Galper v. JP Morgan Chase Bank, N.A.

802 F.3d 437, 2015 U.S. App. LEXIS 17224, 2015 WL 5711882
CourtCourt of Appeals for the Second Circuit
DecidedSeptember 30, 2015
DocketDocket No. 14-0867-cv
StatusPublished
Cited by90 cases

This text of 802 F.3d 437 (Galper v. JP Morgan Chase Bank, N.A.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Galper v. JP Morgan Chase Bank, N.A., 802 F.3d 437, 2015 U.S. App. LEXIS 17224, 2015 WL 5711882 (2d Cir. 2015).

Opinion

JEFFREY ALKER MEYER, District Judge:

This is a case about identity theft, and it requires us to consider the relationship between a New York state law providing remedies for victims of identity theft and the federal Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. (FCRA). An identity theft occurs when someone misappropriates another person’s name or other personal information in order to engage in fraud or other crimes. Predictably enough, this criminal activity will often result in adverse alerts to credit reporting agencies and significant damage to the victim’s credit worthiness. Like many other states, New York has created by statute a private civil cause of action for victims of this crime to recover damages from identity thieves.1 See N.Y. Gen. Bus. L. §§ 380-1, 380-s.

Plaintiff Yelena Galper alleges that she was the victim of an identity theft scheme perpetrated by employees of defendant JP Morgan Chase Bank, N.A. (“Chase”), and she seeks to hold Chase liable for this identity theft under the New York Fair Credit Reporting Act. This state law creates a cause of action for a victim to sue any person who engages in identity theft if, in turn, the theft results in the transmission of certain information about the consumer to a consumer reporting agency a credit bureau). See id.

The question here is whether Gal-per’s lawsuit is preempted by the federal FCRA, which preempts state law claims for identity theft if they are “with respect to” subject matter regulated by 15 U.S.C. § 1681s-2, a statute that “relat[es] to the responsibilities of persons who furnish information to consumer reporting agencies.” 15 U.S.C. § 1681t(b)(l)(F). In its ruling on Chase’s motion to dismiss, the district court concluded that Galper’s claims under the New York law are preempted by the FCRA.

We conclude that the FCRA does not preempt all of Galper’s claims under the New York law. Viewed in the light' most favorable to plaintiff, the operative complaint advances claims of identity theft and aiding and abetting identity theft based on Chase’s vicarious liability for its employees’ theft of Galper’s identity, as distinct from any erroneous or otherwise wrongful actions by Chase in furnishing information to consumer reporting agencies. Such claims of identity theft are not “with respect to” the responsibilities of persons who furnish information- to consumer reporting agencies and are therefore not preempted by the FCRA. Because Gal-[442]*442per’s complaint plausibly raises state law claims that are not preempted by federal law, we vacate the judgment of the district court and remand for further proceedings consistent with this decision.

Background

Galper’s amended complaint alleges the following facts, which we accept as true for purposes of reviewing the district court’s grant of Chase’s motion to dismiss. For about three years, various Chase bank employees allegedly aided and abetted the money laundering activities of certain persons who were engaged in a scheme to defraud the Medicare program. In return for cash bribes and other gratuities, these Chase employees assisted the money launderers in the fraudulent use of Galper’s name as a signatory for Chase accounts set up in the name of phony corporations. These accounts were used to deposit and pay out proceeds of the Medicare fraud scheme. With the approval and knowledge of complicit Chase employees, the members of the money laundering scheme also operated and controlled Galper’s previously dormant personal checking account, and they used an ATM card associated with that account. The Chase employees falsified Chase’s records to enable the members of the money laundering scheme to make withdrawals from these accounts in Galper’s name, including for extravagant luxury purchases. Galper was not aware of any of these transactions or money laundering activities.

This fraudulent activity benefitted Chase because it increased Chase’s business. Indeed, Galper alleges in her complaint that the Chase employees actually “acted within the scope of their employment and for the benefit and profit of Chase” when they “facilitate[d] the unlawful use of [her] identifying information.” Compl. ¶ 5.

During the course of the conspiracy, the members of the money laundering scheme frequently overdrew the various fraudulent accounts in Galper’s name, causing many bounced checks. The Government eventually discovered what was happening, and the fraudulent accounts were closed. Gal-per told investigators that she did not know anything about the activity, but she was arrested, indicted, and tried on charges of money laundering conspiracy. Eventually, after a seven-week trial, a jury acquitted Galper of all charges.

Galper sued Chase in New York state court, asserting claims for identity theft and aiding and abetting identity theft, both in violation of New York’s Fair Credit Reporting Act, N.Y. Gen. Bus. L. §§ 380-1 and 380-s. The New York law generally prohibits actual or attempted identity theft, defined in relevant part to include the knowing and intentional fraudulent use of something of value in the name of another person without that person’s consent.2 But not all identity theft is actionable under the New York law. The law authorizes a civil action only if the identity theft “resulted in the transmission or provision to a consumer reporting agency of information that would otherwise not have been transmitted or provided.” N.Y. Gen. Bus. L. § 380-1.3

[443]*443According to Galper’s complaint, the bounced checks, the closed accounts, and the government investigation and prosecution of her resulted in adverse reports being made to certain consumer reporting agencies. The complaint does not specify who transmitted these adverse reports to the consumer reporting agencies. Instead, it alleges that the consumer reporting agencies that received adverse information about Galper in turn provided that information to various financial institutions. Galper was harmed when these financial institutions — including Chase — then caused legitimate accounts that Galper controlled to be closed and prevented her from opening new accounts.

Chase removed Galper’s action from New York state court to federal court and then moved for dismissal pursuant to Fed. R.Civ.P. 12(b)(6), contending in part that the federal FCRA preempted Galper’s claims for identity theft under the New York law. The district court agreed and granted Chase’s motion. See Galper v. JPMorgan Chase, N.A., No. 13 CIV. 3449, 2014 WL 1089061 (S.D.N.Y. Mar. 17, 2014). This timely appeal followed.

Discussion

We begin with an overview of the preemption principles that guide our consideration of Galper’s appeal. The Constitution’s Supremacy Clause provides that “the Laws of the United States ... shall be the supreme Law of the Land ... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const, art. VI, cl. 2. It follows that Congress may preempt (or invalidate) a state law by means of a federal statute.

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Bluebook (online)
802 F.3d 437, 2015 U.S. App. LEXIS 17224, 2015 WL 5711882, Counsel Stack Legal Research, https://law.counselstack.com/opinion/galper-v-jp-morgan-chase-bank-na-ca2-2015.