CONSUMER DATA INDUSTRY ASSOCIATION v. GREWAL

Filing 84

OPINION filed. Signed by Judge Georgette Castner on 3/27/2024. (kht)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

CONSUMER
ASSOCIATION,

DATA

INDUSTRY

Plaintiff,
Civil Action No. 19-19054 (GC) (TJB)
v.
OPINION
MATTHEW J. PLATKIN, in his official
capacity as ATTORNEY GENERAL FOR
THE STATE OF NEW JERSEY,
Defendant.

APPEARANCES
William T. Marshall, Jr.
Kerry A. Duffy
ZEICHNER ELLMAN & KRAUSE LLP
33 Wood Avenue South, Suite 110
Iselin, New Jersey 08830
Jennifer L. Sarvadi (pro hac vice)
Rebecca E. Kuehn (pro hac vice)
HUDSON COOK LLP
1909 K Street NW, 4th Floor
Washington, District of Columbia 20006
On behalf of Plaintiff

Olga Elaine Bradford,
Deputy Attorney General
Tim Sheehan,
Special Assistant to the Solicitor General
OFFICE OF THE ATTORNEY
GENERAL OF NEW JERSEY
124 Halsey Street, Fifth Floor
P.O. Box 45029
Newark, New Jersey 07101
On behalf of Defendant
Jeremiah Battle, Jr.
NATIONAL CONSUMER LAW CENTER
7 Winthrop Square, 4th Floor
Boston, Massachusetts 02210
On behalf of Amicus
National Consumer Law Center

CASTNER, U.S.D.J.
The issue in this case is whether the State of New Jersey can require nationwide consumer
reporting agencies to provide New Jersey consumers with the credit file disclosures mandated by
the federal Fair Credit Reporting Act in twelve or more languages.
The Consumer Data Industry Association, an international trade association whose
membership includes the three nationwide consumer reporting agencies (Equifax, Experian, and
TransUnion), submits that the answer is no—that requiring the disclosures in any language other
than English is preempted by federal law and, even if not preempted, infringes upon its members’
commercial speech rights under the First Amendment.
New Jersey disagrees, insisting that the New Jersey Legislature acted in harmony with
federal law as well as the First Amendment when, in 2019, it amended the New Jersey Fair Credit
Reporting Act to enable New Jersey consumers to request the disclosures in English, Spanish, or
one of at least ten other languages.
The parties briefed dueling motions for summary judgment, and the Court heard oral
argument on November 14, 2023. The Court then allowed limited post-argument briefing. Having
carefully considered the parties’ submissions, and for the reasons set forth below, the Court finds
that the 2019 amendment to the New Jersey Fair Credit Reporting Act is not preempted by federal
law. The State may require credit file disclosures to be provided to New Jersey consumers in
languages other than English without coming into conflict with the federal Fair Credit Reporting
Act. The State may also require credit file disclosures to be translated into Spanish without
implicating any First Amendment concerns. However, on the record currently before the Court,
requiring the disclosures to be made available to consumers in at least ten languages (in addition
to Spanish) has not been shown to be reasonably related to the State’s interest in preventing
consumer confusion. The Court therefore concludes that this particular provision impermissibly
2

infringes on nationwide consumer reporting agencies’ commercial speech rights. Rather than
invalidate the entire statute, the Court will sever the provision that mandates that credit file
disclosures be provided in at least ten languages. The remainder of the statute is unaffected, and
the State may proceed to promulgate regulations to implement it, including determining which
languages are appropriate consistent with this Opinion.
Accordingly, Defendant’s Motion for Summary Judgment (ECF No. 58) is GRANTED in
part and DENIED in part, and Plaintiff’s Motion for Summary Judgment (ECF No. 59) is
GRANTED in part and DENIED in part.
I.

BACKGROUND
A. PROCEDURAL BACKGROUND1
On October 17, 2019, the day that the 2019 amendment to the New Jersey Fair Credit

Reporting Act (NJFCRA), N.J. Stat. Ann. § 56:11-28, et seq., was to become effective, Plaintiff
Consumer Data Industry Association (CDIA) filed a Verified Complaint for Declaratory Judgment
and Injunctive Relief. (ECF No. 1.2) The Complaint claims that the amendment is preempted by
the federal Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681, et seq., and violates the
commercial speech rights of nationwide consumer reporting agencies under the First Amendment
to the United States Constitution.
On February 14, 2020, Defendant the Attorney General of the State of New Jersey
answered and asserted affirmative defenses. 3 (ECF No. 7.) The parties then engaged in discovery.

1

The Court has subject-matter jurisdiction pursuant to 28 U.S.C. § 1331.

2

Page numbers for record cites (i.e., “ECF Nos.”) refer to the page numbers stamped by the
Court’s e-filing system and not the internal pagination of the parties.
3

The Complaint named then-Attorney General Gurbir S. Grewal, in his official capacity, as
Defendant. (ECF No. 1.) The parties agreed to substitute in the name of the current Attorney
General, Matthew J. Platkin. (ECF No. 49.)
3

On January 19, 2021, the Court accepted the parties’ stipulated facts for the purpose of summary
judgment motions. (ECF No. 23.)
On March 1, 2022, the Court directed the parties to prepare and serve their summary
judgment motions on each other and to bundle and submit their papers (including their respective
oppositions and replies) by April 1, 2022. (ECF No. 51.) The Court also granted the National
Consumer Law Center (NCLC) leave to file an amicus curiae brief. (ECF No. 52.) At the request
of the parties, the motion deadline was extended. (ECF No. 56.) The parties then formally crossmoved for summary judgment. (ECF Nos. 58 & 59.) The matter was reassigned to the undersigned
on April 11, 2022. (ECF No. 57.)
After briefing was complete, New Jersey filed a two-page notice of supplemental authority,
asking the Court to take notice of an interpretive rule issued by the Consumer Financial Protection
Bureau (CFPB), titled “The Fair Credit Reporting Act’s Limited Preemption of State Laws.” (ECF
No. 63.) On July 8, 2022, CDIA filed a responsive letter that asked the Court to either disregard
the interpretive rule or to grant CDIA an opportunity to file a memorandum in response. (ECF
No. 65.) The Court allowed the parties to each submit letter briefs on the issue, and the period for
them to do so was extended at their request. (ECF Nos. 68, 70, 74.) The Court held oral argument
on November 14, 2023. (ECF No. 81.) Following argument, the parties submitted supplemental
briefing on standing and the appropriate level of scrutiny to apply to the First Amendment
challenge. (ECF Nos. 82 & 83.)

4

B. FACTUAL BACKGROUND4
CDIA is an international trade association that represents the three nationwide consumer
reporting agencies: Experian, Equifax, and TransUnion (together, the NCRAs). 5 (ECF No. 23 ¶
1.) The NCRAs invested “significant resources” in creating systems “to serve consumers” and to
assist them “in understanding their credit reports and legal rights.”

(ECF No. 59-2 ¶ 5.)

Information furnished to the NCRAs in the United States “is provided on [specialized] forms in
English.” (Id. ¶ 10.) And the NCRAs record consumer credit information in the United States
only in English. (ECF No. 23 ¶ 8.)
The New Jersey Legislature amended the NJFCRA in July 2019 to require the NCRAs to
provide, upon request, credit file disclosures to New Jersey consumers in certain languages other
than English.6 (Id. ¶¶ 10, 13.) The amendment grants the Director of New Jersey’s Division of
Consumer Affairs (DCA) discretion to determine the languages other than English and Spanish

4

The material facts are not in dispute and were stipulated to by the parties.

5

The NCRAs are also known as “the ‘Big Three’ credit reporting agencies.” TransUnion
LLC v. Ramirez, 594 U.S. 413, 419 (2021). They “compile[] personal and financial information
about individual consumers to create consumer reports. [They] then sell[] those consumer reports
for use by entities such as banks, landlords, and car dealerships that request information about the
creditworthiness of individual consumers.” Id. “Credit reporting agencies” are referred to in the
FCRA as “consumer reporting agencies.” Galper v. JP Morgan Chase Bank, N.A., 802 F.3d 437,
444 (2d Cir. 2015).
6

A “consumer file disclosure” or “credit file disclosure” is “the document provided to a
consumer who seeks access to his [or her] credit information from a credit reporting agency.” Eller
v. Experian Info. Sols., Inc., Civ. No. 09-00040, 2011 WL 3365955, at *20 n.9 (D. Colo. May 17,
2011), report and recommendation adopted, 2011 WL 3365513 (D. Colo. Aug. 4, 2011). A
“consumer report” or “credit report” is the “report of credit information” given to a third-party “for
the purpose of evaluating a consumer’s credit.” Id.; see also Alexander v. Equifax Info. Servs.,
LLC, Civ. No. 17-00139, 2018 WL 3025939, at *1 n.2 (D. Nev. June 15, 2018) (“A consumer file
disclosure or consumer credit disclosure refers to the document [N]CRAs provide to consumers
seeking access to their own credit information directly from the [N]CRA. A consumer report or
credit report refers to the document provided by [N]CRAs to third party creditors, insurers, or
employers.”). In this case, the parties use the terms interchangeably at times, and both terms are
used here to refer to the credit file disclosures provided to consumers.
5

that the disclosures will be made in. (Id. ¶¶ 10-11 (citing N.J. Stat. Ann. § 56:11-34(e)).) To date,
the Director has not proposed or adopted regulations or rules to implement the 2019 amendment
to the NJFCRA nor has the Director acted to compel the NCRAs to comply with the amendment. 7
(Id. ¶¶ 14-16.)
New Jersey’s Attorney General “is charged with enforcing the laws of the State.” (ECF
No. 39 ¶ 2; ECF No. 60-1 ¶ 2.) The Attorney General “or his designees have authority to
investigate suspected non-compliance, file a civil action to seek enforcement, and request civil
penalties for noncompliance” under the NJFCRA. (ECF No. 39 ¶ 4; ECF No. 60-1 ¶ 4.)
II.

LEGISLATIVE BACKGROUND
A. FEDERAL FAIR CREDIT REPORTING ACT
“Enacted long before the advent of the Internet,” the Fair Credit Reporting Act “seeks to

ensure ‘fair and accurate credit reporting.’” Spokeo, Inc. v. Robins, 578 U.S. 330, 334-35 (2016),
as revised (May 24, 2016) (quoting 15 U.S.C. § 1681(a)(1)). “To achieve this end, the Act
regulates the creation and the use of ‘consumer report[s]’ by ‘consumer reporting agenc[ies],’” and
it “imposes a host of requirements concerning the creation and use of consumer reports.” Id.
(quoting 15 U.S.C. § 1681a(d)(1)(A)-(C)). 8 It also enables consumers to sue and recover damages

7

Counsel for the State represented at oral argument that it is close to proposing regulations.

8

For example, “the Act requires consumer reporting agencies to ‘follow reasonable
procedures to assure maximum possible accuracy’ in consumer reports”; “provides that consumer
reporting agencies must, upon request, disclose to the consumer ‘[a]ll information in the
consumer’s file at the time of the request’”; and “compels consumer reporting agencies to ‘provide
to a consumer, with each written disclosure by the agency to the consumer,’ a ‘summary of rights’
prepared by the Consumer Financial Protection Bureau.” TransUnion LLC, 594 U.S. at 418-19
(quoting 15 U.S.C. §§ 1681e(b), g(a)(1), g(c)(2)).
6

for certain violations. Id. at 335 (citing 15 U.S.C. § 1681n(a)). Since its enactment, the FCRA
has been amended several times in ways that alter how it preempts state laws.
1. 1970
Prior to the FCRA’s passage in 1970, “[t]here was little significant state regulation of the
credit reporting industry.”9 Consumer Data Indus. Ass’n v. Frey, 26 F.4th 1, 3 (1st Cir. 2022)
(quoting 2 Consumer Law Sales Practices and Credit Regulation § 534 (Sept. 2021)). And “[a]t
common law, credit bureau liability as a result of erroneous reporting was quite circumscribed.”
Charles M. Ullman, Liability of Credit Bureaus After the Fair Credit Reporting Act: The Need for
Further Reform, 17 Vill. L. Rev. 44, 44 (1971). Consumers were thus “afforded . . . little protection
against credit bureaus.” Id. at 57.
For most American consumers, the FCRA served as the first meaningful attempt to secure
“respect for the consumer’s right to privacy” and to prevent consumer reporting agencies from
using consumer data in an unfair or biased manner. Houghton v. Ins. Crime Prevention Inst., 795
F.2d 322, 323 (3d Cir. 1986) (citation omitted). Despite an absence of state regulation, Congress
included in the maiden bill a section titled “Relation to State laws.” The section set forth a general
rule that the FCRA would preempt state laws related to credit reporting “only to the extent of [a]n
inconsistency” between those laws and the federal legislation. In full, the section read:
This title does not annul, alter, affect, or exempt any person
subject to the provisions of this title from complying with the laws
of any state with respect to the collection, distribution, or use of any
information on consumers, except to the extent that those laws are

9

“In 1916, Oklahoma was the first state to pass any real legislative controls over reporting
agencies, later followed by Massachusetts, New Mexico and New York. Accordingly, at the time
FCRA was introduced in Congress—with the exception of these four state statutes—there was
little protection for the consumer against the credit bureaus reporting inaccurate credit
information.” David D. Schein & James D. Phillips, Holding Credit Reporting Agencies
Accountable: How the Financial Crisis May Be Contributing to Improving Accuracy in Credit
Reporting, 24 Loy. Consumer L. Rev. 329, 332 (2012).
7

inconsistent with any provision of this title, and then only to the
extent of the inconsistency.
[Pub. L. No. 91-509, § 622, 84 Stat. 1127, 1136 (1970).]
2. 1996 AMENDMENTS
“In 1996, Congress amended the FCRA to impose new requirements on ‘persons,’ such as
creditors and lenders, who furnish information to credit reporting agencies.” Kirtz v. Trans Union
LLC, 46 F.4th 159, 162 (3d Cir. 2022) (citing Consumer Credit Reporting Reform Act of 1996,
Pub. L. No. 104-208, § 2413, 110 Stat. 3009, 3009-447 to -449 (1996)). The 1996 amendments
“expanded the FCRA’s substantive requirements” and “also expanded [certain] sections to
authorize suits against ‘[a]ny person’ who fails to comply with ‘any requirement’ under the Act.”
Id. (citing 15 U.S.C. §§ 1681n(a), 1681o(a)).
Among the various amendments, the FCRA’s section on “Relation to State laws” was
modified to extend the preemption of state laws to cover specific “subject matters.” Congress
inserted language that “[n]o requirement or prohibition may be imposed under the laws of any
State . . . with respect to” certain “subject matter[s] regulated under” the Act, namely, those federal
provisions that concern “the prescreening of consumer reports,” “the time by which a consumer
reporting agency must take any action,” “the duties of a person who takes any adverse action with
respect to a consumer,” “the duties of persons who use a consumer report of a consumer in
connection with any credit or insurance transaction . . . not initiated by the consumer and that
consists of a firm offer of credit or insurance,” “information contained in consumer reports,” and
“the responsibilities of persons who furnish information to consumer reporting agencies.” 10 Pub.

