Claybrook v. Carco Group, Inc. et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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JONATHAN CLAYBROOK,
individually and on behalf of the putative classes
Plaintiff,
MEMORANDUM
v. 	AND ORDER
25-CV-0162-SJB-LGD
CARCO GROUP, INC.,
doing business as CISIVE
Defendant.
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BULSARA, United States District Judge:
Defendant CARCO Group, Inc. d/b/a Cisive (“Cisive”) has filed a second
motion requesting a premotion conference to dismiss two of the three causes of action
in Plaintiff Jonathan Claybrook’s Second Amended Complaint (“SAC”) in this Fair
Credit Reporting Act (“FCRA”) case. (Def.’s Mot. for Premotion Conference dated July
18, 2025 (“Def.’s Second PMC Mot.”), Dkt. No. 23; Second Am. Compl. dated June 26,
2025 (“SAC”), Dkt. No. 21; Pl.’s Resp. to Def.’s Second PMC Mot. dated Aug. 15, 2025
(“Pl.’s Resp.”), Dkt. No. 29). As explained below, the request is deemed as making the
motion for dismissal itself, and the motion is granted in part and denied in part.
FACTUAL BACKGROUND
The following alleged facts are taken from the SAC.1 Claybrook secured a job
offer from non-party Wells Fargo on January 6, 2023, subject to a background check.
1 For the purpose of this motion, the Court is “required to treat” Claybrook’s
“factual allegations as true, drawing all reasonable inferences in favor of [him] to the
extent that the inferences are plausibly supported by allegations of fact.” In re Hain
Celestial Grp., Inc. Secs. Litig., 20 F.4th 131, 133 (2d Cir. 2021).
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(SAC ¶¶ 23–24). But the offer was rescinded on January 12, 2023, because of
information in a consumer report prepared by Cisive (the “Report”) and provided to
Wells Fargo. (Id. ¶¶ 25–27). The relevant excerpt of the Report is reproduced below.
Claybrook alleges that he pled guilty to “Attempt to Produce a Controlled
Substance,” (id. ¶ 32), but Cisive reported the plea as one for a different offense: one for
“Distribute/Deliver/Manufacture/Produce or Attempt to or Possess with Intent to
Distribute/Deliver/Manufacture/Produce,” (id. ¶ 30), which he alleges was just the
original charge, (id. ¶ 36). He contends the Report also omitted the ultimate disposition,
which was a “Suspended Imposition of Sentence” (“SIS”). (Id. ¶ 34). Cisive reported
his sentence as “120 Days Confinement, 5 years probation with conditions, 200 hours
community service.” (SAC ¶ 27). And it states the ultimate disposition as being
“discharged from probation.” (Id.).
According to the SAC, an SIS disposition is “something other than a formal, final
finding of guilt” under Missouri law and subject to vacatur by a recent state
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constitutional amendment, so Wells Fargo would have viewed it more favorably than
the “guilty” disposition that was actually reported. (Id. ¶¶ 34–35, 38, 47). Claybrook
alleges that accurate information about his criminal history—the SIS disposition and
charge to which he plead—was in the documents Cisive received from its information
vendor, SPI, or otherwise available in court records. (Id. ¶¶ 38, 40). Cisive produced a
“revised and corrected report” (the “Revised Report”) after Claybrook initiated a
dispute in light of the job offer rescission, removing the felony and only retaining the
related misdemeanor for possession of drug paraphernalia—which Claybrook alleges
was also an error. (Id. ¶¶ 69–71).2 Cisive did not provide Claybrook with notice that it
was reporting negative information about him to Wells Fargo, nor did Cisive ever
respond to Claybrook’s requests in July and December of 2023 for a full file disclosure
of the Report. (Id. ¶¶ 76–79).
Claybrook brings three causes of action, and Cisive only seeks dismissal of two.
In Count I, Claybrook claims that Cisive “willfully violated 15 U.S.C. § 1681e(b) because
it compiled and sold consumer report information about Plaintiff, which was used for
employment purposes, without following reasonable procedures to assure maximum
possible accuracy of the information.” (SAC ¶ 100). In Count II, he claims that Cisive
“willfully violated 15 U.S.C. § 1681k(a)(1) because it provided consumer reports about
2 The original Report listed two convictions. (Tr. dated June 12, 2025 (“PMC
Tr.”), Dkt. No. 24 at 19:3–10). The first is for felony attempt to distribute or produce a
controlled substance, or to possess with intent to do the same. The second is for
misdemeanor possession of drug paraphernalia, which Claybrook mentions in passing
should also not have been reported, (SAC ¶ 71), but which he does not otherwise
challenge, (PMC Tr. at 27:8–24 (Claybrook’s counsel conceding that Cisive’s reporting of
the misdemeanor was “complete and up to date”)).
