In Mcinerney v. Eighth Judicial District Court, 2018 WL 6308727 (D. Nev. Dec. 3, 2018), Plaintiff Michael Mcinerney brought a negligence claim under 15 U.S.C. § 1681i against HireRight based upon its reporting of his criminal history.  Based upon state court records, HireRight reported that Mcinerney was convicted of two felony counts:  (1) count 1:  robbery, victim 65 years of age or older and (2) count 2:  attempted murder with the use of a deadly weapon.  After his conviction, Mcinerney filed a habeas motion and successfully obtained the dismissal of his attempted murder conviction.  HireRight’s reporting failed to reflect the dismissal of the attempted murder conviction.

After receiving a letter from Swift Transportation, LLC informing him that it decided not to hire him based, in part, on the criminal history information that HireRight reported, Mcinerney contacted HireRight and challenged the inclusion of the attempted murder conviction on HireRight’s report to Swift.  HireRight immediately notified Swift of Mcinerney’s dispute, and contacted the vendor that provided it with Mcinerney’s criminal history report and asked it to confirm its research results and obtain original source information.  HireRight received the original criminal files which showed convictions on both charges.  HireRight then contacted Mcinerney who told it that he would send documentation to support his dispute.  After Mcinerney failed to send the documentation, HireRight sent Mcinerney a letter informing him that it was closing its investigation because the information had been reported correctly.  Attached to an earlier letter from Mcinerney to HireRight, however, was a letter that provided HireRight a copy of a Judgment of Conviction, which stated that the attempted murder charge was reversed due to a jury instruction error.

The FCRA creates a private right of action for negligent compliance with its requirements.  15 U.S.C. § 1681o.  Mcinerney claimed that HireRight negligently violated § 1681i(a)(1)(A).  To prevail on this claim, Mcinerney needed to prove (i) that he notified the consumer reporting agencies directly of a disputed item in his credit file, (ii) the consumer reporting agencies failed to reinvestigate free of charge and either record the current status of the disputed information or delete the item from the file as required by § 1681i(a)(5) within the 30 day period, (iii) the consumer reporting agencies’ failure to comply with the statute was negligent, (iv) the consumer reporting agencies’ failure caused Plaintiff’s injury, and (v) Plaintiff suffered actual damages from the violation.  Because Mcinerney could not produce any evidence to show that he could satisfy any of the elements of a claim, other than the element requiring him to dispute an item in his credit file with a consumer reporting agency, the court granted HireRight’s motion for summary judgment.

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