                 FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


DANIEL WALKER, individually and            No. 18-35592
on behalf of all others similarly
situated,                                    D.C. No.
                   Plaintiff-Appellant,   CV 17-1791 YY

                  v.
                                            OPINION
FRED MEYER, INC., a Delaware
corporation,
              Defendant-Appellee.


      Appeal from the United States District Court
               for the District of Oregon
      Michael H. Simon, District Judge, Presiding

          Argued and Submitted June 11, 2019
                  Anchorage, Alaska

                  Filed March 20, 2020

   Before: A. Wallace Tashima, William A. Fletcher,
        and Marsha S. Berzon, Circuit Judges.

                Opinion by Judge Tashima
2                 WALKER V. FRED MEYER, INC.

                            SUMMARY*


                   Fair Credit Reporting Act

    The panel affirmed in part and reversed in part the district
court’s dismissal of an action under the Fair Credit Reporting
Act, which requires employers who obtain a consumer report
on a job applicant to first provide the applicant with a “clear
and conspicuous disclosure” that the employer may obtain
such a report, and to provide this disclosure “in a document
that consists solely of the disclosure.”

    Reversing the dismissal, for failure to state a claim, of
plaintiff’s claim under 15 U.S.C. § 1681b(b)(2)(A), the panel
held that the disclosure provided by defendant violated the
FCRA’s standalone disclosure requirement, which does not
allow for the inclusion of any extraneous information in the
consumer report disclosure. Addressing what qualifies as
part of the disclosure, the panel held that, beyond a plain
statement disclosing “that a consumer report may be obtained
for employment purposes,” some concise explanation of what
the phrase means may be included. The panel remanded,
leaving it for the district court to decide in the first instance
whether the remaining language in defendant’s disclosure
satisfied the “clear and conspicuous” requirement.

   Affirming the dismissal of plaintiff’s claim under
§ 1681b(b)(3)(A), the FCRA’s pre-adverse action notice
requirement, the panel held that the right provided by the
FCRA to dispute inaccurate information in a consumer report

    *
      This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
              WALKER V. FRED MEYER, INC.                   3

does not require employers to provide job applicants or
employees with an opportunity to discuss their consumer
reports directly with the employer. Instead, the FCRA
requires that an employer provide, in a pre-adverse action
notice to the consumer, a description of the consumer’s right
to dispute with a consumer reporting agency the completeness
or accuracy of any item of information contained in the
consumer’s file at the consumer reporting agency.


                        COUNSEL

Steven L. Woodrow (argued) and Patrick H. Peluso,
Woodrow & Peluso LLC, Denver, Colorado; Neal Weingart,
Jones & Swartz PLLC, Portland, Oregon; for Plaintiff-
Appellant.

Faith C. Whittaker (argued) and Michael B. Mattingly,
Dinsmore & Shohl LLP, Cincinnati, Ohio; Michael Porter
and Taylor D. Richman, Miller Nash Graham & Dunn LLP,
Portland, Oregon; for Defendant-Appellee.


                        OPINION

TASHIMA, Circuit Judge:

    The Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq.
(“FCRA”), protects consumers’ privacy rights by requiring
employers who obtain a consumer report on a job applicant
to first provide the applicant with a “clear and conspicuous
disclosure” that the employer may obtain such a report.
15 U.S.C. § 1681b(b)(2)(A)(i). That disclosure must be
provided “in a document that consists solely of the
4              WALKER V. FRED MEYER, INC.

disclosure.” Id. We recently held that because of this “clear
statutory language that the disclosure document must consist
‘solely’ of the disclosure,” Syed v. M-I, LLC, 853 F.3d 492,
496 (9th Cir. 2017), the FCRA’s disclosure requirements do
not allow for the inclusion of any extraneous information in
the consumer report disclosure, even if such information is
related to the disclosure. See Gilberg v. Cal. Check Cashing
Stores, LLC, 913 F.3d 1169, 1175–76 (9th Cir. 2019). Given
that the disclosure document may contain only the
§ 1681b(b)(2)(A)(i) disclosure, we now address as a matter of
first impression what qualifies as part of that “disclosure . . .
that a consumer report may be obtained for employment
purposes.” 15 U.S.C. § 1681b(b)(2)(A)(i).

    We hold that beyond a plain statement disclosing “that a
consumer report may be obtained for employment purposes,”
some concise explanation of what that phrase means may be
included as part of the “disclosure” required by
§ 1681b(b)(2)(A)(i). For example, a company could briefly
describe what a “consumer report” entails, how it will be
“obtained,” and for which type of “employment purposes” it
may be used. See id.

    We also hold that the right provided by the FCRA to
dispute inaccurate information in a consumer report does not
require employers to provide job applicants or employees
with an opportunity to discuss their consumer reports directly
with the employer. See id. § 1681b(b)(3)(A). Instead, the
FCRA requires that an employer provide, in a pre-adverse
action notice to the consumer, a description of the consumer’s
right to dispute with a consumer reporting agency the
completeness or accuracy of any item of information
contained in the consumer’s file at the consumer reporting
agency. See id. §§ 1681g(c)(1)(B)(iii), 1681i.
              WALKER V. FRED MEYER, INC.                   5

   Accordingly, we affirm in part, reverse in part and
remand.

