FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DANIEL WALKER, individually and

on behalf of all others similarly

situated,

Plaintiff-Appellant,

v.

FRED MEYER, INC., a Delaware

corporation,

Defendant-Appellee.

No. 18-35592

D.C. No.

CV 17-1791 YY

OPINION

Appeal from the United States District Court

for the District of Oregon

Michael H. Simon, District Judge, Presiding

Argued and Submitted June 11, 2019

Anchorage, Alaska

Filed March 20, 2020

Before: A. Wallace Tashima, William A. Fletcher,

and Marsha S. Berzon, Circuit Judges.

Opinion by Judge Tashima
2 WALKER V. FRED MEYER, INC.

SUMMARY*

Fair Credit Reporting Act

The panel affirmed in part and reversed in part the district

court’s dismissal of an action under the Fair Credit Reporting

Act, which requires employers who obtain a consumer report

on a job applicant to first provide the applicant with a “clear

and conspicuous disclosure” that the employer may obtain

such a report, and to provide this disclosure “in a document

that consists solely of the disclosure.”

Reversing the dismissal, for failure to state a claim, of

plaintiff’s claim under 15 U.S.C. § 1681b(b)(2)(A), the panel

held that the disclosure provided by defendant violated the

FCRA’s standalone disclosure requirement, which does not

allow for the inclusion of any extraneous information in the

consumer report disclosure. Addressing what qualifies as

part of the disclosure, the panel held that, beyond a plain

statement disclosing “that a consumer report may be obtained

for employment purposes,” some concise explanation of what

the phrase means may be included. The panel remanded,

leaving it for the district court to decide in the first instance

whether the remaining language in defendant’s disclosure

satisfied the “clear and conspicuous” requirement.

Affirming the dismissal of plaintiff’s claim under

§ 1681b(b)(3)(A), the FCRA’s pre-adverse action notice

requirement, the panel held that the right provided by the

FCRA to dispute inaccurate information in a consumer report

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
WALKER V. FRED MEYER, INC. 3

does not require employers to provide job applicants or

employees with an opportunity to discuss their consumer

reports directly with the employer. Instead, the FCRA

requires that an employer provide, in a pre-adverse action

notice to the consumer, a description of the consumer’s right

to dispute with a consumer reporting agencythe completeness

or accuracy of any item of information contained in the

consumer’s file at the consumer reporting agency.

COUNSEL

Steven L. Woodrow (argued) and Patrick H. Peluso,

Woodrow & Peluso LLC, Denver, Colorado; Neal Weingart,

Jones & Swartz PLLC, Portland, Oregon; for PlaintiffAppellant.

Faith C. Whittaker (argued) and Michael B. Mattingly,

Dinsmore & Shohl LLP, Cincinnati, Ohio; Michael Porter

and Taylor D. Richman, Miller Nash Graham & Dunn LLP,

Portland, Oregon; for Defendant-Appellee.

OPINION

TASHIMA, Circuit Judge:

The Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq.

(“FCRA”), protects consumers’ privacy rights by requiring

employers who obtain a consumer report on a job applicant

to first provide the applicant with a “clear and conspicuous

disclosure” that the employer may obtain such a report. 

15 U.S.C. § 1681b(b)(2)(A)(i). That disclosure must be

provided “in a document that consists solely of the
4 WALKER V. FRED MEYER, INC.

disclosure.” Id. We recently held that because of this “clear

statutory language that the disclosure document must consist

‘solely’ of the disclosure,” Syed v. M-I, LLC, 853 F.3d 492,

496 (9th Cir. 2017), the FCRA’s disclosure requirements do

not allow for the inclusion of any extraneous information in

the consumer report disclosure, even if such information is

related to the disclosure. See Gilberg v. Cal. Check Cashing

Stores, LLC, 913 F.3d 1169, 1175–76 (9th Cir. 2019). Given

that the disclosure document may contain only the

§ 1681b(b)(2)(A)(i) disclosure, we now address as a matter of

first impression what qualifies as part of that “disclosure . . .

that a consumer report may be obtained for employment

purposes.” 15 U.S.C. § 1681b(b)(2)(A)(i).

We hold that beyond a plain statement disclosing “that a

consumer report may be obtained for employment purposes,”

some concise explanation of what that phrase means may be

included as part of the “disclosure” required by

§ 1681b(b)(2)(A)(i). For example, a company could briefly

describe what a “consumer report” entails, how it will be

“obtained,” and for which type of “employment purposes” it

may be used. See id.

We also hold that the right provided by the FCRA to

dispute inaccurate information in a consumer report does not

require employers to provide job applicants or employees

with an opportunity to discuss their consumer reports directly

with the employer. See id. § 1681b(b)(3)(A). Instead, the

FCRA requires that an employer provide, in a pre-adverse

action notice to the consumer, a description of the consumer’s

right to dispute with a consumer reporting agency the

completeness or accuracy of any item of information

contained in the consumer’s file at the consumer reporting

agency. See id. §§ 1681g(c)(1)(B)(iii), 1681i.
WALKER V. FRED MEYER, INC. 5

Accordingly, we affirm in part, reverse in part and

remand.

