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Financial Services Law Insights and Observations

Pennsylvania Federal Court Holds FCRA Does Not Preempt State Law Defamation Claim

State Issues

On February 12, the U.S. District Court for the Western District of Pennsylvania held that a company’s failure to conduct a reasonable investigation after receiving notification of possible inaccurate credit reporting could constitute malice under state law, which would not be preempted by the Fair Credit Reporting Act (FCRA). Gagliardi v. Experian Information Solutions, Inc., No. 8-892, 2009 WL 365647 (W.D. Pa. Feb. 12, 2009). In Gagliardi, the plaintiff disputed the defendants’ reporting of certain information on his credit report. The plaintiff subsequently filed suit, alleging various federal and state law claims, including defamation, in connection with the defendants’ alleged failure to conduct a reasonable investigation of the dispute. The court reasoned that Section 1681 of FCRA preempts state defamation claims against a furnisher of information to a credit reporting agency, unless the information provided by the company is false and furnished with malice or a willful intent to injure a consumer. In this case, the court found that the defendants’ failure to conduct a reasonable investigation would constitute “malice” or “willful intent” under FCRA, and that, consequently, the plaintiff’s claims are not preempted by FCRA. The court, however, proceeded to dismiss the claim because the plaintiff failed to identify the claim sufficiently to provide the defendants with fair notice of the ground of the defamation claim. The court dismissed most of the plaintiff’s claims with leave to replead them within 14 days

State Issues

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