United States Court of Appeals For the First Circuit

No. 21-1637

PATRICIA MCINTYRE, on behalf of herself and all others similarly situated,

Plaintiff, Appellant,

v.

RENTGROW, INC., d/b/a Yardi Resident Screening,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Allison D. Burroughs, U.S. District Judge]

Before

Lynch, Selya, and Kayatta, Circuit Judges.

John Soumilas, with whom James A. Francis, Jordan M. Sartell, and Francis Mailman Soumilas, P.C. were on brief, for appellant. Keith Levenberg, with whom James W. McGarry, Joseph F. Yenouskas, Tierney E. Smith, and Goodwin Procter LLP were on brief, for appellee.

May 13, 2022 SELYA, Circuit Judge. The principal question in this

putative class action is whether the facts, taken in the light

most congenial to plaintiff-appellant Patricia McIntyre, would

permit a rational jury to find that defendant-appellee RentGrow,

Inc. (RentGrow) willfully violated the Fair Credit Reporting Act

(FCRA),

-1681x. The district court answered this

question in the negative and entered summary judgment in favor of

RentGrow. See McIntyre v. RentGrow, Inc., No. 18-12141,

, at *1 (D. Mass. July 22, 2021). After careful

consideration, we affirm.

I. BACKGROUND

We briefly rehearse the relevant facts and travel of the

case. The abiding truth against which this litigation plays out

is that "[c]onsumer credit reports play an important role in the

lives of individuals and the economy." Consumer Data Indus. Ass'n

v. Frey,

(1st Cir. 2022). Such reports affect the

availability and terms of a variety of economic opportunities,

including housing.

Congress enacted the FCRA in 1970, in part, "to ensure

fair and accurate credit reporting." Safeco Ins. Co. of Am. v.

Burr,

(2007). Recognizing the high stakes that

credit reporting portends for consumers, the FCRA requires that

"[w]henever a consumer reporting agency prepares a consumer report

it shall follow reasonable procedures to assure maximum possible

- 2 - accuracy of the information concerning the individual about whom

the report relates." 15 U.S.C. § 1681e(b).

RentGrow is a consumer reporting agency (CRA) that

generates reports used by landlords and property managers to screen

prospective tenants. The information contained in these tenant-

screening reports includes summaries of public records of court

proceedings involving each prospective tenant. RentGrow neither

obtains nor reviews these court records itself but, rather,

purchases reports synthesizing the court records from TransUnion

Background Data Solutions (TUBDS), which is a subsidiary of

TransUnion (one of the three largest CRAs in the United States).

RentGrow conducts some modest filtering to sift out some

of the court-records information it receives and then synopsizes

the remainder into its tenant-screening reports. In a declaration

signed under penalty of perjury by Patrick Hennessey, RentGrow's

vice president of resident screening, RentGrow describes the

arrangement in the following terms:

[W]hen a prospective tenant applies to rent from one of RentGrow's clients, information from the prospective tenant's application is sent to RentGrow electronically. That information is in turn sent by RentGrow to, among others, [TUBDS]. [TUBDS] then returns civil court records (if any) to RentGrow. RentGrow then makes sure that the information from [TUBDS] is about the tenant applicant (meaning, we make sure it is not information about someone else), makes sure the information can be reported (meaning, for example, if the case was dismissed or does not

- 3 - relate to a landlord-tenant action, RentGrow filters it out), and then transmits the reportable civil records information from [TUBDS] about the applicant (if any) to the property [manager].

In deposition testimony, Hennessey indicated that RentGrow was

largely unaware of the procedures that TUBDS used to collect its

court-records information and what procedures it had in place to

ensure the accuracy of that data.

In 2017, McIntyre expressed interest in renting an

apartment in Philadelphia, Pennsylvania. The property manager of

the apartment complex used RentGrow's services to screen

prospective tenants and asked RentGrow for a tenant-screening

report. RentGrow, in turn, asked TUBDS for court-records

information pertaining to McIntyre.

As matters turned out, McIntyre had a somewhat checkered

housing history: three previous landlords had taken her to court

in eviction proceedings and related matters. The original tenant-

screening report that RentGrow prepared, using court-records

information supplied by TUBDS, reflected this history but

(McIntyre alleges) contained some meaningful inaccuracies.

Those inaccuracies related to things like the current

status of the cases brought against McIntyre and whether the

arrearages allegedly owed by McIntyre were still outstanding. For

instance, one entry from 2012 showed a suit against McIntyre along

with the amount sought in the suit without noting that the

- 4 - complaint subsequently had been withdrawn. Another entry showed

that a suit had been filed and a judgment entered but neglected to

mention that the judgment had later been paid.

RentGrow delivered this original tenant-screening report

to the property manager, recommending that McIntyre's application

be rejected. The property manager determined that McIntyre was

ineligible to rent an apartment in the complex.

