Gorman v. Wolpoff & Abramson, LLP

In Gorman v. Wolpoff & Abramson, LLP (9th Cir. 2009) 552 F.3d 1008, the Court of Appeals reversed the district court's holding that the plaintiff's section 1785.25, subdivision (a), claim against the furnisher of credit information was preempted because the private right of action to enforce that statutory provision is found in sections not specifically exempted from the federal preemption provision. First, the court rejected the district court's suggestion section 1785.25, subdivision (a), could be enforced by state officials, explaining that the authorization for such enforcement, if it exists at all, "almost surely lies in provisions also not specifically excluded by the FCRA preemption provision. The district court's analysis would thus lead to the conclusion that Congress explicitly retained the portions of the California statutory scheme that create obligations, without leaving in place any enforcement mechanism." (552 F.3d at p. 1030.) More significantly, the court emphasized the affirmative preemption language referred only to imposition of a "requirement or prohibition" with respect to subjects regulated by 15 United States Code section 1681s-2. Civil Code sections 1785.25, subdivision (g), and 1785.31, however, "merely provide a vehicle for private parties to enforce other sections, which do impose requirements and prohibitions. In other words, Congress had no need to include these enforcement provisions in the 1681t(b)(1)(F) exception to save the California statutory scheme from preemption by the affirmative language of the preemption provision. By the plain language of the statute, therefore, these sections are not preempted by 1681t(b)(1)(F)." (552 F.3d at p. 1031.)