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socrateaser
socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 33377
Experience:  Retired (mostly)
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Need some serious help related to an ICRAA case that I am litigating. I

Resolved Question:

Need some serious help related to an ICRAA case that I am litigating.

I am the plaintiff's lawyer, and we are in settlement negotiations regarding a clear violation of CCC 1786.18 (a7); specifically, the consumer background reporting agency (defendant) reported on criminal convictions of my client that are older than 7 years. (Facts- my client is a 35 year old African American who committed a crime when he was 18; he has fallen on hard recession times and tried to get a job bagging groceries, and he was refused work as a result of a background report that indicated his 17 year old criminal record; he has no other issues on his record).

Everything was going fine until the other attorney dropped a well researched and written bomb on me that indicates the ICRAA, specifically CCC 1786.18 (and the 7 year reporting limitation), is preempted by the FCRA.

"The FCRA preempts state laws “relating to information contained in consumer reports.” 15 U.S.C. § 1681t(b)(1)(E) and Section 1681t(b)(1)(E) "

Also, I would be happy to upload the "bomb" if that is possible (as that may make my questions/this issue easier to answer/understand)

I need to know with specificity, case law, etc whether or not this matter is preempted; and I need to know asap.

Also, relevant facts:
1. I did not mentioned the FCRA in my complaint; I used pure ICRAA (cal law);

2. 8 causes of action - 1 Neg per se (for violation of 1786.184) 3- Neg Per Se (for failure to remedy based on other ICRAA quoted provisions); NIED based on violation of the ICRAA; IIED (based on the same); and fraud and deceit (based on conversations with their claims department where employees indicated that my client had no recourse; which if he is preempted will likely be found to be true; and thus not actionable)'

3. Interesting/odd fact: the other side is still offering a settlement despite their argument being one that seems to annihilate my claims. The settlement is more than a cost of defense settlement too; so something seems fishy.

Questions:

1. Are the specific provisions of the ICRAA quoted above preempted by the FCRA? (P.S. I am finding mixed messages about this so keep your eyes peeled).

2. Can I still bring the action under the ICRAA and negligence per se; and just not touch/refer to the FCRA (is that even possible?); or can I go with basic negligence and just refer to the ICRAA?


Need some help here; if I can upload any helping docs just let me know (I can cut and paste the entire response if need be).

Joshua
Submitted: 2 years ago.
Category: California Employment Law
Expert:  socrateaser replied 2 years ago.
15 U.S.C. § 1681t(b)(1)(E) states in pertinent part, "...except that this subparagraph shall not apply to any State law in effect on the date of enactment of the Consumer Credit Reporting Reform Act of 1996."

Cal. Civil Code 1786.18(a)(7) has existed in its present form, substantially unchanged since 1975 -- except that it was renumbered from Subsection (a)(6), in Stats 1982 ch 1127 § 10, and corrected for two grammatical errors in Stats 1998 ch 988 § 6.

The CCRRA took effect as P.L 104-208 (Sept. 30, 1996).

Therefore, California law is not preempted.

Hope this helps.

 

 

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socrateaser, Lawyer
Satisfied Customers: 33377
Experience: Retired (mostly)
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