10

The December 14, 1995 Report from the Senate Committee on Banking, Housing, and
Urban Affairs explains that Congress amended the preemption section to “provide[] that certain
provisions of the FCRA preempt any corresponding provisions of state law.” S. Rep. No. 104-185
at 54-55 (1995). The Committee wrote that “[b]y preempting state and local provisions relating
to the subject matter regulated by the[] provisions of the FCRA, [it was] establish[ing] the FCRA
8

L. No. 104-208, § 2419, 110 Stat. 3009, 3009-452 to -453 (1996). Congress added these subjectmatter preemption provisions as recognition that “a substantial part of the consumer-reporting
process crosses state lines and is national in scope.” Schein & Phillips, Holding Credit Reporting
Agencies Accountable, 24 Loy. Consumer L. Rev. at 336. Indeed, the “1996 Amendments sought
to establish uniform standards in key areas . . . to enhance the development of national credit
markets.” S. Rep. No. 108-166 at 6 (2003).
In light of the “experimental nature” of the subject-matter preemption provisions, “the
authors of the 1996 amendments specifically set forth that the preemptions would expire on
January 1, 2004.” Id. The purpose of this sunset “was to prompt Congressional review of the
impact of the 1996 amendments after such time that the full range of their effects on credit markets
could be comprehensively evaluated.” 11 Id.
3. 2003 AMENDMENTS
In 2003, Congress again amended the FCRA “[a]s part of an effort to prevent identity
theft.” Long v. Tommy Hilfiger U.S.A., Inc., 671 F.3d 371, 373 (3d Cir. 2012) (citing Fair and
Accurate Credit Transaction Act of 2003, Pub. L. No. 108-159, 117 Stat. 1952 (2003)).
“Consistent with that purpose,” the 2003 amendments “regulate[] the information that can be
included on receipts given to customers” and “provide[] for actual damages and attorneys’ fees
and costs to remedy negligent violations.” Id. (citation omitted). The amendments also entitle
consumers to a free annual file disclosure and require the credit reporting industry to “establish

as the national uniform standard in these areas” and “that a single set of Federal rules promotes
operational efficiency for industry, and competitive prices for consumers.” Id.
11

The sunset provision stated that the newly added subject-matter preemption provisions
would “not apply to any provision of State law” that was “enacted after January 1, 2004.” 110
Stat. 3009, 3009-453 (1996).
9

a centralized source to receive and process such requests.”12 Middlebrooks v. Experian Info. Sols.,
Inc., Civ. No. 20-2279, 2020 WL 9600586, at *3 (N.D. Ga. Nov. 3, 2020) (citing 15 U.S.C. §
1681j(a)(1)(B)).
Another motivation behind the 2003 amendments was to make permanent the subjectmatter preemption provisions added in 1996. See S. Rep. No. 108-166 at 6, 25; see also Schein &
Phillips, Holding Credit Reporting Agencies Accountable, 24 Loy. Consumer L. Rev. at 336
(“Preventing these sunset provisions became a key motivation to amend the FCRA again.”); Anne
P. Fortney, Uniform National Standards for A Nationwide Industry-FCRA Preemption of State
Laws Under the Fact Act, 58 Consumer Fin. L.Q. Rep. 259, 259 (2004) (“Federal preemption of
state laws served as a major impetus for the enactment of the Fair and Accurate Transactions Act
. . . at the end of 2003.”).
Furthermore, Congress added to the FCRA new “conduct” preemption provisions. These
provisions establish that “[n]o requirement or prohibition may be imposed under the laws of any
State . . . with respect to the conduct required by the specific provisions of” sections 605(g), 605A,
605B, 609(a)(1)(A), 612(a), 615(e)-(g), 621(f), 623(a)(6), or 628. See Pub. L. No. 108-159, § 711,
117 Stat. 2011 (2003). These sections concern the presentation of credit and debit card numbers
on receipts, fraud alerts and access to reports when identity theft is suspected, free annual file
disclosures to consumers, coordination of consumer complaint investigations, duties when identity
theft is alleged, and disposal of records. See 15 U.S.C. § 1681t(b)(5).

12

In 2003, Congress grandfathered in New Jersey’s requirement that credit file disclosures
be provided free to consumers at least once per year and at a minimal charge if a second request
was made in a twelve-month period. Pub. L. No. 108-159, § 212, 117 Stat. 1977-78 (2003) (citing
New Jersey Revised Statutes § 56:11-37.10(a)(1) (eff. Dec. 4, 2003)).
10

4. FTC RULEMAKING RELATED TO LANGUAGE REQUIREMENTS
The FCRA’s 2003 amendments directed the Federal Trade Commission 13 (FTC) to
“prescribe,” among other things, regulations to establish “a streamlined process for consumers to
request consumer reports.” 15 U.S.C. § 1681j(C)(i). The FTC had to consider “the significant
demands that may be placed on consumer reporting agencies in providing such consumer reports.”
15 U.S.C. § 1681j(C)(ii)(I).
On March 16, 2004, the FTC proposed a rule intended to implement the 2003 requirements,
particularly the requirement that the NCRAs deliver credit file disclosures through a “centralized
source.” Free Annual File Disclosures, 69 Fed. Reg. 35,468 (June 24, 2004). The agency then
reviewed comments and issued a final rule, which became effective on December 1, 2004. The
FTC explained that it had “strived to strike the balance” that Congress sought “between the
availability of free annual file disclosures to consumers and the legitimate concerns of the
consumer reporting agencies that are required to provide them.” Id. at 35,468.
One of the comments the FTC received from “consumer advocacy groups and a state
official” was that information relating to free annual file disclosures should be provided “in
languages, other than English, that are spoken by a substantial number of consumers in the United
States.” Id. at 35,476. The “commenters point[ed] to the fact that a significant portion of the
United States population communicates primarily in languages other than English.” Id.

13

“Until 2011, the FTC was the principal regulatory agency charged with enforcement of
the FCRA. On July 21, 2011, the CFPB was given primary regulatory and enforcement authority.”
McIntyre v. RentGrow, Inc., 34 F.4th 87, 95 n.3 (1st Cir. 2022) (citations omitted)); see also Kidd
v. Thomson Reuters Corp., 925 F.3d 99, 106 n.8 (2d Cir. 2019) (“The Consumer Protection Act of
2010 transferred authority from the FTC ‘to prescribe rules’ or ‘issue guidelines’ regarding
the FCRA to the Consumer Financial Protection Bureau. Nevertheless, the FTC retains authority
to enforce the FCRA.” (citations omitted)).
11

The FTC ultimately decided not to require information and instructions from the
“centralized source” in languages other than English. It reasoned:
The Commission believes that requiring multi-language
translations of centralized source materials, including the
centralized source website itself, would impose significant
additional burden on the nationwide consumer reporting agencies at
a time when they will already be responding to the multiple and
varied new obligations that the FACT Act imposes upon them.
Accordingly, the Commission declines, at this time, to require multilanguage centralized source information and instructions. The
Commission, however, intends to provide education and outreach to
consumers concerning the final rule in Spanish—the language most
commonly mentioned by commenters on this issue—and
encourages other stakeholders in the centralized source, including
the nationwide consumer reporting agencies, to do the same.
[Id.]
5. CFPB INTERPRETIVE RULE
On July 11, 2022, three years after New Jersey amended the NJFCRA to require disclosures
in languages other than English, the CFPB issued an interpretive rule to clarify that the “FCRA’s
express preemption provisions have a narrow and targeted scope” and that “States therefore retain
substantial flexibility to pass laws involving consumer reporting to reflect emerging problems
affecting their local economies and citizens.” The Fair Credit Reporting Act’s Limited Preemption
of State Laws, 87 Fed. Reg. 41,042, 41,042 (July 11, 2022). The CFPB wrote that “States play an
important role in the regulation of consumer reporting” and that “State statutes exist alongside the
FCRA,” which does not typically preempt “State laws that are more protective of consumers,”
unless those state laws are either “inconsistent” with the FCRA or run afoul of one of the express
preemptions. Id. at 41,042-43. The CFPB also wrote that 15 U.S.C. § 1681j(a), “which sets forth
requirements for nationwide consumer reporting agencies . . . to provide free annual credit reports
to consumers . . . [,] provides no requirements regarding the language in which disclosures of
information are provided. Accordingly, if a State law required that a consumer reporting agency
12

provide information required by the FCRA at the consumer’s requests in languages other than
English, such a law would generally not be preempted” by the FCRA, which preempts state laws
only “with respect to the conduct required by the specific provisions of section 1681j(a).” Id. at
41,046 (quoting 15 U.S.C. § 1681t(b)(5)(E)).
B. NEW JERSEY FAIR CREDIT REPORTING ACT
The New Jersey Legislature enacted the NJFCRA in 1997. L. 1997, c. 172, eff. Jan. 27,
1998, codified at N.J. Stat. Ann. § 56:11-28, et seq. The NJFCRA was New Jersey’s response to
the 1996 amendments to the federal Fair Credit Reporting Act. N.J. Stat. Ann. § 56:11-29(a)-(b).
While the federal amendments “specifically preempt[ed] states from establishing requirements or
prohibitions with respect to . . . certain sections of the federal [Act], the provisions of the other
sections of the act [we]re left subject to actions by states as long as the provisions enacted in state
law are not inconsistent with federal law.” N.J. Stat. Ann. § 56:11-29(d). The Legislature thus
declared that “[t]he purpose of th[e] [NJFCRA] is to provide additional consumer protection with
respect to consumer credit reports and credit reporting agencies consistent with the provisions of
the” federal FCRA. N.J. Stat. Ann. § 56:11-29(e).
1. 2019 AMENDMENT
On February 7, 2019, New Jersey State Senate Bill 3452 was introduced to require
consumer reporting agencies to make credit file disclosures available to New Jersey consumers in
Spanish and other languages.14 S. 3452 (2019). The same bill was introduced a week later in the
New Jersey General Assembly. A. 5055 (2019).

14

The legislative history of S. 3452/A. 5055 (2019) was compiled by the New Jersey State
Library and is available on its website. See WEBSITE OF THE NEW JERSEY STATE LIBRARY, New
Jersey Legislative Histories—L. 2019, c. 183, https://hdl.handle.net/10929.1/27836 (last visited on
March 13, 2024).
13

As initially drafted, the legislation proposed to amend the NJFCRA to require that credit
file disclosures be made “available to a consumer upon the consumer’s request in Spanish or any
other language that the Director of DCA determines is the first language of a significant number
of consumers in the State.” Id. The determination of which languages the disclosures had to be
provided in was left to “the discretion of the director, based on the numerical percentage of all
consumers in the State for whom English or Spanish is not a first language or in a manner
consistent with any regulations promulgated by the director for this purpose.” Id.
In March 2019, several changes were recommended by the State Senate’s Commerce
Committee and the State Senate’s Transportation Committee as well as by the General Assembly’s
Financial Institutions and Insurance Committee. The recommendations modified the bill to (1)
specify that only a reporting agency that compiles and maintains files on consumers on a
nationwide basis would be required to make disclosures in languages other than English; (2) define
the meaning of a consumer reporting agency that compiles and maintains files on consumers on a
nationwide basis; (3) instruct the Director of DCA to require the NCRAs to make the consumer
file information available in at least ten languages other than English and Spanish that are the most
frequently spoken in New Jersey; and (4) require the NCRAs to post a notice on their websites, in
a clear and conspicuous location, of the availability of consumer reporting information in
languages other than English. Senate Commerce Comm. Statement to S. 3452 (L. 2019, c. 183);
Senate Transportation Comm. Statement to S. 3452 (L. 2019, c. 183); Assembly Financial
Institutions and Insurance Comm. Statement to A. 5055 (L. 2019, c. 183).