I.

In March 2017, Plaintiff-Appellant Daniel Walker

(“Walker”) applied for a job at one of Defendant-Appellee

Fred Meyer Inc.’s (“Fred Meyer”) supermarkets. Shortly after

submitting his application, Walker was hired—contingent

upon satisfactory results on a background check—as an

associate at a Fred Meyer store in Portland, Oregon.

As part of the hiring process, Walker was presented with

several disclosure and acknowledgment forms, including two

documents concerning an investigation of his background. 

One of these documents was a Disclosure Regarding

Consumer Reports and Investigative Consumer Reports (the

“Disclosure”), which informs new hires that Fred Meyer will

investigate their background using an employment

background reporting company, General Information

Services, Inc. (“GIS”). Specifically, this Disclosure, which

is the subject of this litigation, consisted of the following

paragraphs, followed by a signature line to acknowledge

receipt:

We ([t]he Kroger family of companies) will

obtain one or more consumer reports or

investigative consumer reports (or both) about

you for employment purposes. These purposes

may include hiring, contract, assignment,

promotion, reassignment, and termination.

The reports will include information about

your character, general reputation, personal

characteristics, and mode of living.
6 WALKER V. FRED MEYER, INC.

We will obtain these reports through a

consumer reporting agency. The consumer

reporting agency is General Information

Services, Inc. GIS’s address is P.O. Box 353,

Chapin, SC 29036. GIS’s telephone number is

(866) 265-4917. GIS’s website is at

www.geninfo.com.

To prepare the reports, GIS may investigate

your education, work history, professional

licenses and credentials, references, address

history, social security number validity, right

to work, criminal record, lawsuits, driving

record and any other information with public

or private information sources.

You may inspect GIS’s files about you (in

person, by mail, or by phone) by providing

identification to GIS. If you do, GIS will

provide you help to understand the files,

including communication with trained

personnel and an explanation of any codes.

Another person may accompany you by

providing identification.

If GIS obtains any information by interview,

you have the right to obtain a complete and

accurate disclosure of the scope and nature of

the investigation performed.1

1 No party disputes that this is the language of the Disclosure

presented to Walker. As the magistrate judge noted, the text of the

Disclosure may be considered at the motion-to-dismiss stage under the

incorporation-by-reference doctrine, because, although Walker did not
WALKER V. FRED MEYER, INC. 7

Second, Walker was also presented with an Authorization

Regarding Consumer Reports and Investigative Consumer

Reports (the “Authorization”), which seeks a new hire’s

authorization for GIS to conduct such an investigation

through a variety of means, including “any public or private

information source.” Walker signed both these documents in

order to proceed with this employment opportunity, but he

allegedly found the documents confusing and was therefore

unable meaningfully to evaluate and understand the nature of

the report that Fred Meyer intended to obtain about him.

Several weeks later, GIS sent Walker a letter (the “preadverse action notice”), dated April 3, 2017. The letter

provided Walker with a copy of the consumer report that GIS

had procured about him, explained that Fred Meyer uses such

reports “in evaluating individuals for employment as Fred

Meyer team members,” and notified Walker that Fred Meyer

“has or will be completing their review of your application

within the next few days, and may take action based on the

enclosed report.” The letter then informed Walker that he

could dispute the accuracy or completeness of the consumer

report with GIS directly by filling out a request form within

five business days. However, the letter provided no option

for or information about discussing the report with Fred

Meyer itself.

attach the document to his pleadings, he referenced it throughout his

complaint. See Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005)

(noting that a court may “take into account documents whose contents are

alleged in a complaint and whose authenticity no party questions, but

which are not physically attached to the [plaintiff’s] pleading.” (internal

quotation marks omitted)); United States v. Ritchie, 342 F.3d 903, 908

(9th Cir. 2003) (explaining that the court may “treat such a document as

part of the complaint, and thus may assume that its contents are true for

purposes of a motion to dismiss under Rule 12(b)(6)”).
8 WALKER V. FRED MEYER, INC.

Five business days later, GIS sent Walker a second letter,

dated April 10, 2017, informing him that Fred Meyer had

decided, based on the consumer report, not to continue his

employment. In the letter, GIS stated that it did not make the

decision to terminate Walker’s employment, and that it was

unable to provide him with an explanation of the decision. 

Looking for answers, Walker contacted his Human Resources

Manager at Fred Meyer, who told him that she was neither

aware of the consumer report nor of the fact that Walker’s

employment was being terminated.

On November 8, 2017, Walker filed a putative class

action complaint against Fred Meyer, alleging that Fred

Meyer had willfully violated the FCRA by: (1) providing an

unclear disclosure form encumbered by extraneous

information, in violation of 15 U.S.C. § 1681b(b)(2)(A); and

(2) failing to notify Walker in the pre-adverse action notice,

in violation of 15 U.S.C. § 1681b(b)(3), that he could discuss

the consumer report obtained about him directly with Fred

Meyer.

