’s approach comports with the clear mandate and p urpose of the F CRA’s disclosure procedures.

B. M-I’s statutory violation was willful as a matter of law.

S y ed seeks statutory and punitive damag es only
, n o t actual damag es. Statutory and p unitive d a mag e s a re available under the F CRA o nly where a defend a nt “willfully fails to comply ” with the statute. 15 U.S.C. § 1 681n(a). Therefore,

we must decide whether M-I willfully failed to comply with Section 1681b(b)(2)(A) by procuring Sy ed’s consumer report after including a liability waiver o n the same document as the statutoril y m andated disclosure. W e may resolve this question as a matter of law, as the parties acknowledg e.

The Su p reme Court has clarified that, under Section 1681n, willfulness reaches actions taken in “reckless disreg ard of statutory d

u ty ,” in addition to actions “known to violate the Act.” Safeco
, 551 U.S. a t 56–57. A party does not act in reckless disreg ard o f the F CRA “unless the action is not

on l y a violation under a reasonable reading of the statute’s terms, but shows that the c ompany ran a risk of violating the law substantially g reater than the risk associate d with a reading that was merely careless.” Id. at 69.S Y E D V

. M-I
, L L C 19

1. M-I ’s interpretation of the statute was not objectively reasonable.

M-I contends that, even i f it violated the statute b y procuring Sy e d’s c onsumer report, its interpretation o f 15 U.S.C. § 1681b(b)(2)(A) was not so erroneou s that its non-compliance was willful within t h e meaning o f Section 1681n. I n deed, M-I arg ues that its reading w as not “objectively unreasonable” b e c ause the statutory tex t was “less[ ] than[ ] pellucid.” See id. at 70.

M-I ’s a rg uments on this score t r a c k its contentions as to why its a ctions did not violate the statute at all. However, for the reaso n s outlined above, w e conclude that the F CRA unambig uously bars a prospe c t i ve employ er from including

a liability waiver on a disclosure document p rovided a job applicant pursuant to Section 1681b(b)(2)(A).

M-I a lso c ontends that its interpretation o f the statute is objectively reasonable in lig ht o f the dearth of g uidance from federal appellate courts a nd administrative ag encies. No
court of appeals has spoken t o t h e i ssue of whether a dis c l o s u r e d o c u m e n t p r o v i d ed pursuant to Section 1681b(b)(2)(A) may permissibly include a liability waiver. Nor has an administrative a g ency p romulg ated authoritative
g uidance on the issue. 5

5 T h e FT C h as released t h ree in f o rm al s taf

f o p in io n letters relev an t to t h e issu e at h an d
, each su p p o rtin g Sy ed ’ s in terp retatio n o f Sectio n 1 6 8 1 b (b )(2 )(A ). S

ee FT C
, Op i n io n L etter, 1 9 9 7 W L 3 3 7 9 1 22 7, at * 1 (Oct. 2 1
, 1 9 9 7) (“ [T h e] d o cu m en t sh o u ld in clu d e n o th in g m o re th an th e d isclo su re an d th e au th orizatio n f

o r o b tain in g a co n su

m er rep o rt.”); FT C, Op in io n L etter, 1 99 8 W L 3 4 3 2 3 74 8
, at * 2 (Feb

. 1 1
, 1 9 9 8 ) (d isclo su re m ay d escrib e th e “ n at u r e o f th e co n su m er rep orts” it co v ers, bu t o th erw ise sh o u ld “ n o t be en cu m

b ered w ith ex tran eo u s in f

o rm atio n ”); FT C, Op in io nS Y E D V

. M-I
, L L C

20

A lack of “g uidance,” h owever, does not itself render MI ’s int e r pretation reasonable. The Supreme Court has analog iz e d the assessment of w hether a F CRA violation may g ive r ise to a claim for statutory damag e s to the determination of w h ether g overnment employ ees may be held personally liable in suits for dam a ge s