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Plaintiff . . . which were used for employment purposes and contained public-record
information likely to have an adverse effect on consumers’ ability to obtain
employment, without providing the subjects of the report contemporaneous notice.”
(Id. ¶ 108). Cisive has not moved to dismiss Count III for failure to provide Claybrook
with a full file disclosure. (Id. ¶¶ 116–124).
PROCEDURAL HISTORY
The Court previously held a premotion conference on Claybrook’s First
Amended Complaint at Cisive’s request, (Mot. for Premotion Conference dated Apr. 28,
2025, Dkt. No. 15), during which it did not decide the motion but granted Claybrook
permission to file a Second Amended Complaint to cure the identified deficiencies.
(Min. Entry & Order dated June 12, 2025; Tr. dated June 12, 2025 (“PMC Tr.”), Dkt. No.
24 at 39:6–10). Claybrook, individually and on behalf of putative classes, filed the SAC
on June 26, 2025,3 which led to the current round of premotion conference letters.
3 The SAC dropped SPI Researchers, LLP (the entity that allegedly sold Cisive
the underlying criminal history that Cisive then reported out to Wells Fargo), after the
parties stipulated to dismissal of Claybrook’s claims against them. (SAC at 1 n.1).
Otherwise, the SAC is substantially similar to the First Amended Complaint, the main
departure being the addition of the allegation that Wells Fargo would “have considered
the suspended imposition of sentence that should have been included with the felony
charge more favorably than the guilty notation CISIVE inaccurately included.” (Id.
¶ 28; see also id. ¶¶ 33–35, 40–41, 43). The fact that the First Amended Complaint lacked
any such allegation was one of the principal pleading deficiencies identified at the June
premotion conference. (PMC Tr. at 29:16–30:3, 36:9–25, 38:14–39:5). The SAC also adds
an allegation that had Cisive provided Claybrook with the notice FCRA requires, he
would have been able to “proactively discuss the report with Wells Fargo in an effort to
save his job.” (SAC ¶ 77).
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LEGAL STANDARD
The Second Circuit has “occasionally approved the practice of construing pre–
motion letters as the motions themselves under appropriate circumstances.”
Kowalchuck v. Metro. Transp. Auth., 94 F.4th 210, 217 (2d Cir. 2024) (quotations omitted).
This is such a circumstance. And, although less common than a District Court denying
a dispositive motion, the Second Circuit has also “occasionally affirmed the granting of
dispositive motions without full briefing . . . only when the issues were predominantly
legal and the complaint had ‘substantial deficiencies.’” Id. at 217 (quoting Grossman v.
GEICO Cas. Co., No. 21-2789, 2022 WL 1656593, at *4 (2d Cir. May 25, 2022)). Those
conditions are met in this case, with respect to the claims and theories the Court
dismisses. See, e.g., Kapitalforeningen Lægernes Inv. v. United Techs. Corp., 779 F. App’x 69
(2d Cir. 2019) (affirming district court’s dismissal of an action by way of premotion
letter construed as a motion to dismiss); In re Best Payphones, Inc., 450 F. App’x 8, 15 (2d
Cir. 2011) (affirming district court’s denial of a motion to dismiss by way of premotion
letter construed as said motion).
“To survive a motion to dismiss [pursuant to Rule 12(b)(6)], a complaint must
contain sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotations omitted).
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. A complaint must contain more than “naked
assertion[s] devoid of further factual enhancement.” Id. (quotations omitted). In other
words, a plausible claim contains “factual content that allows the court to draw the
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reasonable inference that the defendant is liable for the misconduct alleged.” Id.; Fed. R.
Civ. P. 8(a)(2). “Factual allegations must be enough to raise a right to relief above the
speculative level . . . on the assumption that all the allegations in the complaint are true
(even if doubtful in fact)[.]” Twombly, 550 U.S. at 555 (internal citations omitted). The
determination of whether a party has alleged a plausible claim is “a context-specific
task that requires the reviewing court to draw on its judicial experience and common
sense.” Iqbal, 556 U.S. at 679.
