     10-3722-cv
     Macpherson v. JPMorgan Chase Bank, N.A.


 1                                   UNITED STATES COURT OF APPEALS
 2                                       FOR THE SECOND CIRCUIT
 3
 4                                                  August Term 2011
 5
 6   (Argued: September 22, 2011                                                       Decided: December 23, 2011)
 7
 8                                         Docket No. 10-3722-cv
 9                                     —————–—————–—————–
10
11   SEAN STEWART MACPHERSON,
12
13                      Plaintiff-Appellant,
14
15                      v.
16
17   JPMORGAN CHASE BANK, N.A.,1
18
19                      Defendant-Appellee.
20
21                                     —————–—————–—————–
22
23   Before: POOLER, B.D. PARKER, and CARNEY, Circuit Judges.
24
25                                    —————–—————–—————–
26
27           Appeal from a judgment of the United States District Court for the District of

28   Connecticut (Thompson, J.), dismissing a consumer’s state common law tort claims against an

29   entity alleged to have knowingly furnished false information to a consumer credit reporting

30   agency. We hold that the Fair Credit Reporting Act, 15 U.S.C. § 1681t(b)(1)(F), preempts the

31   consumer’s state law claims for defamation and intentional infliction of emotional distress.

32           AFFIRMED.

33

34

             1
                 The Clerk of Court is directed to amend the caption as shown above.
 1   FOR APPELLANT:        Sean Stewart Macpherson, pro se, Redding, CT.
 2
 3   FOR APPELLEE:         Noah A. Levine (Daniel S. Volchok, on the brief), Wilmer Cutler
 4                         Pickering Hale and Dorr LLP, New York, NY, and Washington, D.C.;
 5                         (Thomas Edward Stagg and Debra Lynne Wabnik, Stagg, Terenzi,
 6                         Confusione & Wabnik, LLP, Garden City, NY, on the brief).
 7
 8   PER CURIAM:
 9
10          Proceeding pro se, Sean Stewart Macpherson appeals from a judgment of the United

11   States District Court for the District of Connecticut (Thompson, J.), dismissing his state common

12   law tort claims against JPMorgan Chase Bank, N.A. Because we agree that the Fair Credit

13   Reporting Act (“FCRA”), 15 U.S.C. § 1681t(b)(1)(F), preempts Macpherson’s state law claims

14   against Chase, we affirm the district court’s judgment.

15          Macpherson alleges that Chase willfully and maliciously provided false information

16   about his finances to Equifax, a consumer credit reporting agency. Based on these reports,

17   Equifax reduced his credit score, to his detriment. Macpherson sued Chase in state court in

18   Connecticut for this alleged conduct, asserting state common law claims against Chase for

19   defamation and intentional infliction of emotional distress.

20           Chase removed the suit to federal court and moved for dismissal under Federal Rule of

21   Civil Procedure 12(b)(6), arguing that Macpherson’s claims are preempted by FCRA. In a

22   careful and thorough decision, the district court agreed and granted Chase’s motion.

23   No. 3:09CV1774, 2010 WL 3081278 (D. Conn. Aug. 5, 2010). Macpherson timely appealed.

24          The sole issue on appeal is whether FCRA preempts Macpherson’s state law claims. We

25   review de novo a district court’s application of preemption principles. Drake v. Lab. Corp. of

26   Am. Holdings, 458 F.3d 48, 56 (2d Cir. 2006). Chase contends, and the district court held, that

27   Macpherson’s claims are preempted by § 1681t(b)(1)(F) of FCRA. This section, a general

                                                      2
 1   preemption provision enacted in 1996—over twenty years after FCRA first took

 2   effect—provides, in relevant part:

 3          No requirement or prohibition may be imposed under the laws of any State—
 4
 5          (1) with respect to any subject matter regulated under—
 6                  ...
 7                  (F) section 1681s-2 of this title, relating to the responsibilities of persons
 8                  who furnish information to consumer reporting agencies . . . .
 9
10   15 U.S.C. § 1681t(b)(1)(F). Macpherson acknowledges that his allegations of false reporting

