Sandra Cortez v. Trans Union , 617 F.3d 688 ( 2010 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 08-2465 & 08-2466
_____________
SANDRA CORTEZ,
Appellant in 08-2465
v.
TRANS UNION, LLC
SANDRA CORTEZ
v.
TRANS UNION, LLC,
Appellant in 08-2466
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(Civ. No. 05-cv-5684)
District Judge: Hon. John P. Fullam
Argued: June 11, 2009
Before: McKEE, Chief Judge, HARDIMAN and VAN
ANTWERPEN,
Circuit Judges
(Opinion filed: August 13, 2010)
____________
James A. Francis (ARGUED)
John Soumilas
Francis & Mailman, P.C.
Land Title Building, 19th Floor
100 South Broad Street
Philadelphia, Pennsylvania 19110
Counsel for Appellant/Cross-Appellee
Mark E. Kogan
Bruce S. Luckman (ARGUED)
Timothy P. Creech
Kogan, Trichion & Wertheimer, P.C.
1818 Market Street, 30th Floor
Philadelphia, Pennsylvania 19103
Counsel for Appellee/Cross-Appellant
_____________
OPINION
2
_____________
McKEE, Chief Judge.
Sandra Cortez appeals the district court’s order remitting
a jury’s punitive damages award of $750,000 to $100,000 on
claims she brought under the Fair Credit Reporting Act
(“FCRA”), codified at 15 U.S.C. §§ 1681-1681x.1 In its cross-
appeal, Trans Union, LLC appeals the district court’s order
denying its motion for judgment as a matter of law and rejecting
Trans Union’s challenge to the jury’s compensatory damages
award of $50,000. For the reasons that follow, we will affirm
the district court’s orders.2
1
Additionally, Cortez appeals the district court’s order
reducing attorney’s fees and costs. “We review the
reasonableness of an award of attorney’s fees for an abuse of
discretion.” Rode v. Dellarciprete, 892 F.2d 1177, 1182 (3d
Cir. 1990). Our review of the record does not support the
conclusion that the district court abused its discretion in
reducing Cortez’s attorney’s fees and costs. Furthermore,
there is nothing in Cortez’s limited discussion of attorney’s
fees and costs to support an abuse of discretion.
2
Both Trans Union’s and Cortez’s notice of appeal
only directly reference the District Court’s Memorandum and
3
Judgment Order (collectively referred to as “May order”)
entered May 1, 2008. However, in their briefs it is clear that
both parties are also appealing the district court’s
Memorandum and Order and Order (collectively referred to as
“September order”) entered September 13, 2007.
It is a requirement of Federal Rule of Appellate
Procedure 3(c)(1)(b) that a notice of appeal “designate the
judgment, order, or part thereof being appealed.” “If an
appeal is taken only from a specified judgment, the court does
not acquire jurisdiction to review other judgments not
specified or fairly inferred by the Notice.” Sulima v.
Tobyhanna Army Depot, 602 F.3d 177, 184 (3d Cir. 2010)
(quotations omitted) (citing Elfman Motors, Inc. v. Chrysler
Corp., 567 F.2d 1252, 1254 (3d Cir. 1977)). We have
previously held that because “only a final judgment or order is
appealable, the appeal from a final judgment draws in
question all prior non-final orders and rulings which produced
the judgment.” Elfman, 567 F.2d at 1253. Additionally, we
have held that we exercise appellate jurisdiction over “orders
that are not specified in the notice of appeal where: (1) there
is a connection between the specified and unspecified orders;
(2) the intention to appeal the unspecified order is apparent;
and (3) the opposing party is not prejudiced and has a full
opportunity to brief the issues.” Polonski v. Trump Taj Mahal
Assocs., 137 F.3d 139, 144 (3d Cir. 1998).
The district court’s September order: (1) denied Trans
Union’s motion for judgment as a matter of law; (2) denied
Trans Union’s motion for a new trial as to liability; (3)
partially granted Cortez’s motion for counsel fees and
expenses; and (4) granted Trans Union’s motion for a new
trial as to damages, unless the Plaintiff accepted a remittitur.
On October 12, 2007, Cortez filed a notice of appeal in which
she appealed the September order. On February 14, 2008, we
dismissed Cortez’s appeal for lack of appellate jurisdiction
4
I. BACKGROUND
A. Factual History
This dispute began when Cortez encountered problems
with a credit report that Trans Union sent to a car dealership
where she was trying to purchase a car. It stemmed from a
Trans Union product called “OFAC Advisor” that confused
Cortez’s identity with the identity of someone with a similar
name who was on a list compiled by the Treasury Department’s
because the September order was not a final judgment. On
May 1, 2008, the district court issued a final judgment. The
May order specifically referenced the September order and
the district court judge stated that the final judgment was
entered as a result of Plaintiff’s acceptance of the remittitur.
The May order entered judgment in favor of Plaintiff and
awarded her remitted damages, counsel fees, and costs.
It is clear from this procedural history that the
September order is “fairly inferred” by both parties’ notice of
appeal. Cortez attempted to appeal the September order, but
because it was not a final order, she was unable to do so. The
final judgment of May 1, 2008 cannot be understood without
the September order and is clearly a product of that order.
Additionally, there is a clear connection between the two
orders; the intention to appeal the September order is apparent
in both parties’ briefs; and neither party has been prejudiced
as evidenced by their in-depth briefing of the issues raised in
the September order. Hence, we have appellate jurisdiction
over both orders.
5
Office of Foreign Assets Control (“OFAC”).
We will discuss the OFAC List and Trans Union’s related
product in greater detail below. We note now that OFAC
administers and enforces economic and trade sanctions based on
U.S. foreign policy and national security goals against threats to
the national security, foreign policy, or economy of the United
States. Those sanctions are aimed at specific regimes,
individuals thought to be terrorists, international narcotics
traffickers, as well as persons involved in activities related to the
proliferation of “w eapons of m ass destruction.”
http://www.treas.gov/offices/enforcement/ofac/ (visited on June
17, 2010).
OFAC maintains and publishes a list:
[a]s part of its enforcement efforts, OFAC
publishes a list of individuals and companies
owned or controlled by, or acting for or on behalf
of, targeted countries. It also lists individuals,
groups, and entities, such as terrorists and
narcotics traffickers designated under programs
that are not country-specific. Collectively, such
individuals and companies are called “Specially
Designated Nationals” or “SDNs.” Their assets
6
are blocked and U.S. persons are generally
prohibited from dealing with them.
http://www.treas.gov/offices/enforcement/ofac/faq/answer.sht
ml#17 (visited on June 17, 2010). The persons and
organizations in OFAC’s Specially Designated Nationals &
Blocked Persons List (“SDN List”) are so designated pursuant
to a patchwork of federal laws, regulations, and executive
orders. See, e.g., 31 C.F.R. §§ 536.101-36.901 (Narcotics
Trafficking Sanctions Regulations) & 594.101-94.901 (Global
Terrorism Sanctions); Exec. Order No. 13,399, 71 Fed. Reg.
25,059 (April 25, 2006) (Blocking Property of Additional
Persons in Connection With the National Emergency With
Respect to Syria). 3 Individuals and businesses in the United
States are generally prohibited from conducting any business
with anyone named on OFAC’s SDN List. See, e.g., 31 C.F.R.
§ 536.201 (“[N]o property or interests in property of a specially
3
See also OFAC Specially Designated Nationals List at 461,
http://www.ustreas.gov/offices/enforcement/ofac/sdn/t11sdn.p
df (visited on June 17, 2010).
7
designated narcotics trafficker that are in the United States . . .
may be transferred, paid, exported, withdrawn or otherwise dealt
in.”).4 Trans Union describes its product, the OFAC Advisor,
which is also discussed in greater detail below, as a “screening
solution that provides credit grantors with a simple, automatic
method for use in complying with new federal regulations as set
forth in the USA PATRIOT Act.” J.A. 808.
Sandra Cortez was born in 1944 in Chicago. She was
living in Colorado when, in March of 2005, she decided to buy
a new car. Before visiting a car dealer, she decided to check
her credit report to learn her credit score. Her score was
approximately 760, which is a very good credit rating. J.A. 80;
see also J.A. 526-27 (listing Cortez’s score as 761 in the credit
report obtained by the dealership);5
4
See also OFAC Frequently Asked Questions and Answers,
http://www.ustreas.gov/offices/enforcement/ofac/faq/index.sh
tml#sdn (then follow “What is an SDN?” hyperlink) (visited
on June 17, 2010).
5
We assume that this is a “FICO” score. Individuals
with FICO scores between 760 and 850 are generally eligible
8
http://www.myfico.com/myfico/CreditCentral/LoanRates.aspx
(visited on June 17, 2010). The credit report that Cortez
downloaded before going to the car dealership was compiled
and furnished by Trans Union, one of the three major companies
providing credit reports in the United States. That report
contained no information about OFAC’s SDN List and did not
suggest that Cortez was a “Specially Designated National” or
SDN, nor did it contain any information that would suggest that
she was suspected of being associated with anyone who was an
SDN.6
for the most favorable interest rates for loans. The Fair Isaacs
Company (“FICO”) is in the business of analyzing credit
factors electronically for the credit industry in general,
including banks and credit card companies. The score that it
calculates is intended to be a numerical indicator that
correlates with the strength of one’s credit history. That score
has come to be known as the “FICO” score after the Fair
Isaacs Company. See In re Nguyen, 235 B.R. 76, 80 (Bankr.
N.D. Cal. 1999). Only about 27 percent of the population
have scores between 750 and 799. See
http://www.myfico.com/CreditEducation/CreditScores.aspx
(visited on June 17, 2010).
6
Trans Union later acknowledged that personal credit
reports, which it provides to consumers, never show any
9
Cortez planned to finance her car purchase through the
dealership. Armed with knowledge of her strong credit score
and a copy of her credit report, Cortez went to John Elway
Subaru a car dealership in Colorado, to purchase a car. She
arrived at the dealership at approximately 1:00 pm and was
ready to proceed with a purchase about thirty minutes later. She
began completing the required paper work and furnishing the
information required to obtain a car loan through the dealership.
The dealership’s finance manager, Tyler Sullivan, used the
information Cortez provided to obtain Cortez’s credit report.
J.A. 468. It was a Trans Union credit report because the
dealership subscribed to Trans Union’s credit reporting services,
including the OFAC Advisor. Unlike the credit report Cortez
had downloaded before going to the dealership, the Trans Union
credit report that the dealership obtained contained what
Sullivan later referred to as an “advisor alert,” which was an
information or alerts from its OFAC Advisor that it provides
to creditors. J.A. 205.
10
alert from the OFAC Advisor. J.A. 471.
This was the first time that Sullivan had ever seen such
an alert. Id. He called the regional finance director to determine
how he should respond. J.A. 472-73. He then went to OFAC’s
SDN List on the Treasury Department’s website “to check
[Cortez’s] name against the actual list.” J.A. 473. In searching
the list, he first “look[ed] for a matching name” and if there was
a match, he planned to check birth dates. J.A. 474.7
Sullivan then returned to Cortez and started asking her
questions including whether she had “always lived in the United
States, if [she] had ever lived outside of the country” and other
“really strange questions.” J.A. 83. He then showed Cortez the
credit report Trans Union had provided to the dealership. When
she looked at it, she saw that “it had all of these OFAC Alerts,
7
The credit report Trans Union sends to creditors who
subscribe to the OFAC Advisor does not contain any further
information about the significance of an OFAC alert, nor does
it provide any information about contacting anyone at the
Treasury Department who handles OFAC alerts. J.A. 187-89.