This pleading requirement “does not impose a probability standard at the
motion-to-dismiss stage.” Mosaic Health, Inc. v. Sanofi-Aventis U.S., LLC, 147 F.4th 183,
192 (2d Cir. 2025) (noting that plausibility does not equate to probability). And “on a
Rule 12(b)(6) motion it is not the province of the court to dismiss the complaint on the
basis of the court’s choice among plausible alternatives. Assuming that [plaintiff] can
adduce sufficient evidence to support its factual allegations, the choice between or
among plausible interpretations of the evidence will be a task for the factfinder.” Id.
(quotations omitted).
DISCUSSION
I. 	Count I: FCRA § 1681e(b)
The FCRA mandates that “[w]henever a consumer reporting agency prepares a
consumer report it shall follow reasonable procedures to assure maximum possible
accuracy of the information concerning the individual about whom the report relates.”
15 U.S.C. § 1681e(b). “[T]o prevail on a section 1681e claim against a consumer
reporting agency, it is necessary for a plaintiff to establish, among other things, that a
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credit report contains an inaccuracy.” Mader v. Experian Info. Sols., Inc., 56 F.4th 264, 269
(2d Cir. 2023). “[A] credit report is inaccurate either when it is patently incorrect or
when it is misleading in such a way and to such an extent that it can be expected to
have an adverse effect.” Id. (quotation omitted). “[A]llegedly inaccurate information
reported on a consumer’s credit report must be objectively and readily verifiable to be
actionable under section 1681e(b).” Sessa v. Trans Union, LLC, 74 F.4th 38, 43 (2d Cir.
2023). Claybrook alleges and Cisive challenges four inaccuracies in the Report, (SAC
¶¶ 30, 34, 38, 42–48), and the Court addresses each in turn.
Claybrook’s first claimed inaccuracy is that his suspended sentence is not a
conviction at all and, therefore, should not have been reported. (Id. ¶ 38; Pl.’s Resp. at
1–2). To reach this conclusion, he contends that the Court should examine Missouri’s
treatment of his offense. (Pl.’s Resp. at 1). For the purposes of the FCRA, a conviction is
determined by federal, not state, law. Rhodes v. First Advantage Background Servs. Corp.,
No. 24-11005, 2024 WL 4615775, at *6 n.4 (11th Cir. Oct. 30, 2024) (“[T]here can be no
question as to the application of federal law in defining a ‘conviction’ within the
meaning of a federal statute.”) (collecting cases); Aldaco v. RentGrow, Inc., 921 F.3d 685,
688 (7th Cir. 2019) (“As far as we can tell, the word ‘conviction’ in federal statutes has
been defined according to state law only with explicit direction from Congress. . . .
Aldaco does not provide persuasive reasons why the Fair Credit Reporting Act’s use of
‘conviction’ should be interpreted differently.”); (see also PMC Tr. at 20:4–21:4 (Cisive’s
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counsel citing Rhodes, 2024 WL 4615775)).4 And Claybrook cites no authority that his
Missouri offense would not be a conviction under federal law. (See also PMC Tr. at
22:5–8 (Claybrook’s counsel confirming that Claybrook is not challenging that the state
court record reflected a disposition of “guilty”)).
The second allegation is that the Report “communicat[es] that Plaintiff was
found guilty of the completed crime,” rather than just attempted possession of a
controlled substance. (Pl.’s Resp. at 2; see also SAC ¶¶ 30–32; PMC Tr. at 9:20–25
(Claybrook’s counsel confirming that their argument is that the Report is inaccurate
because it implies the completed offense)). But the Report, on its face, is accurate. It
states that Claybrook pled guilty either to “distribute/silver/ manufacture/produce,”
or “attempt to,” or “possess[ion] with intent to distribute/deliver/manufacture/
produce.” (SAC ¶ 27). And it is true—as set forth in the SAC—that Claybrook pled
guilty to one of those crimes. (Id. ¶ 32).
Claybrook separately alleges that this string of possible charges is misleading
because it provides multiple options of charges to which he ultimately pled—since the
different charges carry varying degrees of severity. (Pl.’s Resp. at 2; PMC Tr. at 7:25–
8:13 (Claybrook’s counsel arguing that the Report gives several potential crimes to
choose from, and an attempt charge is less severe than the alternatives)). But to state a
FCRA claim, a plaintiff must plead that the content is “misleading in such a way and to
such an extent that it can be expected to have an adverse effect.” Mader, 56 F.4th at 269.
