FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FRESHTA Y. NAYAB, individually and 

on behalf of others similarly situated,

Plaintiff-Appellant,

v.

CAPITAL ONE BANK (USA), N.A.,

Defendant-Appellee.

No. 17-55944

D.C. No.

3:16-cv-03111-

CAB-MDD

OPINION

Appeal from the United States District Court

for the Southern District of California

Cathy Ann Bencivengo, District Judge, Presiding

Argued and Submitted December 6, 2018

Pasadena, California

Filed October 31, 2019

Before: Johnnie B. Rawlinson and Carlos T. Bea, Circuit 

Judges, and Thomas O. Rice,

* Chief District Judge.

Opinion by Chief District Judge Rice;

Partial Concurrence and Partial Dissent by 

Judge Rawlinson

* The Honorable Thomas O. Rice, Chief United States District Judge 

for the Eastern District of Washington, sitting by designation.
2 NAYAB V. CAPITAL ONE BANK

SUMMARY**

Fair Credit Reporting Act / Standing

The panel reversed the district court’s dismissal of a Fair 

Credit Reporting Act claim for lack of standing and failure 

to state a claim and remanded the case to the district court.

Plaintiff alleged that Capital One Bank (USA), N.A., 

obtained her credit report for a purpose not authorized by the 

FCRA, in violation of 15 U.S.C. § 1681b(f). 

The panel held that plaintiff had Article III standing 

because a consumer suffers a concrete injury in fact when a 

third party obtains her credit report for an unauthorized 

purpose, regardless of whether the credit report is published 

or otherwise used by that third party.

The panel held that plaintiff stated a claim because a 

consumer-plaintiff need allege only that her credit report was 

obtained for a purpose not authorized by the statute to 

survive a motion to dismiss, and the defendant bears the 

burden of pleading it obtained the report for an authorized 

purpose. The plaintiff does not have the burden of pleading 

the actual purpose behind the defendant’s procurement of 

her credit report, and she need allege only facts giving rise 

to a reasonable inference that the defendant obtained the 

credit report in violation of § 1681b(f)(1).

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

has been prepared by court staff for the convenience of the reader.
NAYAB V. CAPITAL ONE BANK 3

Judge Rawlinson concurred in part and dissented in part. 

Judge Rawlinson agreed that plaintiff had standing to pursue 

her action under the FCRA but disagreed that she stated a 

plausible claim. Judge Rawlinson wrote that, under the 

Twombly/Iqbalstandard and Federal Rule of Civil Procedure 

8(a), the pleading was inadequate.

COUNSEL

Alex Asil Mashiri (argued), Mashiri Law Firm, San Diego, 

California; Tamim Jami, The Jami Law Firm P.C., San 

Diego, California; for Plaintiff-Appellant.

Hunter R. Eley (argued), Lloyd Vu, and Chelsea L. Diaz, 

Doll Amir & Eley LLP, Los Angeles, California, for 

Defendant-Appellee.

OPINION

RICE, Chief District Judge:

Freshta Nayab appeals the district court’s order which 

dismissed her Fair Credit Reporting Act (“FCRA”) claim 

with prejudice and without leave to amend for lack of 

standing and for failure to state a claim. We have 

jurisdiction pursuant to 28 U.S.C. § 1291. “We accept as 

true all factual allegations in the operative complaint, and we 

construe them in the light most favorable to Plaintiff as the 

non-moving party.” Eichenberger v. ESPN, Inc., 876 F.3d 

979, 981 (9th Cir. 2017). “We review de novo the district 

court’s decision to grant a motion to dismiss a claim under 

Rule 12(b)(6).” Id. at 982. “To survive a motion to dismiss, 

the claim must be plausible on its face.” Id. “We must 
4 NAYAB V. CAPITAL ONE BANK

uphold a district court’s decision to dismiss either if a 

cognizable legal theory is absent or if the facts alleged fail 

to suffice under a cognizable claim.” Id. (emphasis in 

original).

This case presents two issues of first impression for this 

Circuit: (1) whether a consumer suffers a concrete Article III 

injury in fact when a third-party obtains her credit report for 

a purpose not authorized by the FCRA and (2) whether the 

consumer-plaintiff must plead the third-party’s actual 

unauthorized purpose in obtaining the report to survive a 

motion to dismiss. We hold that a consumer suffers a 

concrete injury in fact when a third-party obtains her credit 

report for a purpose not authorized by the FCRA. We also 

hold that a consumer-plaintiff need allege only that her credit 

report was obtained for a purpose not authorized by the 

statute to survive a motion to dismiss; the defendant has the 

burden of pleading it obtained the report for an authorized 

purpose.

THE FAIR CREDIT REPORTING ACT

“Congress enacted the FCRA in 1970 in response to 

concerns about corporations’ increasingly sophisticated use 

of consumers’ personal information in making credit and 

other decisions.” Syed v. M-I, LLC, 853 F.3d 492, 496 (9th 

Cir.), cert. denied, 138 S. Ct. 447 (2017) (citation omitted); 

see Spokeo, Inc. v. Robins (Spokeo II), 136 S. Ct. 1540, 1550 

(2016). “Specifically, Congress recognized the need to 

‘ensure fair and accurate credit reporting, promote efficiency 

in the banking system, and protect consumer privacy.’” 

Syed, 853 F.3d at 496 (quoting Safeco Ins. Co. v. Burr, 

551 U.S. 47, 52 (2007)). In the context of the protections 

afforded under the FCRA, we recently observed that “[t]he 

modern information age has shined a spotlight on 

information privacy, and on the widespread use of consumer 
NAYAB V. CAPITAL ONE BANK 5

credit reports to collect information in violation of 

consumers’ privacy rights.” Id. at 495.

The FCRA defines a credit report as any written, oral, or 

other communication of information “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). The FCRA provides:

A person shall not use or obtain a consumer 

report for any purpose unless–

(1) the consumer report is obtained for a 

purpose for which the consumer report is 

authorized to be furnished under this 

section; and

(2) the purpose is certified in accordance with

section 1681e of this title by a prospective 

user of the report through a general or 

specific certification.

15 U.S.C. § 1681b(f). Section 1681b(a) provides the 

authorized purposes for which a consumer report may be 

furnished:

Subject to subsection (c), any consumer 

reporting agency may furnish a consumer 

report under the following circumstances and 

no other:

(1) In response to the order of a court . . . or 

a subpoena issued in connection with 

proceedings before a Federal grand jury.
6 NAYAB V. CAPITAL ONE BANK

(2) In accordance with the written 

instructions of the consumer . . . .

(3) To a person which it has reason to 

believe–

(A)intends to use the information in 

connection with a credit transaction 

involving the consumer . . . and 

involving the extension of credit to, or 

review or collection of an account of, 

the consumer; or

(B) intends to use the information for 

employment purposes; or

(C) intends to use the information in 

connection with the underwriting of 

insurance involving the consumer; or

(D)intends to use the information in 

connection with . . . a license or other 

benefit granted by a governmental 

instrumentality . . . ; or

(E) intends to use the information, as a 

potential investor or servicer, or 

current insurer, in connection with a 

valuation of, or an assessment of the 

credit or prepayment risks associated 

with, an existing credit obligation; or

(F) otherwise has a legitimate business 

need for the information–
NAYAB V. CAPITAL ONE BANK 7

(i) in connection with a business 

transaction that is initiated by the 

consumer; or

(ii) to review an account to determine 

whether the consumer continues 

to meet the terms of the account.