. Safeco
, 551 U.S. at 7 0. I n the qualified immunit y co n tex t, we have held that “when an officer’s conduct is so p atently violative of the constitutional rig ht that reasonable officials would know without g uidance from the courts that the action was unconstitutional, cl o s ely analog ous pre-ex isting case l a w is not required to show that the law is clearly established.” Boyd v. Benton Cty
., 374 F .3d 773, 781 (9th Cir. 2004) (internal quotation marks omitted). Similarly , at least one circuit court of appeals has concluded that, in the F CRA c o ntex t, a “lack o f d efinitive authority does not, a s a matter of law, immuniz e [a party ] f rom potential liability ” for statutory damag es. Cortez v

. Trans Union, LLC
, 617 F .3d 688, 721 (3d Cir. 2010).

Despite the apparent dearth of g uidance on the issue at the time M-I procured Sy ed’s consumer report, M-I ’s inclusion of a liability waiver in the sta tutorily mandated disclosure document comports wit h no reasonable interpretation o f 15 U.S.C. § 1 681b(b)(2)(A). Therefore, we c onclude that MI ’s interpretation was “objectively unreasonable.”

L etter, 1 9 9 8 W L 3 4 3 2 3 7 56
, at * 1 (J u n e 1 2
, 1 9 9 8 ) (in clu sio n of a w aiv er in a d isclo s u re f

o rm v io lates Sectio n 1 6 8 1 b(b )(2 )(A )). Ho w ev er, i n f o rm al

o p in io n letters d o n o t co n stitu

te au th o ritativ e g u id an ce. S ee S a feco
, 5 5 1 U.S. at 7 0 n .1 9 . T h eref

o re, w e d o n o t rely

o n th em h ere.S Y E D V

. M-I
, L L C 21

2. M-I ’s non-compliance was willful.

The parties appear t o a ssume that, under Safeco
, an objectively unreasonabl e i n t erpretation of the F CRA is b y definition a reckless one, as w e ll. However, this interpretation improperl y co n f l a t e s r e c k l e s s n e s s a

nd
neg lig ence. I n tort law, n eg lig ent actions are those which do
not meet the standard of objective reasonableness. See Restatement ( Second) of Torts § 2 83 comment c ( Am. L aw I nst. 1965); W

. Pag e Keeton e t al., Prosser and Keaton on The Law of Tort

s § 32, at 173–74 (5th ed. 1 9 84). On the other hand, one acts recklessly when he c reates an “unreasonable risk o f phy sical harm to another” that is “substantially g reater than that which is necessary to make his conduct neg lig ent.” See Restatement (Secon d) Torts § 500. T h e S upreme Co u rt h a s s p e ci f i c a l l y d i s t i n gu i s h e d recklessness from neg lig ence in t h e F CRA contex t, noting that a violation is only r eckless ( and therefore willful) where

an employ e r adopts a reading of the statute that runs a risk o f

error “ substantially greater than the risk a ssociated with a reading that w as merely careless.” S a f e c o , 551 U.S. at 69 (emphasis added); see a lso id. at 70 (“Safeco’s reading was not objectively unreasonable, and so falls well short of r aising the ‘unjustifiably hig h r isk’ of violating the statute necessary for reckless liability .”)

Moreover, equating n e glig ence with recklessness would fail to g ive effect to the F CRA’s allowance o f actual damag e s f or neg lig e nt violations, on the one hand, and statutory a n d punitive d amag es f

or willful ones, on the other. See 15 U.S.C. § § 1681n, 1 681 o ; Safeco
, 551 U .S. a t 69–70; see also Menasche
, 348 U.S. at 538–39 (“I t is our duty to g ive effect, if p ossible, to every clause and word o f a statute

. . . .”) (internal quotation mark s o mitted). According ly
, if M-I ’sS Y E D V

. M-I
, L L C

22

interpretation of t h e FC R A i s merely objectively unreasonable, it does n o t follow that Sy ed is entitled to statutory damag es.