11
talk alerts.” Id. Cortez was very confused, she explained to
Sullivan that she had “never been out of the country and that
[she] was born in Chicago.” Id. Sullivan responded by telling
Cortez that “he was going to have to check with the FBI . . . [t]o
see if [she] was this person” in the OFAC alert on her credit
report. J.A. 84. As this was occurring, Cortez was waiting in
the salesperson’s office, and the dealership had her car keys. Id.Finally, at about 5:00 pm, Cortez said she had to leave, but
someone asked her to wait.8 J.A. 84-85. When she asked what
the person was going to do, again she was told that the FBI
would be called. At this point, hours had passed and the
dealership was holding Cortez’s down payment on the car. Id.A short time later, Cortez finally left the dealership. She
called the dealership that same evening and was told that they
had determined that she “probably” was not the person in the
OFAC alert, and that she could pick up the car. J.A. 85. That
8
It is not clear from her testimony who exactly asked
Cortez to wait.
12
evening, she did go back to the dealership and she eventually got
the car.9 Before leaving the dealership with her new car, she
asked for a copy of the credit report that the dealership had
received from Trans Union. The dealership provided a copy,
and pointed out the OFAC and HAWK alerts on the report.10
9
She later testified that while she was sitting at the
dealership, she was “watching people stare at [her] walking
back and forth, and it was pretty humiliating. They all knew
what was going on, and [she] was afraid that they thought
[she] was this person.” J.A. 86.
10
Trans Union’s website describes “HAWK alerts” as
follows:
TransUnion provides creditors with HAWK alert
message [sic] to notify them of potentially
fraudulent information and advises them to check
that information more carefully.
Special messages such as HAWK alert messages
inform creditors that they need to verify specific
information. The message is based on the
personal information used to access your credit
report. It may also be based on the personal
information recorded in your credit report. In
response to special messages, creditors may
request that you verify your personal information
you submitted at the time of application.
http://www.transunion.com/corporate/personal/persona
13
That credit report was a two-page document entitled:
“TRANSUNION CREDIT REPORT.” J.A. 526-27. It
contained identifying information about Cortez including her
name, Social Security number, birth date, current and former
addresses, telephone number, and employer. A number of
sections appeared directly below that information in the same
font and style. The first such section was labeled: “SPECIAL
MESSAGES.” That “SPECIAL MESSAGES” section contained
the OFAC and HAWK alerts. It was followed by: “MODEL
PROFILE,” which contained several numbers including
Cortez’s FICO credit score. The report then contained the
following four sections: “CREDIT SUMMARY”, “TRADES”,
“INQUIRIES”, and “END OF CREDIT REPORT —
l.page (follow “Consumer Support” hyperlink; then
follow “Get answers to your questions” hyperlink
under “Related Topics”; then search “Answers” for
key words “Hawk alert”; then follow “What is a
HAWK alert?” hyperlink) (last visited June 1, 2010).
As the above citation shows, getting information other
than sales information is cumbersome at best on Trans
Union’s website.
14
SERVICED BY.” Id.The “SPECIAL MESSAGES” section on the first page
stated: “HAWK ALERT: INPUT ISSUED: 1959-60; STATE:
CA; (EST. AGE OBTAINED 00+ TO ) . . . HAWK ALERT:
FILE ISSUED: 1959-60; STATE CA; (EST. AGE OBTAINED
+14 TO +16).” This was followed by eight entries titled:
“OFAC ADVISOR ALERT – INPUT NAME MATCHES
NAME ON THE OFAC DATABASE.” The information in
those eight entries was similar to the information in OFAC’s
SDN List, including the name: “Cortes Quintero, Sandra.” J.A.
526-27.
That report is not visually the same as the report Trans
Union provides to consumers. It also does not have the same
exact content. The report that was sent to the dealership
contained no additional information about the significance of the
OFAC alerts and no information about how to follow up or
contact anyone regarding any OFAC alerts that may appear.
J.A. 187-89.
15
In the aftermath of her visit to the car dealership, Cortez
contacted Trans Union a total of four times in an effort to
correct her credit report. J.A. 199. She first telephoned Trans
Union on March 31, 2005, soon after she purchased the car.
J.A. 93. On that day, she spoke with Trans Union’s customer
service representatives who told Cortez that there were no
OFAC alerts on her credit report. J.A. 207. Cortez responded
by faxing a copy of the report she had obtained from the
dealership along with a letter that summarized her experience
there. J.A. 93. In that letter, she told the customer service
representative that she had spent a total of six and a half hours
in the dealership, that she was told the FBI would have to be
contacted, and that she was asked not to leave while the
dealership looked into the issue. J.A. 94-95; J.A. 533.
On April 6, 2005, not having received any response to her
letter, Cortez sent another letter to Trans Union. J.A. 96; J.A.
219; J.A. 534. In that letter, she again explained that there were
16
“several terrorist alerts” on her credit report and she asked for “a
response from [the] company regarding these alerts.” J.A. 96-
97. Cortez received a generic written response to that letter.
The letter she received was dated April 18, 2005, and was
unsigned. It stated:
After reviewing your correspondence, we were
unable to determine the nature of your request.
To investigate information contained in your
credit report, please list the account name and
number, and specify why you are disputing it (for
example, “this is not my account”, “I have never
paid late”, “I have paid this account in full”, etc.).
Unless you provide us this information, your
request will be considered frivolous under the
federal Fair Credit Reporting Act, and we will be
unable to initiate an investigation.
J.A. 537. By letter dated April 24, 2005, Cortez responded to
Trans Union’s April 18, 2005 letter. J.A. 99. She included
copies of her prior correspondence and explained, “[w]ith this
letter, this makes my fourth request to have this incorrect
information removed from my credit report. If you look at the
credit report enclosed you will notice 10 Hawk and OFAC
Advisor alerts. . . . I am disputing these alerts because they do
17
not belong to me. The name is different, the birthdate is
different and I do not have a passport. I want these alerts
removed from my account.” J.A. 539. Cortez also notified
Trans Union a second time that it had the wrong employer listed
for her. Id. Cortez received a response from Trans Union dated
May 10, 2005. Under the heading “Re: Dispute Status - No
Hawk Alerts or OFAC Advisor Alerts,” the letter stated,
“[b]ased on the information provided to TransUnion, our
records show that the information you disputed does not
currently appear on your TransUnion credit report.” J.A. 545.11
Based on this letter, Cortez believed that Trans Union had
removed the HAWK and OFAC alerts from her credit report.
J.A. 102.
On June 3, 2005, Cortez returned to the dealership and
asked for another credit report in order to confirm that the alerts
had in fact been removed. Despite Trans Union’s representation
11
Trans Union acknowledged that this was a form
letter. J.A. 212.
18
to the contrary, the credit report the dealership furnished to
Cortez still had OFAC alerts. J.A. 103. There were, however,
some changes from the report that had initially been sent to the
dealership the day Cortez went to buy a car. The June 3, 2005
report no longer had the phrase: “HAWK ALERT.” Instead, the
report now stated: “HIGH RISK FRAUD ALERT: CLEAR
FOR ALL SEARCHES PERFORMED.” J.A. 546. It still
stated: “OFAC NAME SCREEN ALERT - INPUT NAME
MATCHES NAME ON THE OFAC DATABASE.” Id. It then
had four entries with information from OFAC’s SDN List (as
opposed to eight in the original credit report furnished by the
dealership).
Cortez next went online to the Treasury Department
website to determine whether her name actually appeared on
OFAC’s SDN List. She discovered a similar name and emailed
the Treasury Department to ask how she might correct the error
and remedy her situation. J.A. 104-05. The Treasury
Department referred her to information on its website, which she
19
later testified stated the following:
If credit bureaus choose to place OFAC
information on their credit reports [sic] they
should consider the following guidelines. The
text on the report should explain that the
individual’s information is similar to the
information of an individual on OFAC’s SDN list.
It should not state . . . that the information
matches, or that the credit applicant is, in fact, the
individual on the SDN list unless the credit
bureau has already verified that the person is
indeed on the SDN [list].
J.A. 106-07.
In June of 2006, a landlord pulled Cortez’s Trans Union
credit report when she tried to rent an apartment. Cortez told
him about the OFAC alerts before he reviewed the credit report,
in an effort to explain and minimize their effect. That credit
report, dated June 12, 2006, was substantially similar to the
second report Cortez had received from the dealership more than
a year earlier. J.A. 549-51. Although it did not contain any
“HAWK ALERT” messages, it still stated, “OFAC NAME
SCREEN ALERT – INPUT NAME MATCHES NAME ON
THE OFAC DATABASE”. Id. It also still had four entries
20
with information from OFAC’s SDN List. Nevertheless, Cortez
was able to rent the apartment. J.A. 112.
From the first day in Elway Subaru, when Cortez learned
about the OFAC alerts on her credit report, Cortez spoke with
her daughter, Anna Marie Schen, about her ordeal. J.A. 141.
The OFAC alerts came up at least once during every
communication between Cortez and Schen after the incident at
Elway Subaru, and subsequent trial testimony established that
the alerts often reduced Cortez to tears. The alerts also caused
Cortez to lose weight and they interfered with her ability to
sleep to such an extent that she resorted to medication. J.A. 142.
According to Schen, the credit report issue “is the number one
stressor in [Cortez’s] life. . . . [T]his is a big stressor over the
past two years.” J.A. 143-44. It has been “very . . .
devastating.” J.A. 146.
B. The Significance of OFAC Alerts and the SDN List
The Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism
21
Act of 2001, better known as the USA PATRIOT Act, further
codified the obligations of financial institutions in their dealings
with individuals on OFAC’s SDN List. 115 Stat. 272 (Oct. 26,
2001). Under the USA PATRIOT Act, the Treasury Department
must “require financial institutions to implement . . . reasonable
procedures for . . . consulting lists of known or suspected
terrorists or terrorist organizations provided to the financial
institution by any government agency to determine whether a
person seeking to open an account appears on any such list.” 31
U.S.C. § 5318(l)(2); see 31 C.F.R. § 103.121(b)(4) (The
Customer Identification Program “must include procedures for
determining whether the customer appears on any list of known
or suspected terrorists or terrorist organizations issued by any
Federal government agency.”). “[T]ransactions are prohibited
. . . if either such transactions are by, or on behalf of, or pursuant
to the direction of any designated foreign country, or any
national thereof.” 31 C.F.R. § 500.201. In most cases, it is
unlawful to extend credit to a person whose name is on OFAC’s
22
2
SDN List. 1
Depending on the applicable law, regulation, or executive
order involved, failure to comply with these restrictions may
result in civil as well as criminal penalties. Willful violations
carry criminal penalties with fines ranging from $50,000 13 to
12
OFAC has procedures to unblock funds in the case of
mistaken identity, 31 C.F.R. § 501.806, and to have a name
removed from designated lists, 31 C.F.R. § 501.807.
13
19 U.S.C. § 3907 (maximum fine for willful violation of
laws governing clean diamond trade).
23
$10,000,000 14 as well as imprisonment ranging from 5 15 , 10 16 to
14
21 U.S.C. § 1906 (maximum fine of $10,000,000 for willful
violation of laws governing international narcotics
trafficking); see also 31 U.S.C. § 5322 (maximum fine of
$250,000 for willful violation of the USA PATRIOT Act,
including 31 U.S.C. § 5318(l)(2), which requires financial
institutions to consult suspected terrorist lists such as OFAC’s
SDN List before transacting with individuals, with the amount
increasing to $500,000 for aggravating circumstances); 50
U.S.C. § 1705(c) (maximum fine of $1,000,000 for willful
violation of the International Emergency Economic Powers
Act and its implementing regulations, which include
regulations governing many OFAC programs, see, e.g., 31
C.F.R. § 536.701 (penalties under Narcotics Trafficking
Sanctions)); 50 App. U.S.C. § 16(a) (maximum fine of
$1,000,000 for willful violations of the Trading with the
Enemy Act of 1917).