(G) executive departments and agencies 

in connection with the issuance of 

government-sponsored individuallybilled travel charge cards.

(4) In response to a request by the head of a 

State or local child support enforcement 

agency . . . .

(5) To an agency . . . for use to set an initial 

or modified child support award.

(6) To the Federal Deposit Insurance 

Corporation or the National Credit Union 

Administration . . . .

15 U.S.C. § 1681b(a).

Notably, § 1681b(a)(3)(A) allows a third-party to obtain 

a consumer’s credit report without having a previous 

relationship with the consumer and without the consumer 

initiating the transaction. See 15 U.S.C. §1681b(c)(1) (a 

third-party may obtain a consumer’s credit report if “the 

transaction consists of a firm offer of credit or insurance[,]” 

even if the transaction “is not initiated by the consumer”); 

S. REP. 103-209, 4 (1993) (“the Committee bill explicitly 

permits consumer report information to be obtained in 

connection with two types of transactions that are not 
8 NAYAB V. CAPITAL ONE BANK

initiated by the consumer: direct marketing and 

prescreening.”). In recognition “that some consumers may 

find that direct marketing and prescreening entail an 

undesirable invasion of their privacy[,]” S. REP. 104-185, 

38 (1995), a “consumer may elect to have the consumer’s 

name and address excluded from any list provided by a 

consumer reporting agency under subsection (c)(1)(B) in 

connection with a credit or insurance transaction that is not 

initiated by the consumer[,]” 15 U.S.C. § 1681b(e)(1).

DISCUSSION

I. Standing

Does a consumer sustain a “concrete” injury when a 

third-party obtains her credit report for a purpose not 

authorized by the Fair Credit Reporting Act?

The judicial Power of the United States “extends only to 

‘Cases’ and ‘Controversies[.]’” Spokeo II, 136 S. Ct. at 1547 

(United States Constitution, Art. III, § 2). “Standing to sue 

is a doctrine rooted in the traditional understanding of a case 

or controversy.” Id. “[T]he ‘irreducible constitutional 

minimum’ of standing consists of three elements. The 

plaintiff must have (1) suffered an injury in fact, (2) that is 

fairly traceable to the challenged conduct of the defendant, 

and (3) that is likely to be redressed by a favorable judicial 

decision.” Id. (quoting Lujan v. Defs. of Wildlife, 504 U.S. 

555, 560–61 (1992)).

This case, like Spokeo II, “primarily concerns injury in 

fact, the ‘[f]irst and foremost’ of standing’s three elements.” 

Id. (quoting Steel Co. v. Citizens for a Better Environment, 

523 U.S. 83, 103 (1998)) (brackets in original). “To 

establish injury in fact, a plaintiff must show that he or she 

suffered ‘an invasion of a legally protected interest’ that is 
NAYAB V. CAPITAL ONE BANK 9

‘concrete and particularized’ and ‘actual or imminent, not 

conjectural or hypothetical.’” Id. at 1548 (quoting Lujan, 

504 U.S. at 560). “For an injury to be ‘particularized,’ it 

‘must affect the plaintiff in a personal and individual way.’” 

Id. (quoting Lujan, 504 U.S. at 560, n.1). “A ‘concrete’ 

injury must be ‘de facto’; that is, it must actually exist[,]” 

meaning—“‘real,’ and not ‘abstract.’” Id. (citations 

omitted). “‘Concrete’ is not, however, necessarily 

synonymous with ‘tangible.’ Although tangible injuries are 

perhaps easier to recognize. . . . intangible injuries can 

nevertheless be concrete.” Id. at 1549.

“In determining whether an intangible harm constitutes 

injury in fact, both history and the judgment of Congress 

play important roles.” Id. “Because the doctrine of standing 

derives from the case-or-controversy requirement, and 

because that requirement in turn is grounded in historical 

practice, it is instructive to consider whether an alleged 

intangible harm has a close relationship to a harm that has 

traditionally been regarded as providing a basis for a lawsuit 

in English or American courts.” Id. (citing Vermont Agency 

of Natural Resources v. United States ex rel. Stevens,

529 U.S. 765, 775–777 (2000)). “In addition, because 

Congress is well positioned to identify intangible harms that 

meet minimum Article III requirements, its judgment is also 

instructive and important.” Id. “The . . . injury required by 

Art. III may exist solely by virtue of ‘statutes creating legal 

rights, the invasion of which creates standing.’” Lujan, 

504 U.S. at 578 (quoting Warth v. Seldin, 422 U.S. 490, 500 

(1975)).

The Supreme Court in Spokeo II—a case addressing 

standing in the FCRA context—cautioned that a bare 

procedural violation may not establish a concrete harm 

sufficient for Article III standing. 136 S. Ct. at 1550. On 
10 NAYAB V. CAPITAL ONE BANK

remand from the Supreme Court, however, we adopted the 

Second Circuit’s holding that “an alleged procedural 

violation [of a statute] can by itself manifest concrete injury 

where Congress conferred the procedural right to protect a 

plaintiff’s concrete interests and where the procedural 

violation presents ‘a risk of real harm’ to that concrete 

interest.” Robins v. Spokeo, Inc. (Spokeo III), 867 F.3d 

1108, 1113 (9th Cir. 2017), cert. denied, 138 S. Ct. 931 

(2018) (quoting Strubel v. Comenity Bank, 842 F.3d 181, 

190 (2d Cir. 2016) (quoting Spokeo II, 136 S. Ct. at 1549)).

We have also recognized a distinction between 

violations of a procedural right, at issue in Spokeo, and a 

substantive right. See Eichenberger, 876 F.3d at 982–83 (the 

“provision does not describe a procedure that [a person] 

must follow. Rather, it protects generally a consumer’s 

substantive privacy interest in his or her [private 

information].”). A violation of a substantive right invariably 

“offends the interests that the statute protects.” Id. at 983.

For example, in Eichenberger, we held that a consumer 

had standing to sue under the Video Privacy Protection Act 

(VPPA) when his or her video-viewing history was disclosed 

in violation of 18 U.S.C. § 2710(b)(1). Id. at 984. We 

explained the consumer has a “substantive privacy interest 

in his or her video-viewing history[,]” which the VPPA 

sought to protect “by ensuring that consumers retain control 

over their personal information.” Id. at 983. We reasoned 

the prohibition against disclosing one’s video-viewing 

history does not “describe a procedure that video service 

providers must follow” but rather “protects generally a 

consumer’s substantive privacy interest in his or her videoviewing history.” Id. We thus concluded that “every 

disclosure . . . offends the interests that the statute protects” 
NAYAB V. CAPITAL ONE BANK 11

and plaintiff “need not allege any further harm to have 

standing.” Id. at 983–84 (emphasis in original).

Nayab has standing to pursue her FCRA claim based on 

Capital One’s alleged violation of 15 U.S.C. § 1681b(f)(1). 

First, obtaining a credit report for a purpose not authorized 

under the FCRA violates a substantive provision of the 

FCRA. Like the VPPA interpreted in Eichenberger, 

§ 1681b(f)(1)—which prohibits obtaining a credit report for 

a purpose not otherwise authorized—protects the 

consumer’s substantive privacy interest. The section does 

not merely “describe a procedure” that one must follow. 