The rejection of McIntyre's bid to lease the apartment

was not the end of the matter. After learning the contents of

RentGrow's original tenant-screening report, McIntyre notified

RentGrow that she disputed portions of certain entries in the civil

court records section. RentGrow promptly notified TUBDS of

McIntyre's complaints and updated its tenant-screening report

within a month (using newly acquired information from TUBDS). Even

with updates to the report, McIntyre remained ineligible to lease

the apartment. And in her view, the revisions were too little and

too late.

The FCRA furnishes a private right of action to consumers

who claim to be harmed by violations of its strictures. See 15

U.S.C. § 1681p. Invoking this private right of action and noting

that RentGrow maintained its principal place of business in

Waltham, Massachusetts, McIntyre commenced a civil action in the

United States District Court for the District of Massachusetts.

She sued RentGrow both on her own behalf and as the representative

- 5 - of a putative class of similarly situated persons.1 In her

complaint, she alleged that the inaccurate information in the

original tenant-screening report, coupled with RentGrow's reliance

on TUBDS's court-records information, transgressed section

1681e(b) of the FCRA, see 15 U.S.C. § 1681e(b), and gave rise to

liability for both negligent and willful noncompliance with the

statute, see 15 U.S.C. §§ 1681o, 1681n.

Negligent noncompliance and willful noncompliance are

two different bases of liability for violation of the same

substantive obligation. McIntyre's complaint, though, pleaded

RentGrow's alleged violation of the statute in a single count.

The district court treated that count as a unitary claim, asserting

dual theories of liability. See McIntyre,

, at

*13. For simplicity's sake, we treat negligent noncompliance and

willful noncompliance as distinct (but largely overlapping)

claims.

For present purposes, it is helpful to distinguish

between these two kinds of claims. The FCRA contains substantive

provisions (like section 1681e(b)) that set out the compliance

McIntyre sought to certify a class (nationwide, state-wide, 1

and/or city-wide) of persons "who were subjects of tenant screening reports created by [RentGrow] that contained eviction information, but which failed to state that the action had been withdrawn, dismissed, non-suited, or resulted in a judgment for the tenant defendant according to court records dated at least 30 days prior to the date of the report."

- 6 - duties of CRAs with respect to consumer information. Section 1681o

and section 1681n provide for liability for negligent

noncompliance and willful noncompliance, respectively, with those

compliance duties. See 15 U.S.C. §§ 1681n, 1681o.

A negligent noncompliance claim resembles a garden-

variety negligence claim, with a substantive provision of the FCRA

providing the relevant duty and standard of care. Section 1681e(b)

is the relevant substantive provision here. It requires CRAs to

"follow reasonable procedures to assure maximum possible accuracy

of the information" included in consumer credit reports. Recovery

in negligent noncompliance claims is limited to actual damages and

attorneys' fees. See 15 U.S.C. § 1681o(a). Thus, such a claim

requires a plaintiff to show a failure to follow reasonable

procedures for assuring maximum possible accuracy, resulting in

inaccurate information in the plaintiff's consumer report and

thereby injuring the plaintiff. See Cortez v. Trans Union, LLC,

(3d Cir. 2010); Philbin v. Trans Union Corp.,

(3d Cir. 1996).

Because a willful noncompliance claim rests on the same

substantive obligation, its elements are similar to those of a

negligent noncompliance claim. There is an added requirement,

though, of showing willfulness. And unlike a negligent

noncompliance claim, a willful noncompliance claim may entitle a

plaintiff to statutory and punitive damages and attorneys' fees

- 7 - without proof of actual damages.2 See 15 U.S.C. § 1681n(a), (c);

see also Llewellyn v. Allstate Home Loans, Inc.,

(10th Cir. 2013). Thus, a willful noncompliance claim under

section 1681e(b) requires a plaintiff to show a willful failure to

follow reasonable procedures for assuring maximum possible

accuracy, resulting in inaccurate information in the plaintiff's

consumer report. See Birmingham v. Experian Info. Sols., Inc.,

(10th Cir. 2011). Proving willfulness requires

the plaintiff to show that the noncompliance was knowing or

reckless. See Safeco,

; Birmingham,

.

Following pretrial discovery, RentGrow moved for summary

judgment. See Fed. R. Civ. P. 56(a). McIntyre opposed this motion

and cross-moved for class certification. See Fed. R. Civ. P.

23(a), (b)(3). Although the parties attach different meaning to

them, the number of reports RentGrow prepares using TUBDS's court-

records information and its dispute rates are undisputed:

2 Even without a showing of actual damages, a plaintiff who seeks to press a willful noncompliance claim must show an injury in fact sufficient to support standing. See TransUnion LLC v. Ramirez,

(2021). Here, the district court supportably determined that RentGrow's dissemination of allegedly inaccurate information crossed that threshold. See McIntyre,

, at *6.