15
31 U.S.C. § 5322 (maximum imprisonment term of 5 years
for willful violation of the USA PATRIOT Act, including 31
U.S.C. § 5318(l)(2), which requires financial institutions to
consult suspected terrorist lists such as OFAC’s SDN List
before transacting with individuals with term increasing to 10
years for aggravating circumstances).
16
18 U.S.C. § 2332d (maximum imprisonment term of 10
years for engaging in financial transactions with a country
supporting international terrorism); 21 U.S.C. § 1906(maximum imprisonment of 10 years for willful violation of
laws governing international narcotics trafficking); 50 App.
U.S.C. § 16(a) (maximum imprisonment of 10 years for
willful violations of the Trading with the Enemy Act of
1917); 50 U.S.C. § 1705(c) (maximum imprisonment term of
20 years for willful violation of the International Emergency
24
30 17 years, or even life.18 Civil penalties range from $10,000 to
$1,000,000, or twice the amount of each underlying transaction
per violation.19
Economic Powers Act and its implementing regulations,
which include regulations governing many OFAC programs,
see, e.g., 31 C.F.R. § 536.701 (penalties under narcotics
trafficking sanctions)).
17
21 U.S.C. § 1906 (maximum imprisonment term of 30 years
for any officer, director, or agent of an entity who knowingly
participates in violation of laws governing international
narcotics trafficking).
18
18 U.S.C. § 2339B (maximum imprisonment term of 15
years for providing material support to a foreign terrorist
organization, which term increases to life if the death of any
person results).
19
19 U.S.C. § 3907 (maximum civil penalty of $10,000 for
violation of laws governing clean diamond trade); 31 U.S.C. §
5321 (maximum civil penalty of $100,000 for violation of the
USA PATRIOT Act, including 31 U.S.C. § 5318(l)(2), which
requires financial institutions to consult suspected terrorist
lists such as OFAC’s SDN List before transacting with
individuals); 50 App. U.S.C. § 16(b) (maximum civil penalty
of $50,000 for violations of the Trading with the Enemy Act
of 1917); 18 U.S.C. § 2339B (maximum civil penalty of
$50,000 or twice the amount of the transaction that is the
basis for the violation for providing material support to a
foreign terrorist organization); 50 U.S.C. § 1705(b)
(maximum civil penalty of $250,000 for violation of the
International Emergency Economic Powers Act and its
25
In a “Q&A” section included on its website, OFAC posts
the following question: “What Is This OFAC Information On
My Credit Report?” It then offers the following reply:
Credit bureaus and agencies in particular have
adopted new measures to ensure compliance with
OFAC regulations. Before issuing a credit report,
they use special “interdiction” software developed
by the private sector to determine if a credit
applicant is on the SDN list. This software
matches the credit applicant’s name and other
information to the individuals on the SDN list. If
there is a potential match, the credit bureaus are
placing a “red flag” or alert on the report. This
does not necessarily mean that someone is
illegally using your social security number or that
you have bad credit. It is merely a reminder to the
person checking your credit that he or she should
verify whether you are the individual on the SDN
list by comparing your information to the OFAC
information. If you are not the individual on the
SDN list, the person checking your credit should
disregard the OFAC alert, and there is no need to
contact OFAC. However, if the person checking
your credit believes you are the person on the
SDN list, then he or she should call the OFAC
implementing regulations, which include regulations
governing many OFAC programs, see, e.g., 31 C.F.R. §
536.701 (penalties under Narcotics Trafficking Sanctions));
21 U.S.C. § 1906 (maximum civil penalty of $1,000,000 for
violation of laws governing international narcotics
trafficking).
26
Hotline to verify and report it.
http://www.treas.gov/offices/enforcement/ofac/faq/answer.sht
ml#consumer1 (visited on June 17, 2010). On that same
website, OFAC also answers the question: “How Can I Get The
OFAC Alert Off My Credit Report?” as follows:
A consumer has the right under the Fair Credit
Reporting Act (FCRA), 15 U.S.C. 1681 et seq., to
request the removal of incorrect information on
his/her credit report. To accomplish this,
consumers should contact the credit reporting
agency or bureau that issued the credit report. For
more information on consumers’ rights under the
FCRA, visit the Federal Trade Commission’s
w e b s i t e a t
http://www.ftc.gov/os/statutes/fcrajump.shtm
http://www.treas.gov/offices/enforcement/ofac/faq/answer.sht
ml#consumer2 (visited on June 17, 2010).
C. Trans Union’s OFAC Advisor
OFAC recognizes the need to ensure that its reports do
not mistakenly associate innocent and unsuspecting persons with
persons who are properly labeled “SDN.” Thus, OFAC
cautions: “organizations involved in the credit reporting process
27
. . . . can make an important contribution by identifying
sanctioned individuals in order to block their ability to use the
U.S. financial system and to do business in the United States,
but at the same time they should strive to protect consumers
from erroneous or misleading information appearing on credit
reports.” Department of Treasury, OFAC REGULATIONS FOR
THE CREDIT REPORTING INDUSTRY, Apr. 13, 2004,
http://www.treas.gov/offices/enforcement/ofac/regulations/fac
cr.pdf (visited June 17, 2010).
In September of 2002, Trans Union announced a “new
product for USA Patriot Act Compliance” which it called:
“OFAC Advisor.” Trans Union lauded the product as a
“screening solution that provides credit grantors with a simple,
automatic method for use in complying with new federal
regulations as set forth in the USA PATRIOT Act.” J.A. 808.
Trans Union refers to the SDN information that it reports from
OFAC as an “OFAC Name Screen Alert.” See, e.g., J.A. 549,
28
570.
The OFAC alert on Trans Union credit reports was
developed by a team that included individuals from Trans
Union’s business and systems units, as well as people from the
legal and compliance sections. J.A. 311. In the normal course
of developing any such product, a legal and compliance team do
preliminary reviews to determine whether the product is “going
to require permissible purpose, disclosure, [and/or have]
contractual issues.” J.A. 312. After the product is developed,
another final review is done by a legal team. Id.The information in Trans Union’s OFAC alert is
provided to purchasers through a third party vendor called
“Accuity.” J.A. 574, 809. Trans Union decided not to include
the underlying information for its OFAC product in Trans
Union’s own database. That database is called “CRONUS.”
Trans Union decided to do that because “the only common
denominator in all the entries [referring to OFAC’s SDN List]
was a name.” J.A. 313. Unlike CRONUS, the entries in the
29
SDN List do not always include birth dates, addresses, or Social
Security numbers that Trans Union routinely stores and relies on
when associating a given consumer with information. Id.Having decided to use Accuity rather than maintain the
information itself, Trans Union then marketed the OFAC
information as part of a separate product called “OFAC
Advisor.” J.A. 313-14, 808-09.
Trans Union does not sell the OFAC alert information as
a stand alone product; creditors must first purchase a Trans
Union product such as credit report services and the OFAC alert
is added to that product. Purchasers of Trans Union’s credit
reports who wanted to subscribe to the OFAC Advisor were
required to sign an addendum to their agreement with Trans
Union in order to subscribe to the OFAC Advisor.20 Those who
20
That agreement states in relevant part:
TransUnion agrees to make available as an add-on
to consumer reports (including as an exclusion
criteria on an input prescreen list, or an append to
a prescreened list), and as an add-on to certain
ancillary products offered by TransUnion from
30
purchased OFAC Advisor received one credit report from Trans
Union with the OFAC information contained in it. However,
Trans Union created the report from at least two separate
sources: its own CRONUS database and information stored with
Accuity. Trans Union requires creditors to provide at least a
name and address of a consumer to retrieve information from
CRONUS. J.A. 319. However, when retrieving OFAC
information, Trans Union sends only a name to Accuity, even
time to time an indicator whether the consumer’s
name appears on the United States Department of
Treasury Office of Foreign Asset Control File
(“OFAC File”). The service is referred to as
OFAC Advisor. Subscriber may receive the
OFAC Advisor service under the following terms:
. . . . In the event Subscriber obtains OFAC
Advisor services from TransUnion in conjunction
with Consumer Report or as an append to an
ancillary service, Subscriber shall be solely
responsible for taking any action that may be
required by federal law as a result of a match to
the OFAC File, and shall not deny or otherwise
take any adverse action against any consumer
based solely on TransUnion’s OFAC Advisor
Services.
J.A. 568.
31
though Trans Union may have more information about the
person who is the subject of the inquiry. J.A. 318. Trans Union
reports a “match” whenever names are “similar.” J.A. 180.
Trans Union enters the information it receives from
Accuity under the “SPECIAL MESSAGES” section appearing
on its credit reports. Trans Union does no other comparison or
due diligence with the data it receives from Accuity to attempt
to match it to the consumer whose credit report is being
furnished. Thus, Trans Union neither compares the OFAC
information to other information about a given consumer already
in its files, nor does it compare it to any information provided by
the creditor/subscriber. J.A. 179. Moreover, once Trans Union
receives the OFAC information it does not check or confirm its
accuracy; in fact, Trans Union has a policy of never
reinvestigating disputes involving OFAC alerts. J.A. 203-04.
Trans Union merely “report[s] back that the input information
is a match to the OFAC report.” J.A. 204.
In a presentation that Trans Union gives to potential
32
subscribers to the OFAC Advisor, Trans Union states, “The U.S.
Treasury Department requires that all institutions comply to
insure that they are not extending credit or financial services to
customers on the Office of Foreign Assets Control, OFAC list,
of known terrorists, drug traffickers, and money launderers.”
J.A. 155, 570. The presentation represents that Trans Union acts
in “partnership” with Accuity and lauds the advantages of this
product. J.A. 574. Trans Union describes Accuity as
an“[i]ndustry leader in OFAC screening services.” Id. The
slide boasts that the product is “[e]ndorsed” by the American
Bankers Association and that it has “[b]roader and more
comprehensive file coverage.” Id. Trans Union also claims its
database has “[e]ffective matching logic” that will “[r]educe
[the] number of false positives.” J.A. 574-75.
As Cortez discovered, the information in the “SPECIAL
MESSAGES” section of Trans Union’s credit reports is not
included in credit reports that Trans Union sends to consumers
on request. J.A. 157. The credit reports sent to consumers do
33
have a public records section, which contains information such
as tax liens, judgments, or bankruptcies. That information is
retrieved from CRONUS. J.A. 214. If Trans Union receives a
dispute related to information in the public record section of a
report, it investigates the dispute by either checking with its
public record vendor or checking court records containing the
disputed information. J.A. 199-200. Trans Union does not,
however, conduct any investigation in response to disputes
related to OFAC alerts. J.A. 201.
It is not clear what Trans Union’s customer service
representatives tell consumers who dispute OFAC alerts.
According to one of Trans Union’s group managers who
testified at the trial, the company’s policy is to refer consumers
who complain about an OFAC alert to the Treasury Department.
J.A. 205; 211. However, this did not occur in Cortez’s case.
According to Trans Union, when the dealership first
reviewed Cortez’s credit report, Trans Union could not block
OFAC information from being included if Accuity determined
34
that her name matched a name on OFAC’s SDN List. J.A. 182-
83. This continued to be true at least through September of
2006. However, when this case came to trial, Trans Union had
blocked several similar names and any “Sandra Cortez” was
blocked from having an OFAC alert on her credit report. J.A.
183-84.
The Fair Credit Reporting Act will be discussed in detail
below. However, it is helpful at this point to note that the Act
affords certain protections to consumers by regulating the
disclosure and use of “consumer credit reports” as defined by
the Act. Trans Union made an internal determination that the
OFAC Advisor was not governed by the FCRA. According to
Trans Union’s director of solutions and business development,
“[a]fter review by our legal and compliance department they
determined that this was not FCRA data.” J.A. 169.
D. Procedural History
Cortez brought this action under the Fair Credit
Reporting Act after Trans Union failed to correct the problems
with her credit report or respond satisfactorily to her inquiries.