Rather, § 1681b(f)(1) is the central provision protecting the 

consumer’s privacy interest: every violation invades the 

consumer’s privacy right that Congress sought to protect in 

passing the FCRA. As such, every violation of § 1681b(f)(1) 

“offends the interest that the statute protects” and the 

Plaintiff “need not allege any further harm to have standing.” 

See Eichenberger, 876 F.3d at 983–84.

Second, we have previously found the invasion of the 

interest at issue—the right to privacy in one’s consumer 

credit report—confers standing. See Syed, 853 F.3d at 499–

500. In Syed, the plaintiff alleged his employer improperly 

obtained his credit report in violation of the FCRA. Id. at 

498. Under the FCRA, a consumer report may be obtained 

for employment purposes if the prospective employer (1) 

provides a “document that consists solely of the disclosure” 

and (2) receives written authorization from the applicant. 

15 U.S.C. § 1681b(b)(2)(A)(i)–(ii) (emphasis added). The 

plaintiff in Syed signed a document purporting to give the 

prospective employer permission to obtain the credit report, 

but the prospective employer included in the disclosure 

document a provision for the disclosure of the applicant’s 

information along with a liability waiver, in violation of the 
12 NAYAB V. CAPITAL ONE BANK

FCRA. Syed, 853 F.3d at 496. We found that Syed’s 

allegations that the prospective employer had “procured a 

‘consumer report’ . . . based on the illegal disclosure and 

authorization form” was “sufficient to infer that Syed was 

deprived of the right to information and the right to privacy 

guaranteed by [§] 1681b(b)(2)(A)(i)–(ii) because it indicates 

that Syed was not aware that he was signing a waiver 

authorizing the credit check when he signed it.” Id. at 499. 

We explained that the “authorization requirement, 

§ 1681b(b)(2)(A)(ii), creates a right to privacy by enabling 

applicants to withhold permission to obtain the report from 

the prospective employer, and a concrete injury when 

applicants are deprived of their ability to meaningfully 

authorize the credit check.” Id. Accordingly, we concluded 

that “Syed did allege a concrete injury and has Article III 

standing to bring this lawsuit.” Syed, 853 F.3d at 500 (citing 

Thomas v. FTS USA, LLC, 193 F.Supp.3d 623, 628–638 

(E.D. Va 2016)).

Third, historical practice also supports a finding of 

standing. The harm attending a violation of § 1681b(f)(1) of 

the FCRA is closely related to—if not the same as—a harm 

that has traditionally been regarded as providing a basis for 

a lawsuit: intrusion upon seclusion (one form of the tort of 

invasion of privacy). See Spokeo II, 136 S. Ct. at 1549;

Restatement (Second) of Torts § 652B, cmt. a (1977). 

According to the Restatement (Second) of Torts § 652B:

One who intentionally intrudes, physically or 

otherwise, upon the solitude or seclusion of 

another or his private affairs or concerns, is 

subject to liability to the other for invasion of 

his privacy, if the intrusion would be highly 

offensive to a reasonable person.
NAYAB V. CAPITAL ONE BANK 13

Intrusion upon seclusion “does not depend upon any 

publicity given to the person whose interest is invaded or to 

his affairs.” Id. Rather, “[i]t consists solely of an intentional 

interference with his interest in solitude or seclusion, either 

as to his person or as to his private affairs or concerns, of a 

kind that would be highly offensive to a reasonable man.” 

Id. at cmt. a. For example, “[t]he invasion may be . . . by 

some [] form of investigation or examination into his private 

concerns, as by opening his private and personal mail, 

searching his safe or his wallet, examining his private bank 

account, or compelling him by a forged court order to permit 

an inspection of his personal documents.” Restatement 

(Second) of Torts § 652B. Importantly, “[t]he intrusion 

itself makes the defendant subject to liability, even though 

there is no publication or other use of any kind of the 

photograph or information outlined.” Id.

We have also recognized that “[v]iolations of the right to 

privacy have long been actionable at common law” and, 

referencing the tort of intrusion upon seclusion, “privacy 

torts do not always require additional consequences to be 

actionable.” Eichenberger, 876 F.3d at 983 (citing 

Braitberg v. Charter Comm., Inc., 836 F.3d 925, 930 (8th 

Cir. 2016) and Restatement (Second) of Torts § 652B cmt. 

b. (1977)). As well, the Supreme Court has long recognized 

that “both the common law and the literal understandings of 

privacy encompass the individual’s control of information 

concerning his or her person.” U.S. Dep’t of Justice v. 

Reporters Comm. for Freedom of the Press, 489 U.S. 749, 

763–64 (1989).

The harm at issue here—the release of highly personal 

information in violation of the FCRA—is the same harm that 

forms the basis for the tort of intrusion upon seclusion. See

Spokeo III, 867 F.3d at 1114 (“As other courts have 
14 NAYAB V. CAPITAL ONE BANK

observed, the interests that FCRA protects also resemble 

other reputational and privacy interests that have long been 

protected in the law.” (citing e.g., In re Horizon Healthcare 

Servs. Inc. Data Breach Litig., 846 F.3d 625, 638–40 (3d 

Cir. 2017) (comparing FCRA’s privacy protections to 

common law protections for “a person’s right to prevent the 

dissemination of private information”; holding that “the 

unauthorized dissemination of their own private 

information” is “a de facto injury that satisfies the 

concreteness requirement for Article III standing”). When a 

third party obtains the consumer’s credit report in violation 

of 15 U.S.C. § 1681b(f)—that is, for a purpose not 

authorized by statute—the consumer is harmed because he 

or she is deprived of the right to keep private the sensitive 

information about his or her person. See Syed, 853 F.3d 

at 499–500. This harm is highly offensive and is not trivial 

because a credit report can contain highly personal 

information.

Finally, the judgment of Congress further supports a 

finding of standing. In passing the FCRA, Congress 

specifically recognized the “elaborate mechanism [] 

developed for investigating and evaluating credit 

worthiness, credit standing, credit capacity, character, and 

general reputation of consumers” and the “need to insure that 

consumer reporting agencies exercise their grave

responsibilities with fairness, impartiality, and a respect for 

the consumer’s right to privacy.” 15 U.S.C. § 1681 

(emphasis added). We have observed that “the FCRA was 

designed in whole and in virtually each part to protect . . .

consumers themselves[,]” Hansen v. Morgan, 582 F.2d 

1214, 1221 (9th Cir. 1978), and that one goal of the FCRA 

is to allow the “release of credit report for certain purposes 

only,” Comeaux v. Brown & Williamson Tobacco Co., 

915 F.2d 1264, 1274 (9th Cir. 1990). Congress’ concern for 
NAYAB V. CAPITAL ONE BANK 15

privacy in one’s consumer report is made clear by the 

FCRA’s (1) general prohibition against obtaining a 

consumer report except in limited circumstances, 15 U.S.C. 

§ 1681b(f); (2) provision of civil liability for violations of 

the FCRA, 15 U.S.C. § 1681n, including statutory damages 

for willful violations, 15 U.S.C. § 1681n; and (3) provision 

of criminal (and civil)1 liability for those obtaining a credit 

report under false pretenses, 15 U.S.C. § 1681q.2 By 

providing for statutory damages and “[b]y providing a 

private cause of action for violations of [Sections 1681f and 

1681q], Congress has recognized the harm such violations 

cause, thereby articulating a ‘chain[ ] of causation that will 

give rise to a case or controversy.’” See Syed, 853 F.3d at 

499 (brackets in original) (quoting Spokeo II, 136 S. Ct. 

at 1549 (quoting Lujan, 504 U.S. at 580 (Kennedy, J., 

concurring))).