- 8 - • TUBDS returned civil court records for use in

380,559 tenant screenings conducted by RentGrow

between October 12, 2016 and October 12, 2018.

• After applying its filtering process, RentGrow

reported civil court records in 272,893 tenant-

screening reports.

• Consumers disputed reports in 6,194 screenings

involving civil court records generally

(approximately 2.3 percent), and 2,953 of those

disputes (approximately 1.1 percent) concerned

eviction records specifically.

• With respect to the disputes concerning eviction

records, 2,526 (approximately 85 percent) resulted

in updates to the tenant-screening reports.

The district court assessed the shared elements of the

negligent and willful noncompliance claims under section 1681e(b).

First, the court determined that a jury could find that RentGrow

failed to follow reasonable procedures to assure maximum possible

accuracy. McIntyre,

, at *8. Although the court

acknowledged that RentGrow had certain procedures to limit

inaccuracies in the tenant-screening reports that it prepared, it

noted that RentGrow was "largely unaware of the procedures [TUBDS]

uses to collect its data" and did not itself review civil court

filings.

The court posited "that a reasonabl[e] jury could

- 9 - arguably find that relying on data acquired by a third party,

through unknown procedures," fell short of section 1681e(b)'s

requirement to follow reasonable procedures to ensure maximum

possible accuracy.

Second, the court found that McIntyre had

adduced enough evidence to create a genuine issue of material fact

as to whether omissions in the tenant-screening report rendered

that report inaccurate. See

.

Withal, the court determined that McIntyre had not

adduced sufficient evidence of actual damages, thus pretermitting

her negligent noncompliance claim. See

. McIntyre does

not challenge that determination.

This left McIntyre's willful noncompliance claim as her

only potential avenue for recovery. But the district court

determined that although a jury could arguably find that RentGrow

failed to follow reasonable procedures to ensure maximum possible

accuracy, McIntyre had not adduced sufficient evidence to ground

a finding of willfulness. See

. In support, the

court observed that there was "no evidence that [RentGrow] was on

notice that [TUBDS's] civil court data was inaccurate and then

ignored such warnings."

. And, moreover, neither extant

case law nor a Consumer Financial Protection Bureau (CFPB)

publication touted by McIntyre would have "ma[d]e clear that a CRA

cannot rely on public court records compiled by a vendor."

- 10 - Because neither negligent noncompliance nor willful

noncompliance could in its view supply a basis for liability, the

court entered summary judgment in RentGrow's favor. See

. This ruling also served to sound the death knell for

McIntyre's motion for class certification. See Fed. R. Civ. P.

23(a); Yan v. ReWalk Robotics Ltd.,

(1st Cir.

2020). Accordingly, the district court denied class certification

and dismissed McIntyre's action. This timely appeal followed.

II. ANALYSIS

We review a district court's entry of summary judgment

de novo. See Iverson v. City of Boston,

(1st Cir.

2006). In conducting that appraisal, we construe the evidence of

record in the light most congenial to the non-moving party (here,

McIntyre) and draw all reasonable inferences to that party's

behoof. See

We are not wedded to the district court's

reasoning but, rather, may affirm on any independent ground made

manifest by the record. See

A district court may grant summary judgment only if "the

record, construed in the light most congenial to the nonmovant,

presents no genuine issue as to any material fact and reflects the

movant's entitlement to judgment as a matter of law." McKenney v.

Mangino,

(1st Cir. 2017); see Fed. R. Civ. P.

56(a). Where, as here, the motion is premised on the absence of

a genuine issue of material fact, the nonmovant bears the burden

- 11 - of adducing evidence showing "an issue of fact that is 'more than

merely colorable.'" Faiella v. Fed. Nat'l Mortg. Ass'n,

(1st Cir. 2019) (quotations omitted).

A. The Willfulness Framework.

On appeal, McIntyre challenges only the district court's

determination that she did not adduce evidence sufficient to show

that RentGrow willfully failed to comply with its obligations under

section 1681e(b). In Safeco, the Supreme Court clarified that,

under the FCRA as under the common law, willfulness encompasses

not only intentional or knowing violations but also reckless ones.

See

. McIntyre does not contend that RentGrow

intentionally or knowingly failed to comply with section 1681e(b).

Instead, she contends that the summary judgment record, construed

in the requisite light, suffices to show recklessness on RentGrow's

part.

To define recklessness, the Safeco Court looked to the

common law. See

. Recklessness — which usually is

measured under an "objective standard" in civil cases — entails

disregard for "an unjustifiably high risk of harm that is either

known or so obvious that it should be known."

at 68 (quoting

Farmer v. Brennan,

(1994)). The "essence of

recklessness," the Court stated, is the "high risk," id. at 69,

which must be "substantially greater in amount than that which is

necessary to make [] conduct negligent," id. (quoting Restatement

- 12 - (Second) of Torts § 500(g) (1965)). Thus, to prove actionable

recklessness, a plaintiff must show that the defendant knew or had

reason to know of facts that would lead it to understand that it

was running an "'unjustifiably high risk' of violating the

statute." Id. at 70.