On December 28, 2017, Fred Meyer filed a motion to

dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6),

arguing that Walker had failed to state a claim because the

conduct described in the complaint did not violate the FCRA.

Specifically, Fred Meyer argued that its disclosure form

satisfied the FCRA’s consumer report disclosure

requirements, and that the FCRA did not require that Walker

explicitly be provided with the opportunity to discuss his

consumer report with Fred Meyer prior to his termination.2

2 Fred Meyer also moved to dismiss Walker’s second claim

concerning the pre-adverse action notice under Rule 12(b)(1), arguing that

Walker lacked Article III standing to bring that claim because he never
WALKER V. FRED MEYER, INC. 9

Adopting in part a magistrate judge’s findings and

recommendations regarding Fred Meyer’s motion to dismiss,

the district court granted the motion and dismissed Walker’s

complaint with prejudice for failure to state a claim. In

particular, the district court ruled that Fred Meyer’s

Disclosure met the FCRA’s disclosure requirements because

it was not overshadowed by extraneous information. As to

Walker’s second claim, the district court concluded that the

FCRA does not require that pre-adverse action notices inform

an employee how to contact and discuss his consumer report

directly with his employer. Walker timely appealed the

district court’s order of dismissal.

II.

We have jurisdiction under 28 U.S.C. § 1291, and we

review de novo the grant of a Rule 12(b)(6) motion to dismiss

for failure to state a claim. Syed, 853 F.3d at 499. In so

doing, we accept all well-pleaded factual allegations in the

complaint as true and construe the pleadings in the light most

favorable to the plaintiff. Id. In determining whether the

complaint’s allegations state a claim for relief, we review de

novo the district court’s construction of the FCRA, because

the interpretation of a statute is a question of law. See id.

III.

Walker argues that the district court erred by granting

Fred Meyer’s Rule 12(b)(6) motion to dismiss because,

availed himself of the opportunity to dispute the contents of his consumer

report. The district court rejected this argument, ruling that Walker had

alleged a sufficientlyparticularized and concrete injury to establishArticle

III standing.
10 WALKER V. FRED MEYER, INC.

under the correct interpretation of the FCRA’s requirements,

both the Disclosure and the pre-adverse action notice violated

the FCRA. We address each of Walker’s two claims in turn.

A.

To protect consumers’ privacy rights, the FCRA requires

that an employer who obtains a consumer report about a job

applicant first provide the applicant with a standalone, clear

and conspicuous disclosure of its intention to do so, and

obtain the applicant’s consent:

[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). Walker argues that, contrary to

this provision, the Disclosure document did not consist

“solely of the disclosure” because it contained extraneous

information, particularly about investigative consumer
WALKER V. FRED MEYER, INC. 11

reports, and that such extraneous information also violated

the “clear and conspicuous” requirement because it rendered

the Disclosure “muddled” and “confusing to consumers.”3

Thus, both the “clear and conspicuous” requirement and the

“solely” requirement, also known as the “standalone

requirement,” are at issue. We must decide whether those

requirements disallow the inclusion of any of the information

included in the Disclosure.

1.

First, as to the standalone disclosure requirement, we

noted in Syed that “[t]he ordinary meaning of ‘solely’ is

‘[a]lone; singly’ or ‘[e]ntirely; exclusively,’” and we held that

the standalone requirement was unambiguous and meant what

it said. Syed, 853 F.3d at 500–01 (quoting American Heritage

Dictionary of the English Language 1666 (5th ed. 2011)); see

Gilberg, 913 F.3d at 1175 (explaining the basis for Syed’s

conclusion that “the statute meant what it said”). Thus, Ninth

Circuit precedent reads the FCRA as mandating that a

3 Because Walker signed a separate authorization form, Walker does

not claim that Fred Meyer failed to properly secure his authorization to

obtain a consumer report as required by 15 U.S.C. § 1681b(b)(2)(A)(ii). 

However, Walker does argue that the language of Fred Meyer’s

authorization form “underscores the confusing and distracting nature of

Fred Meyer’s disclosure form, thereby reinforcing Walker’s claim for

violation of § 1681b(b)(2)(A)(i),” i.e., his claim that the Disclosure

violated the FCRA. While it may be true that the authorization form

amplifies any confusion allegedly created by the Disclosure, the

authorization form is not relevant to the disclosure form standard set forth

in the statute where, as here, the authorization is not included in the

Disclosure. Either the Disclosure meets the “clear and conspicuous” and

“standalone” requirements, or it does not; that determination does not

depend on what is in a separate authorization form. See 15 U.S.C.

§ 1681b(b)(2)(A).
12 WALKER V. FRED MEYER, INC.

disclosure form contain nothing more than the disclosure

itself.4 Simply put, “the [disclosure] form should not contain

any extraneous information.” See U.S. Fed. Trade Comm’n,

Advisory Opinion to Hauxwell, 1998 WL 34323756, at *1

(June 12, 1998).5

4 The statute provides an express exception permitting the required

authorization to be included in the disclosure formas well. That exception

is not at issue here because Fred Meyer provided its authorization in a

separate form. See 15 U.S.C. § 1681b(b)(2)(A)(ii); Syed, 853 F.3d at 497,

500–01.