Nayab has standing to vindicate her right to privacy 

under the FCRA when a third-party obtains her credit report 

without a purpose authorized by the statute, regardless 

1 A violation of § 1681q, which imposes criminal liability for 

obtaining a credit report under false pretenses, is also a basis for civil suit 

under § 1681n. Comeaux, 915 F.2d at 1274.

2 To obtain a credit report, the prospective user must certify the 

purpose for obtaining the credit report. 15 U.S.C. § 1681b(f)(2). Credit 

reporting agencies are allowed to provide a credit report only for an 

authorized purpose. 15 U.S.C. § 1681b(a). As such, as long as the credit 

reporting agencies follow the proper procedures, a third party will not be 

able to obtain a credit report for a purpose authorized by the statute 

without falsely certifying otherwise. Thus, by criminalizing the 

procurement of a credit report under false pretenses, 15 U.S.C. § 1681q, 

Congress recognized the very concern at issue here: that a person may 

obtain another’s credit report by feigning a purpose authorized by the 

statute.
16 NAYAB V. CAPITAL ONE BANK

whether the credit report is published or otherwise used by 

that third-party.

II. Failure to State a Claim

Must the consumer-plaintiff plead the third-party’s 

actual unauthorized purpose in obtaining the credit report to 

survive a motion to dismiss?

The district court erred in holding that Nayab, as the 

plaintiff, has the burden of pleading the actual purpose 

behind Capital One’s procurement of her credit report. A 

plaintiff need allege only facts giving rise to a reasonable 

inference that the defendant obtained his or her credit report 

in violation of § 1681b(f)(1) to meet their burden of 

pleading. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (the 

plaintiff must plead “factual content” giving rise to the 

“reasonable inference that the defendant is liable for the 

misconduct alleged”). Requiring otherwise would create an 

often insurmountable legal barrier to the protection of the 

interests the FCRA sought to protect. Notably, this question 

centers around whether the plaintiff must plead facts which 

establish the defendant’s actual purpose. This question is 

separate from the question whether Nayab has pleaded facts 

sufficient to meet her burden of pleading—although the 

former informs the analysis of the latter.

As discussed below, because Nayab did not have the 

burden of pleading Capital One’s actual unauthorized 

purpose, and because she has alleged facts sufficient to give 

rise to a reasonable inference that Capital One obtained her 

credit report in violation of § 1681b(f)(1), Nayab stated a 

plausible claim for relief and the District Court erred in 

holding otherwise.
NAYAB V. CAPITAL ONE BANK 17

1. Nayab is not required to plead Capital One’s 

actual unauthorized purpose

The District Court erred by placing the burden of 

pleading Defendant’s actual unauthorized purpose on 

Plaintiff.

For context, it is important to note that the burden of 

pleading (i.e. who bears the burden of pleading a fact)—not 

the ultimate burden of production or persuasion—is at issue. 

However, who bears the ultimate burden of proof and/or 

persuasion is indicative of who bears the initial burden of 

pleading, so we will rely on case law discussing the former. 

See 2 McCormick On Evid. § 337 (7th ed.) (“In most cases, 

the party who has the burden of pleading a fact will have the 

burdens of producing evidence and of persuading the jury of 

its existence as well[,]” so “[t]he pleadings [] provide the 

common guide for apportioning the burdens of proof.”)

Federal Rule of Civil Procedure 8 sets the framework for 

pleadings. Rule 8(a) provides: “[a] pleading that states a 

claim for relief must contain: (1) a short and plain statement 

of the grounds for the court’s jurisdiction . . . (2) a short and 

plain statement of the claim showing that the pleader is 

entitled to relief; and (3) a demand for the relief sought . . . .” 

Rule 8(c)(1) in turn requires the party responding to a 

pleading to “affirmatively state any avoidance or affirmative 

defense, including: . . . license, payment, [and] release[,]” 

among other things. Even under the more rigid pleading 

standard of Federal Rule of Civil Procedure 9, however, the 

pleader is not required to allege facts that are “peculiarly 

within the opposing party’s knowledge,” and allegations 

“based on information and belief may suffice,” “so long as 

the allegations are accompanied by a statement of facts upon 

which the belief is founded.” Wool v. Tandem Computers 

Inc., 818 F.2d 1433, 1439 (9th Cir. 1987), overruled on other 
18 NAYAB V. CAPITAL ONE BANK

grounds as stated in Flood v. Miller, 35 Fed. Appx. 701, 703 

n.3 (9th Cir. 2002), (citing 5 C. Wright & A. Miller, Federal 

Practice and Procedure § 1298, at 416 & n.96 (1969)); Puri 

v. Khalsa, 674 F. Appx. 679, 687 (9th Cir. 2017). “When 

we are determining the burden of proof under a statutory 

cause of action, the touchstone of our inquiry is, of course, 

the statute.” Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 

56 (2005). Where the statute is silent as to who bears the 

burden of proof, we “begin with the ordinary default rule that 

plaintiffs bear the risk of failing to prove their claims.” Id. 

(citation omitted). “The ordinary default rule, of course, 

admits of exceptions.” Id. (citation omitted). The 

exceptions “owe their development partly to traditional 

happen-so and partly to considerations of policy.” 

2 McCormick on Evid. § 337 (7th ed.). For example, in 

allocating the burden of pleading, courts have considered 

“[t]he policy of handicapping a disfavored contention”; 

“[c]onvenience in following the natural order of 

storytelling”; and “the judicial estimate of the probabilities 

of the situation.” Id.

“Among other considerations, allocations of burdens of 

production and persuasion may depend on which party—

plaintiff or defendant, petitioner or respondent—has made 

the ‘affirmative allegation’ or ‘presumably has peculiar 

means of knowledge.’” Alaska Dep’t of Envtl. Conservation 

v. E.P.A., 540 U.S. 461, 494, n.17 (2004). Relatedly, courts 

have shifted the burden of “establish[ing] a negative” to the 

defendant where holding otherwise “would impose upon the 

plaintiffs a difficult, if not an impossible, task” of requiring 

them to produce evidence that a fact is not the case, though 

evidence to the contrary “could be readily produced by the 

defendant.” United States v. Denver & Rio Grande R.R. Co., 

191 U.S. 84, 91–92 (1903). Indeed, “[i]t is a general rule of 

evidence . . . that ‘where the subject-matter of a negative 
NAYAB V. CAPITAL ONE BANK 19

averment lies peculiarly within the knowledge of the other 

party, the averment is taken as true unless disproved by that 

party.’” Denver, 191 U.S. at 92. The rationale is simple:

when the opposite party must, from the 

nature of the case, himself be in possession of 

full and plenary proof to disprove the 

negative averment, and the other party is not 

in possession of such proof, then it is 

manifestly just and reasonable that the party 

which is in possession of the proof should be 

required to adduce it; or, upon his failure to 

do so, we must presume it does not exist, 

which of itself establishes a negative.

Id. at 92–93 (citations omitted) (finding “error in requiring 

plaintiffs to assume the burden of showing that the timber 

was not cut for purposes of construction or repair . . . .”).

