Albert Yum v. Superior Court of California, Orange County, et al.

Title V of the Gramm-Leach-Bliley Act (“GLBA”), under Section 6807 (also known as the “savings clause”), allows for states to create legislation that provide greater privacy protections for consumers in controlling what Congress has defined as “non-public personal information.” The state of California, in enacting their own legislative version titled California Financial Information Privacy Act (“SB 1”), extends this definition of “non-public personal information” to include any information contained about a person in a “consumer report”. (See Cal. Fin. Code § 4052(b)(7)). Previously, the Ninth Circuit remanded and upheld a district court ruling that pre-empts the Fair Credit Reporting Act (“FCRA”) definition of “consumer reports”, from the affiliate sharing provision pursuant to § 4053(b)(1) of California SB 1. See American Bankers Ass’ns v. Lockyer, 541,1214 (9th Cir. 2008). Judicial opinion on a constitutional privacy claim made in connection with § 4053(b)(4) of SB 1 and the federal Equal Credit Opportunity Act (“ECOA”), currently does not exist in the state or federal courts. Therefore, the questions presented ask:

1. Whether “consumer credit reports” as defined by the FCRA, holds deference to apply to § 4053(b)(4) of California’s SB 1, when a creditor has failed to comply with the notice requirements relating to § 1691(d)(1)-

2. of the federal ECOA.

3. Whether a state “right to privacy” under Cal. Const. Art. 1 § 1 and California SB 1, is an adequate post­ deprivation due process claim per 42 U.S.C. § 1983.