5 The FTC’s advisory opinions are not binding or precedential, but

can provide helpful insight. For example, the FTC has noted that “[t]he

reason for requiring that the disclosure be in a standalone document is to

prevent consumers frombeing distracted by other information side-by-side

with the disclosure.” U.S. Fed. Trade Comm’n, Advisory Opinion to

Leathers, 1998 WL 34323725, at *1 (Sept. 9, 1998). As the FTC

explained:

[W]e believe that it was the intent of the drafters to

assure that the required disclosure appear

conspicuously in a document unencumbered by any

other information. 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. We believe that including an

authorization in the same document with the disclosure

. . . will not distract from the disclosure itself; to the

contrary, a consumer who is required to authorize

procurement ofthe report on the same document will be

more likely to focus on the disclosure. However, such

a document should include nothing more than the

disclosure and the authorization for obtaining a

consumer report.

U.S. Fed. Trade Comm’n, Advisory Opinion to Steer, 1997 WL

33791227, at *1 (Oct. 21, 1997).
WALKER V. FRED MEYER, INC. 13

Here, the district court held, based on several district

court opinions and FTC advisory opinions, that Fred Meyer’s

disclosure complied with the FCRA’s standalone requirement

because “some additional information” may be included in an

FCRA disclosure, as long as the information is “closely

related to the FCRA disclosure,” and focuses the applicant’s

attention on the FCRA disclosure rather than detracting from

it. After this case was appealed, however, the Ninth Circuit

decided Gilberg, which forecloses the district court’s

interpretation that the FCRA contains an implied exception

allowing the inclusion of information that is “closely related”

to the disclosure. See Gilberg, 913 F.3d at 1176 (explaining

that Syed “forecloses” such an approach and suggesting that,

in any case, such a standard would be difficult to implement,

and would be inappropriate because “even ‘related’

information may distract or confuse the reader”).6

In light of Gilberg, a disclosure form violates the FCRA’s

standalone requirement if it contains any extraneous

information beyond the disclosure required by the FCRA. 

6 Specifically, the Gilberg court read Syed as signaling that the FCRA

“should not be read to have implied exceptions,” especially when an

exception would be contrary to the FCRA’s purpose. Id. at 1175 (citing

Syed, 853 F.3d at 501–03); see also Syed, 853 F.3d at 501 (explaining that,

“in light of Congress’s express grant of permission for the inclusion of an

authorization, the familiar judicial maxim expressio unius est exclusio

alterius counsels against finding additional, implied, exceptions,” and

noting that “[a]n implied exception to an express statute is justifiable only

when it comports with the basic purpose of the statute”). Gilberg then

went on to hold that, even where a defendant argues that any additional

information in its disclosure form is consistent with the congressional

purpose of the FCRA, “purpose does not override plain meaning,” and the

meaning of “solely” is plain. 913 F.3d at 1175. As a result, the Gilberg

court concluded that “Syed holds that the standalone requirement

forecloses implicit exceptions.” Id. at 1176.
14 WALKER V. FRED MEYER, INC.

See Gilberg, 913 F.3d at 1176 (holding that the defendant

violated the standalone requirement where its disclosure

“contain[ed] extraneous and irrelevant information beyond

what [the] FCRA itself requires”). As Fred Meyer points out,

if an FCRA disclosure may only contain the disclosure that is

required by the statute, the question then becomes what

language counts as part of the “disclosure” itself. The statute

requires a standalone “disclosure . . . that a consumer report

may be obtained for employment purposes,” but does not

further define the term “disclosure” or explain what

information can be considered part of that “disclosure” for

purposes of the standalone requirement. See 15 U.S.C.

§§ 1681a, 1681b(b)(2)(A)(i).

We now hold that beyond a plain statement disclosing

“that a consumer report may be obtained for employment

purposes,” some concise explanation of what that phrase

means may be included as part of the “disclosure” required by

§ 1681b(b)(2)(A)(i). For example, a company could briefly

describe what a “consumer report” entails,7how it will be

“obtained,” and for which type of “employment purposes” it

7 Such an allowance for a brief description of consumer reports would

align with prior FTC guidance. In its advisory opinion to Coffey, the FTC

explained:

It is our view that Congress intended that the disclosure

not be encumbered with extraneous information. 

However, some additional information, such as a brief

description of the nature of the consumer reports

covered by the disclosure, may be included if the

information does not confuse the consumer or detract

from the mandated disclosure.

Fed. Trade Comm’n, Advisory Opinion to Coffey, 1998 WL 34323748,

at *2 (Feb. 11, 1998).
WALKER V. FRED MEYER, INC. 15

may be used.8See 15 U.S.C. § 1681b(b)(2)(A)(i). Such

information would further the purpose of the disclosure by

helping the consumer understand the disclosure. See Syed,

853 F.3d at 501 (noting that Congress’ purpose to protect

consumers from improper invasions of privacy would be

frustrated in the absence of a clear disclosure because job

applicants would not understand what theywere authorizing).