Similarly, “the burden of persuasion as to certain 

elements of a plaintiff’s claim may be shifted to defendants, 

when such elements can fairly be characterized as 

affirmative defenses or exemptions.” Schaeffer, 546 U.S. 

at 57 (citing Fed. Trade Comm’n v. Morton Salt Co., 

334 U.S. 37, 44–45 (1948)). Indeed, “the general rule of 

statutory construction [is] that the burden of proving 

justification or exemption under a special exception to the 

prohibitions of a statute generally rests on one who claims 

its benefits.” Id. Stated another way, “[t]he general rule of 

law is, that a proviso carves special exceptions only out of 

the body of the act; and those who set up any such exception 

must establish it[.]” Schlemmer v. Buffalo, Rochester, & 

Pittsburg Ry. Co., 205 U.S. 1, 10 (1907) (quoting Ryan v. 

Carter, 93 U.S. 78, 83 (1876)).
20 NAYAB V. CAPITAL ONE BANK

As such, the plaintiff need not “negative[]” the exception 

to the statute. Id. “[I]f the defendant wishe[s] to rely upon 

[the] proviso, the burden [is] upon it to bring itself within the 

exception.” Schlemmer, 205 U.S. at 10. This is especially 

true where the “exemptions [are] laid out apart from the 

prohibitions[.]” Meacham v. Knolls Atomic Power Lab., 

554 U.S. 84, 91 (2008) (with the “exemptions laid out apart 

from the prohibitions[,] it is no surprise that the” exemptions 

are “spoken of” as “affirmative defenses . . . After looking 

at the statutory text, most lawyers would accept that 

characterization as a matter of course, thanks to the familiar 

principle that ‘[w]hen a proviso . . . carves an exception out 

of the body of a statute or contract those who set up such 

exception must prove it.’” (quoting Javierre v. Cent. 

Altagracia, 217 U.S. 502, 508 (1910) (citing Schlemmer, 

205 U.S. at 10))). This “longstanding convention is part of 

the backdrop against which the Congress writes laws, and 

we respect it unless we have compelling reasons to think that 

Congress meant to put the burden of persuasion on the other 

side.” Id. at 91–92 (citing Schaffer, 546 U.S. at 57–58).

Capital One, as the defendant, has the burden of pleading 

it had an authorized purpose to acquire Nayab’s credit report. 

First, the FCRA generally prohibits obtaining a credit report, 

15 U.S.C. § 1681b(f), but then provides a numerous and 

diverse list of exceptions, 15 U.S.C. § 1681b(a). As such, 

the authorized purposes under § 1681b(a) are matters of 

exception that the defendant must plead as a defense. While 

“[o]ften the result of this approach is an arbitrary allocation 

of the burdens,” the distinction here is “valid [because] the 

exceptions to [the] statute or promise are numerous[,]” so 

“fairness [] requires that the adversary give notice of a 

particular exception upon which it relies and . . . bear[s] the 

burden of pleading [the exception].” See 2 McCormick on 

Evid. § 337 (7th ed.). Second, placing the burden on the 
NAYAB V. CAPITAL ONE BANK 21

plaintiff would be unfair, as it would require the plaintiff to 

plead a negative fact that would generally be peculiarly 

within the knowledge of the defendant.3 See id. (because the 

“proof of the facts is inaccessible or not persuasive, it is [] 

fairer to act as if the exceptional situation did not exist and 

therefore to place the burden of proof and persuasion on the 

party claiming its existence.”). Holding otherwise would 

effectively bar meritorious claims from ever coming to light 

and frustrate Congress’ attempt to protect consumers’ 

privacy.

2. Nayab’s Complaint states a plausible claim for 

relief

“To survive a motion to dismiss, a complaint must 

contain sufficient factual matter, accepted as true, to ‘state a 

claim to relief that is plausible on its face.’” Iqbal, 556 U.S. 

at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 

570 (2007)). “A claim has facial plausibility when the 

plaintiff pleads factual content that allows the court to draw 

the reasonable inference that the defendant is liable for the 

misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). 

“The plausibility standard is not akin to a ‘probability 

requirement,’ but it asks for more than a sheer possibility 

3 At oral argument, Capital One argued that Nayab should be aware 

of the actual purpose behind Capital One obtaining her credit report. 

Counsel for Capital One stated that the alleged purpose may be included 

within a code on documentation sent to the consumer. However, this 

would identify only Capital One’s alleged purpose, not necessarily the 

actual purpose. Moreover, upon questioning at oral argument, counsel 

for Capital One admitted they were not aware of the actual purpose for 

obtaining Nayab’s credit report. Nor could counsel read any such code, 

so to inform the court of Capital One’s purpose. If counsel for Capital 

One still do not know the purpose of Capital One’s action, how can one 

expect Nayab to know it?
22 NAYAB V. CAPITAL ONE BANK

that a defendant has acted unlawfully.” Id. “Determining 

whether a complaint states a plausible claim for relief will 

. . . be a context-specific task that requires the reviewing 

court to draw on its judicial experience and common sense.” 

Id. at 679 (citation omitted).

Nayab has pleaded facts sufficient to give rise to a 

reasonable inference that Capital One obtained her credit 

report for an unauthorized purpose. Nayab pleaded that she 

did not have a credit relationship with Capital One of the 

kind specified in 15 U.S.C. § 1681b(a)(3)(A)–(F). Pl’s First 

Am. Compl. ¶¶ 11, 40, 47, 50. Nayab specifically pleaded 

that, “upon review of her Experian credit report, Plaintiff 

discovered that Defendant submitted numerous credit report 

inquiries to Experian.” Id., ¶ 18. Nayab then puts forward 

factual assertions which negative each permissible purpose 

for which Capital One could have obtained her credit report 

and for which Nayab could possibly have personal 

knowledge:

(1) Plaintiff did not initiate any credit 

transaction with Defendant as 

provided in 15 U.S.C. 

§ 1681b(a)(3)(A).

(2) Plaintiff was not involved in any 

credit transaction with Defendant 

involving the extension of credit to, or 

review or collection of an account of, 

the consumer as provided in 

15 U.S.C. § 1681b(a)(3)(A).

(3) Plaintiff is not aware of any collection 

accounts, including any accounts that 

were purchased or acquired by 

Defendant that would permit 
NAYAB V. CAPITAL ONE BANK 23

Defendant to obtain Plaintiff’s credit 

report as provided in 15 U.S.C. 

§ 1681b(a)(3)(A).

(4) Plaintiff does not have any existing 

credit accounts that were subject to 

collection efforts by Defendant as 

provided in 15 U.S.C. 

§ 1681b(a)(3)(A).

(5) Plaintiff did not engage Defendant for 

any employment relationship as 

provided in 15 U.S.C. 

§ 1681b(a)(3)(B).

(6) Plaintiff did not engage Defendant for 

any insurance as provided in 15 

U.S.C. § 1681b(a)(3)(C).

(7) Plaintiff did not apply for a license or 

other benefit granted by a 

governmental instrumentality as 

provided in 15 U.S.C. 

§ 1681b(a)(3)(D).

(8) Plaintiff did not have an existing 

credit obligation that would permit 

Defendant to obtain her credit report 

as provided in 15 U.S.C. 

§ 1681b(a)(3)(E).

(9) Plaintiff did not conduct any business 

transaction nor incur any additional 

financial obligations to Defendant as 

provided in 15 U.S.C. 

