In Lewis v. Southwest Airlines, the plaintiff asserted classwide and “willful” violations of the Fair Credit Reporting Act’s disclosure requirement and corresponding violations of California’s fair credit reporting act. The court reasoned that the district courts have considered whether extraneous information in an FCRA disclosure constitutes a willful violation, but have provided inconsistent and even conflicting answers. In Branch v. GEICO, GEICO did not defeat a pre-adverse action claim on summary judgement, but did beat the plaintiff’s motion to certify a class action. The plaintiff alleged that GEICO took an adverse action when it assigned the plaintiff’s background check a preliminary grade of “Fail” – based on GEICO’s “Adjudication Process.” And finally, in Culberson v. Walt Disney, Culberson involved allegations that a pre-notice “coding” constituted an adverse action and a “willful” violation of the FCRA. The court relied on the opinion in Lewis v. Southwest, holding that Disney did not act “objectively unreasonable.” The law is dynamic and employers should continue to monitor case law and regularly developments.

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