ON June 4, 2007, the United States Supreme Court resolved several questions of first impression presented in consolidated cases about how the "adverse action" notification provisions in the federal Fair Credit Reporting Act (FCRA) (2) apply to personal lines insurance underwriting. In Safeco Insurance Co. v. Burr/GEICO Insurance Co. v. Edo, (3) the Court resolved a question that presented a split in the United States Circuit Courts--the standard for "willful" noncompliance under the Act. The determination of the correct standard for a willful violation under the FCRA is a ruling significant not just to insurers, but to any business using or furnishing consumer credit information. The Burr opinion, authored by Justice Souter, declared that a willful failure to comply with the FCRA covers not only knowing violations, but also violations made in "reckless disregard" of the law. Additionally, the Court clarified that initial rates charged for new insurance policies where credit information is considered can constitute "adverse actions" thereby triggering FCRA notice provisions, and importantly, the Court set the benchmarks from which insurance adverse actions should be measured thus giving insurance companies needed clarity regarding when the FCRA's notice provisions are implicated.
Since the late 1990's, many insurance companies, including GEICO and Safeco, have used information in consumer credit reports as one factor in setting insurance premiums. The FCRA permits insurers to use credit reports and expressly endorses insurers' use of credit reports to achieve differentiated pricing schemes. (4).
In 2001 and 2002, a group of consumers initiated eight putative nationwide class actions in Oregon federal district court, including the two lawsuits consolidated in Burr, alleging that GEICO and other auto insurers' adverse-action notice practices contravened the FCRA. (5) In the two consolidated cases in Burr, the putative class action plaintiffs alleged that the insurance companies had violated the FCRA by failing to send them (new insurance applicants) adverse-action notices after the companies used their consumer credit report information in setting their premium and offering them insurance at rates less than the insurers' lowest possible (best) rates. According to the plaintiffs, the failure to send them an adverse-action notice was a willful violation of the FCRA, requiring the companies to pay statutory damages of $100 to $1,000 per class member.
The FCRA requires notice to any consumer who is subjected to "adverse action ... based in whole or in part on any information contained in a consumer [credit] report." (6) With respect to insurance companies, [section] 1681a(k)(1)(B)(i) of the FCRA describes an adverse action as "a denial or cancellation of, an increase in any charge for, or a reduction or other adverse or unfavorable change in the terms of coverage or amount of, any insurance, existing or applied for." A negligent failure to provide the statutory notice can result in liability for actual damages; a "willful" failure can give rise to liability for actual damages or statutory damages ranging from $100 to $1,000 per violation, as well as punitive damages. (7)
The United States District Court for the District of Oregon granted summary judgment in favor of the insurance companies. (8) On appeal, the United States Court of Appeals for the Ninth Circuit held that an adverse action has occurred and a notice is required in all circumstances where a consumer would have received a lower rate if the consumer had a better credit score. (9) The Ninth Circuit also held that an insurer "willfully" fails to comply with FCRA where it acts with "reckless disregard" for the rights of a consumer. According to the Ninth Circuit, "reckless disregard" includes a "deliberate failure to determine the extent of [a company's] obligations," "reliance on creative lawyering that provides indefensible answers," or reliance on "implausible interpretations. …