§ 1681b(a)(3)(F).
24 NAYAB V. CAPITAL ONE BANK

(10) Defendant’s inquiry for Plaintiff’s 

consumer report information falls 

outside the scope of any permissible 

use or access included in 15 U.S.C. 

section 1681b.

Id. ¶¶ 24–35. These are factual allegations that, when taken 

as true, rule out many of the potential authorized purposes 

for obtaining a credit report. Further, Nayab alleges that she 

discovered Capital One obtained her credit report only upon 

review of her Experian credit report. The implication is that 

she never received a firm offer of credit from Capital One. 

These allegations, together with Nayab’s allegation that 

Capital One, in fact, obtained her report, state a plausible 

claim for relief. These are not simply bare conclusions 

devoid of facts supporting them.

By contrast, in Twombly the Court determined that the 

plaintiff had not adequately pleaded an antitrust claim where 

he alleged parallel conduct by the defendants but did not 

include facts tending to exclude the possibility they acted 

independently. Twombly, 550 U.S. at 554–55. The Court 

decided a claim for restraint of trade under the Sherman Act, 

15 U.S.C.A. § 1, must allege facts sufficient for a court to 

infer an illegal agreement among the defendants and that 

discovery would reveal evidence of that illegal agreement. 

Id. at 556–57. The Court decided the plaintiff instead 

alleged facts that were merely consistent with an illegal 

agreement (parallel activity among competitors), but more 

likely explained by lawful market behavior and, therefore, 

failed to state a claim. Id. at 565, 570.

Similarly, the Court in Iqbal held the plaintiff failed to 

state a Bivens claim for purposeful and unlawful 

discrimination for an alleged policy of holding postSeptember 11th detainees in the ADMAX SHU facility once 
NAYAB V. CAPITAL ONE BANK 25

they were categorized as of “high interest.” Iqbal, 556 U.S. 

at 682. The Court determined that a showing the defendants’ 

adopted the policies “for the purpose of discriminating” was 

a necessary factor in stating the Bivens claim alleged. Id. 

at 676–77. The Court concluded the plaintiff must, in his 

complaint, allege facts sufficient to show the defendants 

purposefully adopted and implemented the policy of 

classifying detainees as “high interest”, so that defendants 

could then house detainees in the ADMAX SHU, because of 

the detainees’ race, religion, or national origin. Id.

The plaintiff’s only factual allegations to support his 

contention were that many Arab Muslim men had been 

arrested and held at the ADMAX SHU with defendants’ 

approval. Id. at 681. The Court decided that because there 

were more likely explanations for the “disparate, incidental 

impact” of defendants’ activity on Arab Muslims than a 

discriminatory motive, the plaintiff had not shown, and a 

court could not infer, that the defendants had acted with a 

discriminatory state of mind. Id. at 683. Further, the Court 

concluded, because showing the defendants acted “for the 

purpose of discriminating” was a necessary factor in stating 

the Bivens claim the plaintiff alleged, and the plaintiff had 

not done so, the plaintiff failed to state a claim. Id. at 676–

77.

Neither Twombly nor Iqbal dealt with a plaintiff who had 

stated a prima facie case in the complaint but had failed to 

also negative each possible affirmative defense. Here, 

Nayab asserts a claim under the FCRA, which generally 

prohibits any person from using or obtaining a consumer’s 

credit report unless for an authorized purpose provided under 

section 1681b(a). 15 U.S.C. § 1681b(a), (f) (“A person 

shall not use or obtain a consumer report for any purpose 
26 NAYAB V. CAPITAL ONE BANK

unless—”).4 When this Court has evaluated similarly 

drafted provisions of other statutes, it has decided that the 

provision is an affirmative defense, which a plaintiff need 

not negative in his complaint. Van Patten v. Vertical Fitness 

Group, LLC, 847 F.3d 1037, 1044 (9th Cir. 2017); see

Tourgeman v. Nelson & Kennard, 900 F.3d 1105, 1110 (9th 

Cir. 2018).

In Van Patten, the court affirmed a district court’s grant 

of summary judgment in favor of defendants on a claim for 

violation of the Telephone Consumer Protection Act 

(“TCPA”), 47 U.S.C.A. § 227. Van Patten, 847 F.3d 

at 1049. The TCPA generally prohibited using automatic 

dialing systems to make unsolicited advertising phone calls 

to recipients within the United States, unless the call was 

“for emergency purposes or made with the prior express 

consent of the called party.” Id. at 1041–42; 47 U.S.C.A. 

§ 227(b)(1). This court determined that express consent was 

“not an element of a plaintiff’s prima facie case” but was “an 

affirmative defense for which the defendant bears the burden 

of proof.” Id. at 1044 (citing Grant v. Capital Mgmt. Servs., 

L.P., 449 Fed. Appx. 598, 600 n.1 (9th Cir. 2011); In the 

Matter of Rules & Regulations Implementing the Tel. 

Consumer Prot. Act of 1991, 23 F.C.C. Rcd. 559, 565 (Jan. 

4, 2008)). The Court decided the consumer had given prior 

express consent and not revoked it. Id. at 1046, 1048. In 

Tourgeman, this court reviewed provisions of the Fair Debt 

Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692, et 

4 “Plaintiff is informed and believes, and thereupon alleges, that 

Defendant acquired Plaintiff’s credit information through an 

unauthorized inquiry of Plaintiff’s ‘consumer report’ as that term is 

defined by 15 U.S.C. section 1681a(d)(1).” Pl’s First Am. Compl. ¶ 11; 

“Defendant’s inquiry for Plaintiff’s consumer report information falls 

outside the scope of any permissible use or access included in 15 U.S.C. 

section 1681b.” Pl’s First Am. Compl. ¶ 35.
NAYAB V. CAPITAL ONE BANK 27

seq., in affirming a district court’s dismissal of the plaintiff’s 

consumer class action. Tourgeman, 900 F.3d at 1107. The 

court stated that “certain elements of a plaintiff’s claim may 

be shifted to defendants, when such elements can fairly be 

characterized as affirmative defenses or exemptions.” Id. 

at 1109 (quoting Schaffer ex rel. Schaffer, 546 U.S. at 57). 

The court determined that evidence of the defendant’s net 

worth was a required element of the provision at issue, 

§ 1692k(a)(2)(B), rather than an affirmative defense because 

the statute required the fact finder to determine the amount 

in calculating statutory damages. Id. The provision limited 

statutory damaged to “the lesser of $500,000 or one percent 

of the defendant’s net worth,” so the defendant’s net worth 

was a prerequisite to establishing statutory damage. Id.

The court compared § 1692k(a)(2)(B) with another 

provision of the FDCPA, section § 1692b(3). Tourgeman, 

900 F.3d at 1110. Section 1692b(3) prohibits a debt 

collector from contacting a third party “more than once 

unless requested to do so by” the third party. Id. (emphasis 

added) (citing Evankavitch v. Green Tree Servicing, LLC, 

793 F.3d 355, 362 (3d Cir. 2015)). In Evankavitch, the Third 

Circuit reasoned that use of “unless” in § 1692b(3), was 

“telltale language . . . indicative of an affirmative defense.” 

Evankavitch, 793 F.3d at 362. The Third Circuit affirmed a 

jury verdict for the plaintiff, deciding the plaintiff did not 

have the burden of disproving an exception in its case-inchief, but rather the “party seeking shelter in an exception—

[the defendant]—has the burden to prove it.” Id. at 360, 363. 