The Safeco Court applied this general paradigm to a

situation in which a defendant claimed compliance with the FCRA

based exclusively on interpretation of the relevant statutory

provision. The statute sub judice required a consumer to be

notified if something in her credit report resulted in "adverse

action," including "an increase in any charge for . . . any

insurance." 15 U.S.C. § 1681s(k)(1)(B)(i). But the statute was

silent on how an "increase" should be measured. Safeco, acting

"[on] the rationale that 'increase' presupposes prior

dealing, . . . took the definition as excluding initial rate

offers for new insurance." Safeco,

. As a result,

it made no effort to comply with the notice requirement when

dealing with the plaintiff. See

The Court rejected Safeco's reading of the statute but

acknowledged that Safeco's reading, even though incorrect, "ha[d]

a foundation in the statutory text."

. And up to

that point, neither the Court itself nor any court of appeals had

addressed the issue. See

. By the same token, no

"authoritative guidance" had yet emerged from the Federal Trade

- 13 - Commission (FTC).3 Id.; see

at 70 n.19 (rejecting as

insufficient an opinion letter from a single FTC staff attorney

and noting that the letter "did not canvass the issue" and

"explicitly indicated that it was merely 'an informal staff

opinion . . . not binding on the Commission'" (alteration in

original)). In these circumstances, the Court determined that

Safeco lacked the "benefit of guidance . . . that might have

warned it away from the view it took."

. "Given this

dearth of guidance and the less-than-pellucid statutory text," the

Court concluded, "Safeco's reading was not objectively

unreasonable, and so f[e]ll[] well short of raising the

'unjustifiably high risk' of violating the statute necessary for

reckless liability."

The Supreme Court's reasoning suggests that if a CRA is

acting in compliance with a reasonable reading of an ambiguous

statute — or, as the Supreme Court carefully put it, a reading

that is not "objectively unreasonable" — it cannot have been acting

recklessly. See

("[T]here is no need to pinpoint the

negligence/recklessness line, for Safeco's reading of the statute,

3Until 2011, the FTC was the principal regulatory agency charged with enforcement of the FCRA. See 15 U.S.C. § 1681s; see also Fed. Trade Comm'n, 40 Years of Experience with the Fair Credit Reporting Act 3-4 (July 2011). On July 21, 2011, the CFPB was given primary regulatory and enforcement authority. See generally Consumer Financial Protection Act of 2010,

Stat. 1376 (2010);

(codified at 15 U.S.C. § 1681s(e)).

- 14 - albeit erroneous, was not objectively unreasonable."); id. at 70

("Safeco's reading was not objectively unreasonable . . . .").

Following that reasoning, "[a] credit reporting agency may act in

reckless disregard of a statute's requirements by adopting an

objectively unreasonable interpretation of the law." See Cortez,

(citing Safeco,

).

But compliance need not necessarily turn squarely on a

question of statutory interpretation. After all, the statute may

be very clear or the reasonableness of a CRA's compliance may

depend more on context than on the CRA's reading of the statutory

text. RentGrow concedes that section 1681e(b), which requires

that a CRA "follow reasonable procedures to assure maximum possible

accuracy" of reported information, presents just such a situation,

that is, a situation in which compliance does not turn squarely on

statutory interpretation but, rather, on the facts. 15 U.S.C.

§ 1681e(b). In such a case, we must evaluate whether a CRA acted

in disregard of facts that would make it obvious, considering the

totality of the circumstances, that there was an unjustifiably

high risk that it was not complying with the statute. See Cortez,

("A credit reporting agency may also willfully

violate the FCRA by adopting a policy with reckless disregard of

whether it contravenes a plaintiff's rights under the FCRA.").

- 15 - B. McIntyre's Willful Noncompliance Claim.

Against this backdrop, we train the lens of our inquiry

upon McIntyre's claim that RentGrow recklessly failed to comply

with section 1681e(b). The essence of this inquiry is whether,

considering the totality of the circumstances, a jury could find

that RentGrow implemented its procedures in disregard of facts

that would have made it obvious that it was running an

unjustifiably high risk of failing to satisfy its compliance

obligations under section 1681e(b). To reach this question,

though, we first consider two antecedent queries. First, could a

jury find that McIntyre's report contained material inaccuracies

resulting from the procedures employed by RentGrow?4 Second, could

a jury find that RentGrow failed to follow reasonable procedures

to assure maximum possible accuracy? We address these queries

sequentially, mindful that — if the answer to either is in the

negative — RentGrow cannot be liable for willful noncompliance

with section 1681e(b).

