In its September 26 Orders granting certiorari in nine cases for decision this term, the Supreme Court has accepted for review two issues involving deep circuit splits in which the Sixth Circuit has been in the majority.
First, in Case No. 06-84, Safeco Insurance v. Burr, and Case No. 06-100, General Insurance v. Edo, the Court has granted cert. in two Fair Credit Reporting Act ("FCRA") cases from the Ninth Circuit. A conflict exists between the 4th, 5th, 6th, 7th and 8th Circuits on the one hand, and the 3rd and 9th Circuits on the other, over the mens rea required for a "willful" violation of FCRA.
In Safeco, the 9th Circuit held a defendant can be found liable for a "willful" violation upon a finding of "reckless disregard" for FCRA's requirements, in conflict with the other circuits which require the defendant's actual knowledge that its conduct violates FCRA. In General, the 9th Circuit held a defendant may be deemed to have acted recklessly, and thereby "willfully" under FCRA, if the company relied on "unreasonable," "implausible" or "untenable" interpretations of FCRA even if they derived from a legal opinion the company sought in good faith for the very purpose of ensuring compliance with the law.
The two questions presented are:
1. Whether the Ninth Circuit's construction of "willfully" under section 1681n of FCRA impermissibly permits a finding of willfulness to be based upon nothing more than negligence, gross negligence, or a completely good-faith but incorrect interpretation of the law, and upon conduct that is objectively reasonable as a matter of law, rather than requiring proof of a defendant's knowledge that its conduct violated FCRA or, at a minimum, recklessness in its subjective form?
2. Whether the Ninth Circuit improperly expanded section 1681n of FCRA by holding that an "adverse action" has occurred and notice is required thereunder, even when a consumer's credit information has had either no impact or favorable impact on the rates and terms of the insurance that would otherwise have been offered or provided?
Second, in Case No. 06-102, Sinochem International v. Malaysia International Shipping Corp., a divided panel of the 3rd Circuit held a district court must first conclusively determine it has personal jurisdiction over a defendant before it may dismiss the suit on forum non conveniens grounds. The 3rd Circuit acknowledged that its holding was inconsistent with the interests of judicial economy, recognized that its decision deepened an already existing 2-4 split among the circuits, and invited the Supreme Court's review of the issue.
The question presented for review is:
Whether a district court must first conclusively establish jurisdiction before dismissing a suit on the ground of forum non conveniens?
None of these cases has yet been scheduled for argument, although it seems probable they will appear on the February or March argument calendar.