W e must det e rmine whether M-I ’s interpretation o f 15 U.S.C. § 1681b(b)(2)(A) to permit a liability wai v e r in a dis closure document crossed the “neg lig ence/recklessness line.” See Safeco
, 5 51 U.S. at 69. I t is possible to imag ine an interpretation of 15 U.S.C. § 1681b(b)(2)(A) that w o u ld be objectively unreasonable without rising to the level o f recklessness. F or instance, the Seventh Circuit has h e ld that

a company did not recklessly disreg ard the F CRA’s mandate of “clear and conspicuous” disclosure by using six -point ty pe,

even if the company ’s actions were neg lig ent. Murray v. New Cingular W

ireless Servs., Inc.
, 52 3 F. 3 d 719, 7 26–27 (7th Cir. 2008) (Ea s t e rbrook, J .) (qualify ing that such a practice “would be reckless today ,” g iven intervening leg al authority ).

Here, however, the term w e a re called upon to construe is
not subject to a rang e of plausible interp r e t a t i o ns. To the contrary , 15 U.S. C

. § 1681b(b)(2)(A) unambig uously forecloses the inclusion o f a liabil i t y waiver in a disclosure document. Thus, we n e ed not c onsider M-I ’s subjective interpretation o f the F CRA in d etermining whether it acted in reckless disreg ard of th e s t atutory lang uag e, and therefore willfully

. I n deed, M-I concedes that this question may be resolved purely as a matter o f law. 6 B ecause the statute

6 In Sa feco
, th e Su

p rem e Co u rt d id n o t f

o reclo se th e p o ssib ility th at

a p arty ’ s su

b j ectiv e in terp retatio n o f

th e FCRA m ay b e relev an t in so m e circu m s tan ces. 5 5 1 U.S. at 7 0 n .2 0 ; see a lso In re S ea g ate Tech

., LLC
, 4 9 7 F.3 d 1 3 60
, 1 3 8 4 (Fed

. Cir. 2 00 7 ), a b r o g a ted o n o th er g ro u n d s b y Ha lo Elecs., In c. v. Pu lse Elecs., In c. , —U.S.—, 1 3 6 S. Ct. 1 9 2 3 (2 0 1 6) (a FCRA d ef

en d an t’ s “ su

b j ectiv e b elief

s m ay b eco m e relev an t

. . . if [th e p lain tif f ] su ccessf u lly m ak es [a] sh o w in g o f o b j ect i v e u n reaso n ab len ess”).S Y E D V

. M-I
, L L C 23

unambig uously b ars M-I ’s interpretation, whether or not M-I actually b elieved that its interpretation wa s c o r rect is immaterial. See Reardon v

. ClosetMaid Corp.
, No. 2:08–cv–01730, 2013 W L 6 231606, at *11 (W .D. Pa. Dec. 2, 2013) (holding that there was “no issue of material fact” about whether defendan

t v iolated 1 5 U.S.C. § 1681b(b)(2)(A) willfully and g ra n ting plaintiff summary judg ment). 7 Notwithst a n d i n g that w e are the first federal appellate court to construe Section 1681b(b)(2)(A), this is not a “borderline case.” S ee C o r t e z , 617 F .3d at 722. An employ er “whose conduct is first ex amined under [ a] section of the A ct should
not receive a p ass because the issue has never been decided.” Id.

Ho w ev er, w

h ere a p arty ’ s actio n v io lates an u n am b ig u o u s statu to ry req u irem en t, th at f

act alo n e m ay b e su f

f icien t to co n clu d e th at i ts v io latio n is reck less, an d th eref

o re w illf u l. W e o b serv e th at, in to rt law
, f ro m w h ich th e S a feco C o u rt d rew its i n terp retatio n o f w illf u ln ess u n d er th e FCRA
, reck lessn ess m ay

b e d eterm in ed b y ob

j ectiv e ev id en ce alo n e. Keeto n et al., su p ra , § 3 4 at 2 13

– 1 4.

