Never, ever order your credit reports online.
Please do not order your credit reports online from anyone, period. Here is where you say: Leo, why not? Well, because if you do, you run the risk of giving up your right to go to court if you have to sue the credit bureau that gave or sold you the report–and possibly the other two credit bureaus too if you ordered a 3 in 1 (tri-merge) report. This is a lesson we can glean from Sgouros v. TransUnion. I encourage you to read the entire case.
In Sgouros a consumer purchased what he thought was his “credit score”. When he realized that he was not getting the real McCoy, that is his “FICO” score, he sued as a class action. By the way, a couple of my clever and funny learned colleagues have coined a term for these credit score products sold by the credit bureaus: “FakeO” scores (get it?).
The problem was that at some point in the FakeO order process, Mr. Sgourus clicked on a button purportedly acquiescing to the credit bureau’s “Service Agreement” (you know, that legalese mumbo-jumbo that nobody ever bothers to read before clicking). Because Mr. Sgourus had clicked on that button, the credit bureau promptly invoked a forced arbitration provision in the agreement and asked the judge to throw the case out of court and into forced arbitration. Surprise! You can learn more about how you will get shafted by forced arbitration here, here and here.
Following are some snippets from Sgouros (Mr. Sgouros is “Plaintiff”; the credit bureau and its related entities are “Defendants”):
On June 10, 2013, Plaintiff purchased a TransUnion Consumer Credit Score, known as a 3-in-1 Credit Report, Credit Score & Debt Analysis, for $39.99 on Defendant TransUnion Interactive’s website. In order to buy a credit score, web users were required to start by clicking a large orange “Click Here” button on the homepage below a banner that states, “Get Your Credit Score & Report.” Once users click the button, a page with a header, “Your FREE credit score & $1 credit report are only moments away,” appears.
Plaintiff learned from a lender that the credit score that he purchased on Defendants’ website was inaccurate as it was more than 100 points lower than the credit score that Defendants provided to the lender (a car dealership). Plaintiff, along with other credit score purchasers, brought suit against Defendants, alleging that Defendants violated § 1681 of the FCRA, § 2 of the ICFA, and § 407.010 of the MMPA when they sold credit scores derived from a credit scoring model different from the model that they used to generate scores they provide to lenders. Plaintiff also alleges that Defendants were negligent for failing to clearly inform the users that their scores were generated based on a different scoring model.
Defendants then brought the present motion to compel arbitration on an individual basis pursuant to the Service Agreement. The Service Agreement entails a broad arbitration clause which encompasses the type of dispute at issue—a cause of action arising out of a product purchase—and a waiver of class action; neither party disputes this fact. Defendants argue that Plaintiff affirmatively assented to the terms of the Agreement by clicking the Button, and therefore, the terms are binding upon Plaintiff. Defendants argue that the Court should order Plaintiff to resolve the dispute by arbitration pursuant to the arbitration clause and to arbitrate Plaintiff’s claims on an individual basis pursuant to the waiver of class action in the Agreement.
We won’t know how the forced arbitration question in Sgouros will be resolved until the appeals courts ultimately decide. But, we can learn a lesson now: Do not order your credit reports (or anything else) online from credit bureaus. If you do, like Mr. Sgouros, you will run the risk of giving up your right to go to court if you get screwed by the credit bureaus.
Follow-up
After the initial publication of this article, a couple of my fellow consumer lawyers suggested that ordering reports from AnnualCreditReport.com was “safe” from forced-arbitration clauses. They noted that a federal law (Regulation V) prohibits the big three credit bureaus (Equifax, Experian and TransUnion) from requiring consumers to agree to “terms and conditions”, which would presumably include arbitration provisions, when ordering reports through AnnualCreditReport.com. [1]
Just to test the theory, I tried to get my own reports through AnnualCreditReport.com. I made it a point to look for “terms and conditions” (Ts and Cs) at every step of the way. I could not spot Ts and Cs for either TransUnion or Experian. But, Equifax was a different beast.
Once I got to the Equifax site, as I had done for the other two bureaus through the AnnualCreditReport.com site, I got to this point: https://fact.econsumer.equifax.com/fact/landing.ehtml. This page had a “Terms of Use” link at the bottom that leads to https://help.equifax.com/app/answers/detail/a_id/28. That page says . . . drum roll . . .
PRODUCT AGREEMENT AND TERMS OF USE Last Revised: October 13, 2014
THIS PRODUCT AGREEMENT AND TERMS OF USE (“AGREEMENT”) CONTAINS THE TERMS AND CONDITIONS UPON WHICH YOU MAY PURCHASE AND USE OUR PRODUCTS THROUGH THE WWW.EQUIFAX.COM, WWW.IDENTITYPROTECTION.COM AND WWW.IDPROTECTION.COM WEBSITES AND ALL OTHER WEBSITES OWNED AND OPERATED BY EQUIFAX AND ITS AFFILIATES (“SITE”). YOU MUST SCROLL DOWN, READ AND ACCEPT THE TERMS OF THIS AGREEMENT, INCLUDING THE ARBITRATION AGREEMENT CONTAINED IN SECTION 35 BELOW, BEFORE YOU WILL BE PERMITTED TO REGISTER FOR AND PURCHASE ANY PRODUCT FROM THIS SITE. BY REGISTERING ON THIS SITE AND SUBMITTING YOUR ORDER, YOU ARE ACKNOWLEDGING ELECTRONIC RECEIPT OF, AND YOUR AGREEMENT TO BE BOUND BY, THIS AGREEMENT.
According to my browser, there are 58 other instances of the word “arbitration” in Equifax’s Ts and Cs.
So, is ordering a credit report from Equifax through AnnualCreditReport.com really forced-arbitration safe? You decide. I will not roll those dice; I did not order my credit report online from Equifax, even though I went through AnnualCreditReport.com.
“OK Leo, I will follow your lead, but how do I get my credit reports without taking the risk of falling into the forced arbitration trap?” Glad you asked. Here is how to do it correctly (my opinion, of course).
Footnotes
[1] For the more technically inclined, see 12 C.F.R. § 1022.136, which says:
(h) Other practices prohibited through the centralized source. The centralized source shall not:
(1) Contain hyperlinks to commercial or proprietary Web sites until after the consumer has obtained his or her annual file disclosure, except for technical transfers to a Web page on which consumers can request their free annual file disclosure; provided, however, that no hyperlinks to commercial Web sites shall appear on the initial page of the centralized source.
(2) Require consumers to set up an account in connection with obtaining an annual file disclosure; or
(3) Ask or require consumers to agree to terms or conditions in connection with obtaining an annual file disclosure.