                             I.

    In March 2017, Plaintiff-Appellant Daniel Walker
(“Walker”) applied for a job at one of Defendant-Appellee
Fred Meyer Inc.’s (“Fred Meyer”) supermarkets. Shortly after
submitting his application, Walker was hired—contingent
upon satisfactory results on a background check—as an
associate at a Fred Meyer store in Portland, Oregon.

    As part of the hiring process, Walker was presented with
several disclosure and acknowledgment forms, including two
documents concerning an investigation of his background.
One of these documents was a Disclosure Regarding
Consumer Reports and Investigative Consumer Reports (the
“Disclosure”), which informs new hires that Fred Meyer will
investigate their background using an employment
background reporting company, General Information
Services, Inc. (“GIS”). Specifically, this Disclosure, which
is the subject of this litigation, consisted of the following
paragraphs, followed by a signature line to acknowledge
receipt:

       We ([t]he Kroger family of companies) will
       obtain one or more consumer reports or
       investigative consumer reports (or both) about
       you for employment purposes. These purposes
       may include hiring, contract, assignment,
       promotion, reassignment, and termination.
       The reports will include information about
       your character, general reputation, personal
       characteristics, and mode of living.
6               WALKER V. FRED MEYER, INC.

        We will obtain these reports through a
        consumer reporting agency. The consumer
        reporting agency is General Information
        Services, Inc. GIS’s address is P.O. Box 353,
        Chapin, SC 29036. GIS’s telephone number is
        (866) 265-4917. GIS’s website is at
        www.geninfo.com.

        To prepare the reports, GIS may investigate
        your education, work history, professional
        licenses and credentials, references, address
        history, social security number validity, right
        to work, criminal record, lawsuits, driving
        record and any other information with public
        or private information sources.

        You may inspect GIS’s files about you (in
        person, by mail, or by phone) by providing
        identification to GIS. If you do, GIS will
        provide you help to understand the files,
        including communication with trained
        personnel and an explanation of any codes.
        Another person may accompany you by
        providing identification.

        If GIS obtains any information by interview,
        you have the right to obtain a complete and
        accurate disclosure of the scope and nature of
        the investigation performed.1


    1
      No party disputes that this is the language of the Disclosure
presented to Walker. As the magistrate judge noted, the text of the
Disclosure may be considered at the motion-to-dismiss stage under the
incorporation-by-reference doctrine, because, although Walker did not
                  WALKER V. FRED MEYER, INC.                             7

Second, Walker was also presented with an Authorization
Regarding Consumer Reports and Investigative Consumer
Reports (the “Authorization”), which seeks a new hire’s
authorization for GIS to conduct such an investigation
through a variety of means, including “any public or private
information source.” Walker signed both these documents in
order to proceed with this employment opportunity, but he
allegedly found the documents confusing and was therefore
unable meaningfully to evaluate and understand the nature of
the report that Fred Meyer intended to obtain about him.

    Several weeks later, GIS sent Walker a letter (the “pre-
adverse action notice”), dated April 3, 2017. The letter
provided Walker with a copy of the consumer report that GIS
had procured about him, explained that Fred Meyer uses such
reports “in evaluating individuals for employment as Fred
Meyer team members,” and notified Walker that Fred Meyer
“has or will be completing their review of your application
within the next few days, and may take action based on the
enclosed report.” The letter then informed Walker that he
could dispute the accuracy or completeness of the consumer
report with GIS directly by filling out a request form within
five business days. However, the letter provided no option
for or information about discussing the report with Fred
Meyer itself.


attach the document to his pleadings, he referenced it throughout his
complaint. See Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005)
(noting that a court may “take into account documents whose contents are
alleged in a complaint and whose authenticity no party questions, but
which are not physically attached to the [plaintiff’s] pleading.” (internal
quotation marks omitted)); United States v. Ritchie, 342 F.3d 903, 908
(9th Cir. 2003) (explaining that the court may “treat such a document as
part of the complaint, and thus may assume that its contents are true for
purposes of a motion to dismiss under Rule 12(b)(6)”).
8                 WALKER V. FRED MEYER, INC.

    Five business days later, GIS sent Walker a second letter,
dated April 10, 2017, informing him that Fred Meyer had
decided, based on the consumer report, not to continue his
employment. In the letter, GIS stated that it did not make the
decision to terminate Walker’s employment, and that it was
unable to provide him with an explanation of the decision.
Looking for answers, Walker contacted his Human Resources
Manager at Fred Meyer, who told him that she was neither
aware of the consumer report nor of the fact that Walker’s
employment was being terminated.

    On November 8, 2017, Walker filed a putative class
action complaint against Fred Meyer, alleging that Fred
Meyer had willfully violated the FCRA by: (1) providing an
unclear disclosure form encumbered by extraneous
information, in violation of 15 U.S.C. § 1681b(b)(2)(A); and
(2) failing to notify Walker in the pre-adverse action notice,
in violation of 15 U.S.C. § 1681b(b)(3), that he could discuss
the consumer report obtained about him directly with Fred
Meyer.