The suit proceeded to verdict. The jury found that Trans Union
35
failed to follow reasonable procedures to assure maximum
possible accuracy in producing Cortez’s credit report and was
negligent in doing so. The jury concluded that Trans Union
willfully failed to reasonably reinvestigate Cortez’s disputes
after she informed the company of the erroneous OFAC alert it
had included on her credit report. The jury also found that Trans
Union willfully failed to note Cortez’s dispute on subsequent
reports and that it willfully failed to provide Cortez all of the
information in her file despite her requests. The jury awarded
Cortez $50,000 in actual damages and $750,000 in punitive
damages.
Thereafter, Trans Union moved for judgment as a matter
of law or in the alternative a new trial or remittitur of the
damages awards. The district court denied Trans Union’s
motion for judgment as a matter of law. The court concluded
that the OFAC information was part of Cortez’s credit report
and thus, governed by the FCRA. Cortez v. Trans Union, LLC,
Civ. No. 05-5684, 2007 WL 2702945, at **1-2 (E.D. Pa. Sept.
13, 2007). The court also held that there was no basis for
granting defendant a new trial, “except with respect to the
36
alleged excessiveness of the jury’s verdict.” Id. at *2. The court
confirmed the $50,000 compensatory damages award but found
that the $750,000 punitive damages award “exceeded
permissible limits.” Id. The district court concluded that “an
award of punitive damages . . . [of] double the amount of the
compensatory award [was the] maximum which this record
would support.” Id. The court then entered an order which
stated in pertinent part: “Defendant’s motion for a new trial is
GRANTED with respect to damages, unless, within 30 days,
plaintiff accepts a remittitur, limiting the award to $50,000
compensatory damages and $100,000 punitive damages, for a
total award of $150,000.” Id. at *3.
Cortez appealed that order on October 12, 2007. The
same day that she filed her notice of appeal, she conditionally
accepted the district court’s remittitur by appending the
following statement: “In the event that the District Court was
acting properly within its power and jurisdiction in entering its
Order of September 13, 2007, which is a subject of Plaintiff’s
Notice of Appeal . . . Plaintiff hereby accepts the remittitur.”
See E.D. Pa. Docket No. 71.
37
We dismissed Cortez’s appeal for lack of jurisdiction
because the order she appealed was not a final appealable order.
Thereafter, Trans Union moved for final judgment. The district
court granted judgment to Trans Union “[b]ecause [Cortez]
accepted the remittitur.” Cortez v. Trans Union LLC, Civ. No.
05-5684, 2008 WL 1944160, at *1 (E.D. Pa. May 1, 2008). This
appeal and cross-appeal followed. Cortez challenges the
remittitur that reduced her punitive damages award, and Trans
Union challenges the district court’s denial of its motion for
judgment as a matter of law, as well as the damages award that
the court did approve.
II. THE FAIR CREDIT REPORTING ACT
“The . . . FCRA . . . was crafted to protect consumers
from the transmission of inaccurate information about them, and
to establish credit reporting practices that utilize accurate,
relevant, and current information in a confidential and
responsible manner.” Guimond v. Trans Union Credit Info. Co.,
45 F.3d 1329, 1333 (9th Cir. 1995) (citations omitted).
Congress intended to promote efficiency in the nation’s banking
system and to protect consumer privacy. TRW Inc. v. Andrews,
38
534 U.S. 19, 24 (2001) (citing 15 U.S.C. § 1681(a)). Congress
addressed the latter concern by including provisions intended “to
prevent consumers from being unjustly damaged because of
inaccurate or arbitrary information in a credit report.” S. Rep.
No. 91-517, at 1 (1969). Congress also hoped to address a
number of related problems, including “the inability at times of
the consumer to know he is being damaged by an adverse credit
report,” the lack of “access to the information in [his] file,” the
“difficulty in correcting inaccurate information,” and “getting
[his] version of a legitimate dispute recorded in . . . [his] credit
file.”Id. at 3 (1969). “These consumer oriented objectives
support a liberal construction of the FCRA,” and any
interpretation of this remedial statute must reflect those
objectives. Guimond, 45 F.3d at 1333.
In its cross-appeal, Trans Union first argues that its
OFAC alert is not covered by the Fair Credit Reporting Act.
According to Trans Union, the FCRA does not apply to OFAC
information because the “OFAC Screen” is not part of a
“consumer report.” Trans Union Br. at 18. Inasmuch as that
claim goes to the validity of the jury’s verdict, we will first
39
discuss Trans Union’s cross-appeal.21
A. Reasonable Procedures for Maximum Accuracy, 15
U.S.C. § 1681e(b)
15 U.S.C. § 1681e(b) provides in relevant part:
“Whenever a consumer reporting agency prepares a consumer
report it shall follow reasonable procedures to assure maximum
possible accuracy of the information concerning the individual
about whom the report relates.” As noted, the jury concluded
that Trans Union had breached the standard of care required by
§ 1681e(b). However, Trans Union claims that since the OFAC
alert is not covered by § 1681e(b), the district court erred in
denying Trans Union’s motion for judgment as a matter of law.
15 U.S.C. § 1681a(d)(1) defines a consumer report, in
relevant part, as:
any written, oral, or other communication of any
information by a consumer reporting agency
bearing on a consumer’s credit worthiness, credit
standing, credit capacity, character, general
reputation, personal characteristics, or mode of
living which is used or expected to be used or
collected in whole or in part for the purpose of
21
We review the denial of Trans Union’s motion for
judgment as a matter of law de novo, “viewing the evidence in
the light most favorable to the prevailing party.” Acumed
LLC v. Advanced Surgical Servs., Inc., 561 F.3d 199, 211 (3d
Cir. 2009) (quotation omitted).
40
serving as a factor in establishing the consumer’s
eligibility for-- (A) credit or insurance to be used
primarily for personal, family, or household
purposes . . . .22
(emphasis added). Trans Union’s argument that the OFAC alert
somehow manages to avoid the reach of the FCRA ignores the
breadth of the language that Congress used in drafting that
statute. It is not contested that the credit report that Trans Union
sent to Elway Subaru was otherwise subject to the FCRA.
Indeed, such reports are precisely what the FCRA was intended
to cover. In order to conclude that the OFAC alert is not subject
to that remedial statute even though the rest of the report clearly
falls within the definition of “consumer report,” we would have
to conclude that Congress did not mean what it said when it
unequivocally defined “consumer report” to include “any . . .
communication of any information by a consumer reporting
agency.” 23 15 U.S.C. § 1681a(d)(1). Trans Union seeks to
avoid this result by arguing that the OFAC alerts were not “used
22
The statute exempts certain reports or
communications that are not relevant here. See 15 U.S.C. §
1681a(d)(2).
23
We use “consumer report” and “credit report”
interchangeably. The report referred to as “consumer report”
in the statute is more commonly known as a credit report.
41
or expected to be used . . . in establishing the consumer’s
eligibility for . . . credit” because, according to its agreement
with Elway Subaru, the screen was to be used only for USA
PATRIOT Act compliance. Id.; see J.A. 568.
As noted above, businesses in the United States are
generally prohibited from dealing with anyone listed on OFAC’s
SDN List. See, e.g., 31 C.F.R. § 536.201 (“[N]o property or
interests in property of a specially designated narcotics trafficker
that are in the United States . . . may be transferred, paid,
exported, withdrawn or otherwise dealt in.”). Thus, in most
cases, it is unlawful to extend credit to a person on OFAC’s
SDN List.24
Trans Union invites us to conclude that information that
goes to the very legality of a credit transaction is somehow not
“a factor in establishing the consumer’s eligibility . . . for
credit.” 15 U.S.C. § 1681a(d)(1). It is difficult to imagine an
inquiry more central to a consumer’s “eligibility” for credit than
whether federal law prohibits extending credit to that consumer
24
Recall that OFAC has procedures to unblock funds
in the case of mistaken identity, 31 C.F.R. § 501.806, and to
have a name removed from designated lists, 31 C.F.R. §
501.807.
42
in the first instance. The applicability of the FCRA is not
negated merely because the creditor/dealership could have used
the OFAC Screen to comply with the USA PATRIOT Act, as
well as deciding whether it was legal to extend credit to the
consumer.
Trans Union also relies on the subscriber addendum to its
agreements with creditors to argue that its terms establish that
the OFAC alert is not part of credit reports it prepares under the
FCRA. Pursuant to that agreement, the creditor or subscriber
agrees to be “solely responsible for taking any action that may
be required by federal law as a result of a match to the OFAC
File, and shall not deny or otherwise take any adverse action
against any consumer based solely on TransUnion’s OFAC
Advisor services.” J.A. 568. We are not persuaded that Trans
Union’s private contractual arrangements with its clients can
alter the application of federal law, absent a statutory provision
allowing that rather unique result.
As described more fully above, the “SPECIAL
MESSAGES” section of Trans Union’s credit reports that
contain the OFAC alerts is on the first page between the
43
identifying information and the consumer’s credit score and in
the same formatting as that information. Thus, the OFAC alerts
allow the creditor to seamlessly determine a consumer’s
eligibility for a loan even before looking at the consumer’s
credit score.
Trans Union also argues that, even if the OFAC alert is
covered by the FCRA, the jury’s verdict cannot stand because
the evidence did not allow a reasonable fact finder to conclude
that it was negligent in dealing with Cortez, as required for
liability under 15 U.S.C. § 1681e(b). We disagree.
B. Negligence
According to Trans Union, its credit report contained the
most accurate information possible because Trans Union simply
included the information furnished by the government. Hence,
it was not reasonable to expect Trans Union to do anything more
than it did to insure the accuracy of the information it sold in its
credit report. Trans Union argues that it merely informed the
dealership that Cortez was a possible match with someone listed
on OFAC’s SDN List, and it met § 1681e(b)’s requirement of
maximum possible accuracy because “match” connotes
44
“possible match” rather than “exact match.” Negligent
noncompliance with § 1681e(b), consists of the following four
elements: “(1) inaccurate information was included in a
consumer’s credit report; (2) the inaccuracy was due to
defendant’s failure to follow reasonable procedures to assure
maximum possible accuracy; (3) the consumer suffered injury;
and (4) the consumer’s injury was caused by the inclusion of the
inaccurate entry.” Philbin v. Trans Union Corp., 101 F.3d 957,
963 (3d Cir. 1996).
In rejecting Trans Union’s claim and upholding the jury’s
verdict, the district court correctly concluded that Trans Union’s
use of the OFAC alert created the impression that Cortez was
actually the person named on OFAC’s SDN List. While the
word “match” may be ambiguous in some circumstances, the
jury was entitled to view Trans Union’s actions in their proper
context. Trans Union provided the credit report with the OFAC
alerts to the dealership in response to receiving identifying
information about a specific consumer, Cortez. The dealership
relied upon the information about Cortez that Trans Union
provided to determine whether or not to finance her car
45
purchase. The alert on Cortez’s credit report does not state that
the names are “similar” to someone on the SDN List or that a
match is “possible.” It reported a “match” with someone on the
SDN List.
Thus, the jury and district court correctly determined that
Trans Union could have taken reasonable measures to assure
maximum possible accuracy of its credit report with respect to
these alerts. “Reasonable procedures are those that a reasonably
prudent person would undertake under the circumstances.
Judging the reasonableness of a credit reporting agency’s
procedures involves weighing the potential harm from
inaccuracy against the burden of safeguarding against such
inaccuracy.” Philbin, 101 F.3d at 963 (alterations, quotations,
and citations omitted). It is important to note that § 1681e(b)
erects a standard of “maximum possible accuracy.” That
requires more than merely allowing for the possibility of
accuracy.