The Tourgeman court reasoned that if Congress intended to 

make net worth an affirmative defense or exemption to a 

rule, like the affirmative defenses in § 1692b(3), it could 

have used the same telltale language and “limited liability to 

$500,000 unless the defendant could establish that one 
28 NAYAB V. CAPITAL ONE BANK

percent of its net worth is less than that amount.” 

Tourgeman, 900 F.3d at 1110 (emphasis original).

Here, the FCRA § 1681b(f), like the TCPA § 227(b)(1) 

and FDCPA § 1692b(3), uses the “telltale language” of 

prohibiting defendant from engaging in conduct “unless” an 

affirmative defense or exception applies. As with the other 

provisions, the exceptions to the general prohibition in 

§ 1681b(f) are not elements of Nayab’s prima facie case 

which she must negative to state a claim, rather they are 

affirmative defenses for which Capital One bears the burden. 

Van Patten, 847 F.3d at 1044; see Tourgeman, 900 F.3d 

at 1109. By alleging facts giving rise to a reasonable 

inference that Capital One obtained her credit report for a 

purpose not authorized by statute, Nayab has asserted a 

plausible claim for relief under the FCRA. See Northrop v. 

Hoffman of Simsbury, Inc., 134 F.3d 41, 49 (2d Cir. 1997) 

(“Although Northrop’s complaint does not allege the 

purpose for which defendants obtained her [credit] report, 

we believe it would be premature, in light of the liberal 

pleading principles of Rule 8 of the Federal Rules of 

Civil Procedure, to dismiss the complaint prior to 

discovery . . . .”).

REVERSED and REMANDED.
NAYAB V. CAPITAL ONE BANK 29

RAWLINSON, Circuit Judge, concurring in part and 

dissenting in part:

Although I agree that Plaintiff Freshta Nayab (Nayab) 

had standing to pursue her action under the Fair Credit 

Reporting Act, I decidedly disagree that Nayab stated a 

plausible claim.

As an initial matter, I take issue with the characterization 

of the pleading standard as an issue of first impression. See 

Majority Opinion, p.4. Rather, this is a routine pleading 

question that has been definitively addressed in Supreme 

Court precedent.

The majority rests its analysis on the language of Rule 

8(a) of the Federal Rules of Civil Procedure, which requires 

only “a short and plain statement of the claim.” Id., p.17

(quoting Fed. R. Civ. P. 8(a)). From that premise, the 

majority concludes that Nayab sufficiently stated a claim by 

alleging that “her credit report was obtained for a purpose 

not authorized by the statute.” Id., p.4. But the analysis is 

not quite that simple, because the United States Supreme 

Court in the seminal cases of Bell Atl. Corp. v. Twombly, 

550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 

(2009), expounded considerably on the pleading 

requirements of Rule 8(a).

In Twombly, the plaintiffs filed an antitrust action against 

local exchange telephone and wireless carriers. See 550 U.S. 

at 550. The complaint alleged:

In the absence of any meaningful 

competition between the [carriers] in one 

another’s markets, and in light of the parallel 

course of conduct that each engaged in to 

prevent competition from [carriers] within 
30 NAYAB V. CAPITAL ONE BANK

their respective local telephone and/or high 

speed internet services markets and the other 

facts and market circumstances alleged 

above, plaintiffs allege upon information and

belief that [the carriers] have entered into a 

contract, combination or conspiracy to 

prevent competitive entry in their respective 

local telephone and/or high speed internet 

services markets and have agreed not to 

compete with one another and otherwise 

allocated customers and markets to one 

another.

Id. at 551 (citation and footnote reference omitted).

The district court dismissed the complaint for failure to 

state a claim, but the Second Circuit reversed. The Supreme 

Court in turn reversed the Second Circuit, agreeing with the 

district court that the complaint failed to state a claim. See

id. at 552–53.

The Supreme Court proceeded to clarify the pleading 

standards under Rule 8(a). The Court acknowledged that 

Rule 8(a) only requires a “short and plain statement of the 

claim.” Id. at 555. Nevertheless, the Court clarified that a 

“short and plain statement of the claim” requires “more than 

labels and conclusions, and a formulaic recitation of the 

elements of a cause of action will not do.” Id. at 555 (citation 

omitted). The Court emphasized that “on a motion to 

dismiss, courts are not bound to accept as true a legal 

conclusion couched as a factual allegation.” Id. (citation 

omitted).

The Supreme Court reiterated this analysis in Iqbal. In 

that case, a pretrial detainee asserted various constitutional 

violations against the former Attorney General (AG) and the 
NAYAB V. CAPITAL ONE BANK 31

Director of the Federal Bureau of Investigation (FBI). The 

complaint alleged that the AG and FBI Director “adopted an 

unconstitutional policy that subjected [the detainee] to harsh 

conditions of confinement on account of his race, religion or 

national origin.” 556 U.S. at 666. The defendants moved to 

dismiss the complaint for failure to state a claim, and the 

district court denied the motion. See id. at 669. While appeal 

was pending before the Second Circuit, the Supreme Court 

decided Twombly. Applying Twombly, the Second Circuit 

agreed with the district court that the pleading was adequate 

to state a claim. See id. at 669–70. However, the Supreme 

Court reversed, holding that the pre-trial detainee did not 

sufficiently “plead factual matter that, if taken as true, states 

a claim that [defendants] deprived him of his clearly 

established constitutional rights.” Id. at 666, 670.

As in Twombly, the Supreme Court again acknowledged 

that Rule 8(a) of the Federal Rules of Civil Procedure 

requires “a short and plain statement of the claim showing 

that the pleader is entitled to relief.” Id. at 677–78. And 

again the Supreme Court explained that Rule 8 “demands 

more than an unadorned, the-defendant-unlawfully-harmedme accusation.” Id. at 678 (citation omitted). The Supreme 

Court further clarified: “A pleading that offers labels and 

conclusions or a formulaic recitation of the elements of a 

cause of action will not do. Nor does a complaint suffice if 

it tenders naked assertions devoid of further factual 

enhancement.” Id. (citations and internal quotation marks 

omitted).

The Supreme Court left no doubt that a complaint must 

contain allegations of some substance. The Supreme Court 

emphasized that “[t]hreadbare recitals of the elements of a 

cause of action, supported by mere conclusory statements, 

do not suffice.” Id. (citation omitted). Against this 
32 NAYAB V. CAPITAL ONE BANK

analytical backdrop, the Supreme Court concluded that the 

allegations of Iqbal’s complaint did not state a plausible 

claim. See id. at 680.

The Supreme Court identified the following allegations 

as insufficient under Rule 8:

• That the defendants “knew of, condoned and 

willfully and maliciously agreed to subject” Iqbal to 

harsh conditions of confinement;

• That the defendant’s actions were taken “as a matter 

of policy, solely on account of [Iqbal’s] religion, race 

and/or national origin”;

• That the actions were not based on any “legitimate 

penological interest”;

• That the AG was the “principal architect of [the] 

invidious policy”; and

• That the FBI Director was “instrumental in adopting 

and executing” the policy.

Id. at 680–81 (citations and internal quotation marks 

omitted).