    On December 28, 2017, Fred Meyer filed a motion to
dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6),
arguing that Walker had failed to state a claim because the
conduct described in the complaint did not violate the FCRA.
Specifically, Fred Meyer argued that its disclosure form
satisfied the FCRA’s consumer report disclosure
requirements, and that the FCRA did not require that Walker
explicitly be provided with the opportunity to discuss his
consumer report with Fred Meyer prior to his termination.2


    2
      Fred Meyer also moved to dismiss Walker’s second claim
concerning the pre-adverse action notice under Rule 12(b)(1), arguing that
Walker lacked Article III standing to bring that claim because he never
                   WALKER V. FRED MEYER, INC.                               9

    Adopting in part a magistrate judge’s findings and
recommendations regarding Fred Meyer’s motion to dismiss,
the district court granted the motion and dismissed Walker’s
complaint with prejudice for failure to state a claim. In
particular, the district court ruled that Fred Meyer’s
Disclosure met the FCRA’s disclosure requirements because
it was not overshadowed by extraneous information. As to
Walker’s second claim, the district court concluded that the
FCRA does not require that pre-adverse action notices inform
an employee how to contact and discuss his consumer report
directly with his employer. Walker timely appealed the
district court’s order of dismissal.

                                     II.

    We have jurisdiction under 28 U.S.C. § 1291, and we
review de novo the grant of a Rule 12(b)(6) motion to dismiss
for failure to state a claim. Syed, 853 F.3d at 499. In so
doing, we accept all well-pleaded factual allegations in the
complaint as true and construe the pleadings in the light most
favorable to the plaintiff. Id. In determining whether the
complaint’s allegations state a claim for relief, we review de
novo the district court’s construction of the FCRA, because
the interpretation of a statute is a question of law. See id.

                                    III.

   Walker argues that the district court erred by granting
Fred Meyer’s Rule 12(b)(6) motion to dismiss because,


availed himself of the opportunity to dispute the contents of his consumer
report. The district court rejected this argument, ruling that Walker had
alleged a sufficiently particularized and concrete injury to establish Article
III standing.
10             WALKER V. FRED MEYER, INC.

under the correct interpretation of the FCRA’s requirements,
both the Disclosure and the pre-adverse action notice violated
the FCRA. We address each of Walker’s two claims in turn.

                             A.

    To protect consumers’ privacy rights, the FCRA requires
that an employer who obtains a consumer report about a job
applicant first provide the applicant with a standalone, clear
and conspicuous disclosure of its intention to do so, and
obtain the applicant’s consent:

       [A] person may not procure a consumer
       report, or cause a consumer report to be
       procured, for employment purposes with
       respect to any consumer, unless—

       (i) a clear and conspicuous disclosure has
       been made in writing to the consumer at any
       time before the report is procured or caused to
       be procured, in a document that consists
       solely of the disclosure, that a consumer
       report may be obtained for employment
       purposes; and

       (ii) the consumer has authorized in writing
       (which authorization may be made on the
       document referred to in clause (i)) the
       procurement of the report by that person.

15 U.S.C. § 1681b(b)(2)(A). Walker argues that, contrary to
this provision, the Disclosure document did not consist
“solely of the disclosure” because it contained extraneous
information, particularly about investigative consumer
                  WALKER V. FRED MEYER, INC.                            11

reports, and that such extraneous information also violated
the “clear and conspicuous” requirement because it rendered
the Disclosure “muddled” and “confusing to consumers.”3
Thus, both the “clear and conspicuous” requirement and the
“solely” requirement, also known as the “standalone
requirement,” are at issue. We must decide whether those
requirements disallow the inclusion of any of the information
included in the Disclosure.

                                    1.

     First, as to the standalone disclosure requirement, we
noted in Syed that “[t]he ordinary meaning of ‘solely’ is
‘[a]lone; singly’ or ‘[e]ntirely; exclusively,’” and we held that
the standalone requirement was unambiguous and meant what
it said. Syed, 853 F.3d at 500–01 (quoting American Heritage
Dictionary of the English Language 1666 (5th ed. 2011)); see
Gilberg, 913 F.3d at 1175 (explaining the basis for Syed’s
conclusion that “the statute meant what it said”). Thus, Ninth
Circuit precedent reads the FCRA as mandating that a


    3
      Because Walker signed a separate authorization form, Walker does
not claim that Fred Meyer failed to properly secure his authorization to
obtain a consumer report as required by 15 U.S.C. § 1681b(b)(2)(A)(ii).
However, Walker does argue that the language of Fred Meyer’s
authorization form “underscores the confusing and distracting nature of
Fred Meyer’s disclosure form, thereby reinforcing Walker’s claim for
violation of § 1681b(b)(2)(A)(i),” i.e., his claim that the Disclosure
violated the FCRA. While it may be true that the authorization form
amplifies any confusion allegedly created by the Disclosure, the
authorization form is not relevant to the disclosure form standard set forth
in the statute where, as here, the authorization is not included in the
Disclosure. Either the Disclosure meets the “clear and conspicuous” and
“standalone” requirements, or it does not; that determination does not
depend on what is in a separate authorization form. See 15 U.S.C.
§ 1681b(b)(2)(A).
12                WALKER V. FRED MEYER, INC.