7 W e are p ersu ad ed b y th e o p i n io n s o f a n u m b e r o f o th er d istrict

co u rts rej ectin g th e arg u m e n t t h at a p ro sp ectiv e em p lo y er’ s in clu sio n of

a liab i l ity w aiv er in a d isclo su r e m a d e p u rsu an t to 1 5 U.S.C. § 1 6 8 1 b (b )(2 )(A ) w as n o t w i llf u l as a m atter of law

. Ha r ris v. Ho m e Dep ot U.S .A., In c. , 1 1 4 F. Su p p

. 3 d 8 6 8
, 8 7 0– 7 1 (N.D. Cal. 2 0 1 5 ); S peer

v. W h ole Fo o d s Mkt. Grp

., In c. , No

. 8 : 1 4

– cv

– 30 3 5

– T

– 2 6 T B M, 2 0 1 5 W L 1 4 5 6 9 8 1 , at * 3 (M.D. Fla. March 3 0 , 2 0 1 5 ); Avila v. NOW Hea lth Grp

., In c. , No . 1 4 C 1 5 5 1
, 2 0 1 4 W L 3 53 7 8 2 5
, at * 3 (N.D. Ill. J u ly 1 7 , 2 0 1 4 );

see a lso Ra mirez v. Mid

west Ai rl i n es, In c. , 5 37 F. Su p p

. 2 d 1 1 6 1
, 1 1 7 1 (D. Kan

. 2 00 8 ) (h o ld in g th at def en d an t co u l d n o t av o id liab ility f o r w illf u l

v io latio n as a m a t t e r o f law u n d er th e FCRA
, 1 5 U.S.C. § 1 6 8 1 c(g ), b ecau se th ere w as “ n o p lau sib l e altern ativ e read in g o f t h e statu te in th e f o u n d atio n o f th e s tatu t o ry tex t”). Fo r th e reaso n s d escrib ed in P art IV.A .4
, w e d isag ree w ith th e co n trary an aly sis o f th e co u rt in S mith
, 2 0 1 2 W L 3 6 4 5 3 2 4 , at * 6

.S Y E D V

. M-I
, L L C

24

M-I ran an “unjustifi a bly hig h risk o f v iolating the statute.” S

ee S afeco
, 551 U.S. a t 70 (internal quotation marks omitted). I n other words, M-I acted in “reckless disreg ard o f statutory duty

. ” I ts v i o l a t ion of the F CRA was therefore willful under 15 U.S.C. § 1 6 8 1 n

. See Safeco
, 551 U .S. at 56–57.

C. The complaint’s

factual all e

g a t i o ns preclude dismissal on statute of limitations grounds.

I n t he a lternative, M-I urg e s us to affirm the district court’s d ismissal of Sy ed’s complaint on the g round that Sy ed’s claims are barred by the F CRA’s two-y e a r s tatute o f limitations. The F CRA requires a plaintiff to bring an action within the earlier of “(1) 2 y ears after the date of discovery b y the plaintiff of the violation that i s the basis for [ the employ er ’ s] liability ; o r (2) 5 y e a rs after the date on which the violation that is t h e basis f or such liability occurs.” 15 U.S.C. § 1681p. The district c o u rt dismis s e d S y ed’s action because he failed to state a claim under F ederal Rule of Civil Procedure 12(b)(6), n ot b ecause the c l a i m was time-barred. However, we may “affirm on any basis fairly supp o r t e d b y the record.” Corrie v. Cat erpillar, Inc.
, 503 F .3d 974, 979 (9th Cir. 2007).