14

The bills were then passed by both the State Senate and General Assembly and signed into
law on July 19, 2019.15 In relevant part, the NJFCRA now reads as follows:
A reporting agency that compiles and maintains files on
consumers on a nationwide basis shall make the information subject
to disclosure pursuant to this section available to a consumer upon
the consumer’s request in Spanish or any other language that the
Director of the Division of Consumer Affairs determines is the first
language of a significant number of consumers in the State. This
determination shall be, at the discretion of the director, based on the
numerical percentages of all consumers in the State for whom
English or Spanish is not a first language or in a manner consistent
with any regulations promulgated by the director for this purpose.
The director shall require that the information is made available in
at least the 10 languages other than English and Spanish that are
most frequently spoken as a first language by consumers in this
State.
A reporting agency that compiles and maintains files on
consumers on a nationwide basis shall provide notice, in any
language as determined by the director, on its Internet website in a
clear and conspicuous location, of the availability of information
subject to disclosure pursuant to this section in languages other than
English.
As used in this section, “reporting agency that compiles and
maintains files on consumers on a nationwide basis” means a
consumer reporting agency that regularly engages in the practice of
assembling or evaluating, and maintaining, for the purpose of
furnishing consumer reports to third parties bearing on a consumer’s
credit worthiness, credit standing, or credit capacity, each of the
following regarding consumers residing nationwide:
(1) Public record information; and
(2) Credit account information from persons who furnish
that information regularly and in the ordinary course of
business.
[N.J. Stat. Ann. § 56:11-34(e).]

15

S. 3452 passed the Senate by a vote of 34 to 0, and A. 5055 passed the Assembly 65 to 7.
See WEBSITE OF THE NEW JERSEY LEGISLATURE, Bill S3452 Session 2018-2019,
https://www.njleg.state.nj.us/bill-search/2018/S3452 (last visited on March 13, 2024).
15

The 2019 amendment to the NJFCRA requires the NCRAs (Equifax, Experian, and
TransUnion) to provide a New Jersey consumer, “upon the consumer’s request,” with the
consumer’s credit file information in either English, Spanish, or one of “at least” ten other
languages that the Director determines “are the most frequently spoken as a first language by
consumers.” N.J. Stat. Ann. § 56:11-34(e). Ultimately, the Director can require the disclosures in
“any . . . language . . . determine[d] [to be] the first language of a significant number of consumers
in the State.” Id. The NCRAs are also obligated to post notices on their websites in a conspicuous
location informing New Jersey consumers that they can request their credit files in languages other
than English. Id. To determine the languages, other than English and Spanish, that credit file
disclosures are to be provided in, the Director must consider “the numerical percentages of all
consumers in the State for whom English or Spanish is not a first language or . . . any regulations
promulgated . . . for this purpose.” Id.
III.

THE FCRA’S PREEMPTIVE SCOPE
Since the enactment of the FCRA, litigation has periodically arisen as to when the federal

statute preempts state and local laws related to credit reporting. The outcome often turns on the
specific facts and circumstances of each case, with state and local laws likely to be preempted
when they are either an obstacle to the FCRA’s purpose or they impinge on a subject or conduct
that Congress intended to expressly preempt.
For example, courts have found state and local laws preempted when those laws conflict
with “an express Congressional purpose,” 16 intrude on “duties, responsibilities, and liabilities”
regulated under the FCRA,17 or allow for recourse under state law for acts immunized by the

16

Retail Credit Co. v. Dade Cnty., Fla., 393 F. Supp. 577, 583 (S.D. Fla. 1975).

17

Carney v. Experian Info. Sols., Inc., 57 F. Supp. 2d 496, 502-03 (W.D. Tenn. 1999).
16

federal act.18 In contrast, courts have found state and locals laws not preempted when those laws
are “consistent with the Congressional intent to protect consumers . . . without upsetting the
balance by unduly burdening the credit reporting agencies,” 19 do “not stand as an obstacle to the
accomplishment and execution of the . . . objectives of Congress in enacting the Federal Act,” 20 or
advance a purpose of the federal act while constituting only “an incidental divergence of
regulation.”21
Notably, in 2004, an insurance group asked the Eighth Circuit Court of Appeals to rule that
a Minnesota statute was preempted by the FCRA. Davenport v. Farmers Ins. Grp., 378 F.3d 839
(8th Cir. 2004). The statute required insurance companies to notify applicants and policyholders
if a company intended to obtain their personal information. The insurance group argued that the
Minnesota law was “inconsistent with the FCRA simply because [Minnesota] regulated a matter
not addressed by the FCRA.” Id. at 842. The Eighth Circuit disagreed, and it “decline[d] to
interpret Congress’s silence with regard to any notice requirement to signify its intent to prohibit
states from enacting their own regulations on the issue.” Id.
The Court wrote that the FCRA “is not intended to occupy the entire regulatory field with
regard to consumer reports” and that, “[o]n the contrary, the statute plainly limits its preemption
of state regulations ‘only to the extent of the inconsistency’ with those regulations.” Id. at 842-43
(quoting 15 U.S.C. § 1681t(a)). The Eighth Circuit approvingly cited commentary from the FTC,

18

Anderson v. Trans Union, LLC, 345 F. Supp. 2d 963, 973-74 (W.D. Wis. 2004).

19

Retail Credit Co., 393 F. Supp. at 584-85.

20

Credit Data of Ariz., Inc. v. State of Ariz., 602 F.2d 195, 198 (9th Cir. 1979); see also
State, Dep’t of Com., Cmty. & Econ. Dev., Div. of Ins. v. Progressive Cas. Ins. Co., 165 P.3d 624,
633 (Alaska 2007).
21

Equifax Servs., Inc. v. Cohen, 420 A.2d 189, 212 (Me. 1980).
17

which “reiterate[d] that the FCRA was not intended to usurp the entire field of consumer report
law.” Id. at 843 (citing 16 C.F.R. § 600.1(b)).
More recently, in Galper v. JP Morgan Chase Bank, the Second Circuit Court of Appeals
considered whether a New York law that created a private cause of action for victims of identity
theft was preempted by the FCRA. 802 F.3d 437, 441 (2d Cir. 2015). Specifically, the Court
considered whether the New York law was preempted because it was “with respect to” subject
matter regulated by 15 U.S.C. § 1681s-2, which “relat[es] to the responsibilities of persons who
furnish information to consumer reporting agencies.” Id. (quoting 15 U.S.C. § 1681t(b)(1)(F)).
“As with any preemption provision,” the Second Circuit wrote, the FCRA’s should be construed
“fairly but narrowly, mindful in the appropriate case that ‘each phrase within [the provision] limits
the universe of [state action] pre-empted by the statute.’” Id. at 445 (quoting Lorillard Tobacco
Co. v. Reilly, 533 U.S. 525, 551 (2001)).
Applying section 1681t(b)(1)(F), the Second Circuit held that the FCRA does not generally
“preempt state law claims against a defendant who happens to be a furnisher of information to a
consumer reporting agency within the meaning of the FCRA if the claims against the defendant
do not also concern that defendant’s legal responsibilities as a furnisher of information under the
FCRA.”

Id. at 446.

The Court was unpersuaded by the defendant’s “argument that §

1681t(b)(1)(F) preempts all claims ‘relating to the responsibilities’ of furnishers in any way, and
regardless of the capacity in which the furnisher is acting.” Id. at 447. “This broad argument,”
underscored the Court, “overlooks the language of the statute.” Id. It explained:
In this statutory context, the phrase “relating to” is not used to
describe the scope of preemption. Instead, the phrase exists as a
shorthand reference to describe the subject matter governed by §
1681s-2. If Congress had intended to preempt claims that relate in
any way to someone furnishing information to a consumer reporting
agency, it could easily have drafted the statute to say that state laws

18

“relating to the furnishing of information to consumer reporting
agencies are preempted.”
But this it did not do. Congress opted instead to use language
that focuses more narrowly on the preemption of laws that regulate
the responsibilities of persons who furnish information to consumer
reporting agencies.
[Id. (emphasis in original).]
And most recently, the First Circuit Court of Appeals considered a facial challenge to two
Maine laws that were designed to regulate the reporting of overdue medical debt and debt resulting
from economic abuse. Consumer Data Indus. Ass’n v. Frey, 26 F.4th 1, 3 (1st Cir. 2022). The
Maine laws limited when and how consumer reporting agencies could report debt from medical
expenses and required the reinvestigation of a debt if the consumer provided documentation that
the debt was the result of economic abuse. Id. at 4. The impetus behind the laws was the belief
that, “unlike in the case of the purchase of a house or a car, medical debt is usually unplanned and
involuntarily incurred” as well as that “many domestic violence cases involve economic abuse and
so survivors of such abuse need help to regain control of their finances so they can . . . retake
control of their lives.” Id. at 4-5.
Analyzing whether the two Maine laws were “swept into the maw of FCRA preemption,”
the First Circuit noted that the FCRA has a “general rule” that inconsistent state laws are preempted
“only to the extent of the inconsistency” as well as a series of express subject-matter and conduct
preemptions. Id. at 6 (quoting 15 U.S.C. § 1681t(a)). One of these express preemptions, observed
the Court, is located at 15 U.S.C. § 1681t(b)(1)(E), and it states that “[n]o requirement or
prohibition may be imposed under the laws of any State . . . with respect to any subject matter
regulated under . . . section 1681c . . . , relating to information contained in consumer reports.” Id.
(quoting 15 U.S.C. § 1681t(b)(1)(E)). In seeking to invalidate the Maine laws, CDIA advocated
for an encompassing view of this provision to foreclose state regulation “relate[d] to information
19

contained in consumer reports, . . . regardless of whether they regulate subject matter regulated by
Section 1681c” of the FCRA. Id. The Court was “not persuaded.” Id.
Interpreting the FCRA to preempt “all state laws ‘relating to information contained in
consumer reports,’” wrote the First Circuit, was “not the most natural reading of the statute’s
syntax and structure.” Id. The Court cited United States Supreme Court precedent for the
proposition that Congress’s use of “the phrase ‘with respect to’ narrows the scope of preempted
subject matter to its referent or referents” and, thus, “Section 1681t(b)(1)(E)’s mandate expresses
Congress’ intent only to preempt those claims that concern subject matter regulated under Section
1681c.” Id. at 7 (citing Dan’s City Used Cars, Inc. v. Pelkey, 569 U.S. 251, 252 (2013)).
In addition, the First Circuit’s view was that if Congress “intended to preempt all state laws
relating to information contained in consumer reports, it could have easily so stated,” but it did
not. Id. at 8. And the Court saw “no reason to presume that Congress intended, in providing some
federal protection to consumers regarding the information contained in credit reports, to oust all
opportunity for states to provide more protections, even if those protections would not otherwise
be preempted as ‘inconsistent’ with the FCRA as under 15 U.S.C. § 1681t(a).” Id. at 9.
Ultimately, the First Circuit held that Maine’s law regulating medical debt was not
preempted by the FCRA’s provisions regulating the reporting of veterans’ debt. The Court
reasoned that “[i]f Congress had intended to regulate the reporting of all those instances of medical
debt it could simply have said so, without textually limiting the field of regulation to veterans’
medical debt. And that is not what it did.” Id. at 12. Nevertheless, the First Circuit remanded for
the district court to consider to what extent the Maine law was partially preempted by the FCRA’s
regulation of veterans’ medical debt. Id. at 12-13. Likewise, the First Circuit held that even though
Maine’s law regulating economic abuse was not generally preempted by the FCRA, the district

20

court should consider to what extent it was preempted by the FCRA’s protections against identity
theft. Id. at 13-14.
IV.

LEGAL STANDARD
“Summary judgment is governed by Rule 56 of the Federal Rules of Civil Procedure.” In

re Lemington Home for Aged, 659 F.3d 282, 290 (3d Cir. 2011). Pursuant to Rule 56, “[s]ummary
judgment is proper when, viewing the evidence in the light most favorable to the nonmoving party
and drawing all inferences in favor of that party, there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law.” Auto-Owners Ins. Co. v. Stevens & Ricci
Inc., 835 F.3d 388, 402 (3d Cir. 2016) (citing Fed. R. Civ. P. 56(a)). “A fact is material if—taken
as true—it would affect the outcome of the case under governing law.” M.S. by & through Hall v.
Susquehanna Twp. Sch. Dist., 969 F.3d 120, 125 (3d Cir. 2020) (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)). “And a factual dispute is genuine ‘if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.’” Id.
The standard is the same in the context of dueling motions for summary judgment. AutoOwners Ins. Co., 835 F.3d at 402. “When both parties move for summary judgment, ‘[t]he court
must rule on each party’s motion on an individual and separate basis, determining, for each side,
whether a judgment may be entered in accordance with the Rule 56 standard.’” Id. (quoting 10A
Charles Alan Wright, et al., Federal Practice & Procedure § 2720 (3d ed. 2016)).
V.

