Summary
NELP’s brief supported Plantiffs-Appellees’ petition for en banc review by the Ninth Circuit. The disappointing decision of the divided Ninth Circuit panel, issued in January, concluded that Fannie Mae did not satisfy the definition of a “consumer reporting agency” (CRA) under the Fair Credit Reporting Act (FCRA) and thus couldn’t be held liable under the law. The reasoning in the panel decision was most worrisome: the divided panel held that Fannie Mae isn’t a CRA because, in short, its proprietary software provides the credit reports to mortgage lenders and Fannie Mae isn’t responsible for errors in the reports that the software generates. The panel also narrowly defined Fannie Mae’s purpose, concluding that providing the reports was only a means to purchasing a loan from the lender – not its purpose.
NELP’s brief highlighted the potential impacts on working people, particularly workers with records, who are disproportionately people of color. The FCRA is a federal law that not only protects consumers from inaccurate credit reports but also grants rights to working people and job applicants who often lose job opportunities because of misinformation in criminal background check reports. The brief explained that the profitable and expanding background check industry already uses algorithms/AI/apps/software to provide criminal history reports to employers, that errors in such reports are rampant, and that removing those companies from the reach of FCRA would exacerbate the unfairness and harm to workers.