disclosure form contain nothing more than the disclosure
itself.4 Simply put, “the [disclosure] form should not contain
any extraneous information.” See U.S. Fed. Trade Comm’n,
Advisory Opinion to Hauxwell, 1998 WL 34323756, at *1
(June 12, 1998).5



     4
       The statute provides an express exception permitting the required
authorization to be included in the disclosure form as well. That exception
is not at issue here because Fred Meyer provided its authorization in a
separate form. See 15 U.S.C. § 1681b(b)(2)(A)(ii); Syed, 853 F.3d at 497,
500–01.
     5
      The FTC’s advisory opinions are not binding or precedential, but
can provide helpful insight. For example, the FTC has noted that “[t]he
reason for requiring that the disclosure be in a standalone document is to
prevent consumers from being distracted by other information side-by-side
with the disclosure.” U.S. Fed. Trade Comm’n, Advisory Opinion to
Leathers, 1998 WL 34323725, at *1 (Sept. 9, 1998). As the FTC
explained:

         [W]e believe that it was the intent of the drafters to
         assure that the required disclosure appear
         conspicuously in a document unencumbered by any
         other information. The reason for specifying a stand-
         alone disclosure was so that consumers will not be
         distracted by additional information at the time the
         disclosure is given. We believe that including an
         authorization in the same document with the disclosure
         . . . will not distract from the disclosure itself; to the
         contrary, a consumer who is required to authorize
         procurement of the report on the same document will be
         more likely to focus on the disclosure. However, such
         a document should include nothing more than the
         disclosure and the authorization for obtaining a
         consumer report.

U.S. Fed. Trade Comm’n, Advisory Opinion to Steer, 1997 WL
33791227, at *1 (Oct. 21, 1997).
                  WALKER V. FRED MEYER, INC.                             13

    Here, the district court held, based on several district
court opinions and FTC advisory opinions, that Fred Meyer’s
disclosure complied with the FCRA’s standalone requirement
because “some additional information” may be included in an
FCRA disclosure, as long as the information is “closely
related to the FCRA disclosure,” and focuses the applicant’s
attention on the FCRA disclosure rather than detracting from
it. After this case was appealed, however, the Ninth Circuit
decided Gilberg, which forecloses the district court’s
interpretation that the FCRA contains an implied exception
allowing the inclusion of information that is “closely related”
to the disclosure. See Gilberg, 913 F.3d at 1176 (explaining
that Syed “forecloses” such an approach and suggesting that,
in any case, such a standard would be difficult to implement,
and would be inappropriate because “even ‘related’
information may distract or confuse the reader”).6

    In light of Gilberg, a disclosure form violates the FCRA’s
standalone requirement if it contains any extraneous
information beyond the disclosure required by the FCRA.


    6
       Specifically, the Gilberg court read Syed as signaling that the FCRA
“should not be read to have implied exceptions,” especially when an
exception would be contrary to the FCRA’s purpose. Id. at 1175 (citing
Syed, 853 F.3d at 501–03); see also Syed, 853 F.3d at 501 (explaining that,
“in light of Congress’s express grant of permission for the inclusion of an
authorization, the familiar judicial maxim expressio unius est exclusio
alterius counsels against finding additional, implied, exceptions,” and
noting that “[a]n implied exception to an express statute is justifiable only
when it comports with the basic purpose of the statute”). Gilberg then
went on to hold that, even where a defendant argues that any additional
information in its disclosure form is consistent with the congressional
purpose of the FCRA, “purpose does not override plain meaning,” and the
meaning of “solely” is plain. 913 F.3d at 1175. As a result, the Gilberg
court concluded that “Syed holds that the standalone requirement
forecloses implicit exceptions.” Id. at 1176.
14                WALKER V. FRED MEYER, INC.

See Gilberg, 913 F.3d at 1176 (holding that the defendant
violated the standalone requirement where its disclosure
“contain[ed] extraneous and irrelevant information beyond
what [the] FCRA itself requires”). As Fred Meyer points out,
if an FCRA disclosure may only contain the disclosure that is
required by the statute, the question then becomes what
language counts as part of the “disclosure” itself. The statute
requires a standalone “disclosure . . . that a consumer report
may be obtained for employment purposes,” but does not
further define the term “disclosure” or explain what
information can be considered part of that “disclosure” for
purposes of the standalone requirement. See 15 U.S.C.
§§ 1681a, 1681b(b)(2)(A)(i).

    We now hold that beyond a plain statement disclosing
“that a consumer report may be obtained for employment
purposes,” some concise explanation of what that phrase
means may be included as part of the “disclosure” required by
§ 1681b(b)(2)(A)(i). For example, a company could briefly
describe what a “consumer report” entails,7 how it will be
“obtained,” and for which type of “employment purposes” it

     7
      Such an allowance for a brief description of consumer reports would
align with prior FTC guidance. In its advisory opinion to Coffey, the FTC
explained:

         It is our view that Congress intended that the disclosure
         not be encumbered with extraneous information.
         However, some additional information, such as a brief
         description of the nature of the consumer reports
         covered by the disclosure, may be included if the
         information does not confuse the consumer or detract
         from the mandated disclosure.