M-I arg ues that Sy ed “discovered” the viol at i o n within the meaning of 15 U. S

. C

. § 1 681p when he sig n ed M-I ’s alleg edly deficient Disclosure Release form u po n a pply ing for a job in 2011

. B ecause Sy e d c halleng es only the disclosure document, and not the manner in which M-I used his c onsumer report, M-I contends that the date of disclosure is the relevant one here.S Y E D V

. M-I
, L L C 25

However, a prospective employ er does not v i o l a t e Section 1 6 81b(b)(2)(A) b y providing a disclosure that violates t h e F CRA’s disclosure requirement. See Harris v. Home Depot U.S.A., Inc.
, 114 F

. Supp. 3 d 868, 869 (N.D. Cal. 2 015); Singleton v. Domino’s Pizza, LLC
, No. DKC 1 1-1823, 2012 W L 2 45965, a t * 7 ( D

. Md. J an. 25, 2012). The employ er violates the F CRA only where, after violating i t s disclosure proced u res, it “procure[ s] or cause[ s] to be procured” a

consumer report about the job applicant. See 1 5 U

. S

. C. § 1681b(b)(2)(A)(i).

M-I urg es a c ontrary interpretation, rely ing on cases construing s t atutes of limitations involving inadequate disclosures on loan documents und e r t h e F air a nd A ccurate Credit Transactions Ac t of 2003 (“F A CTA”), Pub. L

. 108- 159, 111 Stat. 1952, which amended the F CRA, and the Truth in L ending Act of 1968 (“TI L A”), Pub

. L

. 9 0

- 321, 82 Stat. 146 (codified at 15 U.S.C. § 1601 et seq )

. M-I is c orrect that the statutes of limitations under F A CTA and TI L A g enerally beg in to run w hen the disclosure is mad e

. H o wever, this is

so because the disclosure and transaction usually o c c u r simultaneously in the lending contex t. See Ancheta v. G olden Empire Mortg., Inc.
, No. 1 0-CV-05589-L HK, 2011 W L 826177, at *4 (N.D. Cal. March 7
, 2 011) (“F ACTA c laims presumptively accrue on the date of the loan transaction, because it should be clear on this date whether or not a credit score disclosure is made.”).

Here, Sy ed does n o t a lleg e that M-I procured his

consumer report at the same time it made its disclosure, which would have me a n t that he could have d iscovered the statutory violation when he r e c eived the Disclosure Release. To the contrary , he alleg es that h e was unaware M-I h ad procured his consumer report until he reviewed his personnelS Y E D V

. M-I
, L L C

26

f i l e “within the last two y ears.” B ecause we must treat t h i s alleg ation as true at the motion-to-dismiss stag e, Sy ed adequately pleaded that his claim fell within the F CRA’s twoy ear statute of limitations. S ee Supermail Cargo, Inc

. v. United States
, 68 F .3d 1204
, 1 2 0 7 (9th Cir. 1995) (“[ A] complaint cannot be d ismissed [ for untimeliness] u n l e s s it
appears bey ond d o ub t t hat the p laintiff can prove no set o f facts that would establish the timeliness of the c l a i m.”). Therefore, dismissal of Sy e d’s complaint was not warranted on the g round that his claim was time-barred.

V

.

The F CRA’ s e m

p l o y m e n t d i s closure provision “say s what it means and means what it say s.” S e e Simmons v

. Himmelreich
, —U.S.—, 136 S. Ct. 1843, 1848 (2016). The
statute unambig uously bars the inclusion of a liability w aiver

on the same document as a disclosure made pur s u a nt to 15 U.S.C. § 1681b(b)(2)(A). M-I willfully v i olated the
statute by procuring Sy ed’s consumer r e port without providing a d isclosure “ in a d ocument that consist[ ed] solely of the disclosure.” § 1681b(b)(2)(A)(i). Theref ore, the district court erred in dismissing Sy e d ’ s complaint.

REVERSED and R EMANDED.S Y E D V

. M-I
, L L C 27

AP P ENDIX A