4 Claybrook also cites Rhodes in his brief. (See Pl.’s Resp. at 1 (citing Rhodes, 2024
WL 4615775, at *5–6)).
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And both the SAC and Claybrook’s briefing are devoid of any facts to suggest that
Wells Fargo would have responded differently—that is, not rescinded the job offer—if
the Report only included the attempt charge, as opposed to labeling the charge as either
one for attempt or the completed crime. And the out-of-circuit authority Claybrook
cites for this argument is factually inapposite.5 Thus, Claybrook has not pled that the
Report was misleading in a manner expected to produce an adverse effect.
The third alleged inaccuracy is best understood as an omission: the failure to
“include the appropriate disposition of his case—‘suspended imposition of sentence.’”
(Pl.’s Resp. at 3). As the excerpted portion shows, the Report includes a disposition of
“guilty,” indicates that Claybrook was sentenced to “120 days confinement” and “5
years probation,” and then notes that he was eventually “discharged from probation.”
(SAC ¶ 27). Claybrook asserts that Wells Fargo would have viewed the SIS notation
more favorably than a guilty disposition and, thus, it was misleading to omit it. (Id.
¶¶ 28, 43, 45–46; PMC Tr. at 22:5–23:14 (Claybrook’s counsel conceding accuracy of the
“guilty” disposition but discussing whether the SIS omission was misleading)). Cisive
argues that the omission of the SIS designation was not inaccurate or misleading, since
the Report reflected that Claybrook received and successfully completed probation.
(Def.’s Second PMC Mot. at 3; see also PMC. Tr. at 15:19–16:4 (Cisive’s counsel arguing
that “there’s enough . . . to provide the essence of the information about a suspended
imposition of sentence”)). But demonstrating that the information presented is accurate
5 See Dougherty v. Quicksius, LLC, No. 15-CV-6432, 2016 WL 3757056, at *4–*5
(E.D. Pa. July 14, 2016) (denying motion to dismiss FCRA claim for duplicative
reporting where the report listed 15 convictions, but plaintiff only had 5).
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is not sufficient in this context. Omissions can constitute an inaccuracy for FCRA
purposes, especially where a criminal record is at stake. See Obabueki v. Int’l Bus.
Machines Corp., 145 F. Supp. 2d 371, 397 (S.D.N.Y. 2001) (“[T]he information provided to
IBM was clearly deficient because the dismissal was not mentioned.”), aff’d, 319 F.3d 87
(2d Cir. 2003). Here, because the Report omits the SIS designation, a reader may
reasonably infer that Claybrook received a more severe sentence than he actually did.
And Claybrook plausibly alleges that a reasonable reader, such as his intended
employer, may have responded differently to the SIS designation, (SAC ¶¶ 28, 35), had
a potential hire served a sentence including incarceration, compared to having received
a suspended sentence conditioned on the successful completion of probation.
The final alleged inaccuracy stems from Missouri’s constitutional amendment
legalizing marijuana, which gave its courts twelve months to expunge existing records.
(Def.’s Second PMC Mot. at 3; Pl.’s Resp. at 4). The amendment became effective on
December 8, 2022, (SAC ¶ 47), and set out several processes to address previous
criminal convictions for now-legal conduct, Mo. Const. art. XIV, §§ 2.10(7)–(8). As
relevant here, within twelve months of the effective date, state courts are required to
“order the expungement of criminal history records for all persons no longer
incarcerated or under the supervision of the department of corrections but who have
completed their sentence for any felony marijuana offenses.” Id. § 2.10(8)(a). The
expungement orders vacate convictions and sentences as “legally invalid” and are
“legally effective immediately.” Id. § 2.10(8)(b). “The effect of such expungement shall
be to restore such person to the status the person occupied prior to such arrest, plea, or
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conviction and as if such event had never taken place.” Id. § 2.10(8)(c). “Such person
shall not be required to acknowledge the existence of such a criminal history record . . .
in any application for employment . . . and may deny the existence of the record
regardless of whether the person has received notice from the court that an
expungement order has been issued on the person’s behalf.” Id.