The Supreme Court described these allegations as “bare 

assertions, much like the pleading of conspiracy in Twombly, 

amount[ing] to nothing more than a formulaic recitation of 

the elements of a constitutional discrimination claim.” Id.

at 681 (citation and internal quotation marks omitted). The 

Court further observed that “the allegations [were] 

conclusory and not entitled to be assumed true.” Id. (citation 

omitted).
NAYAB V. CAPITAL ONE BANK 33

Measuring the allegations in this case against the 

Twombly/Iqbal standard reveals a patent lack of adequate 

pleading. The majority deems it sufficient that Nayab 

alleged that the defendant “obtained [her credit report] for a 

purpose not authorized by the statute.” Majority Opinion,

p.4. Indeed, the majority goes so far as to conclude, without 

citation to any authority, that Nayab had no obligation to 

plead the unauthorized purpose for which the credit report 

was obtained. See Majority Opinion, p.16. However, not 

only is that conclusion inconsistent with Twombly and Iqbal, 

it diverges from the specific allegations in cases that have 

been litigated under the Fair Credit Reporting Act. For 

example, in Syed v. M-I, LLC, 853 F.3d 492, 498 (9th Cir. 

2017) the plaintiff “[s]pecifically . . . allege[d]” that the 

Disclosure Release provided by a prospective employer 

violated the Fair Credit Reporting Act by including a 

liability waiver in addition to the disclosure, when the statute 

required “that the disclosure document consist ‘solely’ of the 

disclosure.” Id. (citing § 16816(b)(2)(A)(i). Similarly, in 

Guimond v. Trans Union Credit Information Co., 45 F.3d 

1329, 1331–32 (9th Cir. 1995), the plaintiff not only alleged 

that the credit reporting agency generated an inaccurate 

credit report, she identified the specific inaccuracies.

The majority delineates allegations from the complaint 

purporting to “negative each permissible purpose for which 

Capital One could have obtained her credit report and for 

which Nayab could possibly have personal knowledge.” 

Majority Opinion, p.22 (second emphasis in the original). 

However, as discussed, these speculative allegations fall 

short of the specific allegations reflected in our precedent. 

See e.g., Syed, 853 F.3d at 498; Guimond, 45 F.3d at 1331–

32. And under the precepts of Twombly/Iqbal, no fair 

inference of liability follows from these speculative 

assertions. See Twombly, 550 U.S. at 555 (“Factual 
34 NAYAB V. CAPITAL ONE BANK

allegations must be enough to raise a right to relief above the 

speculative level . . . [and] the pleading must contain 

something more than a statement of facts that merely creates 

a suspicion of a legally cognizable right of action . . .”) 

(citations, alterations, footnote reference, and internal 

quotation marks omitted) (emphasis added); see also Iqbal, 

556 U.S. at 678 (“Where a complaint pleads facts that are 

merely consistent with a defendant’s liability, it stops short 

of the line between possibility and plausibility of entitlement 

to relief.”) (citation and internal quotation marks omitted). 

At best, the assertions highlighted by the majority “are 

merely consistent with [the] defendant’s liability.” Id.

(citation and internal quotation marks omitted). Tellingly, 

the majority characterizes plaintiff’s claim in terms of 

“possibility.” Majority Opinion, p.22. However, Iqbal

clearly held that a mere possibility of liability does not plead 

a plausible claim. See Iqbal, 556 U.S. at 678.

Rather than assessing compliance with the 

Twombly/Iqbal pleading standard, the majority opinion 

relies on cases addressing the burden of production and the 

burden of proof. See Schaffer ex rel. Schaffer v. Weast, 

546 U.S. 49, 56 (2005) (addressing the burden of proof); 

Alaska Dep’t of Envtl. Conserv. v. E.P.A., 540 U.S. 461, 

493–94 (2004) (discussing “the burdens of production and 

persuasion”); United States v. Denver & Rio Grande R.R 

Co., 191 U.S. 84, 91–92 (1903) (commenting on the burden 

of proof); Schlemmer v. Buffalo, Rochester, & Pittsburg Ry. 

Co., 205 U.S. 1, 10 (1907) (explaining the burden-of-proof 

requirement for an exception to a statutory provision); 

Meacham v. Knolls Atomic Power Lab., 554 U.S. 84, 91 

(2008) (same); see also Majority Opinion, p.20 (citing an 

evidence treatise). These cited references not only fail to 

address Rule 8(a), they were largely decided before 

Twombly and Iqbal, in two instances approximately a 
NAYAB V. CAPITAL ONE BANK 35

century previously. The majority’s reliance on these 

references is untenable. The same is true for the majority’s 

reliance on the Second Circuit’s decision in Northrop v. 

Hoffman of Simsbury Inc., 134 F.3d 41 (2nd Cir. 1997), 

decided a decade before Twombly, and Wool v. Tandem 

Computers, Inc., 818 F.2d 1433, 1439 (9th Cir. 1987), 

decided two decades before Twombly.

The majority seeks to distinguish Twombly and Iqbal on 

the basis that they did not deal “with a plaintiff who had 

stated a prima facie case in the complaint but had failed to 

also negative each possible affirmative defense.” Majority 

Opinion, p.25. But this attempt to distinguish Twombly and 

Iqbal simply begs the question by presupposing that a prima 

facie case has been stated. This presupposition blithely 

ignores the requirements set forth in Twombly and Iqbal to 

state a plausible claim. See Iqbal, 556 U.S. at 678 (noting 

that no plausible claim is made if the complaint “tenders 

naked assertions devoid of further factual enhancement”). 

This language is fatal to Nayab’s so-called prima facie case 

because her allegations contain only “naked assertions” 

parroting the language of the statute in a “formulaic 

recitation of the elements of a cause of action.” Id.

The majority’s reliance on Van Patten v. Vertical Fitness 

Group, LLC, 847 F.3d 1037, 1044 (9th Cir. 2017) and 

Tourgeman v. Nelson & Kennard, 900 F.3d 1105, 1110 (9th 

Cir. 2018), is similarly unavailing because neither case 

involved pleading standards under Rule 8 or grapples with 

the Twombly/Iqbal requirements. Like the other cases cited 

by the majority, these two cases discussed the burden of 

proof rather than pleading standards. See Van Patten, 

847 F.3d at 1044 (“Express consent is not an element of a 

plaintiff’s prima facie case but is an affirmative defense for 

which the defendant bears the burden of proof. . . .”) 
36 NAYAB V. CAPITAL ONE BANK

(citation and footnote reference omitted) (emphasis added); 

see also Tourgeman, 900 F.3d at 1109 (“When allocating the 

burden of proof, the touchstone of our inquiry is, of course, 

the statute. . . .”) (citation and internal quotation marks 

omitted) (emphasis added).

Finally, and without citation to any authority, the 

majority states that “the defendant [Capital One] has the 

burden of pleading it had an authorized purpose to acquire 

Nayab’s credit report,” because the authorized purposes 

under the statute must be pled as defenses. Majority 

Opinion, p.20. However, the Supreme Court has expressly 

placed the burden of pleading a plausible claim squarely on 

the plaintiff rather than on the defendant. See Twombly, 

550 U.S. at 554–55. As Nayab offered only conclusory 

allegations and “formulaic recitation of the elements of a 

cause of action” under the Fair Credit Reporting Act, she 

failed to state a plausible claim. Id. at 555.

In sum, although Nayab had standing to assert her claim, 

I respectfully, but emphatically, disagree with the conclusion 

that she stated a plausible claim. I would affirm the district 

court’s ruling on this issue.