With this standard in mind, we turn to the text of the

Disclosure to determine whether it impermissibly contained

extraneous information beyond the § 1681b(b)(2)(A)(i)

disclosure itself. The first paragraph provides:

We ([t]he Kroger family of companies) will

obtain one or more consumer reports or

investigative consumer reports (or both) about

you for employment purposes. These purposes

may include hiring, contract, assignment,

promotion, reassignment, and termination.

The reports will include information about

your character, general reputation, personal

characteristics, and mode of living.

This language provides the required disclosure that consumer

reports may be obtained for employment purposes, see id.,

and then, in accordance with the standard we set forth above,

helpfully explains what those “employment purposes” may

8 Of course, any such explanation should not be confusing or so

extensive as to detract from the disclosure. In other words, it must still

meet the separate “clear and conspicuous” requirement, discussed further

below. See 15 U.S.C. § 1681b(b)(2)(A)(i).
16 WALKER V. FRED MEYER, INC.

include and what type of information may be included in the

“consumer report.”9

Walker argues that the first paragraph of Fred Meyer’s

Disclosure nonetheless violates the FCRA’s standalone

disclosure requirement because it mentions investigative

consumer reports in addition to consumer reports; he

contends that information about investigative consumer

reports qualifies as impermissible extraneous information. 

We disagree. The FCRA defines an investigative consumer

report as “a consumer report or portion thereof in which

information on a consumer’s character, general reputation,

personal characteristics, or mode of living is obtained through

personal interviews with neighbors, friends, or associates of

the consumer . . . .” 15 U.S.C. § 1681a(e) (emphasis added). 

Because investigative reports are a subcategory or specific

type of consumer report, disclosing that an investigative

consumer report may be obtained for employment purposes

does not violate the FCRA’s mandate that nothing be

included in the disclosure document other than a “disclosure

. . . that a consumer report will be obtained for employment

9 The Disclosure’s language explaining that reports will include

information about the consumer’s “character, general reputation, personal

characteristics, and mode ofliving” tracksthe language ofthe FCRA. The

FCRA defines “consumer report” as concerning “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.” 15 U.S.C.

§ 1681a(d)(1) (emphasis added); see also id. § 1681a(e) (stating that

investigative consumer reports also concern information about a

consumer’s “character, general reputation, personal characteristics, or

mode of living”).
WALKER V. FRED MEYER, INC. 17

purposes.”10 See 15 U.S.C. § 1681b(b)(2)(A)(i). As long as

the information about investigative reports is limited to

disclosing that such reports may be obtained for employment

purposes, and providing a very brief description of what that

means, the inclusion of such information in a

§ 1681b(b)(2)(A)(i) disclosure does not run afoul of the

standalone requirement. Accord Fed. Trade Comm’n,

Advisory Opinion to Willner, 1999 WL 33932153, at *1, *2

(Mar. 25, 1999) (noting that the § 1681b(b)(2)(A) disclosure

“includes all types of consumer reports (including, but not

limited to, investigative reports)” and suggesting that it could

therefore include a “very limited” and “brief” disclosure

regarding investigative consumer reports specifically). For

the foregoing reasons, the first paragraph of Fred Meyer’s

disclosure form can be considered part of the “disclosure”

itself for purposes of the FCRA’s standalone requirement. 

See 15 U.S.C. § 1681b(b)(2)(A)(i).

The second and third paragraphs of Fred Meyers’

Disclosure explain:

We will obtain these reports through a

consumer reporting agency. The consumer

reporting agency is General Information

Services, Inc. GIS’s address is P.O. Box 353,

Chapin, SC 29036. GIS’s telephone number is

10 Of course, any discussion of investigative consumer reports must

not be confusing—it is still subject to the clear and conspicuous

requirement. Thus, Walker’s arguments that the disclosure statement’s

language confusingly “blurs the line between consumer reports and

investigative reports” such that the reader cannot understand what

information will be obtained about him, including by omitting any

mention of credit worthiness or credit capacity in the first and third

paragraphs, are better directed to the clear and conspicuous requirement.
18 WALKER V. FRED MEYER, INC.

(866) 265-4917. GIS’s website is at

www.geninfo.com.

To prepare the reports, GIS may investigate

your education, work history, professional

licenses and credentials, references, address

history, social security number validity, right

to work, criminal record, lawsuits, driving

record and any other information with public

or private information sources.

These paragraphs elucidate what it means to “obtain” a

consumer report by providing helpful information about who

will provide such a report to Fred Meyer and what private and

public information about the applicant will be examined to

create a “consumer report.” As a result, this language also

does not violate the FCRA’s requirement that the disclosure

consist solely of a “disclosure . . . that a consumer report will

be obtained for employment purposes.”11See 15 U.S.C.

§ 1681b(b)(2)(A)(i).