1. Accuracy. In order to succeed on a section 1681e(b)

claim, the plaintiff must show that her credit report contained

one or more material inaccuracies. See DeAndrade v. Trans Union

LLC,

(1st Cir. 2008). This demands a showing

that the report contained an entry or entries that a jury could

Our references, here and elsewhere, to what a jury could 4

find contemplate a reasonable jury, making supportable findings.

- 16 - find were either false or materially misleading. See, e.g.,

Saunders v. Branch Banking & Tr. Co. of Va.,

(4th Cir. 2008) ("[A] consumer report that contains technically

accurate information may be deemed 'inaccurate' if the statement

is presented in such a way that it creates a misleading

impression."); Sepulvado v. CSC Credit Servs., Inc.,

,

895 (5th Cir. 1998) ("A credit entry may be 'inaccurate' within

the meaning of the statute either because it is patently incorrect,

or because it is misleading in such a way and to such an extent

that it can be expected to adversely affect credit decisions.").

McIntyre's report contained entries with omissions that

a jury could find were materially misleading and, thus, inaccurate.

A few examples serve to illustrate the point. The entries in the

report concerning one of McIntyre's cases (LT-12-01-18-5230)

contained no indication that the complaint in the case had been

withdrawn. A jury could find that the omission was materially

misleading. Without knowing that the complaint was withdrawn, a

landlord might well think either that the case was still velivolant

or — even worse — that there was an unsatisfied judgment hanging

over McIntyre's head. In another case (LT-12-10-05-3884), the

satisfaction of the judgment was not reflected in McIntyre's

tenant-screening report, notwithstanding that the judgment had

been paid in full more than two years before the report was

prepared. A jury could find that this omission constituted a

- 17 - material inaccuracy. After all, the implication that a consumer

is saddled with an unsatisfied civil judgment could adversely

affect credit decisions.

To cinch the matter, TUBDS (upon inquiry from RentGrow)

admitted that the court-records information in the original report

was "inaccurate or incomplete" in various respects. Moreover, the

updated report that RentGrow prepared deleted several entries and

corrected others. TUBDS's admission and RentGrow's revisions

bolster the conclusion that a jury could find that the original

credit information was inaccurate.

RentGrow suggests that certain of these entries were

actually accurate and that because the report, on the whole,

correctly reflected that McIntyre had difficulties with prior

landlords, the report's omissions cannot be characterized as

materially misleading. These suggestions are not without some

force, but they are, as the district court determined, see

McIntyre,

, at *8-9, grist for a jury's mill.

We need not tarry. The short of it is that the district

court did not err in concluding that the question of whether

McIntyre's report contained materially inaccurate information was

for the jury. See

Thus, McIntyre has checked the first box

necessary for a willful noncompliance claim.

2. Compliance with Reasonable Procedures. We next ask

whether a jury could find that RentGrow failed to follow reasonable

- 18 - procedures for assuring the maximum possible accuracy of the

information included in its reports. It is undisputed that

RentGrow relied on TUBDS's reporting and did not itself review

civil court filings, dockets, or other court records. The fact

that a CRA relies on a third-party vendor to furnish court-records

information does not automatically render its procedures

unreasonable as a means of assuring the maximum possible accuracy

of the information in its reports. In the context of such a third-

party vendor relationship, the question is what the record shows

about the reasonableness of the procedures that the CRA implemented

to assure the maximum possible accuracy of the vendor-sourced

information included in its reports.

Here, a jury could find that RentGrow failed to implement

reasonable procedures to assure maximum possible accuracy.

Although RentGrow did engage in an ad hoc filtering process, it

did not have procedures in place to verify whether the court-

records information it received from TUBDS was either correct or

complete. Nor did it independently spot-check or otherwise review

the underlying dockets.

A jury could evaluate RentGrow's handling of this aspect

of its business in light of facts sufficient to support an

inference that RentGrow knew or should have known that TUBDS's

data was not presumptively reliable. For one thing, RentGrow's

reliance on TUBDS for court-records information resulted in a not-

- 19 - insignificant number of disputes over a two-year period (from

October of 2016 through October of 2018): 6,194 disputes out of

272,893 tenant-screening reports containing court-records

information. This means that roughly 2.3 percent of the reports

were disputed — and many of those disputes appear to have been

successful in securing corrections. Of 2,953 disputes containing

eviction-litigation records (a subset of court-records

information), 2,526 resulted in corrections of some sort.

For another thing, industry trends suggested that

TUBDS's court-records information might not be presumptively

reliable. Following a 2015 settlement with over thirty state

Attorneys General that required TransUnion (TUBDS's parent

company) and other large CRAs to adhere to stipulated accuracy

standards for the reporting of certain information, TransUnion for

the most part stopped reporting civil court judgments in credit

reports to end-users. See Consumer Fin. Prot. Bur., Quarterly

Consumer Credit Trends: Public Records, at 3-4 (February 2018)

("The most significant changes were observed for civil judgments.