Fed. Trade Comm’n, Advisory Opinion to Coffey, 1998 WL 34323748,
at *2 (Feb. 11, 1998).
                  WALKER V. FRED MEYER, INC.                          15

may be used.8 See 15 U.S.C. § 1681b(b)(2)(A)(i). Such
information would further the purpose of the disclosure by
helping the consumer understand the disclosure. See Syed,
853 F.3d at 501 (noting that Congress’ purpose to protect
consumers from improper invasions of privacy would be
frustrated in the absence of a clear disclosure because job
applicants would not understand what they were authorizing).

    With this standard in mind, we turn to the text of the
Disclosure to determine whether it impermissibly contained
extraneous information beyond the § 1681b(b)(2)(A)(i)
disclosure itself. The first paragraph provides:

         We ([t]he Kroger family of companies) will
         obtain one or more consumer reports or
         investigative consumer reports (or both) about
         you for employment purposes. These purposes
         may include hiring, contract, assignment,
         promotion, reassignment, and termination.
         The reports will include information about
         your character, general reputation, personal
         characteristics, and mode of living.

This language provides the required disclosure that consumer
reports may be obtained for employment purposes, see id.,
and then, in accordance with the standard we set forth above,
helpfully explains what those “employment purposes” may




    8
      Of course, any such explanation should not be confusing or so
extensive as to detract from the disclosure. In other words, it must still
meet the separate “clear and conspicuous” requirement, discussed further
below. See 15 U.S.C. § 1681b(b)(2)(A)(i).
16               WALKER V. FRED MEYER, INC.

include and what type of information may be included in the
“consumer report.”9

      Walker argues that the first paragraph of Fred Meyer’s
Disclosure nonetheless violates the FCRA’s standalone
disclosure requirement because it mentions investigative
consumer reports in addition to consumer reports; he
contends that information about investigative consumer
reports qualifies as impermissible extraneous information.
We disagree. The FCRA defines an investigative consumer
report as “a consumer report or portion thereof in which
information on a consumer’s character, general reputation,
personal characteristics, or mode of living is obtained through
personal interviews with neighbors, friends, or associates of
the consumer . . . .” 15 U.S.C. § 1681a(e) (emphasis added).
Because investigative reports are a subcategory or specific
type of consumer report, disclosing that an investigative
consumer report may be obtained for employment purposes
does not violate the FCRA’s mandate that nothing be
included in the disclosure document other than a “disclosure
. . . that a consumer report will be obtained for employment




     9
       The Disclosure’s language explaining that reports will include
information about the consumer’s “character, general reputation, personal
characteristics, and mode of living” tracks the language of the FCRA. The
FCRA defines “consumer report” as concerning “communication of any
information by a consumer reporting agency bearing on a consumer’s
credit worthiness, credit standing, credit capacity, character, general
reputation, personal characteristics, or mode of living.” 15 U.S.C.
§ 1681a(d)(1) (emphasis added); see also id. § 1681a(e) (stating that
investigative consumer reports also concern information about a
consumer’s “character, general reputation, personal characteristics, or
mode of living”).
                 WALKER V. FRED MEYER, INC.                          17

purposes.”10 See 15 U.S.C. § 1681b(b)(2)(A)(i). As long as
the information about investigative reports is limited to
disclosing that such reports may be obtained for employment
purposes, and providing a very brief description of what that
means, the inclusion of such information in a
§ 1681b(b)(2)(A)(i) disclosure does not run afoul of the
standalone requirement. Accord Fed. Trade Comm’n,
Advisory Opinion to Willner, 1999 WL 33932153, at *1, *2
(Mar. 25, 1999) (noting that the § 1681b(b)(2)(A) disclosure
“includes all types of consumer reports (including, but not
limited to, investigative reports)” and suggesting that it could
therefore include a “very limited” and “brief” disclosure
regarding investigative consumer reports specifically). For
the foregoing reasons, the first paragraph of Fred Meyer’s
disclosure form can be considered part of the “disclosure”
itself for purposes of the FCRA’s standalone requirement.
See 15 U.S.C. § 1681b(b)(2)(A)(i).

   The second and third paragraphs of Fred Meyers’
Disclosure explain:

         We will obtain these reports through a
         consumer reporting agency. The consumer
         reporting agency is General Information
         Services, Inc. GIS’s address is P.O. Box 353,
         Chapin, SC 29036. GIS’s telephone number is

    10
       Of course, any discussion of investigative consumer reports must
not be confusing—it is still subject to the clear and conspicuous
requirement. Thus, Walker’s arguments that the disclosure statement’s
language confusingly “blurs the line between consumer reports and
investigative reports” such that the reader cannot understand what
information will be obtained about him, including by omitting any
mention of credit worthiness or credit capacity in the first and third
paragraphs, are better directed to the clear and conspicuous requirement.
18                  WALKER V. FRED MEYER, INC.

            (866) 265-4917. GIS’s         website is     at
            www.geninfo.com.

            To prepare the reports, GIS may investigate
            your education, work history, professional
            licenses and credentials, references, address
            history, social security number validity, right
            to work, criminal record, lawsuits, driving
            record and any other information with public
            or private information sources.