PARTIES’ ARGUMENTS
A. PLAINTIFF—CDIA
CDIA submits that the 2019 amendment to the NJFCRA is “inconsistent with federal law

and impermissibly seeks to regulate conduct that is reserved to federal law.” (ECF No. 59-4 at
12.) As to the alleged inconsistency, CDIA maintains that “[i]t is impossible for any NCRA to
comply with both the [federal] requirement” to disclose “all information in the consumer’s file at
21

the time of the request” as well as New Jersey’s “requirement to provide disclosures in real time
in at least eleven additional languages when [NCRAs] exclusively collect, maintain, and report
such information in English.” (Id. at 22-23 (emphasis removed) (quoting 15 U.S.C. § 1681g(a)).)
If New Jersey’s requirements are enforced, warns CDIA, this “necessarily means that an NCRA
will no longer be providing the consumer with a disclosure of the information ‘in the consumer’s
file’ under the FCRA, but a translation or other interpretation of its file information.” (Id. at 24
(emphases in original).) For support, CDIA points to the FTC’s 2004 rulemaking wherein the
agency declined “to require multi-language centralized source information and instructions.” (Id.
at 25-26 (emphasis removed) (citing Free Annual File Disclosures, 69 Fed. Reg. 35,468 (June 24,
2004)).) CDIA claims that this is evidence that “the very question as to whether the NCRAs should
provide disclosures in languages other than English has already been considered and decided by
the federal agency delegated with the responsibility of establishing the rules governing the
NCRAs’ conduct.” (Id. at 25.)
As to the contention that the NJFCRA is expressly preempted because it regulates conduct
specifically reserved to federal law, CDIA argues that the “FCRA expressly governs what must be
included in a file disclosure, how the NCRAs must permit requests of those free annual file
disclosures, and when the free annual file disclosures must be provided.” (Id. at 32 (emphases in
original) (citing 15 U.S.C. §§ 1681j(a)(1)(B) & (a)(2)).) CDIA insists that, “[b]y requiring NCRAs
to translate the information in their files,” New Jersey “necessarily imposes new conduct
requirements regarding ‘what’ and ‘how,’” which violates the preemption provisions that bar
further regulation of conduct already addressed by the FCRA. (Id. at 32-33.) CDIA writes that
the FCRA’s use of “with respect to” in its preemption provisions should mean “concerning” or
“relating to,” ensuring that the federal statute has “a broad preemptive effect.” (Id. at 27-31.)

22

CDIA also asks the Court to disregard the interpretive rule issued by the CFPB in 2022.
(ECF No. 75 (citing The Fair Credit Reporting Act’s Limited Preemption of State Laws, 87 Fed.
Reg. 41,042 (July 11, 2022)).) Because the interpretive rule was not done by formal rulemaking,
CDIA posits that it “carries no force of law, and is not entitled to Chevron deference,” particularly
on a “major question.” (Id. at 1-3.) CDIA believes the rule holds no persuasive force “because
the plain text of the FCRA clearly and unambiguously addresses its preemptive scope.” (Id. at 2.)
Finally, CDIA argues that even if the 2019 amendment to the NJFCRA is not preempted
by federal law, the New Jersey law violates the NCRAs’ commercial speech rights under the First
Amendment by “essentially compelling the NCRAs to speak in multiple languages on demand . . .
without meaningfully advancing any relevant stated government interests.” (ECF No. 59-4 at 34.)
CDIA contends that the law “fails under either a heightened judicial scrutiny or intermediate
scrutiny standard” because “New Jersey arbitrarily decided to require federally required
disclosures to be made available in eleven or more languages, in addition to English, without
stating any legal or factual basis for imposing the requirement.” (Id. at 35-37.) Even if the New
Jersey law is evaluated under a rational basis review, CDIA maintains that the law still fails
because New Jersey “has offered no evidence” that the statute’s broad requirements are
“reasonably related to a legitimate governmental purpose,” when balanced against the heavy
burden imposed on the NCRAs. (ECF No. 82 at 15-16 (emphasis in original).)
B. DEFENDANT—NEW JERSEY
New Jersey argues that the 2019 amendment to the NJFCRA “is neither expressly nor
impliedly preempted by the FCRA. Rather, the NJFCRA seeks to protect New Jersey residents
with additional layers of consumer protection by requiring [NCRAs] to issue the mandated file
disclosures to consumers in Spanish and no fewer than ten other languages . . . upon request.”
(ECF No. 43-1 at 10 (emphasis in original).) New Jersey contends that “[n]othing in the FCRA
23

says that New Jersey cannot exercise its . . . authority in the area of consumer protection in this
manner, and there is no doubt that the [NCRAs] can simultaneously comply with both state and
federal law.” (Id.)
As to express preemption, New Jersey argues that CDIA’s reading of 15 U.S.C. §
1681t(b)(5) would prohibit states from “enacting any laws that impose additional consumer
protections that relate in any manner whatsoever to . . . file disclosure obligations under federal
law, even if that state’s rule is completely consistent with the FCRA.” (Id. at 21.) This outcome,
writes New Jersey, “is inconsistent not only with the preemption provisions in the FCRA” but
“flies in the face of the plain language of the law and well-established principles of statutory
interpretation.” (Id. at 22-26.)
As to implied preemption, New Jersey argues that requiring credit disclosures to be
provided in different languages “does not change the underlying information contained in the file,”
so the NCRAs “can comply with the requirements of both” federal and state law without offending
either. (Id. at 27-28.) New Jersey underscores that the FCRA already requires file disclosures to
be made “in a manner that is digestible for consumers, which inevitably requires some degree of
alteration in style rather than substance,” such as converting it from hard copy to digital and
synthesizing it, and this process is not meaningfully different than “translating that information
into a different language.” (Id. at 29.)
As to the CFPB’s 2022 interpretive rule, New Jersey believes it “resoundingly supports the
State’s position” and “is entitled to deference under Skidmore.” (ECF No. 76 at 1-3.) The rule,
according to New Jersey, “is reasonable given [the] FCRA’s purposes, as [the statute’s] guarantee
of a free annual credit report aims to help consumers better understand their credit history—a
purpose advanced by allowing States to ensure this report is disclosed in a language the consumer
can understand.” (Id. at 3 (emphasis in original).)
24

Finally, as to the First Amendment challenge, New Jersey writes that “the NJFCRA directly
advances a substantial government interest—to ensure that the benefits of consumer protection
reach all New Jerseyans, regardless of their native language—and because the requirements . . .
are narrowly tailored to advance that vital interest, the NJFCRA legally regulates commercial
speech.” (ECF No. 43-1 at 10.) In its post-argument briefing, New Jersey further contends that
the law passes scrutiny under either the four-part test laid out in Central Hudson Gas & Electric
Corporation v. Public Service Commission of New York, 447 U.S. 557 (1980), or the rational-basis
test for disclosure requirements and compelled speech set forth in Zauderer v. Office of
Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626 (1985). (ECF No. 83 at 10-12.)
C. AMICUS—NATIONAL CONSUMER LAW CENTER
The National Consumer Law Center, a non-profit that advocates for the interests of lowincome consumers and others who are disadvantaged, filed an amicus brief “to offer its perspective
of the importance [of] language translation of credit reports for residents of New Jersey.” (ECF
No. 55 at 6.) NCLC argues that translations offer “enormous benefits” to persons for whom
English is not a first language and who are considered “limited English proficient” or “LEP.” (Id.
at 7.) It points out that “[c]redit reports . . . can determine whether a consumer can obtain a loan
to purchase a home or an automobile, obtain insurance for both, open a new business, or finance
their college education. . . . Credit reports are also used by employers and landlords.” (Id. at 8.)
It submits that providing such reports “solely in English leaves millions of LEP residents . . .
without access to a tool that is critical to effectively managing their economic lives.” (Id.) NCLC
emphasizes that translations are needed in New Jersey, which has the fifth highest share of LEP
residents in the United States. (Id. at 9-10.) Finally, NCLC notes that one of the NCRAs (Equifax)
has started voluntarily providing credit file disclosures to consumers in Spanish. (Id. at 15-18.)

25

VI.

DISCUSSION
The Court begins its analysis by confirming that there is standing to hear this pre-

enforcement challenge, and it proceeds to examine federal preemption followed by the First
Amendment issues.22
A. STANDING
Article III of the United States Constitution limits the jurisdiction of the federal courts to
actual cases or controversies. U.S. Const., art. III, § 2, cl. 1. “This case-or-controversy limitation
. . . is crucial in ‘ensuring that the Federal Judiciary respects the proper—and properly limited—
role of the courts in a democratic society.’” Plains All Am. Pipeline L.P. v. Cook, 866 F.3d 534,
539 (3d Cir. 2017) (quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006)). The
existence of a case or controversy is therefore “a prerequisite to all federal actions, including those
for declaratory or injunctive relief.” Philadelphia Fed’n of Tchrs., Am. Fed’n of Tchrs., Loc. 3,
AFL-CIO v. Ridge, 150 F.3d 319, 322 (3d Cir. 1998) (quoting Presbytery of New Jersey of
Orthodox Presbyterian Church v. Florio, 40 F.3d 1454, 1462 (3d Cir. 1994)).
“One element of the case-or-controversy requirement is that plaintiffs must establish that
they have standing to sue.” Greenberg v. Lehocky, 81 F.4th 376, 384 (3d Cir. 2023) (quoting
Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408 (2013)). Standing is established by “show[ing]
an injury in fact fairly traceable to the challenged action that a favorable ruling may redress.” Id.
“The injury-in-fact requirement ensures the plaintiff has a ‘personal stake in the outcome of the
controversy.’” Id. (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)). A case must also be ripe.

22

The Court examines preemption before the First Amendment issues because, even though
federal preemption arises under the Supremacy Clause, the Third Circuit treats preemption as
“‘statutory’ for purposes of [the] practice of deciding statutory claims first to avoid unnecessary
constitutional adjudications.” C.E.R. 1988, Inc. v. Aetna Cas. & Sur. Co., 386 F.3d 263, 272 n.13
(3d Cir. 2004) (quoting New Jersey Payphone Ass’n, Inc. v. Town of W. New York, 299 F.3d 235,
239 n.2 (3d Cir. 2002)).
26

Nat’l Shooting Sports Found. v. Att’y Gen. of New Jersey, 80 F.4th 215, 219 (3d Cir. 2023). It
must not depend “on contingent future events that may not occur as anticipated, or . . . may not
occur at all.” Id. (citation omitted).
In the context of pre-enforcement challenges, it is well established that a “plaintiff may
challenge the constitutionality of a [law or] regulation before suffering an ‘actual’ injury arising
from enforcement so long as the threatened injury is ‘imminent.’” Greenberg, 81 F.4th at 384
(quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)).23 Nevertheless, the federal courts
have “never recognized an unqualified right to pre-enforcement review of constitutional claims in
federal court.” Whole Woman’s Health v. Jackson, 595 U.S. 30, 49 (2021). Those seeking “to
challenge the constitutionality of state laws are not always able to pick and choose the timing and
preferred forum for their arguments.” Id.
A plaintiff pursuing a pre-enforcement challenge “satisfies the injury-in-fact requirement
where he [or she] alleges he [or she] intends to do something arguably protected by the
Constitution, but arguably barred by the [law or] regulation, and that he [or she] faces a credible
threat of [enforcement] under the [law or] regulation.” Greenberg, 81 F.4th at 384-85 (citing
Schrader v. Dist. Att’y of York Cnty., 74 F.4th 120, 124-25 (3d Cir. 2023)); see also Susan B.
Anthony List v. Driehaus, 573 U.S. 149, 158 (2014) (“An allegation of future injury may suffice if
the threatened injury is ‘certainly impending,’ or there is a ‘substantial risk’ that the harm will
occur.” (quoting Clapper, 568 U.S. at 414)). To be credible, the threat of enforcement “may not

23

See also MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128-29 (2007) (“[W]here
threatened action by government is concerned, we do not require a plaintiff to expose himself to
liability before bringing suit to challenge the basis for the threat—for example, the constitutionality
of a law threatened to be enforced.” (emphasis in original)); Babbitt v. United Farm Workers Nat.
Union, 442 U.S. 289, 298 (1979) (“[O]ne does not have to await the consummation of threatened
injury to obtain preventive relief. If the injury is certainly impending, that is enough.” (quoting
Commonwealth of Pennsylvania v. State of W. Virginia, 262 U.S. 553, 593 (1923))).
27

be merely ‘imaginary or wholly speculative.’” New Jersey Bankers Ass’n v. Att’y Gen. New
Jersey, 49 F.4th 849, 855 (3d Cir. 2022) (quoting Susan B. Anthony List, 573 U.S. at 160).
Both parties argue that there is standing in this case. CDIA submits that New Jersey’s law
targets its members and that the NCRAs will have to “make material changes to their operations”
to comply “or face real and substantial enforcement risk.” (ECF No. 82 at 6.) The State
emphasizes that even absent regulation delineating the ten or more languages in which to mandate
disclosures, the law’s express terms require translation of file disclosures into Spanish, and some
of the NCRAs have indicated that they “intend to [continue to] provide free annual credit reports
in English only.” (ECF No. 83 at 7-8.) This constitutes a violation, posits the State, that creates a
credible threat of enforcement. (Id. at 8.)
The Court finds that Plaintiff satisfies the elements for standing and that this preenforcement challenge is ripe.24 The record establishes that some of CDIA’s members intend to
continue to provide file disclosures in English only, which is forbidden by the challenged law and
implicates the NCRAs’ commercial speech rights under the First Amendment.
Further, New Jersey’s law directly targets the NCRAs by proscribing them from continuing
to provide credit file disclosures to New Jersey consumers only in English—and requiring the
disclosures to be in Spanish plus ten or more other languages to be specified by the Director of
DCA. This constitutes a requirement that may be preempted by the FCRA under the Supremacy
Clause or may violate the NCRAs’ commercial speech rights under the First Amendment. Indeed,
it is undisputed that consumer credit information is recorded by the NCRAs in English only. And

