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Federal Register / Vol. 86, No. 215 / Wednesday, November 10, 2021 / Rules and Regulations
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The risk of mismatching from nameonly matching is likely to be greater for Hispanic, Asian, and Black individuals because there is less last-name diversity in those populations than among the non-Hispanic white population.18 For example, a study of 2010 census data indicated that the percentage of nonHispanic white respondents covered by the top 10 most common last names is lower than the corresponding percentages for Hispanic, Asian, and Black respondents.19 The study found the highest level of last-name clustering among Hispanic respondents, noting that just 26 last names cover a quarter of the Hispanic population as compared to 319 last names required to cover a quarter of the population identified as non-Hispanic white alone and that 16.3 percent of Hispanic respondents reported one of the top 10
most common last names as compared to 4.5 percent for non-Hispanic white alone respondents.20 The study further noted that these clustering patterns were similar for Asian and Black respondents.21
The Bureau, the FTC, and State attorneys general have brought enforcement actions in this area. In 2014, a background screening company settled FTC allegations that it violated FCRA section 607b by failing to use reasonable procedures to assure maximum possible accuracy of consumer report information when it provided employers background screening reports about job applicants that included, based on name-only matching, information about whether the applicants were registered in a National Sex Offender Registry.22 In 18 Joshua Comenetz, Frequently Occurring Surnames in the 2010 Census 37 Oct. 2016, https www2.census.gov/topics/genealogy/
2010surnames/surnames.pdf; U.S. Census Bureau, Hispanic Surnames Rise in Popularity Aug. 9, 2017, https www.census.gov/library/stories/2017/
08/what-is-in-a-name.html; U.S. Census, Whats in a Name Dec. 15, 2016, https www.census.gov/
newsroom/blogs/random-samplings/2016/12/what_
s_in_a_name.html.
19 Frequently Occurring Surnames in the 2010
Census, supra note 18, at 4, 6, 7 & table 4 noting that 14 of the 15 most rapidly increasing last names that were among the top 1,000 most common last names in both 2000 and 2010 were predominantly Asian or Hispanic.
20 Id. at 7. Relatedly, one study estimated that four of the top 13 most common first-and-last-name combinations in the United States are names of Spanish origin. Specifically, the study estimated that there are more than 25,000 individuals in the United States each named Maria Garcia, Maria Rodriguez, Maria Hernandez, or Maria Martinez.
See John Smith et al., supra note 17.
21 Frequently Occurring Surnames in the 2010
Census, supra note 18, at 7.
22 Complaint at 917, U.S. v. InfoTrack Info.
Servs, Inc., No. 1:14cv02054 N.D. Ill. Mar. 24, 2014, https www.ftc.gov/enforcement/casesproceedings/122-3092/infotrack-informationservices-inc-et-al.

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2019, the Bureau settled allegations that a background screening company violated FCRA section 607b by matching publicly sourced criminal records to job applicants based only on limited personal identifiers, which could include first and last name and either date of birth or address, a practice that resulted in a heightened risk of false positives because commonly named individuals e.g., John Smith might share the same first and last name and date of birth or address.23 Similarly, in 2015, the Bureau took action against a background screening company for violating FCRA section 607b by permitting, but not requiring, employers to provide middle names for job applicants for purposes of matching criminal record information to particular consumers. According to the Bureaus complaint, the companys procedures resulted in the reporting of mismatched criminal record information about consumers.24
In March 2015, the three nationwide consumer reporting agenciesEquifax, Experian, and TransUnionlaunched the National Consumer Assistance Plan NCAP, an initiative aimed at enhancing the accuracy of credit reports and making it easier for consumers to correct errors on their credit reports.
The NCAP was the result of a settlement between the nationwide consumer reporting agencies and over thirty State Attorneys General that required the nationwide consumer reporting agencies to, among other things, form a working group to establish standards regarding the collection of public record data for consumer credit reports.25 Pursuant to the NCAP, starting July 1, 2017, public record data obtained by the nationwide consumer reporting agencies for 23 Complaint at 511, Bureau of Consumer Fin.