These paragraphs elucidate what it means to “obtain” a
consumer report by providing helpful information about who
will provide such a report to Fred Meyer and what private and
public information about the applicant will be examined to
create a “consumer report.” As a result, this language also
does not violate the FCRA’s requirement that the disclosure
consist solely of a “disclosure . . . that a consumer report will
be obtained for employment purposes.”11 See 15 U.S.C.
§ 1681b(b)(2)(A)(i).

   Finally, the fourth and fifth paragraphs of Fred Meyer’s
Disclosure inform the consumer that:

            You may inspect GIS’s files about you (in
            person, by mail, or by phone) by providing
            identification to GIS. If you do, GIS will
            provide you help to understand the files,
            including communication with trained
            personnel and an explanation of any codes.
            Another person may accompany you by
            providing identification.

     11
          See footnote 10, supra.
               WALKER V. FRED MEYER, INC.                     19

        If GIS obtains any information by interview,
        you have the right to obtain a complete and
        accurate disclosure of the scope and nature of
        the investigation performed.

These paragraphs appear to have been included in good faith
in order to provide additional useful information about an
applicant’s rights to obtain and inspect information about
GIS’ investigation of, and file about, the applicant. This
language, however, may “pull[] the applicant’s attention
away from his privacy rights protected by the FCRA by
calling his attention to the rights” that he has to inspect GIS’s
files. See Syed, 853 F.3d at 502; see also Gilberg, 913 F.3d
at 1175–76 (noting that additional information about rights
under state laws, and references to extraneous documents like
a summary of rights under the FCRA, was “as likely to
confuse as it [wa]s to inform,” and holding that the inclusion
of such information violated the standalone disclosure
requirement). Thus, while we understand Fred Meyer’s
reason for providing this information to job applicants, we
hold that it should have been provided in a separate
document, because the information cannot reasonably be
deemed part of a “disclosure . . . that a consumer report will
be obtained for employment purposes.”                 15 U.S.C.
§ 1681b(b)(2)(A)(i).

    Because this additional information means that the
Disclosure does not “consist[] solely of the disclosure,” we
hold that the fourth and fifth paragraphs of the Disclosure
violate the FCRA’s standalone disclosure requirement.
20              WALKER V. FRED MEYER, INC.

                                2.

    Second, as to the “clear and conspicuous” requirement,
we explained in Gilberg that “clear means ‘reasonably
understandable’” and “[c]onspicuous means ‘readily
noticeable to the consumer’” in this context. Gilberg,
913 F.3d at 1176 (quoting Rubio v. Capital One Bank,
613 F.3d 1195, 1200 (9th Cir. 2010), and adopting its “clear
and conspicuous” analysis from the Truth In Lending Act
context). The Gilberg court assumed, without deciding, “that
clarity and conspicuousness under [the] FCRA present
questions of law rather than fact.” Id. at 1177. The Court
then held that the defendant’s disclosure form was not clear
because it “contain[ed] language that a reasonable person
would not understand” and “would confuse a reasonable
reader because it combine[d] federal and state disclosures.”
Id.

    Here, despite the fact that Syed made clear that the
“standalone” and “clear and conspicuous” requirements are
distinct, the district court did not explicitly address whether
the Disclosure was “clear and conspicuous,” instead focusing
exclusively on the standalone requirement. See Syed,
853 F.3d at 503 (“[T]he question of whether a disclosure is
‘clear and conspicuous’ within the meaning of Section
1681b(b)(2)(A)(i) is separate from the question of whether a
document consists ‘solely’ of a disclosure . . . .”).
Regardless, because Gilberg was not decided until after the
district court issued its order, the district court did not have an
opportunity to analyze the Disclosure under the “clear and
conspicuous” standard set forth in Gilberg. Nor did the
                 WALKER V. FRED MEYER, INC.                          21

parties have the opportunity fully to brief that standard on
appeal, due to the timing of Gilberg.12

    As a result of these circumstances—and because Walker’s
arguments about lack of clarity are not addressed by
Gilberg—we decline to reach the issue of whether the first
through third paragraphs of the Disclosure satisfy the FCRA’s
“clear and conspicuous” requirement.13 See 15 U.S.C.
§ 1681b(b)(2)(A)(i). We leave it to the district court to
determine in the first instance whether the language of those
paragraphs is sufficiently clear under the reasonable person
standard set forth in Gilberg.14

                                   B.

    The FCRA mandates that, before an employer may take
adverse action against an employee or job applicant based on
a consumer report, the employer must provide the consumer
with “a copy of the report” and “a description in writing of
the rights of the consumer . . . as prescribed by the Bureau [of
Consumer Financial Protection] under section 1681g(c)(3) of
this title.” 15 U.S.C. § 1681b(b)(3)(A). According to
Walker, “[o]ne of these rights, mentioned explicitly in the


     12
        Walker’s opening brief was filed before Gilberg was decided, and
therefore does not address Gilberg’s “clear and conspicuous” standard.
    13
       Walker’s arguments have to do more with lack of clarity from
omitting, misrepresenting, or failing to explain certain information than
with lack of clarity from the actual language used in the information
provided. See Gilberg, 913 F.3d at 1177.
    14
       As in Gilberg, we do not decide whether the disclosure’s clarity
under the FCRA presents a question of law or fact. See Gilberg, 913 F.3d
at 1177.
22                 WALKER V. FRED MEYER, INC.