In Philbin, the plaintiff’s credit report contained a lien
that actually belonged to his father. 101 F.3d at 960. He wrote
to the credit reporting agency, which corrected the error and
46
added a notation to the credit report stating, “Do not confuse
with father James Philbin Sr different address different social
security number.” Id. Two and a half years later, the plaintiff
applied for and was denied credit a number of times. Id. at 960-
61. The plaintiff then requested his credit report from Trans
Union Corp. (“TUC”) and TRW Credentials, Inc. Id. At 961.
The TRW report had no errors. Id. When he finally obtained
the report from TUC, it still noted the tax lien. Id. After filing
suit, the plaintiff was again denied credit and learned that the tax
lien was still on his credit report, along with other erroneous
information. Id.In reversing the district court’s grant of summary
judgment in favor of TUC on Philbin’s § 1681e(b) claim, we
held that an unspecified “quantum of evidence” beyond a mere
inaccuracy is sufficient for a jury to find negligent failure to
assure maximum possible accuracy unless a credit reporting
agency convinces the jury otherwise. Id. at 965. We also
reiterated that inconsistencies between two different reports
concerning a single consumer are sufficient to meet this
standard. Id. at 964, 966. Cortez’s evidence is even stronger.
47
Here, the jury could consider evidence of an inconsistency
between identifying information provided by Trans Union, for
example, Cortez’s birth date, and the information on the SDN
List. The jury could reasonably conclude that Trans Union
could have taken steps to minimize the possibility that it would
erroneously place an OFAC alert on a credit report, such as
checking the birth date of the consumer against the birth date of
the person on the SDN List.
Moreover, the distinction between “accuracy” and
“maximum possible accuracy” is not nearly as subtle as may at
first appear, it is in fact quite dramatic. For example, in Pinner
v. Schmidt, 805 F.2d 1258 (5th Cir. 1986), the Court of Appeals
for the Fifth Circuit described that distinction as the difference
between reporting that “a person was ‘involved’ in a credit card
scam” and reporting that the consumer “was in fact one of the
victims of the scam.” Id. at 1263. The former statement was
undoubtedly true as the consumer had been “involved” in the
scam. It was also woefully misleading because it did not inform
people that she was involved as a victim of the scam, and not as
the perpetrator.
48
Moreover, the reasonableness of a credit reporting
agency’s procedures is “normally a question for trial unless the
reasonableness or unreasonableness of the procedures is beyond
question.” Sarver v. Experian Info. Solutions, 390 F.3d 969,
971 (7th Cir. 2004). In Philbin, we listed three different
approaches that various courts have taken in determining if a
plaintiff has introduced sufficient evidence to reach the jury
under § 1681e(b). Those approaches are: “that a plaintiff must
produce some evidence beyond a mere inaccuracy in order to
demonstrate the failure to follow reasonable procedures; that the
jury may infer the failure to follow reasonable procedures from
the mere fact of an inaccuracy; or that upon demonstrating an
inaccuracy, the burden shifts to the defendant to prove that
reasonable procedures were followed.” Philbin, 101 F.3d at
965. We did not have to decide upon any one approach in
Philbin because the plaintiff had produced evidence sufficient
to meet any of the three standards. Id. at 966. The same is true
here.
Trans Union’s own records showed that Cortez was born
in May of 1944 and her middle name was “Jean.” J.A. 526-527.
49
The person on OFAC’s SDN List was named Sandra Quintero
Cortes and was born in June of 1971. Id. Within Trans Union’s
own records there existed a large discrepancy in regard to
Cortez’s last name, middle name, and even her date of birth.
There were other discrepancies as well, including citizenship.
Despite those distinctions, the credit report Trans Union sent to
the dealership stated: “INPUT NAME MATCHES NAME ON
THE OFAC DATABASE.” Trans Union included that
“warning” even though it had information that should have
made it apparent that the OFAC alert had no place in Cortez’s
credit report.
There are, of course, inherent dangers in including any
information in a credit report that a credit reporting agency
cannot confirm is related to a particular consumer. Such
information is nearly always “used or expected to be used or
collected in whole or in part for the purpose of serving as a
factor in establishing the consumer’s eligibility for . . . credit.”
15 U.S.C. § 1681a(d)(1). Allowing a credit agency to include
misleading information as cavalierly as Trans Union did here
negates the protections Congress was trying to afford consumers
50
and lending institutions involved in credit transactions when it
enacted the FCRA.
Congress surely did not intentionally weave an exception
into the fabric of the FCRA that would destroy its remedial
scheme by allowing a credit reporting agency to escape
responsibility for its carelessness whenever misleading
information finds its way into a credit report through the agency
of a third party. Thus, Trans Union’s argument that it does not
control the accuracy of the SDN List is as misleading as the
information it provided about Cortez. Trans Union does not
know for sure that a consumer has habitually been delinquent in
paying his/her credit cards bills, or that s/he does not promptly
pay obligations to merchants or taxing authorities. Rather, it
collects such information from the primary sources, summarizes
it, and reports it to those who will subsequently rely on the
resulting reports in making consumer credit decisions.
Therefore, the OFAC information is not substantially different
from all other information in a credit report, including
information taken from public records.
Trans Union remains responsible for the accuracy in its
51
reports under the FCRA and it cannot escape that responsibility
as easily as it suggests here. Congress clearly intended to ensure
that credit reporting agencies exercise care when deciding to
associate information with a given consumer, and the record
clearly supports the jury’s determination that Trans Union did
not exercise sufficient care here. See Philbin, 101 F.3d at 966;
see also Stewart v. Credit Bureau, Inc., 734 F.2d 47, 52 (D.C.
Cir. 1984) (“Certainly, inconsistencies within a single file or
report involving an inaccuracy as fundamental as a falsely
reported wage earner plan, as well as inconsistencies between
two files or reports involving less fundamental inaccuracies, can
provide sufficient grounds for inferring that an agency acted
negligently in failing to verify information.”).25
C. Trans Union’s Liability Under 15 U.S.C. § 1681g
15 U.S.C. § 1681g(a) states in relevant part that “[e]very
consumer reporting agency shall, upon request, . . . clearly and
accurately disclose to the consumer: (1) All information in the
25
See also Cousin v. Trans Union Corp., 246 F.3d 359,
368 (5th Cir. 2001) (when a creditor continues to provide a
consumer reporting agency information about a consumer that
the agency has determined to be inaccurate, under § 1681e(b)
“it is incumbent on the consumer reporting agency to
permanently delete and cloak the erroneous information”).
52
consumer’s file at the time of the request.” (emphasis added).
Here, the jury found that Trans Union willfully violated §
1681g, and Trans Union appeals the district court’s denial of its
motion for judgment as a matter of law on Cortez’s § 1681g
claim.
Trans Union concedes that Cortez requested her credit
report on multiple occasions; nevertheless, it failed to provide
her with the HAWK and OFAC alert information on her report.
However, Trans Union again makes an argument similar to that
discussed above. It argues that the OFAC and HAWK
information is not part of the consumer’s “file” under the FCRA
and that, it was not required to disclose the information to
Cortez.
The FCRA defines “file” when used in connection with
information on any consumer, as “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). Trans Union attempts to avoid the obvious reach of
that language by relying on the fact that the SDN List
information was not part of its database; rather, as explained
53
earlier, that information was separately maintained by Accuity.
According to Trans Union, the information should not be
considered part of the consumer’s file for purposes of the
FCRA.26 Not surprisingly, Trans Union cites no cases to support
this argument. The argument requires us to ignore that the
FCRA specifically provides that the duty of disclosure applies
to “information on [a] consumer . . . regardless of how the
information is stored.” 15 U.S.C. § 1681a(g). We do not
believe that Congress intended to allow credit reporting
companies to escape the disclosure requirement in § 1681a(g) by
simply contracting with a third party to store and maintain
information that would otherwise clearly be part of the
consumer’s file and is included in a credit report.
Congress clearly intended the protections of the FCRA to
apply to all information furnished or that might be furnished in
a consumer report.27 Gillespie v. Trans Union Corp., 482 F.3d
26Cortez argues that Trans Union failed to make this
argument in the district court and that it is therefore waived.
However, based upon our review of the record, we believe the
argument was adequately presented to the district court.
27
We express no opinion on whether the term “file” is
limited to the information a credit reporting agency includes
in the credit report. We note, however, that the term
54
907, 909 (7th Cir. 2007). Moreover, as the court in Gillespie
noted, “‘file’ denotes all information on the consumer that is
recorded and retained by a consumer reporting agency that
might be furnished, or has been furnished, in a consumer report
on that consumer.” Id. (quoting 16 C.F.R. pt. 600, app. § 603).28
In Gillespie, the court considered whether a credit
reporting agency was obligated to furnish the date of
delinquency of a credit account to a consumer who makes a
request under § 1681g. Congress sought to prohibit consumers
from being hounded by stale information by limiting the amount
of time old debts can be reported under the FCRA. 29 Creditors,
therefore, have to include a “date of delinquency or purge date”
when reporting account information to a credit agency.
Gillespie, 482 F.3d at 908. The credit reporting agency uses that
“consumer report” is also defined in § 1681a and it is, thus,
unlikely that Congress intended the two terms to mean exactly
the same thing. See Nunnally v. Equifax Info. Servs., LLC,
451 F.3d 768, 772-73 (11th Cir. 2006).
28
Commentary does not have the force of a regulation
and is not binding, and we do not regard it as such.
29
In general, a credit reporting agency cannot report
negative information for longer than seven years under 15
U.S.C. § 1681c.
55
date for internal purposes to determine when the information
should be purged from the data that will appear on the
consumer’s credit report. Id. However, credit reporting
agencies do not usually include that date on the credit reports
provided to potential creditors or to consumers. Id. The
plaintiffs in Gillespie argued that the “file” they received from
Trans Union violated the disclosure requirements of the FCRA
because it did not include the “purge date.” Id. They claimed
that the delinquency date was included in the definition of “file”
contained in 15 U.S.C. § 1681a(g).
In rejecting that claim, the court reasoned that “Congress
wanted consumers to receive exactly what [the plaintiffs] got
from Trans Union— complete copies of their consumer reports,
not their entire files in whatever form maintained by the [credit
reporting agency].” Id. at 909. Since the purge date was an
internal record-keeping item, used only to determine when
transactions in a consumer’s history should no longer be
reported to those requesting credit reports, the court held that
Congress did not intend to include it within the definition of
“file.” Id. at 910. That is not the situation here because the
56
OFAC alerts were far more than a mere internal record-keeping
mechanism.30
We hold that information relating to the OFAC alert is
part of the consumer’s “file” as defined in the FCRA.
Accordingly, we affirm the district court’s order denying Trans
Union’s motion for judgment as a matter of law on Cortez’s
claim under 15 U.S.C. § 1681g based upon Trans Union’s
contention that the OFAC alert is not part of a consumer’s file
and not subject to the reporting requirements of the FCRA.
D. Reinvestigation, 15 U.S.C. § 1681i
1. Reasonable Reinvestigation, 15 U.S.C. § 1681i(a)
Under 15 U.S.C. § 1681i(a)(1)(A), credit reporting
agencies must promptly reinvestigate any information in a
consumer’s file that is disputed by a consumer and either record
30
Gillespie also cited the Senate Committee Report
discussing the 1996 amendments to the FCRA, which
changed the requirement in § 1681g(a)(1) from providing the
“nature and substance” of the information in a credit reporting
agency’s file to “all of the information” in the file. See
Gillespie, 482 F.3d at 909. According to the Report, “The
Committee intend[ed] this language to ensure that a consumer
will receive a copy of that consumer’s report, rather than a
summary of the information contained therein.” S. Rep. No.
104-185, at 41 (1995).
57
the current status of the information in dispute or delete it.31 In
order for Cortez to establish that Trans Union is liable for failing
to reinvestigate a dispute under that provision, she must
establish that Trans Union had a duty to do so, and that it would
have discovered a discrepancy had it undertaken a reasonable
investigation. Therefore, we must determine whether the jury
could reasonably have concluded that Trans Union would have
discovered the inaccuracy in Cortez’s report – i.e., the OFAC
alert – “if it had reasonably investigated the matter.” Cushman
v. Trans Union Corp., 115 F.3d 220, 226 (3d Cir. 1997).