Finally, the fourth and fifth paragraphs of Fred Meyer’s

Disclosure inform the consumer that:

You may inspect GIS’s files about you (in

person, by mail, or by phone) by providing

identification to GIS. If you do, GIS will

provide you help to understand the files,

including communication with trained

personnel and an explanation of any codes.

Another person may accompany you by

providing identification.

11 See footnote 10, supra.
WALKER V. FRED MEYER, INC. 19

If GIS obtains any information by interview,

you have the right to obtain a complete and

accurate disclosure of the scope and nature of

the investigation performed.

These paragraphs appear to have been included in good faith

in order to provide additional useful information about an

applicant’s rights to obtain and inspect information about

GIS’ investigation of, and file about, the applicant. This

language, however, may “pull[] the applicant’s attention

away from his privacy rights protected by the FCRA by

calling his attention to the rights” that he has to inspect GIS’s

files. See Syed, 853 F.3d at 502; see also Gilberg, 913 F.3d

at 1175–76 (noting that additional information about rights

under state laws, and references to extraneous documents like

a summary of rights under the FCRA, was “as likely to

confuse as it [wa]s to inform,” and holding that the inclusion

of such information violated the standalone disclosure

requirement). Thus, while we understand Fred Meyer’s

reason for providing this information to job applicants, we

hold that it should have been provided in a separate

document, because the information cannot reasonably be

deemed part of a “disclosure . . . that a consumer report will

be obtained for employment purposes.” 15 U.S.C.

§ 1681b(b)(2)(A)(i).

Because this additional information means that the

Disclosure does not “consist[] solely of the disclosure,” we

hold that the fourth and fifth paragraphs of the Disclosure

violate the FCRA’s standalone disclosure requirement.
20 WALKER V. FRED MEYER, INC.

2.

Second, as to the “clear and conspicuous” requirement,

we explained in Gilberg that “clear means ‘reasonably

understandable’” and “[c]onspicuous means ‘readily

noticeable to the consumer’” in this context. Gilberg,

913 F.3d at 1176 (quoting Rubio v. Capital One Bank,

613 F.3d 1195, 1200 (9th Cir. 2010), and adopting its “clear

and conspicuous” analysis from the Truth In Lending Act

context). The Gilberg court assumed, without deciding, “that

clarity and conspicuousness under [the] FCRA present

questions of law rather than fact.” Id. at 1177. The Court

then held that the defendant’s disclosure form was not clear

because it “contain[ed] language that a reasonable person

would not understand” and “would confuse a reasonable

reader because it combine[d] federal and state disclosures.” 

Id.

Here, despite the fact that Syed made clear that the

“standalone” and “clear and conspicuous” requirements are

distinct, the district court did not explicitly address whether

the Disclosure was “clear and conspicuous,” instead focusing

exclusively on the standalone requirement. See Syed,

853 F.3d at 503 (“[T]he question of whether a disclosure is

‘clear and conspicuous’ within the meaning of Section

1681b(b)(2)(A)(i) is separate from the question of whether a

document consists ‘solely’ of a disclosure . . . .”). 

Regardless, because Gilberg was not decided until after the

district court issued its order, the district court did not have an

opportunity to analyze the Disclosure under the “clear and

conspicuous” standard set forth in Gilberg. Nor did the
WALKER V. FRED MEYER, INC. 21

parties have the opportunity fully to brief that standard on

appeal, due to the timing of Gilberg.

12

As a result of these circumstances—and because Walker’s

arguments about lack of clarity are not addressed by

Gilberg—we decline to reach the issue of whether the first

through third paragraphs of the Disclosure satisfythe FCRA’s

“clear and conspicuous” requirement.13See 15 U.S.C.

§ 1681b(b)(2)(A)(i). We leave it to the district court to

determine in the first instance whether the language of those

paragraphs is sufficiently clear under the reasonable person

standard set forth in Gilberg.

14

B.

The FCRA mandates that, before an employer may take

adverse action against an employee or job applicant based on

a consumer report, the employer must provide the consumer

with “a copy of the report” and “a description in writing of

the rights of the consumer . . . as prescribed by the Bureau [of

Consumer Financial Protection] under section 1681g(c)(3) of

this title.” 15 U.S.C. § 1681b(b)(3)(A). According to

Walker, “[o]ne of these rights, mentioned explicitly in the

12 Walker’s opening brief was filed before Gilberg was decided, and

therefore does not address Gilberg’s “clear and conspicuous” standard.

13 Walker’s arguments have to do more with lack of clarity from

omitting, misrepresenting, or failing to explain certain information than

with lack of clarity from the actual language used in the information

provided. See Gilberg, 913 F.3d at 1177.

14 As in Gilberg, we do not decide whether the disclosure’s clarity

under the FCRA presents a question of law or fact. See Gilberg, 913 F.3d

at 1177.
22 WALKER V. FRED MEYER, INC.

statute, is the right to dispute the information contained in the

report.” (Citing 15 U.S.C. § 1681b(b)(3)(B)(i)(IV).) Walker

contends that the right to dispute encompasses not just an

opportunity to correct erroneous information in a consumer

report, but also an opportunity to discuss the report with a

current or prospective employer—that is, an opportunity to

change the employer’s mind—before adverse action is taken. 

