Reynolds

dissenting in part:

I join the majority opinion except so much of Section II.F that concludes that GEICO and Hartford insurance companies willfully violated FCRA. The district court *1041 awarded judgment to the insurance companies on summary judgment without reaching the question whether the companies “willfully fail[ed] to comply” with the requirements of FCRA. 15 U.S.C. § 1681n(a). The insurance companies urged the district court, as an alternative ground, to hold that the companies did not act willfully as a matter of law. They urged the same position to us on appeal as an alternative ground for affirming the judgment. The appellants did not brief the question of willfulness until the reply briefs, and in each case the appellants requested that we decline to rule for the insurance companies and remand the case to the district court for further proceedings.

I would not decide as a matter of fact that the insurance companies behaved willfully on the basis of their lawyers’ arguments on appeal. I cannot conclude on the basis of the record before us that the companies’ actions here were so “indefensible,” “implausible,” “untenable,” “plainly unmeritorious,” “clearly contrary to…

Under the Fair Credit Reporting Act (“FCRA”), insurance companies are required to send adverse action notices to consumers whenever they increase the rates for insurance on the basis of information contained in consumer credit reports. 15 U.S.C. §§ 1681a(k)(l)(B)(i), 161m(a)). 1 The principal question before us is straightforward: Does FCRA’s adverse action notice requirement apply to the rate first charged in an initial policy of insurance? We hold that the answer is yes: The Act requires that an insurance company send the consumer an adverse action notice whenever a higher rate is charged because of credit information it obtains, regardless of whether the rate is contained in an initial policy or an extension or renewal of a policy and regardless of wheth *1024 er the company has previously charged the consumer a lower rate.

We also resolve five ancillary questions. First, we hold that FCRA’s adverse action notice requirement applies whenever a consumer would have received a lower rate for insurance had his credit information been more favorable, regardless of whether his credit rating is above or below average. Specifically, the requirement covers those whose credit…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JASON RAY REYNOLDS; MATTHEW 

RAUSCH,

Plaintiffs-Appellants, No. 03-35695 v.  D.C. No.

HARTFORD FINANCIAL SERVICES CV-01-01529-AJB

GROUP, INC.; HARTFORD FIRE

INSURANCE COMPANY,

Defendants-Appellees. 

AJENE EDO, 

Plaintiff-Appellant, v. GEICO CASUALTY COMPANY, No. 04-35279 Defendant, D.C. No. and  CV-02-00678-AJB

GEICO GENERAL INSURANCE ORDER AND

COMPANY; GEICO INDEMNITY OPINION

COMPANY; GOVERNMENT EMPLOYEES

INSURANCE COMPANY, Subsidiaries of Geico corporation, Defendants-Appellees.  Appeal from the United States District Court for the District of Oregon Anna J. Brown, District Judge, Presiding

Argued and Submitted March 8, 2005—Portland, Oregon

13753 13754 REYNOLDS v. HARTFORD FINANCIAL SERVICES Filed October 3, 2005

Before: Stephen Reinhardt, Marsha S. Berzon, and Jay S. Bybee, Circuit Judges.

Opinion by Judge Reinhardt; Dissent by Judge Bybee REYNOLDS v. HARTFORD FINANCIAL SERVICES 13757

COUNSEL

Steve D. Larson and Scott A. Shorr, Stoll…