statute, is the right to dispute the information contained in the
report.” (Citing 15 U.S.C. § 1681b(b)(3)(B)(i)(IV).) Walker
contends that the right to dispute encompasses not just an
opportunity to correct erroneous information in a consumer
report, but also an opportunity to discuss the report with a
current or prospective employer—that is, an opportunity to
change the employer’s mind—before adverse action is taken.
Because Fred Meyer’s pre-adverse action notice did not
advise Walker of a right to speak directly with Fred
Meyer—rather than with GIS15—about any negative items in
his consumer report, Walker argues that Fred Meyer’s pre-
adverse action notice violated the FCRA. The district court
concluded that the FCRA provides no right or requirement
that a pre-adverse action notice include information about
contacting a consumer’s employer directly. Thus, the crux of
the issue is the substantive extent of any right to dispute that
the FCRA may provide, which § 1681b(b)(3)(A)(ii) would
require be included in the summary of rights that
accompanies a pre-adverse action notice from an employer.

    To assess Walker’s argument, we must look to the statute.
We conclude that while the FCRA does provide a right to
dispute inaccurate information in a consumer report,
Walker’s interpretation that such a right mandates an
opportunity for Walker to discuss his consumer report with
Fred Meyer directly is unsupported by the text of the FCRA.
First, the language of § 1681b(b)(3)(B)(i)(IV)—the provision

     15
       Walker argues that delegating discussion of his consumer report to
GIS, a third party that has “no authority or ability to reconsider the
planned adverse action,” is “purely perfunctory and contravenes the
purpose of the pre-adverse action notice requirement.” He advocates an
interpretation of the FCRA that would require a pre-adverse action notice
to notify recipients of a “right to dispute inaccuracies or discuss the report
with the party tasked with making the employment decision.”
                WALKER V. FRED MEYER, INC.                      23

that Walker cites as providing the relevant right to
dispute—undermines Walker’s argument that the right to
dispute requires more than an opportunity to interact with a
third party like GIS. That provision requires, in certain
circumstances, that an employer taking adverse action
provide notice “that the consumer may . . . dispute with the
consumer reporting agency the accuracy or completeness of
any information in a report.” Id. (emphasis added). By its
text, this provision thus only requires notice of an opportunity
for Walker to dispute his report with GIS, the consumer
reporting agency—not with Fred Meyer directly.

    Walker’s reliance on this provision is also unavailing
because it likely does not apply to him. Subparagraph C
provides that the cited notice requirement in subparagraph B
shall apply “only if . . . the consumer is applying for a
position over which the Secretary of Transportation has the
power to establish qualifications and maximum hours of
service . . . or a position subject to safety regulation by a State
transportation agency; and . . . as of the time at which the
person procures the report or causes the report to be procured
the only interaction between the consumer and the person in
connection with that employment application has been by
mail, telephone, computer, or other similar means.”
15 U.S.C. § 1681b(b)(3)(C) (emphasis added). Walker,
however, alleged that his “job was not one regulated by the
Department of Transportation.”

    Nor do the other relevant FCRA provisions provide a
right to discuss a consumer report directly with an employer
prior to adverse action. As discussed above, 15 U.S.C.
§ 1681b(b)(3)(A) mandates that, before an employer may
take adverse action against an employee or job applicant
based on a consumer report, the employer must provide the
24               WALKER V. FRED MEYER, INC.

consumer with “a description in writing of the rights of the
consumer under this subchapter, as prescribed by the Bureau
under section 1681g(c)(3) of this title.” 15 U.S.C.
§ 1681b(b)(3)(A). In turn, the referenced § 1681g(c)
provides that the summary of rights shall include, among
other things, a description of “the right of a consumer to
dispute information in the file of the consumer under section
1681i of this title.” Id. § 1681g(c)(1)(B)(iii). Section 1681i,
in turn, deals with the procedures that must be followed when
a consumer seeks to dispute with a consumer reporting
agency the completeness or accuracy of any item of
information contained in the consumer’s file at the consumer
reporting agency. See id. § 1681i (“Procedure in case of
disputed accuracy”); see also id. § 1681m(a)(4)(B) (requiring,
if adverse action is taken against a consumer, an employer to
provide “notice of the consumer’s right . . . to dispute, under
section 1681i of this title, with a consumer reporting agency
the accuracy or completeness of any information in a
consumer report furnished by the agency” (emphasis added)).
Section 1681i, however, does not provide any rights or
procedures for discussing a report directly with an
employer.16 See generally id. § 1681i. Nor does Walker cite
any other provision that does so.