Because Fred Meyer’s pre-adverse action notice did not

advise Walker of a right to speak directly with Fred

Meyer—rather than with GIS

15—about any negative items in

his consumer report, Walker argues that Fred Meyer’s preadverse action notice violated the FCRA. The district court

concluded that the FCRA provides no right or requirement

that a pre-adverse action notice include information about

contacting a consumer’s employer directly. Thus, the crux of

the issue is the substantive extent of any right to dispute that

the FCRA may provide, which § 1681b(b)(3)(A)(ii) would

require be included in the summary of rights that

accompanies a pre-adverse action notice from an employer.

To assess Walker’s argument, we must look to the statute. 

We conclude that while the FCRA does provide a right to

dispute inaccurate information in a consumer report,

Walker’s interpretation that such a right mandates an

opportunity for Walker to discuss his consumer report with

Fred Meyer directly is unsupported by the text of the FCRA. 

First, the language of § 1681b(b)(3)(B)(i)(IV)—the provision

15 Walker argues that delegating discussion of his consumer report to

GIS, a third party that has “no authority or ability to reconsider the

planned adverse action,” is “purely perfunctory and contravenes the

purpose of the pre-adverse action notice requirement.” He advocates an

interpretation of the FCRA that would require a pre-adverse action notice

to notify recipients of a “right to dispute inaccuracies or discuss the report

with the party tasked with making the employment decision.”
WALKER V. FRED MEYER, INC. 23

that Walker cites as providing the relevant right to

dispute—undermines Walker’s argument that the right to

dispute requires more than an opportunity to interact with a

third party like GIS. That provision requires, in certain

circumstances, that an employer taking adverse action

provide notice “that the consumer may . . . dispute with the

consumer reporting agency the accuracy or completeness of

any information in a report.” Id. (emphasis added). By its

text, this provision thus only requires notice of an opportunity

for Walker to dispute his report with GIS, the consumer

reporting agency—not with Fred Meyer directly.

Walker’s reliance on this provision is also unavailing

because it likely does not apply to him. Subparagraph C

provides that the cited notice requirement in subparagraph B

shall apply “only if . . . the consumer is applying for a

position over which the Secretary of Transportation has the

power to establish qualifications and maximum hours of

service . . . or a position subject to safety regulation by a State

transportation agency; and . . . as of the time at which the

person procures the report or causes the report to be procured

the only interaction between the consumer and the person in

connection with that employment application has been by

mail, telephone, computer, or other similar means.” 

15 U.S.C. § 1681b(b)(3)(C) (emphasis added). Walker,

however, alleged that his “job was not one regulated by the

Department of Transportation.”

Nor do the other relevant FCRA provisions provide a

right to discuss a consumer report directly with an employer

prior to adverse action. As discussed above, 15 U.S.C.

§ 1681b(b)(3)(A) mandates that, before an employer may

take adverse action against an employee or job applicant

based on a consumer report, the employer must provide the
24 WALKER V. FRED MEYER, INC.

consumer with “a description in writing of the rights of the

consumer under this subchapter, as prescribed by the Bureau

under section 1681g(c)(3) of this title.” 15 U.S.C.

§ 1681b(b)(3)(A). In turn, the referenced § 1681g(c)

provides that the summary of rights shall include, among

other things, a description of “the right of a consumer to

dispute information in the file of the consumer under section

1681i of this title.” Id. § 1681g(c)(1)(B)(iii). Section 1681i,

in turn, deals with the procedures that must be followed when

a consumer seeks to dispute with a consumer reporting

agency the completeness or accuracy of any item of

information contained in the consumer’s file at the consumer

reporting agency. See id. § 1681i (“Procedure in case of

disputed accuracy”); see also id. § 1681m(a)(4)(B)(requiring,

if adverse action is taken against a consumer, an employer to

provide “notice of the consumer’s right . . . to dispute, under

section 1681i of this title, with a consumer reporting agency

the accuracy or completeness of any information in a

consumer report furnished by the agency” (emphasis added)). 

Section 1681i, however, does not provide any rights or

procedures for discussing a report directly with an

employer.16See generally id. § 1681i. Nor does Walker cite

any other provision that does so.

Beyond failing to cite a particular provision of the FCRA

that establishes a right to dispute a report with an employer

directly, as opposed to with a consumer reporting agency,

Walker also does not cite any binding case law that suggests

that the right to dispute is broader than what is set forth in the

16 Even in its provisions that discuss the deletion of disputed or

inaccurate information, § 1681i states that the consumer reporting agency

must notify employers that information has been deleted only if the

consumer makes a request that it do so. See id. § 1681i(d).
WALKER V. FRED MEYER, INC. 25

statute. To support his argument, Walker cites several district

court cases and FTC advisory opinions, but none of these

sources is binding. Moreover, while Walker quotes some

favorable language from these sources, the cited materials do

not directly address the precise issue raised here, nor do they

explicitly hold that the right to dispute includes a right to

discuss an accurate but negative consumer report directly

with one’s employer. See Thomas v. FTS USA, LLC, 193 F.