They had been the most common public record prior to July 2017,

but after the [program required by the settlement] they disappeared

entirely."); see also Settlement Agreement, In re Investigation by

Eric T. Schneiderman, Attorney General of the State of New York,

of Experian Information Solutions, Inc., et al. (March 8, 2015).

But TransUnion continued to make this information available,

- 20 - through TUBDS, to intermediary CRAs like RentGrow. Here, moreover,

the record (including the testimony of RentGrow's corporate

representative) indicates that RentGrow continued to purchase

civil court records from TUBDS while remaining largely unaware of

both the processes by which TUBDS collected those records and the

procedures that TUBDS used to update records and verify their

accuracy.

Notwithstanding this chiaroscuro background, the record

does not suggest that RentGrow was indifferent to the accuracy of

its reported information. Importantly, RentGrow took care to

select the court-records provider that it deemed best. Over the

course of several years, RentGrow had received business

solicitations from other court-records vendors, thoroughly

considered their offerings, and tested samples of their proffered

data against the data that TUBDS was supplying. In these

comparisons, TUBDS's data appeared to be the most reliable and

complete. These comparisons led RentGrow to deem TUBDS the "gold

standard" for the industry and to continue using TUBDS as its

court-records vendor. In addition, RentGrow's filtering process

culled a substantial portion — nearly a quarter — of the court

records from TUBDS to ensure that it was not including mismatched

or unreportable information in tenant-screening reports. And,

finally, the record — at least with respect to McIntyre — indicates

- 21 - that RentGrow promptly responded to disputes and made corrections

as warranted.5

In sum, the evidence as to the reasonableness of

RentGrow's procedures to assure maximum possible accuracy was

conflicting and, thus, presented a question of fact for the jury.6

See McIntyre,

, at *8. It follows that McIntyre

has checked the second box needed for prosecution of her willful

noncompliance claim.

3. Recklessness. Although a jury could find that

McIntyre's report contained material inaccuracies and that

RentGrow failed to follow reasonable procedures to assure maximum

possible accuracy, a willful noncompliance claim requires more: a

showing that a CRA's failure to comply was knowing or reckless.

See Safeco,

. McIntyre does not assert that RentGrow

intentionally or knowingly violated section 1681e(b), so her claim

stands or falls on whether she can show that RentGrow acted

5 Although the record indicates that RentGrow routinely made corrections with respect to other consumers, the record is tenebrous with respect to the average timeline on which corrections were made in response to other consumer disputes. 6 RentGrow suggests that the district court should not have reached the issue of reasonableness because McIntyre did not introduce evidence of "unreasonable procedures." Considering that McIntyre's claim was that RentGrow's lack of procedures and its lack of knowledge about its vendor's procedures could be regarded as unreasonable, this suggestion gains RentGrow no ground. If chased to its tail, the logic of this suggestion would effectively allow CRAs to insulate themselves from section 1681e(b) willful noncompliance claims by relying blindly on third parties for information.

- 22 - recklessly. Surviving summary judgment on recklessness requires

the record to show sufficient facts to make it obvious to a CRA

that, under the totality of the circumstances, there was an

unjustifiably high risk that the CRA was not following reasonable

procedures to assure maximum possible accuracy.

In the case at hand, McIntyre argues that guidance from

an edition of the CFPB's Supervisory Highlights publication should

have given RentGrow clear notice that its procedures were

unreasonable and thus that it was not fulfilling its compliance

obligations.7 RentGrow tries to ground this argument before it

takes flight. It contends that the argument was not raised below

and, therefore, cannot take wing on appeal. See Teamsters Union,

Local No. 59 v. Superline Transp. Co.,

(1st Cir.

1992); see also United States v. Zannino,

(1st Cir.

1990). RentGrow, however, reads the record too myopically.

McIntyre quoted the purportedly relevant guidance in her complaint

McIntyre argued below that other data points could have 7

given RentGrow notice that there was a high risk that it was violating section 1681e(b). These data points included RentGrow's dispute rate (approximately 2.3 percent), the nature of its business arrangements with TUBDS, and certain decisions of federal courts of appeals. In this venue, though, McIntyre does not develop any arguments as to how these data points might be assessed by a jury in the course of a totality-of-the-circumstances analysis. Consequently, we treat these points as waived. See United States v. Zannino,

(1st Cir. 1990) (stating that it is "not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel's work, create the ossature for the argument, and put flesh on its bones").

- 23 - and both quoted and discussed it in her opposition to RentGrow's

motion for summary judgment. No more was exigible to preserve the

argument for appeal.

Turning to the merits of McIntyre's argument, we do not

gainsay that there was sufficient evidence for McIntyre to take

the question of whether RentGrow's procedures were reasonable to

the jury. See supra Part II(A). But the Supervisory Highlights

publication does not clearly warn RentGrow off the use of the

procedures that it had in place.

