The Zabriskie Case and the Value of Community

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Written by Ira Rheingold, Executive Director

In January 2019, the 9th Circuit, in Zabriskie v. Fannie Mae, wrongly decided, in a poorly reasoned 2–1 opinion (with an important dissent), that Fannie Mae was not a consumer reporting agency. The court’s decision finding that Fannie Mae was a mere software provider willfully ignored the voluminous record that NACA members Paul Mengedoth and Sylvia Goldsmith painstakingly established showing the housing finance giant’s active engagement in assembling and evaluating consumer information. This very unfortunate decision, if left standing, will likely have an enormous impact on a whole range of industry actors who will now claim that they too are not consumer reporting agencies.

Paul and Sylvia, rightfully outraged by this decision, did not give up, but instead turned to our community for whatever assistance we could offer. And the help that they received was truly amazing. First, after talking with several great attorneys willing to help, Sylvia and Paul brought on Jennifer Bennett of Public Justice to co-counsel their case. After getting an extension of time, Jenn authored a tremendous petition for rehearing or hearing en banc. While the petition was being drafted, our community gathered to organize amicus briefs, and the response was tremendous. Christian Schreiber, who wrote our amicus when the case was first heard by the 9th Circuit, drafted a great brief for NACA, USPIRG, et. al.  Ted Mermin, of the Center for Law and Economic Justice, authored an important brief and helped get the 9th Circuit Attorneys General from California, Washington, Oregon, Hawaii, and Alaska to submit an amicus. John Albanese and Michelle Drake wrote an amicus on behalf of NCLC and other nonprofits and legal aid organizations; Professor Jeff Sovern submitted an amicus on behalf of consumer law scholars; the National Employment Law Project authored a brief; and the Public Rights Project, including the cities of Baltimore, Seattle, Oakland, Santa Cruz, Columbus, Ohio, and Flint, Michigan submitted an amicus. Just, wow!

Now Sylvia, Paul, and Jennifer may not get a rehearing and even if we do, we may not get a better decision. And that would be terrible news. But the good news, regardless of any new decision the 9th Circuit offers, is that we have a community that is in this fight together, and when any of us are knocked down by a bad opinion or a bad judgment, we are here to pick you up, dust you off, and support you in your efforts to serve your clients and our community. So if you need our help with a case, a trial, or an appeal, please don’t hesitate to reach out. We are all here for you.