Although the parameters of a reasonable investigation
will often depend on the circumstances of a particular dispute,
31
15 U.S.C. § 1681i(a)(1)(A) states, in relevant part:
[I]f the completeness or accuracy of any item of
information contained in a consumer’s file at a
consumer reporting agency is disputed by the
consumer and the consumer notifies the agency .
. . of such dispute, the agency shall, free of
charge, conduct a reasonable reinvestigation to
determine whether the disputed information is
inaccurate and record the current status of the
disputed information, or delete the item from the
file in accordance with paragraph (5), before the
end of the 30-day period beginning on the date on
which the agency receives the notice of the
dispute from the consumer or reseller.
58
it is clear that a reasonable reinvestigation must mean more than
simply including public documents in a consumer report or
making only a cursory investigation into the reliability of
information that is reported to potential creditors. Id. at 225.
Rather, if the agency determines that the information is
inaccurate, incomplete, or cannot be verified, it must delete or
modify the information and notify the provider of the
information that the information has been modified or deleted
from the consumer’s file. 15 U.S.C. § 1681i(a)(5)(A). Congress
thought this protection so vital to the statutory scheme of the
FCRA that it included a specific provision requiring credit
reporting agencies to maintain procedures to prevent the
reappearance of information that is deleted because it is
misleading or inaccurate. 15 U.S.C. § 1681i(a)(5)(c).
Trans Union first argues that it should not have been
liable under § 1681i because the OFAC alert is not part of
Cortez’s “file.” We have already explained why that contention
must be rejected.
Trans Union admits that it performed no reinvestigation
to determine whether Cortez was the person named in OFAC’s
59
SDN List. Trans Union concedes that it did not look beyond the
name on that List before reporting a “match” on Cortez’s
consumer report. However, it attempts to escape liability by
arguing that even if § 1681i does apply, any reinvestigation
would have been meaningless because it cannot change OFAC’s
SDN List. See Trans Union Br. at 27. That argument is
disingenuous at best. Trans Union controls the information it
places on a consumer’s credit report. Cortez did not ask Trans
Union to alter OFAC’s SDN List. Rather, she merely asked
Trans Union not to associate that information with her and
informed the company that she was not the person the OFAC
alert referred to. She made that request four times - once by
telephone and three times in writing. Trans Union responded by
denying that the information was on her credit report.
Furthermore, one of Trans Union’s customer service managers
testified at trial that it is Trans Union’s policy never to
investigate OFAC alerts, at least not until forced to do so by the
consumer bringing a law suit. Cortez, 2007 WL 2702945 at *
2; see also J.A. 203. That is what happened here. After Cortez
sued, Trans Union blocked the OFAC Alert from appearing on
60
her credit report. J.A. 183-84.
Similarly, Trans Union argues that it should not be liable
under the FCRA because the responsibility for USA PATRIOT
Act compliance falls on potential creditors and not credit
reporting agencies. We are well aware that anyone involved in
financial transactions has significant responsibilities under the
USA PATRIOT Act, as noted above. However, nothing in the
USA PATRIOT Act suggests that Congress intended the
obligations arising under that Act to immunize credit reporting
agencies from duties they would otherwise have under the
FCRA. Once Cortez disputed the accuracy of the information
in Trans Union’s credit report, Trans Union was obligated to
reinvestigate that information. The car dealer’s responsibilities
under the USA PATRIOT Act are simply irrelevant to Trans
Union’s duty under the FCRA; the district court recognized that
when it denied Trans Union’s motion for judgment as a matter
of law.
2. Failure to Note Dispute, 15 U.S.C. §§ 1681i(b) and (c).
15 U.S.C. § 1681i sets forth a fairly specific process for
disputing information in a credit report. As discussed above, a
61
consumer must first inform the credit agency that s/he disputes
the information. 15 U.S.C. § 1681i(a)(1). The credit reporting
agency must reinvestigate promptly based on that dispute. The
agency must then appropriately respond to the dispute based on
the results of its reinvestigation. This includes deleting or
modifying disputed information when appropriate. Id. §
1681i(a)(5).32 The credit reporting agency must also notify the
consumer promptly of the results of the reinvestigation in
writing. Id. § 1681i(a)(6). The minimum contents of that
notice are prescribed by the statute. As relevant here, the notice
must include: “(i) a statement that the reinvestigation is
completed; (ii) a consumer report that is based upon the
consumer’s file as that file is revised as a result of the
reinvestigation; [and] . . . (iv) a notice that the consumer has the
right to add a statement to the consumer’s file disputing the
accuracy or completeness of the information . . . .” Id. §
1681i(a)(6)(B).
“If the reinvestigation does not resolve the dispute,” the
32
The credit reporting agency may also determine that
the dispute is frivolous or irrelevant under 15 U.S.C. §
1681i(a)(3), but that procedure is not relevant here.
62
consumer may file a statement of his or her dispute with the
credit reporting agency. Id. § 1681i(b). “Whenever a statement
of dispute is filed,” the credit reporting agency “in any
subsequent consumer report containing the information in
question, [must] clearly note that it is disputed by the consumer
and provide either the consumer’s statement or a clear and
accurate codification or summary thereof.” Id. § 1681i(c). This
allows “potential creditors [to] have both sides of the story [so
that they] can reach an independent determination of how to
treat . . . specific, disputed” information. Cahlin v. Gen. Motors
Acceptance Corp., 936 F.2d 1151, 1160 n.23 (11th Cir. 1991).
Cortez claims that Trans Union was obligated to include
notice of her dispute about the OFAC alerts in her credit report
under § 1681i(c). As noted earlier, in a letter dated May 10,
2005, Trans Union told Cortez, “[O]ur records show that the
information you disputed does not currently appear on your
TransUnion credit report.” J.A. 545. Thereafter, Trans Union
tw ice issued C o r te z ’s c r e d it report w ith the
misleading/erroneous OFAC alerts and without noting that
Cortez was disputing those alerts. Trans Union does not deny
63
this. Its only argument is that Cortez never explicitly filed a
statement of dispute under § 1681i(b) and thus, it had no
obligation to include a statement in those subsequent credit
reports under § 1681i(c). The argument once again is
unconvincing.
In Guimond, the court explained that a § 1681i(c) claim
requires a showing that (1) the plaintiff disputed an item in her
file; (2) any reinvestigation conducted by the consumer
reporting agency did not resolve the dispute; (3) the plaintiff
filed a statement of dispute; and (4) the statement was not
included with subsequent copies of her credit report. 45 F.3d at
1335. The court ultimately held that Guimond’s § 1681i(c)
claim failed because, although she met the first two elements of
the claim, she failed to present evidence that she filed a
statement of dispute. Id.33
Though we do not disagree with the above standard, this
case is distinguishable and frankly, extraordinary. Trans Union
33
Congress did not require that consumers submit
disputes on specific forms, and any such technical
requirement seems inconsistent with the remedial focus of the
FCRA. See Sullivan v. Greenwood Credit Union, 520 F.3d 70,
73 (1st Cir. 2008); see also Cushman, 115 F.3d at 223.
64
admits not only that it never reinvestigated Cortez’s dispute, it
concedes that it never intended to do so because of its fixed
policy regarding OFAC alerts. Moreover, after Cortez had
submitted one verbal and two written requests, Trans Union
responded to her with a letter that stated, “After reviewing your
correspondence, we were unable to determine the nature of your
request.” After Cortez wrote to Trans Union a third time, Trans
Union responded to her that “the information you disputed does
not currently appear on your Trans Union credit report.” This
final response by Trans Union to Cortez was patently false.
Trans Union thwarted Cortez’s ability to request that a statement
of dispute be included in subsequent credit reports by telling
Cortez that the disputed information was not in her report in the
first place. Still, Cortez persisted. She restated her dispute even
after she was falsely told that information was removed from her
credit report, i.e., even after the reinvestigation was complete
and she was misinformed by the credit reporting agency that the
issue she had raised was resolved. Given that evidence, it was
reasonable for the jury to conclude that Cortez had adequately
informed Trans Union that its reinvestigation did not resolve her
65
dispute and that Trans Union failed to note that on her credit
report, as required by the FCRA.34 Accordingly, we affirm the
district court’s decision denying Trans Union’s motion for
judgment as a matter of law on Cortez’s § 1681i(c) claim.
Having concluded that the district court did not err in
denying Trans Union’s motions for judgment as a matter of law,
and thus affirming the district court’s refusal to overturn the
jury’s liability determination, we turn to Cortez’s claim that the
district court erred in reducing her punitive damage award.
Although, as we will explain, we conclude that we must affirm
that reduction, we are nevertheless troubled by it.
III. DAMAGES
In her appeal, Cortez argues that she is entitled to
reinstatement of the jury’s punitive damages award because the
district court did not have the authority to order the conditional
remittitur, which she accepted under protest. In its cross-appeal,
Trans Union argues that the punitive damages should not have
34
Even though Cortez’s claim is supported by
numerous requests to the credit reporting agency, we do not
suggest that a consumer must make more than one request to
have notice of a dispute included in a credit report under 15
U.S.C. § 1681i(b) and (c).
66
been submitted to the jury, that the district court should have
reduced the compensatory damages, and that the punitive
damages are excessive even after the district court’s remittitur.
A. Remittitur
“[T]he remittitur is well established as a device employed
when the trial judge finds that a decision of the jury is clearly
unsupported and/or excessive.” Spence v. Bd. of Educ. of
Christina Sch. Dist., 806 F.2d 1198, 1201 (3d Cir. 1986). While
courts often use the term “remittitur” to refer to any reduction in
a damages award, including one which is imposed to satisfy
constitutional due process concerns, the term is actually far more
specific. In Johansen v. Combustion Engineering, Inc., 170
F.3d 1320 (11th Cir. 1999), the Court of Appeals for the
Eleventh Circuit explained the difference between a
constitutionally reduced verdict and a remittitur:
A constitutionally reduced verdict . . . is really not
a remittitur at all. A remittitur is a substitution of
the court’s judgment for that of the jury regarding
the appropriate award of damages. The court
orders a remittitur when it believes the jury’s
award is unreasonable on the facts. A
constitutional reduction, on the other hand, is a
determination that the law does not permit the
award. Unlike a remittitur, which is discretionary
with the court . . . a court has a mandatory duty to
67
correct an unconstitutionally excessive verdict so
that it conforms to the requirements of the due
process clause.
Id. at 1331 (footnote and citation omitted); see also Ross v.
Kansas City Power & Light Co., 293 F.3d 1041, 1049-50 (8th
Cir. 2002).
Despite the differences between a constitutionally
reduced verdict and a remittitur, it is misleading to suggest that
a constitutionally required reduction in an award “is really not
a remittitur at all” because numerous courts, including the
Supreme Court, refer to it as such. See, e.g., BMW of N. Am.,
Inc. v. Gore, 517 U.S. 559, 583 (1996) (“In most cases, the ratio
will be within a constitutionally acceptable range, and remittitur
will not be justified on this basis.”); see also Ash v. Georgia-
Pacific Corp., 957 F.2d 432, 438 (7th Cir. 1992) (“Perhaps [ the
plaintiff] has been misled by the dual meanings of ‘remittitur’.
Courts sometimes use this word to refer to an option between a
reduced award and a new trial; at other times courts speak of any
reduction as a remittitur.”). The distinction is relevant here.
The remedies available to a court when reducing a jury
award based upon due process concerns are not necessarily the
68
same as those available when a court exercises its discretion
because it believes the amount of the award is inconsistent with
the evidence in a case. The latter is conditional, and the court
must offer a new trial as an alternative to a reduction in the
award in order to avoid depriving the plaintiff of his/her Seventh
Amendment right to a jury trial. See Hetzel v. Prince William
Cnty., 523 U.S. 208, 211 (1998) (per curiam).