24

Where, as here, a plaintiff is an association, it may “bring suit on behalf of its members
when its members would have standing to sue in their own right, the interests at stake are germane
to the organization’s purpose, and neither the claim asserted nor the relief requested requires
individual members’ participation in the lawsuit.” Friends of the Earth, Inc. v. Laidlaw Env’t
Servs. (TOC), Inc., 528 U.S. 167, 169 (2000).
28

while one NCRA (Equifax) appears to have started voluntarily providing, after this case was
initiated, credit file disclosures to consumers in Spanish, nothing in the record before the Court
suggests that the other two NCRAs are willing to voluntarily comply with the law. 25 (ECF No. 83
at 7 (“[T]he conduct is clear: CDIA’s members intend to provide free annual credit reports in
English only.”).) There is certainly no suggestion that the NCRAs have been or are willing to
provide credit file disclosures in any language other than English and Spanish. 26
There is also a credible threat of enforcement. At minimum, the statute currently requires
disclosures to New Jersey consumers in Spanish, which could be enforced by either New Jersey’s
Attorney General or Division of Consumer Affairs,27 and consumers themselves have private
remedies under New Jersey law.28 In addition, once the Director of DCA promulgates the
anticipated regulations, the NCRAs will be exposed to the expanded threat of substantial liability
if they do not make file disclosures available in the ten or more languages that are selected by the
Director of DCA. CDIA underlines that if its members fail to comply, New Jersey’s regulations

25

Even if circumstances have changed since the case was initiated, “standing is to be
determined as of the commencement of suit.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 571 n.5
(1992). And the Supreme Court has noted that when a mootness issue arises after a case with
standing “has been brought and litigated,” it may “prove more wasteful than frugal” to abandon it
“at an advanced stage,” particularly when the case involves issues that are “capable of repetition,
yet evading review.” Friends of the Earth, Inc., 528 U.S. at 191-92.
26

Granted, New Jersey’s Director of the Division of Consumers Affairs has yet to issue
regulations identifying what those ten or more other languages will be, but counsel for New Jersey
represented at oral argument that the State is in the process of finalizing the regulations and that
they will be promulgated soon. CDIA represents that to comply with these anticipated regulations,
their members will be forced to “make material changes to their operations.” (ECF No. 82 at 6.)
27

(ECF No. 83 at 8 n.1 (“The Attorney General and Division of Consumer Affairs have
authority to enforce . . . § 56:11-34 under, inter alia, N.J. Stat. Ann. § 56:8-4(b) . . . .”).)
28

(ECF No. 82 at 6 n.3 (“Additionally, consumers have private rights of action under state
law.” (citing N.J. Stat. Ann. §§ 56:11-38 to -39))); see also Boone v. T-Mobile USA Inc., Civ.
No. 17-378, 2018 WL 588927, at *16 (D.N.J. Jan. 29, 2018) (“[A] private right of action exists
against corporate entities under the NJ FCRA.”).
29

permit the recovery of civil penalties up to $10,000.00 for an initial violation and up to $20,000.00
for each subsequent violation. (ECF No. 82 at 6 n.3 (citing N.J.A.C. § 13:45-5.2).)
And though New Jersey has yet to enforce the statute against the NCRAs, the State has not
disavowed its intent to do so. To the contrary, it has vigorously defended this suit and indicated
that it will ensure the statute’s full implementation. The State has also taken the position in this
litigation that the NCRAs are subject to New Jersey’s mandates. The threat of enforcement is thus
live and the potential injury to the NCRAs from future enforcement is “concrete” and “imminent.”
See Greenberg, 81 F.4th at 386 (“Courts often determine there is a credible threat of prosecution
where the government refuses to [disavow enforcement].” (collecting cases)); see also New Jersey
Bankers Ass’n, 49 F.4th at 856 (“The Attorney General—the person charged with enforcing the
statute—has already articulated that NJBA is subject to the prohibitions in the statute. Based on
his interpretation, we have no reason to believe that the Attorney General would decline to enforce
§ 19:34-45 . . . .”).
In a similarly postured case, the Fifth Circuit Court of Appeals recently found that CDIA
had associational standing to pursue a pre-enforcement challenge to a Texas law that prohibited
the NCRAs “from including information regarding certain medical debt collection accounts in
consumer credit reports . . . furnished to third-parties.” Consumer Data Indus. Ass’n v. Texas
through Paxton, 2023 WL 4744918, at *2 (5th Cir. July 25, 2023). At the time of the challenge,
no formal enforcement proceedings had been undertaken or threatened by the Texas Attorney
General and the law had been on the books for fewer than five years. Id. at *4-5. Even so, the
Fifth Circuit found that several factors supported the conclusion that there was an injury-in-fact
sufficient for purposes of standing: the Texas Attorney General had never “suggested that the
statute would not be enforced in the future”; the statute was relatively recent and not “moribund”;
and CDIA had “sufficiently alleged that certain members must either make material operational
30

changes to comply . . . or expose themselves to a substantial threat of enforcement.” Id. at *4-6
(emphasis in original). The same factors support finding an injury-in-fact and associational
standing here: New Jersey’s Attorney General has not disavowed enforcing the statute against the
NCRAs; the statute is relatively recent and not moribund; and CDIA has sufficiently alleged that
the NCRAs will need to make material operational changes to comply with the law’s requirements
or face substantial penalties when enforcement occurs.
The Court therefore concludes that Plaintiff has Article III standing for this suit and that
the pre-enforcement challenge is ripe.
B. FEDERAL PREEMPTION
The Supremacy Clause of the United States Constitution, U.S. Const. art. VI, cl. 2,
displaces state law that “interferes with or is contrary to federal law.” Pennsylvania v. Navient
Corp., 967 F.3d 273, 287 (3d Cir. 2020) (quoting Free v. Bland, 369 U.S. 663, 666 (1962)). There
are three ways that “[f]ederal law can preempt state law . . . : (1) express preemption; (2) field
preemption; or (3) conflict preemption.”29 Klotz v. Celentano Stadtmauer & Walentowicz LLP,
991 F.3d 458, 463 (3d Cir. 2021) (citing Farina v. Nokia Inc., 625 F.3d 97, 116 (3d Cir. 2010)).
These categories “‘are not rigidly distinct’ . . . [a]nd at least one feature unites them: Invoking
some brooding federal interest or appealing to a judicial policy preference should never be enough
to win preemption of a state law; a litigant must point specifically to ‘a constitutional text or a
federal statute’ that does the displacing or conflicts with state law.” Virginia Uranium, Inc. v.
Warren, 139 S. Ct. 1894, 1901 (2019) (first quoting Crosby v. National Foreign Trade Council,

29

Field and conflict preemption are sometimes referred to as implied preemption. See
Sikkelee v. Precision Airmotive Corp., 907 F.3d 701, 709 (3d Cir. 2018) (“There are several types
of preemption: express and implied, and within implied, field and conflict.”).
31

530 U.S. 363, 373 n.6 (2000); and then quoting Puerto Rico Dep’t of Consumer Affs. v. Isla
Petroleum Corp., 485 U.S. 495, 503 (1988)).
When federal preemption is invoked, the “inquiry is guided by two principles.” Navient
Corp., 967 F.3d at 288 (citing Farina, 625 F.3d at 116). The first is that “the intent of Congress
is the ‘ultimate touchstone’ of preemption analysis.” Id. (quoting Medtronic, Inc. v. Lohr, 518
U.S. 470, 485 (1996)). In discerning Congressional intent, courts “look to the language, structure,
and purpose of the relevant statutory and regulatory scheme to develop a reasoned understanding
of the way in which Congress intended the statute and its surrounding regulatory scheme to affect
business, consumers, and the law.” Shuker v. Smith & Nephew, PLC, 885 F.3d 760, 771 (3d Cir.
2018) (quoting Sikkelee v. Precision Airmotive Corp., 822 F.3d 680, 687 (3d Cir. 2016)).
The second principle is “the basic assumption that Congress did not intend to displace state
law.” Navient Corp., 967 F.3d at 288 (quoting Farina, 625 F.3d at 116). “[B]ecause the States
are independent sovereigns in [the] federal system, [courts] have long presumed that Congress
does not cavalierly preempt state-law causes of action,” especially when a “state is exercising its
police power.” Id. (quoting Lohr, 518 U.S. at 485). However, when a federal statute contains an
express preemption clause or when a case arises in an area that has historically been heavily
regulated by the federal government, courts “do not invoke any presumption against pre-emption
but instead ‘focus on the plain wording of the [the statute], which necessarily contains the best
evidence of Congress’ pre-emptive intent.’” Puerto Rico v. Franklin California Tax-Free Tr., 579
U.S. 115, 125 (2016) (quoting Chamber of Com. of U.S. v. Whiting, 563 U.S. 582, 594 (2011)).
1. EXPRESS PREEMPTION
Express preemption “applies where Congress explicitly preempts state law in the statutory
language.” Navient Corp., 967 F.3d at 287 (citing Cipollone v. Liggett Grp., Inc., 505 U.S. 504,
516 (1992)). “[T]he presence of an express preemption provision does not end the inquiry. While
32

it means [that courts] need not inquire whether Congress intended to preempt some state law,
[courts] still must examine congressional intent as to the scope of the preemption provision.” Id.
at 288 (quoting Farina, 625 F.3d at 118). “To identify the domain expressly preempted by
Congress, [courts] read ‘the words of a statute . . . in their context and with a view to their place in
the overall statutory scheme.’” Id. (quoting Home Depot U.S.A., Inc. v. Jackson, 139 S. Ct. 1743,
1748 (2019)).
CDIA argues that the 2019 amendment to the NJFCRA is expressly preempted by sections
1681t(b)(5)(B) and (E) of the FCRA. These conduct preemption sections state in relevant part:
No requirement or prohibition may be imposed under the laws of
any State—
....
(5) with respect to the conduct required by the specific
provisions of—
....
(B) section 1681c-1 of this title; [and]
....
(E) section 1681j(a) of this title[.]
[15 U.S.C. § 1681t(b)(5)(B) & (E).]
Section 1681c-1 concerns “identity theft prevention.” It requires, among other things, that
when “a consumer reporting agency includes a fraud alert in the file of a consumer . . . , the
consumer reporting agency . . . disclose to the consumer that the consumer may request a free copy
of the file of the consumer . . . [and] provide to the consumer all disclosures required to be made
. . . without charge to the consumer.” 15 U.S.C. § 1681c-1(a)(2).
Section 1681j(a) concerns the “free annual disclosure” that consumers are entitled to under
the FCRA. It specifies that consumer reporting agencies must produce consumers’ files, free of
33

charge, at least once annually, and must operate from a “centralized source.” 15 U.S.C. § 1681j(a).
It also details other aspects, including timing, reinvestigations, and charges. Id.
Although neither section 1681c-1 nor section 1681j(a) speak to what language file
disclosures must be provided in, CDIA argues that because (1) these provisions regulate what must
be in a file disclosure, how the disclosure should be made, and when it should be made, and (2)
section 1681t(b)(5) preempts states from imposing laws “with respect to [such] conduct,” this
necessarily means that New Jersey exceeded its authority when it required the NCRAs to provide
file disclosures in languages other than English. (ECF No. 59-4 at 31-33.) In other words, CDIA’s
position is that because sections 1681c-1 and 1681j(a) of the FCRA contain Congressional
direction as to what should be in file disclosures and when those disclosures should be made, any
further regulation of file disclosures is forbidden, even if the regulation relates to conduct not
specifically addressed by Congress.
Based on a close review of the statutory provisions at issue, the Court disagrees with CDIA
and finds that the FCRA’s conduct preemption sections do not expressly preempt the 2019
amendment to the NJFCRA. CDIA’s proposed interpretation of the FCRA is not a natural one and
is not supported by the context of the statute as a whole. See Contreras Aybar v. Sec’y United
States Dep’t of Homeland Sec., 916 F.3d 270, 273 (3d Cir. 2019) (“To determine whether a
statutory provision is ‘unambiguous,’ [courts] consider the text of the provision and the broader
context of the statute as a whole,” keeping in mind “that courts ‘are obligated to construe statutes
sensibly and avoid constructions which yield absurd or unjust results.” (quoting United States v.
Fontaine, 697 F.3d 221, 227 (3d Cir. 2012))). New Jersey’s law does not change what must be in
a file disclosure, how the disclosure should be made, or when it should be made. The law
essentially requires that the disclosure or information already provided to consumers in English
also be made available in Spanish or one of ten or more other languages.
34