If the Report included a conviction that had been expunged, that could constitute
an inaccuracy. See, e.g., Obabueki, 145 F. Supp. 2d at 399. But the SAC contains no
information about whether or when Claybrook’s marijuana conviction was in fact
ordered expunged pursuant to the constitutional amendment, nor did counsel point to
any pertinent information to that effect at the June premotion conference. (See PMC Tr.
at 27:15–20). Further, the amendment only went into effect in early December 2022 and
gave state courts one year to order expungement. The Report was produced less than
two months later, in mid-January 2023. (Pl.’s Resp. at 4). While true, as Claybrook
argues, that “there is nothing that would prevent a court from [ordering expungement]
sooner,” (id.), he has not alleged that the state court actually did so in his case.
Even if the Court infers, as Claybrook suggests, that after he disputed the Report,
the Revised Report “removed the felony in response to the amendment,” (id.), that does
not imply the initial Report was inaccurate, but rather, that Claybrook’s record was
eventually vacated, and Cisive updated the Revised Report to reflect the same. (See
PMC Tr. at 20:5–21:4, 32:4–13, 33:11–34:2). Without any allegations from which to infer
that the initial Report was inaccurate because of the constitutional amendment, this
theory fails. Cf. Shimon v. Equifax Info. Servs. LLC, 994 F.3d 88, 91–92 (2d Cir. 2021)
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(“[T]he New York court reported that the case against him was ‘settled.’ . . . He
accordingly maintains that Equifax was obligated to report the judgment as ‘vacated.’
But the state court docket did not reflect a vacatur, so this argument misses the mark.”).
In summary, Cisive’s motion to dismiss Count I alleging a violation of 1681e(b) is
granted in part and denied in part. The Court finds that Claybrook has stated a claim
that Cisive’s omission of the SIS disposition was misleading in violation of FCRA, and
Claybrook is permitted to proceed on that theory. The Court finds Claybrook’s other
assertions of inaccuracies insufficient to state a claim and, thus, to the extent he seeks to
bring arguments for violations of § 1681e(b) based on those alleged inaccuracies, they
are dismissed.
II. 	Count II: FCRA § 1681k(a)
Cisive also moves to dismiss Count II, which alleges that Cisive failed to provide
contemporaneous notice that it was furnishing reports likely to adversely impact
Claybrook’s ability to obtain employment as required by § 1681k(a). (SAC ¶ 108).
Section 1681k(a) requires that an agency, when furnishing ‘matters of public
record’ which are ‘likely to have an adverse effect upon a consumer’s ability
to obtain employment,’ must either (1) provide notice to the subject of the
report when the report is transmitted, or (2) maintain strict procedures to
ensure that such information ‘is complete and up to date.’
Runyon v. ClearStar, Inc., No. 24-CV-1519, 2025 WL 1530582, at *6 (E.D.N.Y. May 29,
2025) (quoting 15 U.S.C. § 1681k(a)). Since Cisive does not dispute that it did not
furnish Claybrook with a contemporaneous report, its only valid defense to the claim
can be that it maintained “strict procedures” to ensure the report was “complete and up
to date.” See 15 U.S.C. § 1681k(a).
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“The logical starting point for an analysis of Section 1681k is whether the
information provided was complete and up to date. If this is so, then an inquiry into
the agency’s procedures is unnecessary.” Watson v. Caruso, 424 F. Supp. 3d 231, 250 (D.
Conn. 2019) (quoting Obabueki, 145 F. Supp. 2d at 396). In Obabueki, the court concluded
that omitting the fact that a criminal conviction had been dismissed rendered the report
not “complete nor up to date.” 145 F. Supp. 2d at 396–97 (“[T]he information provided
to IBM was clearly deficient because the dismissal was not mentioned. Similarly, while
this information reflected one entry in the ‘current public record’ with regard to
plaintiff’s criminal record in Santa Clara County, it was not up to date because it did not
provide the most current information with regard to that entry, i.e., the . . . dismissal.”).
So too here, Claybrook stated a claim as to the omission of the SIS disposition; therefore,
the Court concludes that he has stated a claim that the Report was not complete and up
to date in violation of § 1681k(a).
Accordingly, the motion to dismiss Count II is denied.
CONCLUSION
In summary, the motion to dismiss is granted in part and denied in part. The
motion is denied with respect to Count I, alleging a violation of § 1681e(b), to the extent
the claim is based on an omission theory about the final disposition of Claybrook’s
criminal conviction, but it is otherwise granted. The motion is denied with respect to
Count II, alleging a violation of § 1681k(a).
SO ORDERED.
/s/ Sanket J. Bulsara
Date: 	January 9, 2026 	SANKET J. BULSARA
Central Islip, New York 	United States District Judge
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