## Facts

- Desiree Gilberg applied for employment with California Check Cashing Stores, LLC and related entities (collectively, CheckSmart).
- As part of the application process, CheckSmart presented Gilberg with a written “Disclosure Regarding Background Investigation” to sign before procuring a consumer report for employment purposes.
- The disclosure was a single document that combined an FCRA disclosure with additional content referring to multiple state-law notices, including references aimed at applicants or employees in other states and a Washington-related checkbox.
- Gilberg filed a putative class action alleging the disclosure violated:
  - FCRA’s requirement that the disclosure be “clear and conspicuous” and appear in a document consisting “solely” of the disclosure.
  - California’s ICRAA, which imposes similar “clear and conspicuous” and “solely of the disclosure” requirements.
- The district court granted summary judgment to defendants on these disclosure claims, finding the form satisfied both statutes.

## Issues

1. Whether a background-check disclosure violates FCRA and ICRAA when it includes additional state-law notices and other extraneous information in the same document as the required disclosure.
2. Whether the disclosure satisfied FCRA’s and ICRAA’s “clear and conspicuous” requirement where the formatting made it noticeable but the multi-state and awkward wording could confuse a reasonable reader.
3. Whether summary judgment was proper on other claims (including certain FCRA “summary of rights” and California CCRAA claims) and as to CCCS’s involvement.

## Decision

- The court vacated summary judgment for defendants on the FCRA and ICRAA disclosure claims and remanded.
- The court held the disclosure violated FCRA’s standalone-document requirement because it included extraneous information (including multi-state disclosures) beyond the FCRA disclosure.
- The court held the disclosure also violated ICRAA’s standalone-document requirement for the same reason.
- The court held the disclosure was conspicuous in formatting but not clear in meaning, and thus failed the “clear and conspicuous” requirement under both FCRA and ICRAA.
- In a separate disposition, the court affirmed summary judgment on certain other claims (including unopposed or conceded claims) and affirmed judgment for CCCS where there was no evidence it obtained a report on Gilberg or had a relevant relationship to her.

## Legal Principles

- FCRA requires that, before procuring an employment consumer report, the employer provide a “clear and conspicuous” disclosure “in a document that consists solely of the disclosure.”
- “Solely” is enforced strictly: adding extraneous content—such as state-law disclosures or other surplus text—violates FCRA’s standalone-document requirement.
- A disclosure can be visually prominent yet fail the statute if its language and structure are not readily understandable to a reasonable reader.
- Multi-jurisdictional references, dense text, and grammatically flawed or confusing sentences may render an otherwise conspicuous disclosure unclear.
- ICRAA’s parallel “clear and conspicuous” and “solely of the disclosure” requirements are construed consistently with FCRA for these disclosure-format and clarity questions.

## Conclusion

The Ninth Circuit ruled that an employer’s background-check disclosure violated both FCRA and ICRAA where it bundled the required disclosure with extraneous multi-state notices and used confusing wording, requiring vacatur of summary judgment on those disclosure claims and remand for further proceedings.


Gilberg v. Cal. Check Cashing Stores, LLC, 913 F.3d 1169 (9th Cir. 2019)