If either section 1681c-1 or section 1681j(a) addressed the language file disclosures should
be made in, that would largely end the analysis. Under that circumstance, the 2019 amendment to
the NJFCRA would be expressly preempted because section 1681t(b)(5) of the FCRA prohibits a
state from passing a law “with respect to” conduct regulated “by the specific provisions” of
sections 1681c-1 and 1681j(a). That is not the case here, however. Neither section contains
“specific provisions” related to the language(s) of consumer file disclosures. There is also nothing
that suggests that Congress contemplated this issue when it first enacted and later amended the
federal statute. There is thus no basis to read the FCRA to preempt state law “with respect to” the
language of file disclosures. See Dan’s City Used Cars, Inc., 569 U.S. at 261 (“That phrase [‘with
respect to’] ‘massively limits the scope of preemption.’” (quoting City of Columbus v. Ours
Garage & Wrecker Serv., Inc., 536 U.S. 424, 449 (2002) (Scalia, J., dissenting))).
To overcome this Congressional silence, CDIA advocates for a broad reading of the
FCRA’s conduct preemption provisions to preempt any state laws that relate, generally, to the
subjects addressed in sections 1681c-1 and 1681j(a). CDIA’s suggested interpretation of section
1681t(b)(5) is too broad. Section 1681t(b)(5) preempts state laws only “with respect to the conduct
required by the specific provisions of” sections 1681c-1 and 1681j(a). 15 U.S.C. § 1681t(b)(5)(B)
and (E) (emphases added). It plainly does not say, as CDIA would have it, that the FCRA preempts
any and all state laws related to file disclosures. Indeed, as the First Circuit Court of Appeals
recently recognized, Congress’s use of “the phrase ‘with respect to’ narrows the scope of
preempted subject matter,” as opposed to expanding it. Frey, 26 F.4th at 7 (citing Dan’s City Used
Cars, Inc., 569 U.S. at 261). And “[s]o construed, the preemption clause necessarily reaches a
subset of laws narrower than those that merely relate[] to information contained in consumer
reports” or those that govern issues attendant to how file disclosures are made. Id. at 7-8; see also
Galper, 802 F.3d at 447 (“This broad argument overlooks the language of the statute. In this
35

statutory context, the phrase ‘relating to’ is not used to describe the scope of preemption. Instead,
the phrase exists as a shorthand reference to describe the subject matter governed by” the FCRA’s
specific exceptions.).
CDIA’s interpretation also falls short because if, as asserted, Congress sought to leave no
room for the State of New Jersey—or any other state—to enact any laws related in any way to file
disclosures, it could have easily done so. See, e.g., Morales v. Trans World Airlines, Inc., 504 U.S.
374, 378-79 (1992) (“To ensure that the States would not undo federal deregulation with regulation
of their own, the ADA included a pre-emption provision, prohibiting the States from enforcing
any law ‘relating to rates, routes, or services’ of any air carrier.” (citation omitted)); Galper, 802
F.3d at 447 (“If Congress had intended to preempt claims that relate in any way to someone
furnishing information to a consumer reporting agency, it could easily have drafted the statute to
say that . . . .”). Congress did not do so. Instead, it chose to preempt state laws “with respect to”
the “specific provisions of” the FCRA. 15 U.S.C. § 1681t(b)(5) (emphasis added). CDIA offers
no cogent reason why this circumscribed language should be read expansively to encompass all
state laws that may relate to file disclosures, including state laws that mandate credit file
disclosures be made available to consumers in languages other than English.
Finally, the CFPB’s 2022 interpretive rule supports the Court’s reading of the FCRA’s
conduct preemption provisions. Although the Court does not defer to the rule, the CFPB has a
similar view that “the plain text of section[] . . . 1681t(b)(5) . . . ha[s] a narrow and targeted scope”
and that, “if a State law does not concern ‘the conduct required by’ the enumerated section . . . ,
then it is not preempted.” The Fair Credit Reporting Act’s Limited Preemption of State Laws, 87
Fed. Reg. 41,043, 41,046 (July 11, 2022). Notably, the CFPB confirms that the FCRA has “no
requirements regarding the language in which disclosures of information are provided.” Id. There
is thus no ground to find that a state law requiring “a consumer reporting agency [to] provide
36

information required by the FCRA at the consumer’s request in languages other than English” is
preempted as conduct already regulated under federal law. Id. Any other conclusion would be
out of sync with the view that federal preemption provisions should be construed “fairly but
narrowly.” Galper, 802 F.3d at 445 (quoting Lorillard Tobacco Co., 533 U.S. at 551).
Accordingly, this Court finds that the 2019 amendment to the NJFCRA is not expressly
preempted by the FCRA.
2. FIELD PREEMPTION
Field preemption “focuses on when Congress does not expressly preempt state law but
where ‘federal law leaves no room for state regulation and that Congress had a clear and manifest
intent to supersede state law in that field.’” Navient Corp., 967 F.3d at 287 (quoting Sikkelee, 822
F.3d at 688). In such cases, “[w]here Congress expresses an intent to occupy an entire field, States
are foreclosed from adopting any regulation in that area, regardless of whether that action is
consistent with federal standards.” Id.
Neither CDIA nor New Jersey contends that field preemption applies or is at issue in this
case; thus, the Court finds it undisputed that field preemption does not provide a basis to preempt
the 2019 amendment to the NJFCRA. In any event, courts have declared that the FCRA was never
intended to occupy the entire field of consumer reports. See, e.g., Frey, 26 F.4th at 9 (“This is not
a case in which the federal government ousted states from regulating the field of consumer credit
reports . . . .”); Davenport, 378 F.3d at 842 (“The FCRA makes clear that it is not intended to
occupy the entire regulatory field with regard to consumer reports.”); see also Aghaeepour v. N.
Leasing Sys., Inc., 378 F. Supp. 3d 254, 263 n.2 (S.D.N.Y. 2019) (“[T]he Federal Trade
Commission’s commentary on the statute . . . provides that the FCRA was not intended to usurp
the entire field of consumer report law.” (citations omitted)).

37

3. CONFLICT
Conflict preemption “exists where compliance with both state and federal law is
impossible, or where the state law stands as an obstacle to the accomplishment and execution of
the full purposes and objectives of Congress.” Klotz, 991 F.3d at 463 (quoting Oneok, Inc. v.
Learjet, Inc., 575 U.S. 373, 377 (2015)). “The question for ‘impossibility’ [preemption] is whether
the private party could independently do under federal law what state law requires of it.” Sikkelee,
907 F.3d at 709 (quoting PLIVA, Inc. v. Mensing, 564 U.S. 604, 620 (2011)).
CDIA maintains that New Jersey’s translation requirement “means that an NCRA will no
longer be providing the consumer with a disclosure of the information ‘in the consumer’s file’
under the FCRA, but a translation or other interpretation of its file information.” (ECF No. 59-4
at 24 (emphases in original).) In other words, because a consumer’s file is maintained by NCRAs
in English, CDIA asserts that requiring translation prior to production would conflict with the
FCRA, as a matter of law, because translation means that NCRAs are not providing to consumers
the information that is actually in their file. The Court disagrees.
Nowhere in the FCRA has Congress required the NCRAs to provide credit file information
to consumers in English. Nor has Congress required the NCRAs to maintain a consumer’s file
information in English or in any other language. To the contrary, the FCRA defines the term “file”
as encompassing “all of the information on that consumer recorded and retained by a consumer
reporting agency regardless of how the information is stored.” 15 U.S.C. § 1681a(g) (emphasis
added). This weighs against the claim that translation of file information prior to production
conflicts with the federal requirement that the information in a consumer’s credit file be produced
to that consumer at his or her request. And CDIA’s argument that the translation of file information
somehow alters the nature of the information stored in a consumer’s file is unconvincing. As
multiple federal Courts of Appeals have recognized in other contexts, a neutral translation is
38

ordinarily “no more than a ‘language conduit.’” United States v. Vidacak, 553 F.3d 344, 352 (4th
Cir. 2009).
Moreover, as both the State and NCLC emphasize, the NCRAs do not produce to
consumers their file information in raw form; instead, “the contents of a consumer’s file consist of
‘segments and bits and bytes,’ which must be translated into plain English for a file disclosure . . . .
[Thus,] [t]here already is a process of translation which occurs.” (ECF No. 55 at 18-19 (citing
Shaw v. Experian Info. Sols., Inc., 2016 WL 5464543, at *3 (S.D. Cal. Sept. 28, 2016), aff’d, 891
F.3d 749 (9th Cir. 2018) (“Unlike a credit report, which contains industry codes and fields which
are designed to be read by computers and which would be unfamiliar and meaningless to a lay
consumer, the consumer disclosure uses a more elementary and easy-to-read format to convey the
same information.”)); ECF No. 38 at 29 (“[W]hen [N]CRAs provide file information . . . , they do
not reproduce that data in an exact carbon copy of the manner in which it is stored.”).)
In response, CDIA points to the FTC’s decision, in 2004, not to promulgate regulations
that would have required “multi-language translations of centralized source materials, including
the centralized source website itself.” (ECF No. 59-4 at 25 (citing Free Annual File Disclosures,
69 Fed. Reg. 35,468 (June 24, 2004)).) CDIA argues that this decision not to promulgate
regulations is evidence that “the very question as to whether the NCRAs should provide
disclosures in languages other than English has already been considered and decided.” (Id.)
However, the FTC’s commentary clarified that its decision was a non-permanent one made, “at
th[at] time,” to give NCRAs a chance to implement the new obligations enacted in 2003 by
Congress. 69 Fed. Reg. at 35,476. CDIA cites no authority for the proposition that a federal
agency declining to promulgate regulations should serve as a basis to preclude states from acting,
decades later, in the form of legislation that does not conflict with the underlying statute.

39

In sum, there is nothing before the Court that persuades it that the 2019 amendment to the
NJFCRA is “inconsistent” with the FCRA. New Jersey’s goal of providing broader access to
consumer reports by making them available to consumers in languages other than English is
consistent with Congress’s objective in enacting the federal legislation, which is to ensure the
“accuracy,” “fairness,” and “impartiality” of consumer reporting so that public confidence is not
undermined. See 15 U.S.C. § 1681. CDIA may believe that it would be more efficient to have a
“uniform” set of languages for credit file disclosures, but under our federal system, this is not an
issue for this Court to decide. See, e.g., Util. Air Regul. Grp. v. E.P.A., 573 U.S. 302, 327 (2014)
(“Under our system of government, Congress makes laws . . . .”); Volt Info. Scis., Inc. v. Bd. of
Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 487 n.8 (1989) (Brennan, J., dissenting)
(“[I]t is up to Congress, not this Court, to ‘fashio[n] a legislative response.’”).
Absent support for the conclusion that Congress intended, either expressly or impliedly, to
preclude states from enacting legislation to enable consumers to request their credit files in
languages other than English, this Court finds that the 2019 amendment to the NJFCRA is not
preempted by the FCRA.
C. FIRST AMENDMENT
The First Amendment challenge focuses on New Jersey’s requirement that credit file
disclosures be provided to consumers in English, Spanish, and at least ten other languages, plus
any additional languages chosen by the Director of DCA, and whether this requirement withstands
the appropriate level of constitutional scrutiny.30

30

The First Amendment states that “Congress shall make no law . . . abridging the freedom
of speech,” U.S. Const. amend. I, and it applies to the States through the Due Process Clause of
the Fourteenth Amendment, see Gitlow v. People of State of New York, 268 U.S. 652, 666 (1925).
40

1. COMMERCIAL SPEECH
Both parties submit that the file disclosures at issue are subject to qualified First
Amendment protection under the commercial speech doctrine. The Court finds this consistent
with how similar disclosures have been treated since the FCRA’s enactment. See, e.g., Dun &
Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 762 (1985) (finding that a consumer
“credit report concerns no public issue” and “was speech solely in the individual interest of the
speaker and its specific business audience”); Yim v. City of Seattle, 63 F.4th 783, 801 (9th Cir.
2023) (Wardlaw, J., concurring) (“Courts have also generally found that consumer credit reports,
compiled for the purpose of targeted marketing or calculating interest rates, constitute commercial
speech.” (collecting cases)); Trans Union Corp. v. F.T.C., 267 F.3d 1138, 1141 (D.C. Cir. 2001)
(“Trans Union’s target marketing lists are private speech warranting only qualified constitutional
protection.”); Millstone v. O’Hanlon Reps., Inc., 528 F.2d 829, 833 (8th Cir. 1976) (“[C]onsumer
credit reports . . . are ‘commercial speech.’”); King v. Gen. Info. Servs., Inc., 903 F. Supp. 2d 303,
307 (E.D. Pa. 2012) (“The appropriate test for analyzing the reduced First Amendment protection
accorded to consumer report information is the Supreme Court’s commercial speech doctrine.”);
see also Bastian Shah, Commercial Free Speech Constraints on Data Privacy Statutes After
Sorrell v. Ims Health, 54 Colum. J.L. & Soc. Probs. 93, 118 (2020) (“The FCRA cases all lead to
the same conclusion. Data collected from consumers, compiled for commercial interests, and
designed to be sold for the purpose of advertising . . . constitutes commercial speech.”). New
Jersey’s 2019 amendment to the NJFCRA is therefore subject to the level of constitutional scrutiny
applicable to restraints on commercial speech.
2. STANDARD OF SCRUTINY
The level of scrutiny applied to commercial speech restraints varies by the type of restraint:
either “restrictions on speech” or “disclosure requirements.” Dwyer v. Cappell, 762 F.3d 275, 282
41