In Hetzel, the Court explained that when a trial court
determines that the evidence does not support the jury’s general
damages award, it “has no authority . . . to enter an absolute
judgment for any other sum than that assessed by the jury . . . .
without allowing petitioner the option of a new trial.” Id.(quotation omitted). Thus, a court must afford a plaintiff the
option of a new trial when it attempts to reduce a jury award
because it believes the amount of the verdict is not supported by
the evidence. These reductions are frequently referred to as
conditional remittiturs. The same is not true when a court must
reduce a damages award to avoid a denial of due process. In
that case, the award is reduced as a matter of law and there is no
interference with the Seventh Amendment right to have a jury
69
make findings of fact. Gore, 517 U.S. at 585-86. We review
discretionary reductions in jury awards for abuse of discretion,
see Evans v. Port Auth. of N.Y. & N.J., 273 F.3d 346, 354 (3d
Cir. 2001), but we conduct de novo review of a trial court’s
constitutionally required reduction of damages. See Cooper
Indus., Inc. v. Leatherman Tool Grp., Inc., 532 U.S. 424, 431
(2001).
The Supreme Court has further limited our review of
conditional remittiturs like the one we have here. As we have
just noted, the choice between a reduced award and a new trial
is required by the Seventh Amendment, and a court cannot
reduce an award without affording the plaintiff the option of a
new trial. See Hetzel, 523 U.S. at 211. In Donovan v. Penn
Shipping Co., Inc., 429 U.S. 648 (1977) (per curiam), the
Supreme Court held that “a plaintiff in federal court . . . may
not appeal from a remittitur order he has accepted” even where
the plaintiff accepted the remitted award under protest. Id. at
650. Cortez argues for an exception to this rule under our
decision in Demeretz v. Daniels Motor Freight, Inc., 307 F.2d
469 (3d Cir. 1962).
70
In Demeretz, the district court gave the plaintiff twenty
days to either submit to a new trial on damages or to agree to a
reduction in the jury’s verdict. 307 F.2d at 471. The plaintiff
did not respond within twenty days, and the court entered a
judgment in the amount of the reduced award. Id. The plaintiff
appealed, arguing that it is “beyond the court’s power,” once the
explicit time limitation in Rule 59(d) of the Federal Rules of
Civil Procedure has expired, to order a new trial on a ground
that the defendant did not raise in its motion for a new trial. Id.
at 472.35 Though the appeal of an order granting a new trial
normally would be interlocutory, we held that under the
Supreme Court’s decision in Phillips v. Negley, 117 U.S. 665(1886), the order was reviewable as a final judgment because the
plaintiff was challenging the court’s authority to act. Demeretz,
307 F.2d at 472. We held that the court did not have the
authority to reduce the jury’s award sua sponte because the
order had not been entered within the time limit established
under Rule 59(d). Rule 60 of the Federal Rules of Civil
35
When Demeretz was decided, a district court could
not order a new trial under Rule 59 either sua sponte or for a
reason not stated in a party’s motion ten days after the entry of
judgment. 307 F.2d at 472.
71
Procedure did not contain a similar limitation, but that Rule did
not apply because the district court was not attempting to correct
a clerical order or mistake. Id. at 473.
Cortez attempts to argue that since she conditioned her
acceptance of the remittitur upon the court’s legal authority to
impose it, Donovan does not apply and she should be able to
challenge the merits of the reduction in her punitive damages
under Demeretz. She argues that, otherwise, “[she] would
never, as a practical matter, be able to have her case decided by
a jury or be able to have meaningful appellate review of any trial
court errors.” Cortez Reply Br. at 51.36
Cortez may be correct in claiming that she was on the
horns of a dilemma and that the practical result of dismissing her
challenge to the court’s remittitur will be to place it beyond
appellate review. Nevertheless, the Court held in Donovan that
a plaintiff cannot challenge a remittitur s/he has agreed to, even
36
Cortez also argues that the constitutionality of
conditional remittiturs is questionable. Since conditional
remittiturs have been recognized by the Supreme Court as
early as 1886 without concerns being raised about their
propriety, see N. Pac. R. Co. v. Herbert, 116 U.S. 642, 646-47
(1886), we can safely disregard that argument. See also
Johansen, 170 F.3d at 1328-29.
72
if the plaintiff has only agreed under protest or pursuant to a
purported reservation of rights. It is therefore clear that Cortez’s
challenge to the remittitur must be rejected notwithstanding the
dilemma she found herself in. Her only course of action would
have been to reject the remittitur and proceed to a second trial
which could have been limited to the issue of damages. She
would then be in the unenviable position of risking no punitive
award at all.
The district court clearly had the authority to enter the
September 13, 2007 conditional remittitur and Cortez’s attempt
to avoid the Supreme Court’s decision in Donovan is meritless.
She cannot now contest the merits of the district court’s order
reducing the jury’s award of punitive damages.37 Accordingly,
37
Because Cortez accepted the conditional remittitur,
we do not need to reach the issue of whether the district court
abused its discretion in reducing the punitive damages award
from $750,000 to $100,000. We do note, however, that we
are troubled by the court’s reasoning in reducing the punitive
damages. There is certainly nothing wrong with a jury
focusing on a “defendant’s seeming insensitivity” in deciding
how much to award as punitive damages. Id. “Punitive
damages awards are ‘the product of numerous, and sometimes
intangible, factors . . . .’” CGB Occupational Therapy, Inc. v.
RHA Health Servs., Inc., 499 F.3d 184, 195 (3d Cir. 2007)
(quoting TXO Prod. Corp. v. Alliance Res. Corp., 509 U.S.
443, 457 (1993) (plurality opinion) (ellipsis in original)).
By their very definition, punitive damages are intended
73
we will affirm the district court’s entry of judgment for
$100,000 in punitive damages.
B. Compensatory Damages
Unlike punitive damages that are intended to punish and
deter, “[c]ompensatory damages are intended to redress the
concrete loss that the plaintiff has suffered by reason of the
defendant’s wrongful conduct.” State Farm Mut. Auto. Ins. Co.
v. Campbell, 538 U.S. 408, 416 (3d Cir. 2003) (quotations
omitted).
A jury can award actual damages for negligent violations
to punish a defendant; they are not intended to compensate the
plaintiff. “[P]unitive damages serve a broader function; they
are aimed at deterrence and retribution.” State Farm Mut.
Auto. Ins. Co. v. Campbell, 538 U.S. 408, 416 (3d Cir. 2003).
A jury can consider the relative wealth of a defendant in
deciding what amount is sufficient to inflict the intended
punishment. See Restatement (Second) of Torts § 908(2)
(1979) (listing wealth as a factor which “can” be considered
in determining punitive damages).
Common sense suggests that a corner “mom and pop”
store should not be subject to the same punitive level of
damages as a company worth close to a billion dollars. The
latter would simply not be deterred by an award that might be
large enough to put the former out of business. Moreover, the
record certainly supports a jury becoming “incensed” over
Trans Union’s “insensitivity” to Cortez’s claim, and we are
hard pressed to understand the district court’s reliance on that
possible reaction to what Trans Union did, and/or
considerations of Trans Union’s fiscal wealth as reasons to
reduce the punitive award.
74
of the FCRA and both actual and punitive damages for willful
violations. 15 U.S.C. §§ 1681o, 1681n. “A jury’s damages
award will not be upset so long as there exists sufficient
evidence on the record, which if accepted by the jury, would
sustain the award.” Thabault v. Chait, 541 F.3d 512, 532 (3d
Cir. 2008). We reverse a district court’s decision on
compensatory damages and grant a new trial only if the verdict
is “so grossly excessive as to shock the judicial conscience.”
Rivera v. V.I. Housing Auth., 854 F.2d 24, 27 (3d Cir. 1988)
(quotation omitted). Although our review of a damage award is
“exceedingly narrow,” we have a “responsibility to review a
damage award to determine if it is rationally based.” Williams
v. Martin Marietta Alumina, Inc., 817 F.2d 1030, 1038 (3d Cir.
1987). In doing so, we must view the facts in the light most
favorable to Cortez. Rivera, 854 F.2d at 25.
We have already explained why this record supports the
jury’s determination of Trans Union’s liability under: §
1681e(b), for failing to follow reasonable procedures that
assured maximum possible accuracy in preparing Cortez’s credit
report; § 1681i, for failing to reasonably reinvestigate Cortez’s
75
disputes and not indicating her dispute in her subsequent credit
reports; and § 1681g, for failing to provide Cortez all of the
information in her file when she made her request. Trans Union
argues that the evidence Cortez presented was insufficient as a
matter of law to support the compensatory damages award of
$50,000 and, thus, the district court abused its discretion in
failing to remit that award. We do not agree.
Cortez testified that she suffered severe anxiety, fear,
distress, and embarrassment as a result of the erroneous OFAC
alert and Trans Union’s refusal to give her a corrected copy of
her report. The anxiety caused her to feel compelled to warn a
would-be creditor about the alert, which led to additional stress
and embarrassment. There is also evidence that she suffered
sleeplessness that required medication. She cried frequently
because of the frustration from Trans Union’s failure to
acknowledge the issue. Cortez’s daughter testified that Cortez
was under extreme stress, that Cortez cried often and lost weight
due to the stress regarding her credit report over the two-year
ordeal, and that Cortez discussed her concerns about her credit
report every time they spoke.
76
The psychological and stress-related suffering that Cortez
had to endure is the very kind of injury that would be expected
to result from erroneously associating a consumer with a
“Specially Designated National.” In allowing suits for damages,
Congress certainly intended to allow compensation for the very
kind of harm that the FCRA was intended to prevent. This is
not legislation mandating a safety standard to prevent physical
injury. It is legislation designed to facilitate banking and the
extension of credit while protecting consumers from the kind of
injury that will almost certainly result when erroneous
information is inserted into a credit report. Thus, damages for
violations of the FCRA allow recovery for humiliation and
embarrassment or mental distress even if the plaintiff has
suffered no out-of-pocket losses. Philbin, 101 F.3d at 963 n.3.
Moreover, a consumer may be awarded actual damages even if
she is able to obtain credit after explanation of the inaccuracy.
See Morris v. Credit Bureau of Cincinnati, Inc., 563 F. Supp.
962, 969 (S.D. Ohio 1983). Time spent trying to resolve
problems with the credit reporting agency may also be taken into
account. Stevenson v. TRW Inc., 987 F.2d 288, 297 (5th Cir.
77
1993).
The district court found that a compensatory award of
$50,000 was “exceedingly generous” but concluded that it did
not justify judicial interference. Cortez, 2007 WL 2702945 at
*2. As stated above, the scope of our review here is exceedingly
narrow. We agree with the district court that there is sufficient
evidence in the record to support the jury’s compensatory award.
Trans Union cites to Cousin v. Trans Union Corp., 246
F.3d 359 (5th Cir. 2001) and Casella v. Equifax Credit Info.
Servs., 56 F.3d 469 (2d Cir. 1995) to argue that evidence similar
to that proffered by Cortez was rejected by the Courts of
Appeals for the Fifth and Second Circuits, respectively, as
insufficient to support compensatory damage awards. Trans
Union Br. at 36, 38-39. We are not persuaded.
First, Trans Union neglects the fact that in both of those
cases, the plaintiffs failed to show that the defendants’ credit
reports were the cause of the plaintiffs’ emotional distress. See
Cousin, 246 F.3d at 370 (holding that the plaintiff failed to show
that Trans Union’s credit report was the cause of emotional
distress where there were reports from multiple agencies at
78
play); Casella, 56 F.3d at 474-75 (holding that the plaintiff
failed to show that the defendants’ credit reports as opposed to
the city of San Diego, which was wrongly reporting that
defendant owed child support, were the cause of the plaintiff’s
emotional distress). That is not the situation here.