11   concern conduct regulated by § 1681s-2. Read literally, therefore, § 1681t(b)(1)(F) bars

12   Macpherson’s state law tort claims.

13          Macpherson contends, however, that his claims survive the 1996 preemption provision

14   by virtue of another section of the statute, § 1681h(e). Enacted in 1970 as a part of the original

15   legislation, § 1681h(e) provides, as relevant here:

16          [N]o consumer may bring any action or proceeding in the nature of defamation,
17          invasion of privacy, or negligence with respect to the reporting of information
18          against . . . any person who furnishes information to a consumer reporting agency,
19          . . . except as to false information furnished with malice or willful intent to injure
20          such consumer.
21
22   15 U.S.C. § 1681h(e) (emphasis supplied). Notwithstanding the broad language of the 1996

23   amendment, Macpherson maintains that § 1681h(e) amounts to an explicit authorization of

24   certain state common law tort claims that are based on “false information furnished with malice

25   or willful intent to injure.” He urges us to reconcile the conflict that his reading of § 1681h(e)

26   engenders by holding that the 1996 amendment preempts only state statutes, and not state

27   common law actions, that are inconsistent with FCRA.

28          In Premium Mortgage Corp. v. Equifax, Inc., 583 F.3d 103 (2d Cir. 2009), we expressly

29   rejected the argument that § 1681t(b) preempts only state statutory law. Id. at 106. We adopted

                                                       3
 1   instead a more literal reading of the phrase “[n]o requirement or prohibition”—a reading that

 2   was endorsed by a plurality of the Supreme Court in Cipollone v. Liggett Group, Inc., 505 U.S.

 3   504 (1992), in its discussion of a similar preemption argument: “The phrase ‘[n]o requirement

 4   or prohibition’ sweeps broadly and suggests no distinction between positive enactments and

 5   common law; to the contrary, those words easily encompass obligations that take the form of

 6   common-law rules.” Id. at 521. The same section and introductory language—“[n]o

 7   requirement or prohibition may be imposed under the laws of any State”—applies here, and our

 8   holding in Premium Mortgage forecloses Macpherson’s limited reading of the 1996 amendment.

 9          Moreover, and more importantly, Macpherson’s basic premise is false: the 1996

10   provision, § 1681t(b)(1)(F), is not in conflict with § 1681h(e), and § 1681h(e) does not insulate

11   state tort actions from preemption. As the Seventh Circuit recently explained in Purcell v. Bank

12   of America, 659 F.3d 622 (7th Cir. 2011), “[s]ection 1681h(e) preempts some state claims that

13   could arise out of reports to credit agencies; § 1681t(b)(1)(F) [simply] preempts more of these

14   claims.” Id. at 625 (emphasis supplied). Put differently, the operative language in § 1681h(e)

15   provides only that the provision does not preempt a certain narrow class of state law claims; it

16   does not prevent the later-enacted § 1681t(b)(1)(F) from accomplishing a more broadly-

17   sweeping preemption. As the Purcell court persuasively reasoned:

18          Section 1681h(e) does not create a right to recover for wilfully false reports; it
19          just says that a particular paragraph does not preempt claims of that stripe.
20          Section 1681h(e) was enacted in 1970. Twenty-six years later, in 1996, Congress
21          added § 1681t(b)(1)(F) to the United States Code. The same legislation also
22          added       § 1681s-2. The extra federal remedy in § 1681s-2 was accompanied
23          by extra preemption in § 1681t(b)(1)(F), in order to implement the new plan
24          under which reporting to credit agencies would be supervised by state and federal
25          administrative agencies rather than judges. Reading the earlier statute,
26          § 1681h(e), to defeat the later-enacted system in § 1681s-2 and § 1681t(b)(1)(F),
27          would contradict fundamental norms of statutory interpretation.
28
29   Id. We agree.

                                                      4
1          Having determined that § 1681h(e) is compatible with § 1681t(b)(1)(F), and that

2   Macpherson’s state law claims are preempted by the plain language of § 1681t(b)(1)(F), we need

3   not address Macpherson’s remaining statutory interpretation arguments.

4          Accordingly, the judgment of the district court is AFFIRMED.




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