(3d Cir. 2014) (noting that “there exist different frameworks for analyzing restrictions on speech
and disclosure requirements”). The qualitative difference between the two is that restrictions on
speech prevent the speaker from “conveying information to the public,” while disclosure
requirements “seek only to require the[] [speaker] to ‘provide somewhat more information than
they might otherwise be inclined to present.’” Id. at 280 (quoting Zauderer v. Off. of Disciplinary
Couns. of Supreme Ct. of Ohio, 471 U.S. 626, 650 (1985)).
For restrictions on speech, the restraints must “withstand[] intermediate scrutiny under”
the test set forth by the Supreme Court in Central Hudson Gas & Electric Corporation v. Public
Service Commission of New York, 447 U.S. 557 (1980). Id. (citing Ibanez v. Fla. Dep’t of Bus. &
Pro. Regul., Bd. of Acct., 512 U.S. 136, 142 (1994)). Under Central Hudson, “[t]he more
misleading the [commercial speech], the more constitutional leeway is granted the States in
restricting it.” Id. If, however, the speech is not false, deceptive, or misleading, the State can
restrict it “only if the State shows that the restriction directly and materially advances a substantial
state interest in a manner no more extensive than necessary to serve that interest.” Ibanez, 512
U.S. at 142.
Disclosure requirements and compelled speech, in comparison, “receive less rigorous
scrutiny.” Dwyer, 762 F.3d at 281. This is because disclosure requirements “trench much more
narrowly” on First Amendment interests than prohibitions on speech, and the disclosures help
dissipate the possibility of consumer confusion and deception. Zauderer, 471 U.S. at 651 (citing
In re R.M.J., 455 U.S. 191, 201 (1982)). That is not to say that disclosure requirements are without
First Amendment implications. Id. The United States Supreme Court in Zauderer v. Office of
Disciplinary Counsel of the Supreme Court of Ohio recognized that “unjustified or unduly
burdensome disclosure requirements might offend the First Amendment by chilling protected
commercial speech.” Id. The Court held, however, that First Amendment “rights are adequately
42

protected as long as disclosure requirements are reasonably related to the State’s interest in
preventing deception of consumers.” Id. at 651-52 (holding that an Ohio disciplinary rule was
“reasonable enough” to overcome a First Amendment challenge when the rule remedied possible
deception in attorney advertising).
The Zauderer framework was “reaffirmed” by the Supreme Court in Milavetz, Gallop &
Milavetz, P.A. v. United States, 559 U.S. 229 (2010). Dwyer, 762 F.3d at 282. In Milavetz,
Congress required debt relief agencies assisting consumers in bankruptcy to include certain
disclosures in their advertisements. Milavetz, 559 U.S. at 233-34. The plaintiffs argued that
intermediate scrutiny under Central Hudson should apply to those disclosures, but the Supreme
Court disagreed and applied the Zauderer framework. Id. at 249-50. The Court explained that the
challenged statute shared the same essential features of the rule at issue in Zauderer. Id. at 250.
Congress did “not prevent debt relief agencies . . . from conveying additional information,” but
instead, “the disclosures entail[ed] only an accurate statement identifying the advertiser’s legal
status and the character of the assistance provided” and were “intended to combat the problem of
inherently misleading commercial advertisements.” Id.
Here, the State argues that there “is little question” that the 2019 amendment to the
NJFCRA is a “disclosure requirement” that “need only pass Zauderer review.” (ECF No. 83 at
12.) Further, the State contends that the statute “does not prevent the [NCRAs] from providing
the disclosure in English,” which is “already required by federal law,” and it does not “otherwise
limit in any way what information [NCRAs] can convey to consumers.” (Id.)
In opposition, CDIA urges the Court to apply intermediate scrutiny under Central
Hudson,31 arguing that New Jersey’s law “require[s] the NCRAs to fundamentally alter the means

31

In its initial briefing, CDIA argued that “heightened” scrutiny should apply, even though
commercial speech is implicated, because New Jersey’s law “imposes speaker-and-content related
43

in which they store and disclose consumers’ file information or provide an entirely different set of
information” and that there “is no untoward conduct that would justify the infringement on
speech.”32 (ECF No. 82 at 11-15.)
The Court agrees with the State that this case involves disclosure requirements, not speech
restrictions. New Jersey’s law does not prevent the NCRAs from conveying information. Instead,
it requires the NCRAs to disclose, upon a consumer’s request, the same consumer credit file
disclosures that the NCRAs already provide in English but in Spanish or in one of the ten other
languages chosen by the Director of DCA.33 There is no affirmative limitation on speech. The
appropriate level of scrutiny is thus the rational-basis test that the Supreme Court set forth in
Zauderer and reaffirmed in Milavetz. See Dwyer, 762 F.3d at 281 (noting that the Zauderer test
is characterized as “akin to rational-basis review” (citation omitted)).
3. APPLICATION OF THE ZAUDERER TEST
The Zauderer test comprises three inquiries: whether the disclosure is (1) purely factual
and uncontroversial; (2) reasonably related to the governmental interest in preventing consumer
confusion or deception; and (3) justified and not unduly burdensome. Nat’l Inst. of Fam. & Life

restrictions.” (ECF No. 59-4 at 34-35.) The Court disagrees. The disclosure requirement applies
neutrally to all NCRAs, and it does not favor one viewpoint over any other. There is no indication
that New Jersey’s law “has the practical effect of promoting some messages or some speakers
based on the content of the speech or the identity of the speaker,” which might justify heightened
scrutiny. Greater Phila. Chamber of Com. v. City of Phila., 949 F.3d 116, 138 (3d Cir. 2020).
32

CDIA takes the position that Zauderer should be limited to disclosure requirements that
apply to misleading advertisements. Precedent from various Circuits has rejected such a strict
interpretation, however. See, e.g., Am. Beverage Ass’n v. City & Cnty. of San Francisco, 916 F.3d
749, 756 (9th Cir. 2019) (“[T]he circuits’ precedents . . . have unanimously held that Zauderer
applies outside the context of misleading advertisements.”).
33

Specifically, the 2019 amendment provides that the NCRAs “shall make the information
subject to disclosure pursuant to this section available to a consumer upon the consumer’s request.”
N.J. Stat. Ann. § 56:11-34(e) (emphasis added).
44

Advocs. v. Becerra, 585 U.S. 755, 768 (2018); Am. Hosp. Ass’n v. Azar, 983 F.3d 528, 540-42
(D.C. Cir. 2020); Dwyer, 762 F.3d at 281-83. A disclosure requirement must satisfy all three
criteria to be constitutional. Id. The parties do not dispute that the disclosure requirement in this
case involves purely factual and uncontroversial information. 34

Therefore, the Court must

determine whether the 2019 amendment is justified, not unduly burdensome, and reasonably
related to the State’s interest in preventing consumer confusion or deception. Ultimately, the State
bears the burden of proof. Nat’l Inst. of Fam. & Life Advocs., 585 U.S. at 776.
The State submits that the aim of the 2019 amendment to the NJFCRA is to “ensure nonEnglish speaking residents in New Jersey are able to access and understand their credit reports.”
(ECF No. 43-1 at 33 (citing Press Release, New Jersey Assembly Democrats, Credit Reports Will
Be Available in Spanish and Other Languages Under New Law (July 19, 2019)).) In support of
the law’s objective, the State primarily cites to two studies and several data points. The first study
was issued in 2010 by the United States Government Accountability Office, which found that an
individual’s limited proficiency in English35 can create significant barriers to financial literacy and
to conducting everyday financial affairs.

(ECF No. 43-1 at 33-34 (citing U.S. Gov’t

Accountability Off., GAO-10-518, Consumer Finance Factors Affecting the Financial Literacy of
Individuals With Limited English Proficiency (2010)).) For example, such individuals can face

34

(See ECF No. 82 at 2 (“[T]he NCRAs’ file disclosures include accurate, truthful, nonmisleading federally-required information . . . .”); ECF No. 83 at 13 (“[I]t requires disclosure of
‘purely factual and uncontroversial information’ . . . .”).)
35

Limited English proficiency (LEP) refers to anyone above the age of five who reports
speaking English less than “very well,” as classified by the United States Census Bureau. (ECF
No. 55 at 7 (citing Jie Zong & Jeanne Batalova, The Limited English Proficient Population in the
United
States,
Migration
Pol’y
Inst.
(July
8,
2015),
https://www.migrationpolicy.org/article/limited-english-proficient-population-united-states (last
visited on March 13, 2024)).)
45

challenges completing account applications, understanding contracts, and resolving problems such
as erroneous bills. (Id.)
The second study is a 2017 report from the Consumer Financial Protection Bureau, which
found that limited English proficient consumers often face obstacles in accessing financial
products and services, including financial disclosures not generally available in a consumer’s
preferred language. (Id. at 33 (citing CFPB, Spotlight on Serving Limited English Proficient
Consumers (2017)).) The study also found that the “effective integration of LEP consumers into
the financial marketplace has the potential to create positive benefits for consumers and the
financial services industry alike.” (Id.)
As to the specific data points, New Jerseyans speak “at least twenty different languages”
and potentially “over 40 languages.” (Id. at 38; ECF No. 83 at 19.) According to the New Jersey
Department of Health, as of 2018, New Jersey’s total population was approximately 8.8 million
residents, about 1.9 million of whom are immigrants and refugees and about 460,000 of whom (or
5.2% of the total population) have limited English proficiency. (ECF No. 43-1 at 36.) As of 2022,
the number of limited English proficient residents in New Jersey was as high as 12.7%. (ECF No.
83 at 15.) The State submits that based on New Jersey’s substantial LEP population requiring
“uniform translation, at least for the most frequently spoken languages—is a reasonable means to
avoid” consumer confusion. (Id. at 16.)
Specifically, the 2019 amendment to the NJFCRA provides that the NCRAs shall make
credit file disclosures available upon a consumer’s request in Spanish or any other language that
the Director of DCA “determines is the first language of a significant number of consumers in the
State.” N.J. Stat. Ann. § 56:11-34(e) (emphasis added). The Director’s determination shall be
based on the “numerical percentages of all consumers in the State for whom English or Spanish is
not a first language or in a manner consistent with any regulations promulgated by the [D]irector
46

for this purpose.” Id. The amendment further provides that the Director “shall require that the
information is made available in at least the 10 languages other than English and Spanish that are
most frequently spoken as a first language by consumers in this State.” Id. (emphasis added).
The State contends that requiring disclosures in at least ten additional languages other than
English and Spanish is reasonable because New Jerseyans speak at least twenty if not forty
different languages and at least one NCRA is already providing translation services in Spanish.
(ECF No. 43-1 at 38; ECF No. 83 at 19.) According to the State, the ten most spoken languages
after English in New Jersey homes are as follows:
Top 10 Languages Spoken at Home Other
Than English in New Jersey
New Jersey
Estimate
Rank

Percent

Total

8,882,190

100.0%

1

Spanish

3,215,353

36.2%

2

Filipino/Tagalog

310,877

3.5%

3

Chinese

301,994

3.4%

4

Hindi

293,112

3.3%

5

Korean

293,112

3.3%

6

Gujarati

284,230

3.2%

7

Portuguese

239,819

2.7%

8

Arabic

222,055

2.5%

9

Polish

186,526

2.1%

10

Russian

168,762

1.9%

[(ECF No. 43-1 at 37.)]
Although the State has not provided data as to how many of these individuals are also limited
English proficient, the State contends that it struck a reasonable balance in the 2019 amendment
47

to the NJFCRA by covering only the “ten most spoken languages after English and Spanish, whose
speakers comprise in the aggregate about 62.1% of the State’s population.” (ECF No. 58-1 at 17.)
CDIA acknowledges that consumer protection may be a substantial governmental interest,
but it contends that the State arbitrarily set the disclosure requirement at ten languages (in addition
to Spanish) without stating any legal or factual basis for that number of languages. (ECF No. 594 at 36; ECF No. 60 at 36-38.) CDIA also highlights findings in the State’s own evidence that
indicate that (1) “offering information in languages other than English does not necessarily mean
that all LEP populations will be able to access, understand or use the information provided”; (2)
“requiring translations will not necessarily ensure that ‘materials are written at a reading level that
is accessible to the average U.S. adult regardless of the language used’”; and (3) “the number of
certified financial interpreters and translators is low and the availability of translation services with
the capacity to handle high volumes of translation work is limited, particularly for languages other
than Spanish.” (ECF No. 60 at 34 (quoting Spotlight on Serving Limited English Proficient
Consumers, CFPB at 9 (2007)).). Finally, CDIA submits that the State’s benchmark of relying on
the top ten languages spoken in New Jersey is misguided because the State’s evidence also shows
that Spanish alone accounts for more than sixty-six percent of New Jerseyans with language access
needs. (Id. at 37.) Therefore, only about “1.75% of New Jersey’s population requires support in
a language other than English or Spanish.” (Id. at 37-38.) Accordingly, CDIA contends that New
Jersey’s law is not reasonably related to its purpose. (ECF No. 82 at 16.)
The parties have not cited, nor has the Court identified, any case directly on point. The
Third Circuit applied the Zauderer standard in Dwyer v. Cappell, which dealt with attorney
advertising disclosures. 762 F.3d at 275. In Dwyer, an attorney challenged a state judiciary
committee guideline that required attorney advertisements to include the full text of a judicial
opinion rather than simply excerpts or quotations from the opinion. Id. at 277-79. The Third
48

