15 U.S.C. § 1681t(b)(1)(F) states in part, “[n]o requirement or prohibition may be imposed under the laws of any State (except specified Massachusetts and California statutes) … with respect to any subject matter regulated under… (15 U.S.C. § 1681s-2), relating to the responsibilities of persons who furnish information to consumer reporting agencies.” Thornton pointed to 15 U.S.C. § 1681h(e) as an exception to the broad preemption codified in section 1681t(b)(1)(F). On its face, 15 U.S.C. § 1681h(e) provides limited preemption when the furnisher does not act with malice or willful intent, but when there is no such intent, there is no preemption.

FCRA contains at least two express preemption provisions. First, 15 U.S.C. § 1681h(e) preempts common law claims against consumer reporting agencies for their credit reporting activities unless the claims are based in malice or willful intent to injure. Second, 15 U.S.C. § 1681t(b) provides a list of claims, covering a variety of claims which would relate to the same subject matter as FCRA claims, which are expressly preempted.

Applying the statutory approach, the court found that since Bourdelais did not assert a state statutory claim, § 1681t(b)(1)(F) did not apply. Section 1681h(e) applies to common law claims arising from disclosures pursuant to section 1681g, 1681h, 1681m or disclosures “by a user of a consumer report to or for a consumer against whom the user has taken adverse action, based…on the report…” 15 U.S.C. § 1681h(e). Bourdelais made a common law claim, but the court held that the disclosed information did not fall into any of the categories triggering preemption.