    Beyond failing to cite a particular provision of the FCRA
that establishes a right to dispute a report with an employer
directly, as opposed to with a consumer reporting agency,
Walker also does not cite any binding case law that suggests
that the right to dispute is broader than what is set forth in the


     16
       Even in its provisions that discuss the deletion of disputed or
inaccurate information, § 1681i states that the consumer reporting agency
must notify employers that information has been deleted only if the
consumer makes a request that it do so. See id. § 1681i(d).
               WALKER V. FRED MEYER, INC.                    25

statute. To support his argument, Walker cites several district
court cases and FTC advisory opinions, but none of these
sources is binding. Moreover, while Walker quotes some
favorable language from these sources, the cited materials do
not directly address the precise issue raised here, nor do they
explicitly hold that the right to dispute includes a right to
discuss an accurate but negative consumer report directly
with one’s employer. See Thomas v. FTS USA, LLC, 193 F.
Supp. 3d 623, 637–38 (E.D. Va. 2016) (citing to 15 U.S.C.
§ 1681b(b)(3) and holding that the plaintiff had alleged
concrete injuries on behalf of an adverse action sub-class
because, where the defendants had “[taken] adverse
employment action without providing the information
guaranteed by the statute,” the sub-class members were
“deprived of the opportunity to explain any negative records
in their consumer reports and discuss the issues raised in their
reports with Defendants before suffering adverse employment
action”); Magallon v. Robert Half Int’l, Inc., 311 F.R.D. 625,
633–34 (D. Or. 2015) (explaining, for purposes of class
certification motion in a case where defendant failed to
provide plaintiff any pre-adverse action notice, that the FCRA
requires an employer to provide a pre-adverse action notice
far enough in advance before taking adverse action to give the
applicant a “real” opportunity to respond and “meaningfully
contest or explain the contents of the report” so that the
applicant may attempt to “change the employer’s mind”);
U.S. Fed. Trade Comm’n, Advisory Opinion to Lewis, 1998
WL 34323760, at *1 (June 11, 1998) (referencing, in the
context of addressing “how long . . . the employer [must] wait
after providing a copy of the report before taking the adverse
action,” that the purpose of the relevant provisions is “to
allow consumers to discuss the report with employers before
adverse action is taken”); U.S. Fed. Trade Comm’n, Advisory
Opinion to Coffey, 1998 WL34323748, at *2 (same); U.S.
26               WALKER V. FRED MEYER, INC.

Fed. Trade Comm’n, Advisory Opinion to Weisberg, 1997
WL 33791228, at *1 (June 27, 1997) (noting that “[t]he
dispute rights are among the most important the FCRA gives
to consumers,” but referencing “the consumer’s right to
dispute inaccurate or incomplete information with the
[consumer reporting agency]” (emphasis added)).17

    In short, Walker does not show that, despite the
seemingly unambiguous text of the statute, there is precedent
that nonetheless requires that a consumer be given an
opportunity to discuss his consumer report directly with his
employer prior to adverse action. In fact, our cases and
various legislative history materials track the language of the
statute and indicate that the FCRA’s right to dispute was
aimed at correcting errors in consumer reports, which perhaps
explains why the statute provides a right to dispute
inaccuracies with the consumer reporting agency, but does
not explicitly require an opportunity to discuss the report with
the employer itself.

    For example, we have explained that the FRCA’s
disclosure provision, 15 U.S.C. § 1681b(b)(2)(A), “promotes
error correction by providing applicants with an opportunity
to warn a prospective employer of errors in the report before
the employer decides against hiring the applicant on the basis
of information contained in the report.” Syed, 853 F.3d
at 497. We noted that “[t]his opportunity is particularly
important given that, in practice, the FCRA does not
otherwise provide an opportunity for a job applicant or


     17
       Here, the parties did not raise, and we therefore do not decide,
whether an employer must wait a reasonable period of time after sending
a pre-adverse action notice before making a final decision and taking
adverse action. See, e.g., Magallon, 311 F.R.D. at 633–34.
               WALKER V. FRED MEYER, INC.                     27

employee to dispute his consumer report before adverse
action is taken.” Id. at 497 n.2.

    Similarly, the legislative history explains that “[t]he
driving force behind the [1996 amendments to the FCRA]
was the significant amount of inaccurate information that was
being reported by consumer reporting agencies and the
difficulties that consumers faced getting such errors
corrected.” S. Rep. No. 108-166, at 5–6 (2003). To address
this issue, the FCRA amendments “require[d] that employers,
before taking an adverse action based on a consumer report,
provide the current or prospective employee with . . . a
reasonable opportunity to respond to any information that is
disputed by the consumer.” S. Rep. No. 104-185, at 35
(1995); see also H.R. Rep. No. 103-486 (1994) (explaining
same under “Explanation of Legislation” – Section 103 –
“Employment Purposes”). These sources, however, do not
mention any right to discuss directly with an employer a
consumer report that is accurate but contains negative
information.

    Because the text of the statute, the legislative history, and
our precedent do not require that a consumer be provided an
opportunity to discuss his consumer report directly with his
employer before adverse action is taken against him, we hold
that the pre-adverse action notice that Walker received did
not violate the FCRA.

                              IV.

    Because the fourth and fifth paragraphs of the Disclosure
violate the FCRA’s standalone disclosure requirement, we
reverse the district court’s dismissal of Walker’s claim under
15 U.S.C. § 1681b(b)(2)(A). We leave for the district court
28             WALKER V. FRED MEYER, INC.

to decide in the first instance whether the remaining language
of the      Disclosure satisfies the separate “clear and
conspicuous” requirement provided in that same section. We
affirm, however, the district court’s dismissal of Walker’s
pre-adverse action notice claim under 15 U.S.C.
§ 1681b(b)(3)(A), because no authority provides the alleged
right on which that claim rests.

  AFFIRMED in part, REVERSED in part, and
REMANDED. No Costs.