Supp. 3d 623, 637–38 (E.D. Va. 2016) (citing to 15 U.S.C.

§ 1681b(b)(3) and holding that the plaintiff had alleged

concrete injuries on behalf of an adverse action sub-class

because, where the defendants had “[taken] adverse

employment action without providing the information

guaranteed by the statute,” the sub-class members were

“deprived of the opportunity to explain any negative records

in their consumer reports and discuss the issues raised in their

reports with Defendants before suffering adverse employment

action”); Magallon v. Robert Half Int’l, Inc., 311 F.R.D. 625,

633–34 (D. Or. 2015) (explaining, for purposes of class

certification motion in a case where defendant failed to

provide plaintiff any pre-adverse action notice, that the FCRA

requires an employer to provide a pre-adverse action notice

far enough in advance before taking adverse action to give the

applicant a “real” opportunity to respond and “meaningfully

contest or explain the contents of the report” so that the

applicant may attempt to “change the employer’s mind”);

U.S. Fed. Trade Comm’n, Advisory Opinion to Lewis, 1998

WL 34323760, at *1 (June 11, 1998) (referencing, in the

context of addressing “how long . . . the employer [must] wait

after providing a copy of the report before taking the adverse

action,” that the purpose of the relevant provisions is “to

allow consumers to discuss the report with employers before

adverse action is taken”); U.S. Fed. Trade Comm’n, Advisory

Opinion to Coffey, 1998 WL34323748, at *2 (same); U.S.
26 WALKER V. FRED MEYER, INC.

Fed. Trade Comm’n, Advisory Opinion to Weisberg, 1997

WL 33791228, at *1 (June 27, 1997) (noting that “[t]he

dispute rights are among the most important the FCRA gives

to consumers,” but referencing “the consumer’s right to

dispute inaccurate or incomplete information with the

[consumer reporting agency]” (emphasis added)).17

In short, Walker does not show that, despite the

seemingly unambiguous text of the statute, there is precedent

that nonetheless requires that a consumer be given an

opportunity to discuss his consumer report directly with his

employer prior to adverse action. In fact, our cases and

various legislative history materials track the language of the

statute and indicate that the FCRA’s right to dispute was

aimed at correctingerrors in consumer reports, which perhaps

explains why the statute provides a right to dispute

inaccuracies with the consumer reporting agency, but does

not explicitly require an opportunity to discuss the report with

the employer itself.

For example, we have explained that the FRCA’s

disclosure provision, 15 U.S.C. § 1681b(b)(2)(A), “promotes

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, 853 F.3d

at 497. We noted that “[t]his opportunity is particularly

important given that, in practice, the FCRA does not

otherwise provide an opportunity for a job applicant or

17 Here, the parties did not raise, and we therefore do not decide,

whether an employer must wait a reasonable period of time after sending

a pre-adverse action notice before making a final decision and taking

adverse action. See, e.g., Magallon, 311 F.R.D. at 633–34.
WALKER V. FRED MEYER, INC. 27

employee to dispute his consumer report before adverse

action is taken.” Id. at 497 n.2.

Similarly, the legislative history explains that “[t]he

driving force behind the [1996 amendments to the FCRA]

was the significant amount of inaccurate information that was

being reported by consumer reporting agencies and the

difficulties that consumers faced getting such errors

corrected.” S. Rep. No. 108-166, at 5–6 (2003). To address

this issue, the FCRA amendments “require[d]that employers,

before taking an adverse action based on a consumer report,

provide the current or prospective employee with . . . a

reasonable opportunity to respond to any information that is

disputed by the consumer.” S. Rep. No. 104-185, at 35

(1995); see also H.R. Rep. No. 103-486 (1994) (explaining

same under “Explanation of Legislation” – Section 103 –

“Employment Purposes”). These sources, however, do not

mention any right to discuss directly with an employer a

consumer report that is accurate but contains negative

information.

Because the text of the statute, the legislative history, and

our precedent do not require that a consumer be provided an

opportunity to discuss his consumer report directly with his

employer before adverse action is taken against him, we hold

that the pre-adverse action notice that Walker received did

not violate the FCRA.

IV.

Because the fourth and fifth paragraphs of the Disclosure

violate the FCRA’s standalone disclosure requirement, we

reverse the district court’s dismissal of Walker’s claim under

15 U.S.C. § 1681b(b)(2)(A). We leave for the district court
28 WALKER V. FRED MEYER, INC.

to decide in the first instance whether the remaining language

of the Disclosure satisfies the separate “clear and

conspicuous” requirement provided in that same section. We

affirm, however, the district court’s dismissal of Walker’s

pre-adverse action notice claim under 15 U.S.C.

§ 1681b(b)(3)(A), because no authority provides the alleged

right on which that claim rests.

AFFIRMED in part, REVERSED in part, and

REMANDED. No Costs.