Circuit held that the guideline was not reasonably related to preventing consumer deception. Id.
at 283. The Court reasoned that “[p]roviding a full judicial opinion does not reveal to a potential
client that an excerpt of the same opinion is not an endorsement. Indeed, providing the full opinion
may add only greater confusion.” Id. The Court also held that the disclosure was unduly
burdensome. Id. The Court reasoned that the guideline was “onerous” and “so cumbersome that
it effectively nullifie[d]” advertising by the attorney’s desired means. Id. at 283-84.
Beyond attorney advertising, the United States Supreme Court in 2018 considered a
California law requiring unlicensed pregnancy-related clinics to post a government-drafted notice
on site and in advertising materials stating that the clinics were not licensed. Nat’l Inst. of Fam.
& Life Advocs., 585 U.S. at 764. The notice had to be “the same size or larger font than the
surrounding text, or otherwise set off in a way that dr[e]w[] attention to it.” Id. at 764-65. The
notice also had to be “in English and any additional languages specified by state law,” which “[i]n
some counties” meant the notice had to “be spelled out in 13 different languages.” Id. at 763- 65.
Applying Zauderer, the Supreme Court found that California had provided only
hypothetical justifications for the unlicensed-clinic notice. Id. at 776-77. The Court also found
that the law unduly burdened protected speech: it required covered facilities to post California’s
precise notice without consideration of what the facilities said on site or in their advertisements; it
applied to a “narrow subset of speakers”; it forced facilities to “call attention to the notice, instead
of [their] own message, by some method such as larger text or contrasting type or color”; and it
had to “be posted in English and as many other languages as California [chose] to require.” Id. at
777-78. These requirements, wrote the Court, would likely “drown[] out [a] facility’s own
message” and “chill their protected speech.” Id. at 778.
Here, the Court agrees with the State that requiring the translation of credit file disclosures
serves the interest of preventing consumer confusion and deception and curbing barriers to
49

financial literacy. The studies and data cited by the State demonstrate that there are a significant
number of limited English proficient individuals in New Jersey who would benefit from credit file
disclosures in languages other than English. As highlighted by the NCLC, New Jersey has the
fifth highest share of limited English proficient residents in the United States. 36 (ECF No. 55 at
9.) The NCLC contends that without the translation requirement more than 1.6 million New Jersey
residents would be left with limited options to understand their complex credit reports. (Id. at 11.)
And studies have found that where translated documents are not available, LEP consumers often
resort to relying on friends and family members—and sometimes even children—to convey crucial
financial information. (Id. (citing Kleimann Communication Group, Language Access for Limited
English

Proficiency

Borrowers:

Final

Report

(April

2017),

https://www.fhfa.gov/PolicyProgramsResearch/Policy/Documents/Borrower-Language-AccessFinal-Report-June-2017.pdf (last visited March 13, 2024)).). This poses a significant harm to
consumers because credit reports, and the credit scores generated from them, determine whether a
consumer can obtain a loan to purchase a home or an automobile, obtain insurance for both, open
a new business, or finance their college education. (Id. at 8.) Therefore, by making credit file
disclosures available to limited English proficient individuals in their preferred language, the State
can help resolve errors in credit reporting and prevent long-term damage to their financial health.
The record before the Court clearly demonstrates that requiring credit file disclosures in
Spanish is reasonably related to accomplishing the goals of New Jersey’s legislation and is not

36

As of 2013, the highest concentration of LEP individuals were found in the six traditional
immigrant-destination states—California (6.8 million or twenty-seven percent of the total LEP
population), Texas (3.4 million, fourteen percent), New York (2.5 million, ten percent), Florida
(2.1 million, eight percent), Illinois (1.1 million, four percent), and New Jersey (one million, four
percent). (ECF No. 55 at 7 (citing Jie Zong & Jeanne Batalova, The Limited English Proficient
Population in the United States, Migration Pol’y Inst. (July 8, 2015),
https://www.migrationpolicy.org/article/limited-english-proficient-population-united-states (last
visited March 13, 2024)).)
50

unduly burdensome. Translating credit file disclosures to Spanish will benefit a “significant
number” of consumers—anywhere between thirty-six to sixty percent of LEP residents in the
State. And Equifax has already begun to provide credit file disclosures in Spanish. (ECF No. 431 at 38-39 (citing Carmen Reinicke, Equifax will now offer credit reports in Spanish, CNBC (Sept.
13,

2021),

https://www.cnbc.com/2021/09/13/equifax-will-now-offer-credit-reports-in-

spanish.html (last visited on March 13, 2024)).). According to a press release issued by Equifax:
Having a translated Spanish report available, free of charge, to
consumers will go a long way in breaking down communication
barriers for those who speak English as a second language . . . . By
providing credits reports in Spanish, we will help millions better
understand, protect and enhance their financial well-being.
[(ECF No. 55 at 16.)]
The State has not demonstrated, however, that requiring the translation of consumer file
disclosures in at least ten more languages (in addition to Spanish) is reasonably related to
achieving the State’s interest and is not unduly burdensome. While the Zauderer analysis need
not involve evidentiary parsing, the evidence must demonstrate that the disclosure requirement is
“reasonably related” to the State’s interest of preventing consumer confusion. Am. Hosp. Ass’n,
983 F.3d at 540 (“[T]he Secretary, relying on complaints from consumers, studies of state
initiatives, and analysis of industry practices, reasonably concluded that the rule’s disclosure
scheme will help the vast majority of consumers.”). Here, it is unclear on the current record
whether requiring disclosures in at least ten additional languages will help a significant number of
consumers in the State and is reasonably related to the State’s interest.
For example, the evidence cited suggests that the ninth and tenth language requirement
may serve less than two percent of consumers in the State. (ECF No. 43-1 at 36-37.) Indeed, the
State of New Jersey recently enacted legislation that requires governmental entities to provide vital
documents and translation services in at least seven of the most common non-English languages.
51

A. 3837/S. 2459 (2023). Specifically, the statute provides that “translations of vital documents
and information shall be in at least the seven most common non-English languages spoken by
individuals with limited-English proficiency in this State, based on United States Census Bureau
American Community Survey data.”37 Id. The Internal Revenue Service also now provides on its
website tax information in seven languages in addition to English. See WEBSITE OF THE INTERNAL
REVENUE

SERVICE,

“IRS.gov

offers

tax

help

in

a

variety

https://www.irs.gov/newsroom/irsgov-offers-tax-help-in-a-variety-of-languages

of

languages,”
(last

visited

March 13, 2024). All of this serves to raise unanswered questions as to whether New Jersey’s
translation requirement is reasonable. Therefore, the Court finds that the State has not shown that
requiring credit file disclosures in at least ten languages is not unnecessarily burdensome in light
of the need to secure the statutory objectives.
4. Scope of Relief
Because New Jersey’s requirement that credit file disclosures be provided in at least ten
languages (in addition to Spanish) has not been shown to be reasonably related to the State’s
interest and not unduly burdensome, the Court must consider the scope of relief.
The United States Supreme Court has explained that “[g]enerally speaking, when
confronting a constitutional flaw in a statute, [courts] try to limit the solution to the problem.
[They] prefer, for example, to enjoin only the unconstitutional applications of a statute while
leaving other applications in force or to sever its problematic portions while leaving the remainder
intact.” Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320, 328-29 (2006) (citations

37

The legislation was amended to require seven languages, as opposed to the fifteen
languages originally proposed. See WEBSITE OF THE NEW JERSEY LEGISLATURE, Bill S2459
Session 2022-2023, https://www.njleg.state.nj.us/bill-search/2022/S2459 (last visited on March
13, 2024). The legislation also requires the translations to be implemented on a rolling basis with
the five most common non-English languages implemented in the first year and two additional
non-English languages to be implemented within two years of the statute’s effective date. Id.
52

omitted); see also Kyocera Document Sols. Am., Inc. v. Div. of Admin., Civ. No. 23-4044, 2023
WL 8868837, at *21 (D.N.J. Dec. 22, 2023) (“[T]he Supreme Court has counseled that, when
confronting a constitutional flaw in a statute, courts should ‘try to limit the solution to the
problem.’” (citation omitted)). This is in part due to the concern that facial challenges “threaten
to short circuit the democratic process by preventing laws embodying the will of the people from
being implemented in a manner consistent with the Constitution.” Washington State Grange v.
Washington State Republican Party, 552 U.S. 442, 451 (2008).
Three “interrelated principles” are ordinarily considered when deciding what relief to grant
upon a constitutional challenge to a statute. First, courts should “try not to nullify more of a
legislature’s work than is necessary.” Ayotte, 546 U.S. at 329. The “normal rule” is that “partial,
rather than facial, invalidation is the required course.” Id. (quoting Brockett v. Spokane Arcades,
Inc., 472 U.S. 491, 504 (1985)). Second, although courts should strive to “salvage” laws, they
must simultaneously restrain themselves from “rewrit[ing] state law to conform it to constitutional
requirements.” Id. (quoting Virginia v. Am. Booksellers Ass’n, Inc., 484 U.S. 383, 397 (1988)).
Third, “the touchstone for any decision about remedy is legislative intent, for a court cannot ‘use
its remedial powers to circumvent the intent of the legislature.’” Id. at 330 (quoting Califano v.
Westcott, 443 U.S. 76, 94 (1979) (Powell, J., concurring in part)). The critical question is: “Would
the legislature have preferred what is left of its statute to no statute at all?” Id.
When considering whether to sever an unconstitutional provision in a state statute, our
courts have directed that the “issue of severability . . . is a question of state law and requires an
inquiry into legislative intent.” New Jersey Retail Merchants Ass’n v. Sidamon-Eristoff, 669 F.3d
374, 396 (3d Cir. 2012) (citations omitted); see also Leavitt v. Jane L., 518 U.S. 137, 139 (1996)
(“Severability is of course a matter of state law.”). Under New Jersey law, “a court has the
power to declare a portion of a statute unconstitutional, while leaving the remainder of the law
53

intact.” L. Feriozzo Concrete Co. v. Casino Reinvestment Dev. Auth., 776 A.2d 254, 263 (N.J.
Super. Ct. App. Div. 2001) (citing N.J. Stat. Ann. § 1:1-10). Nevertheless, “[t]he doctrine of
severance . . . is to be applied with caution and attention to the legislative intent.” Commc’ns
Workers of Am., AFL-CIO v. Florio, 617 A.2d 223, 236 (N.J. 1992).
To sever an unconstitutional provision, a court “must determine whether ‘the objectionable
feature [can] be excised without substantial impairment of or conflict with the over-all legislative
purpose.’” New Jersey Retail Merchants Ass’n, 669 F.3d at 396 (quoting New Jersey Chapter,
Am. Inst. of Planners v. New Jersey State Bd. of Pro. Planners, 227 A.2d 313, 319 (N.J. 1967)).
“[T]here must be such a manifest independence of the parts as to clearly indicate a legislative
intention that the constitutional insufficiency of the one part would not render the remainder
inoperative.” Id. (quoting Affiliated Distillers Brands Corp. v. Sills, 289 A.2d 257, 259 (N.J.
1972)). “When ‘different parts of the statute are not so intimately connected with and dependent
upon each other so as to make the statute one composite whole[,] unconstitutional parts may be
rejected and the constitutional parts may stand.’” Id. at 397 (quoting Lane Distributors v. Tilton,
81 A.2d 786, 796-97 (N.J. 1951)). “An example of the sort of dependency that makes the statute
one composite whole is where a provision defining terms used in the statute cannot be severed
from the remainder of the statute without rendering the statute meaningless or confusing.” Id.
Ultimately, whether “‘judicial surgery’ should be utilized depends upon whether the
Legislature would have wanted the statute to survive.” Chamber of Com. of U. S. v. State, 445
A.2d 353, 363 (N.J. 1982). “Put another way, ‘[b]efore performing judicial surgery to save a
particular enactment, a court must determine whether, considering the particular defect involved,
the legislative body in question would prefer to have the enactment survive as corrected or die.’”
Selvaggi v. Borough of Point Pleasant Beach, Civ. No. 22-00708, 2022 WL 1664623, at *11

54

(D.N.J. May 25, 2022) (quoting Torres v. Mun. Council of City of Paterson, 2007 WL 1712707,
at *8 (N.J. Super. Ct. App. Div. June 15, 2007)).
Here, the Court has found that the 2019 amendment to the NJFCRA is not preempted by
federal law and that the State has a legitimate interest in preventing consumer confusion and in
curbing barriers to financial literacy. It is also clear that New Jersey has a significant number of
limited English proficient consumers to warrant such legislation. Moreover, the Court has found
that requiring credit file disclosures in Spanish does not implicate any First Amendment
concerns—indeed, Equifax is already voluntarily doing so. The constitutional flaw in the statute
thus relates narrowly to the requirement that NCRAs provide credit file disclosures in at least ten
more languages. Phrased differently, the current record does not support setting a floor this high.
Rather than invalidate the entire statute based on this single defect, the Court will sever the
provision that requires consumer credit file information to be made available by NCRAs “in at
least 10 languages other than English and Spanish that are most frequently spoken as a first
language by consumers in this State.”38 N.J. Stat. Ann. § 56:11-34(e). The Court’s holding does
not affect the remainder of the 2019 amendment to the NJFCRA, nor does it conflict with the overall legislative purpose. With this particular provision severed, the statute still requires the Director
of DCA to promulgate regulations to determine the languages, other than English and Spanish, in
which to require credit file disclosures based on the “numerical percentages of all consumers in
the State for whom English or Spanish is not a first language or in a manner consistent with any
regulations promulgated by the [D]irector for this purpose.” Id.

38

The sentence that shall be excised is: “The director shall require that the information is
made available in at least the 10 languages other than English and Spanish that are most frequently
spoken as a first language by consumers in this State.” N.J. Stat. Ann. § 56:11-34(e).
55