RentGrow attempts to end this discussion before it

begins. In this regard, RentGrow asserts that Safeco requires us

to find that the Supervisory Highlights publication cannot, as a

matter of law, provide notice to RentGrow as to whether its conduct

violates section 1681e(b). This is so, RentGrow submits, because

Safeco requires that a publication be "authoritative guidance" in

order to provide clear notice.

The Safeco Court used the term "authoritative guidance"

in discussing what might inform the interpretation of an ambiguous

statutory term, but it is not readily apparent what the Court meant

by that usage. Here, however, we need not delve too deeply into

the meaning and application of the "authoritative guidance" rubric

because the Supervisory Highlights language embraced by McIntyre

simply does not give the clear notice that she attempts to read

- 24 - into it. Its utility is eroded by its sparse detail and the fact-

specific nature of the examination actions it recounts.

Some context is helpful. The CFPB is the principal

enforcer of the FCRA, see supra note 3; see also 15 U.S.C.

§ 1681s(e), and since 2012 it has published Supervisory Highlights

— summaries of examination results, supervision actions, and

enforcement actions — to let compliance professionals in the

industry know how the CFPB applies the law. See Consumer Fin.

Prot. Bur., Supervisory Highlights: Fall 2012, at 2 (2012). The

CFPB has cautioned, however, that Supervisory Highlights gives

only a pinhole view of the "requirements of relevant laws and

regulations" through summaries of the agency's actions in fact-

specific settings and "does not impose any new or different legal

requirements." Consumer Fin. Prot. Bur., Supervisory Highlights:

Summer 2018, at 2 (2018); see id. ("[T]he legal violations

described in this and previous issues of Supervisory Highlight are

based on the facts and circumstances reviewed by the [CFPB] as

part of its examinations. A conclusion that a legal violation

exists on the facts and circumstances described here may not lead

to such a finding under different facts and circumstances.").

McIntyre asks us to accord decretory significance to the

Summer 2015 edition of Supervisory Highlights, which discussed the

CFPB's examination and supervision actions against certain CRAs

that relied on third-party furnishers of public records. See

- 25 - Consumer Fin. Prot. Bur., Supervisory Highlights: Summer 2015, at

6 (2015). Citing "weaknesses" including "hav[ing] never conducted

a formal audit of their public record providers" and "not hav[ing]

defined processes to verify the accuracy of public record

information provided by their public records providers," the CFPB

"directed one or more CRAs to establish and implement suitable and

effective oversight of public records providers." Id. It also

reported that the agency had initiated supervisory action against

CRAs when, even though "processes existed to analyze and improve

the quality of incoming data, there was no post-compilation report

review or sampling to test the accuracy of consumer reports." Id.

The publication suggests that compliance procedures should include

processes to audit and verify public-records information and to

supervise third-party public-records vendors.

McIntyre submits that these comments should have put

RentGrow on clear notice that its procedures were unreasonable

and, thus, that in maintaining them, it was undershooting its

compliance obligations under section 1681e(b). We do not agree.

The "weaknesses" identified in the Supervisory Highlights

publication touted by McIntyre were just that — weaknesses — and

not clear indications that any single deficiency would render a

CRA's procedures, as a whole, unreasonable. And in all events,

the spare and cryptic four paragraphs upon which McIntyre leans do

little more than restate factors that the CFPB considers in

- 26 - assessing compliance.8 They do not add much more than common sense

would add in considering what might be reasonable steps to take

toward assuring the accuracy of data acquired from vendors.

Indeed, other sections of the same Supervisory Highlights edition

contain vastly more substance and detail about industry practices

and appropriate compliance procedures.

Seen in this light, no reasonable jury could find that

the publication relied on by McIntyre was sufficient to put

RentGrow on clear notice that its battery of procedures to assure

accuracy — selecting the best-available records provider,

reassessing that choice in comparisons with competitors, filtering

out roughly a quarter of returned results to remove mismatches and

unreportable information, and responding promptly to disputes —

was inadequate under the circumstances to satisfy its compliance

obligations. Accordingly, we conclude that McIntyre has not

adduced, by means of the Supervisory Highlights publication on

which she stakes her case on appeal, sufficient evidence to show

that RentGrow was acting recklessly. Put another way, no

In assessing whether procedures for ensuring accuracy are 8

reasonable under section 1681e(b), the CFPB has said that it will consider "all relevant factors" set forth in a non-exhaustive list. Consumer Fin. Prot. Bur., CFPB Supervision and Examination Manual, at Procedures 10 (Version 2, October 2012). Those factors include the "[s]creening of furnishers," "[f]orm and manner in which information is reported," "[s]creening and matching of information from furnishers," "[m]easures to prevent duplicative tradelines on reports," and "[o]ther measures to test accuracy." Id.

- 27 - reasonable jury could conclude, based on that publication, that

RentGrow was disregarding an unjustifiably high risk, of which it

knew or had reason to know, that it was failing to follow

reasonable procedures to assure maximum possible accuracy of the

information contained in its tenant-screening reports.