Prot. v. Sterling Infosys., Inc., No. 1:19cv10824
S.D.N.Y. Nov. 22, 2019, https www.consumer finance.gov/enforcement/actions/sterlinginfosystems-inc/.
24 Consent Order at 413, In re Gen. Info.
Servs., Inc., 2015CFPB0028 Oct. 29, 2015, https files.consumerfinance.gov/f/201510_cfpb_
consent-order_general-information-service-inc.pdf;
see also, e.g., Complaint at 821, Fed. Trade Commn v. RealPage, Inc., No. 3:18cv02737N
N.D. Tex. Oct. 16, 2018, https www.ftc.gov/
enforcement/cases-proceedings/152-3059/realpageinc alleging defendant violated FCRA section 607b by using matching criteria that required an exact match on the applicants last name only, and a soft, or non-exact, match for first name, middle name, and date of birth, resulting in defendant providing tenant screening reports with criminal record information for individuals other than the applicant.
25 Assurance of Voluntary Compliance/Assurance of Voluntary Discontinuance at IV.E.6, In re Equifax Info. Servs. LLC, Experian Info. Solutions, Inc., and TransUnion LLC May 20, 2015, https
www.ohioattorneygeneral.gov/Files/Briefing-Room/
News-Releases/Consumer-Protection/2015-05-20CRAs-AVC.aspx.

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inclusion on credit reports must contain name, address, and Social Security Number and/or date of birth and must be refreshed at least every 90 days.26
Courts have also spoken on this topic.
For example, a decade ago, the Third Circuit in Cortez v. Trans Union, LLC
considered a case in which the nationwide consumer reporting agency TransUnion had indicated in a consumer report that the consumers name matched a name on a list maintained by the Office of Foreign Assets Control OFAC, despite the fact that TransUnion had information within its own files showing that the OFAC
alert was not about the correct consumer.27 The Third Circuit upheld the district courts ruling that TransUnions matching protocols that compared only the consumers name to the names on the OFAC list did not satisfy the requirement of FCRA section 607b.28 Nonetheless, TransUnion did not adequately update its matching practices, and it was sued a second time for similar practices in Ramirez v.
TransUnion LLC. In a 2020 decision that was later overturned on other grounds, the Ninth Circuit ruled that despite Cortez, TransUnion continued to use problematic matching technology. . . .
In doing so, it ran an unjustifiably high risk of error. 29 The court upheld a jury verdict deeming TransUnion liable for violating section 607b because it used rudimentary name-only matching software without any additional checks to avoid false positives. 30 The Ninth Circuit held that the violation was willful because the correct reading of the FCRA should have been clear to TransUnion after Cortez.31
26 Following the launch of the NCAP, the nationwide consumer reporting agencies took steps to remove public records not meeting the specified criteria and, beginning in April 2018, ceased including civil judgments and tax liens in the consumer reports they issued. Bankruptcies are the only type of public record that continue to be reported by the nationwide consumer reporting agencies. Other consumer reporting agencies, however, continue to include civil judgments and tax liens on the consumer reports they prepare. See Bureau of Consumer Fin. Prot., Quarterly Consumer Credit Trends: Public records, credit scores, and credit performance Dec. 2019, https
files.consumerfinance.gov/f/documents/cfpb_
quarterly-consumer-credit-trends_public-recordscredit-scores-performance_2019-12.pdf; Bureau of Consumer Fin. Prot., Quarterly Consumer Credit Trends: Public Records Feb. 2018, https
files.consumerfinance.gov/f/documents/cfpb_
consumer-credit-trends_public-records_022018.pdf.
27 617 F.3d 688 3d Cir. 2010.
28 Id.
29 Ramirez v. TransUnion, LLC, 951 F.3d 1008, 1032 9th Cir. 2020, revd on standing grounds, 141
S. Ct. 2190 June 25, 2021.
30 Id. at 1022.
31 Id. at 103133. Consumers have also brought other private party claims under the FCRA relating to matching using limited personal identifiers. See,
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