III. CONCLUSION

We need go no further. In order to thwart the swing of

the summary judgment axe, a plaintiff must adduce competent

evidence sufficient to prove each and every element of her claim.

See Bennett v. Saint-Gobain Corp.,

(1st Cir. 2007).

McIntyre has failed to carry this burden with respect to proof of

recklessness. And because McIntyre premised her willful

noncompliance claim solely on recklessness, RentGrow was entitled

to summary judgment on that claim. The district court, therefore,

did not err either in granting RentGrow's Rule 56(a) motion or in

denying McIntyre's motion for class certification.

Affirmed.

— Concurring Opinion Follows —

- 28 - LYNCH, Circuit Judge, concurring in the judgment. I

read Safeco Insurance Co. of America v. Burr,

(2007),

differently in several respects. I prefer to follow Chief Justice

Roberts's statement in PDK Laboratories Inc. v. United States Drug

Enforcement Administration: "[I]f it is not necessary to decide

more, it is necessary not to decide more."

(D.C.

Cir. 2004) (Roberts, J., concurring).

The dispositive question in this appeal is whether

McIntyre has asserted sufficient evidence to permit a jury to

conclude that RentGrow's purported violation of the Fair Credit

Reporting Act ("FCRA") was willful. See 15 U.S.C. § 1681e(b). I

would not address other issues. Safeco holds that in the absence

of actual knowledge of a violation of the statute, willfulness may

be shown by demonstrating recklessness.

. Safeco

focuses on the test under the recklessness standard of whether

RentGrow's procedures were "objectively unreasonable."

at 69-

70. Here, RentGrow's procedures were plainly not "objectively

unreasonable."9 That should end the matter.

Safeco states that "there is no need to pinpoint the

negligence/recklessness line, for Safeco's reading of the statute,

albeit erroneous, was not objectively unreasonable."

RentGrow selected the best-available records provider, reassessed that choice in comparisons with competitors, filtered out those results to remove mismatches and unreportable information, and responded promptly to disputes.

- 29 - 69. Safeco gives no guidance as to relative risk assessment.

Thus, I think we should go no further than the Supreme Court was

willing to venture.

In my view, as well, the "objectively unreasonable" test

applies whether the asserted violation is one of pure statutory

interpretation or one of application of the statutory standards to

particular facts. After all, in the FCRA, Congress referred to

the "reasonable[ness]" of the procedures used. See 15 U.S.C.

§ 1681e(b) ("Whenever a consumer reporting agency prepares a

consumer report it shall follow reasonable procedures to assure

maximum possible accuracy of the information . . . ." (emphasis

added)).

Safeco, in its analysis of the "objectively

unreasonable" test, states that "no authoritative guidance ha[d]

yet come from the FTC" and "no court of appeals had spoken on the

issue," Safeco,

(emphasis added). I would approach

the analysis of McIntyre's reliance on the Consumer Financial

Protection Bureau ("CFPB") Supervisory Highlights differently than

the majority. In my view, the question of what constitutes

"authoritative guidance" is not the same question as the adequacy

of notice. The words "authoritative" and "notice" are different

words and have different meanings. The Oxford English Dictionary

first defines "authoritative" as "[i]ssued by a person or group in

authority; proceeding from an official source and requiring

- 30 - compliance or obedience." Authoritative, OED Online (Mar. 2022),

https://www.oed.com/view/Entry/13346?redirectedFrom=authoritativ

e (last visited May 4, 2022). One circuit court has held that

CFPB "authoritative guidance" cannot be "authoritative" until

after it has gone through the Administrative Procedure Act's

notice-and-comment rulemaking or an administrative adjudication.

See Van Straaten v. Shell Oil Prods. Co. LLC,

(7th Cir. 2012) (holding that FTC bulletin "not only lacks a

definition but also has no authoritative effect; it is neither an

exercise in notice-and-comment rulemaking nor the outcome of

administrative adjudication."). We need not resolve that question

here.

Here, we know that the Supervisory Highlights is not

"authoritative guidance" because the CFPB itself states that the

Supervisory Highlights is not authoritative or binding. The

Supervisory Highlights states that the document "does not impose

any new or different legal requirements." Consumer Fin. Prot.

Bureau, Supervisory Highlights: Summer 2018, at 2 (2018). And

when the CFPB did publish a regulation through notice-and-comment

rulemaking on the "Role of Supervisory Guidance" in February 2021,

it stated that "supervisory guidance does not have the force and

effect of law. As such, supervisory guidance does not create

binding legal obligations for the public." Role of Supervisory

- 31 - Guidance,

, 9261 (Feb. 12, 2021) (to be codified

at 12 C.F.R. pt. 1074).

For the above stated reasons, I concur in the judgment.

- 32 -