Second, we have not adopted, and now refuse to adopt,
the Fifth Circuit’s standard requiring “a degree of specificity
which may include corroborating testimony or medical or
psychological evidence in support of the damage award.”
Cousin, 246 F.3d at 371 (quotation omitted). Such
corroboration goes only to the weight of evidence of injury, not
the existence of it. If a jury accepts testimony of a plaintiff that
establishes an injury without corroboration, the plaintiff should
be allowed to recover under the FCRA. The fact that the
plaintiff’s injuries relate to the stress and anxiety caused by the
defendant’s conduct does not change that. This is precisely the
kind of injury that Congress must have known would result from
violations of the FCRA.
Furthermore, our review of other awards reinforces our
belief that the award here was not excessive, and that the district
79
court did not abuse its discretion in deciding not to reduce the
compensatory award. See Robinson v. Equifax Info. Servs.,
LLC, 560 F.3d 235, 243 (4th Cir. 2009) (affirming jury award of
$200,000 for economic and emotional damages based on loss of
economic opportunity in the home mortgage market, emotional
distress, and loss of income for approximately 300 hours spent
addressing errors in the plaintiff’s credit report); Sloane v.
Equifax Info. Servs., LLC, 510 F.3d 495, 505 (4th Cir. 2007) (“A
survey of the other, more recent FCRA cases that involve
requests for remittitur of emotional distress awards suggests that
approved awards more typically range between $20,000 and
$75,000.”); Stevenson, 987 F.2d at 298 (affirming “award of
$30,000 in actual damages based upon the finding of mental
anguish,” which is the equivalent of over $45,000 in 2010).38
The jury obviously found the testimony of Cortez and her
daughter credible and accepted their evidence that Cortez
suffered considerable anxiety, emotional distress, and
humiliation as a result of being associated with a government
38
Equivalent value calculated using the Inflation
Calculator of the Department of Labor’s Bureau of Statistics.
See http://data.bls.gov/cgi-bin/cpicalc.pl (visited on May 3,
2010).
80
list that includes people who are identified as terrorists. Indeed,
in the post-9/11 world, neither that conclusion nor the emotional
impact of being associated with a list that may well contain
terrorists should come as any surprise. Viewing the facts in the
light most favorable to Cortez, as we must, we conclude that the
jury could reasonably have attributed significant emotional
distress to the Kafkaesque world in which Cortez found herself
when she tried to dispute the OFAC alert and Trans Union
refused to acknowledge that the information even existed.
Accordingly, we affirm the district court’s decision denying
Trans Union’s motion to remit the $50,000 compensatory
damage award.
C. Trans Union’s Challenge to the Punitive Damages
We have already explained why Cortez’s appeal of the
reduction of the punitive damages is meritless. Trans Union
appeals the award of any punitive damages. Its challenge is also
meritless.
Trans Union argues that is was entitled to judgment as a
matter of law on Cortez’s willfulness claims because Trans
Union’s determination that the OFAC information was not
81
governed by the FCRA, even if it were erroneous, was neither
objectively unreasonable nor reckless. Trans Union also argues
that the punitive damages award, even as remitted, is
unconstitutional. As previously noted, we review the decision
by district courts to remit damage awards for abuse of
discretion. Evans, 273 F.3d at 354. We review de novo a trial
court’s determination regarding the constitutionality of a
punitive damages award. Campbell, 538 U.S. at 418.
In Safeco Insurance Co. of America v. Burr, the Supreme
Court held that willful violations of the FCRA are assessed for
“reckless disregard.” 551 U.S. 47, 60, 69 (2007); see Gelman v.
State Farm Mut. Auto. Ins. Co., 583 F.3d 187, 192 n.8 (3d Cir.
2009).39 According to the Court:
39
The Supreme Court’s decision in Safeco defined the
standard for all willful violations of the FCRA. Levine v.
World Fin. Network Nat’l Bank, 554 F.3d 1314, 1318 (11th
Cir. 2009) (“To prove a willful violation, a consumer must
prove that a consumer reporting agency either knowingly or
recklessly violated the requirements of the [Fair Credit
Reporting] Act.”) (citing Safeco, 127 S. Ct. at 2208); Poehl v.
Countrywide Home Loans, Inc., 528 F.3d 1093, 1096 (8th Cir.
2008) (applying Safeco willful standard to violations of the
FCRA by creditors); Murray v. New Cingular Wireless Servs.,
Inc., 523 F.3d 719, 725-26 (7th Cir. 2008) (“[S]tatutory
damages are available only for willful violations of the Act,
and the Supreme Court held in Safeco Insurance Co. v. Burr,
551 U.S. 47 (2007), that this means recklessness – something
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[A] company subject to FCRA does not act in
reckless disregard of it unless the action is not
only a violation under a reasonable reading of the
statute’s terms, but shows that the company ran a
risk of violating the law substantially greater than
the risk associated with a reading that was merely
careless.
Safeco, 551 U.S. at 69. The fact that Trans Union’s actions rest
upon a legal conclusion does not immunize it from liability for
reckless conduct under the FCRA. A credit reporting agency
may act in reckless disregard of a statute’s requirements by
adopting an objectively unreasonable interpretation of the law.
Id. Although the Supreme Court has suggested that a dearth of
authoritative guidance may hinder a party’s efforts to interpret
the law reasonably, id. at 70, Cortez correctly notes that the lack
of definitive authority does not, as a matter of law, immunize
more than negligence but less than knowledge of the law’s
requirements.”). In Perez v. Trans Union, LLC, 526 F. Supp.
2d 504 (E.D. Pa. 2007), the district court wrongly applied our
prior standard, under which a plaintiff alleging a willful
violation of § 1681e(b) was required to show that defendant
“knowingly and intentionally committed an act in conscious
disregard for the rights of others.” Id. at 510 (quoting
Philbin, 101 F.3d at 970). The district court applied that
standard holding that the Supreme Court’s decision in Safeco
was limited to the section of the FCRA at issue in that case.
We clarify here that Safeco’s standard defining willful applies
to all violations of the FCRA.
83
Trans Union from potential liability.
A credit reporting agency may also willfully violate the
FCRA by adopting a policy with reckless disregard of whether
it contravenes a plaintiff’s rights under the FCRA. Here,
notwithstanding the conclusion of Trans Union’s lawyers, the
breadth and scope of the FCRA is both evident and
extraordinary. As we explained at the outset, it refers to “all”
information, wherever it may be stored, that is intended to be
used or that may be used in extending credit. Moreover, it is
undeniably a remedial statute that must be read in a liberal
manner in order to effectuate the congressional intent underlying
it. See Sullivan, 520 F.3d at 73; see also Cushman, 115 F.3d at
223. We have no trouble concluding that, given the totality of
circumstances surrounding the OFAC alert, Trans Union “ran a
risk of violating the law substantially greater than the risk
associated with a reading that was merely careless.” Safeco, 551
U.S. at 69.
Trans Union correctly reminds us that we are the first
court of appeals to address whether the FCRA applies to
information from OFAC’s SDN List in the form of an alert
84
reported by a credit reporting agency. This does not, however,
result in a borderline case of liability as Trans Union suggests.
It merely establishes that the issue has not been presented to a
court of appeals before. The credit agency whose conduct is
first examined under that section of the Act should not receive
a pass because the issue has never been decided. The statute is
far too clear to support any such license.
Furthermore, the verdict of this lay jury reveals an
understanding of the distinction between negligent and willful.
The jury found Trans Union negligent in its violation of §
1681e(b) for failing to have reasonable procedures to assure
maximum accuracy of the information in Cortez’s report. In
other words, in its initial preparation of the credit report with the
OFAC alert, where Trans Union relied on Accuity’s matching
technology, the jury found that Trans Union did not act with
reckless disregard to Cortez’s rights. See, e.g., Casella, 56 F.2d
at 475 (holding that where San Diego re-reported false child
support liability, credit reporting agencies did not willfully
violate § 1681e(b) when they reported that liability on the
plaintiff’s credit report). However, the jury found that Trans
85
Union willfully violated §§ 1681g and 1681i in its responses to
Cortez’s request for a copy of her complete credit report and her
request for reinvestigation. Trans Union categorically denied
that the OFAC alert information was on Cortez’s report, even
though it continued to report that information to potential
creditors and failed to include any statement in the report that
Cortez disputed the OFAC information. The record clearly
supports the jury’s reasoned determination that Trans Union was
not “merely careless” in failing to recognize that the FCRA
governed the OFAC information it was reporting.
In attempting to overturn the punitive damages award,
Trans Union repeats its argument that the OFAC information
was not part of the consumer’s “file.” We have already disposed
of that argument, and need not discuss it again. We do think it
is worth reiterating that the OFAC regulations and the Treasury
Department’s website both indicate that OFAC information in
a credit report is in fact governed by the FCRA. That website
goes as far as to mention that the FCRA and the FTC provide
consumers with a remedy when an invalid OFAC Alert is on
t h e i r c r e d i t r e p o r t s . S e e
86
http://www.treas.gov/offices/enforcement/ofac/faq/answer.sht
ml#consumer2 (visited June 17, 2010) (“How Can I Get The
OFAC Alert Off My Credit Report? A consumer has the right
under the Fair Credit Reporting Act (FCRA), 15 U.S.C. 1681 et
seq., to request the removal of incorrect information on his/her
credit report. To accomplish this, consumers should contact the
credit reporting agency or bureau that issued the credit report.”).
Even a cursory look at that website should have informed Trans
Union of the perils of its approach to OFAC alerts.
Trans Union argues that because the FTC, and not the
Treasury Department, is the agency authorized to enforce the
FCRA, the Treasury Department’s conclusions about the FCRA
are not relevant. That argument only bolsters our belief that the
jury acted reasonably in concluding that Trans Union’s actions
were not “merely careless” but were with reckless disregard to
the law. The jury may well have concluded that Trans Union
made a strategic decision to include OFAC information in the
manner it did because the OFAC alert was a separate product
that could be sold to customers at additional cost.
When considered together with our analysis in support of
87
the jury’s finding of liability, we easily conclude that Trans
Union substantially risked acting in violation of the law when it
made the policy decision to exclude OFAC information from its
FCRA compliance. Although such a finding cannot be made
lightly, especially in a case of first impression, it is imperative
that we do not allow “a company that traffics in the reputations
of ordinary people” a free pass to ignore the requirements of the
FCRA each time it creatively incorporates a new piece of
personal consumer information in its reports. Dennis v. BEH-1,
LLC, 520 F.3d 1066, 1071 (9th Cir. 2008).
Finally, Trans Union argues that the remitted punitive
damages award violates its due process rights under the 14th
Amendment. We review the award de novo to determine
whether the award of punitive damages is “grossly excessive or
arbitrary.” Campbell, 538 U.S. at 416. In Campbell, the
Supreme Court summarized the three guideposts a court
reviewing punitive damages should consider: “(1) the degree of
reprehensibility of the defendant’s misconduct; (2) the disparity
between the actual or potential harm suffered by the plaintiff
and the punitive damages award; and (3) the difference between
88
the punitive damages award by the jury and the civil penalties
authorized or imposed in comparable cases.” Id. at 418 (citing
Gore, 517 U.S. at 575).
The district court’s remitted award of $100,000 does not
even begin to approach the outer limit of punitive damages
“aimed at deterrence and retribution” allowed by the
Constitution. Id. at 416.
In terms of reprehensibility, the first guidepost, Trans
Union ignored “the overwhelming likelihood of liability” and
contorted its policies to avoid its responsibilities under the
FCRA. Id. at 419. Trans Union also repeatedly failed to
acknowledge to Cortez that the OFAC Alert was in her credit
report when it knew that the information was being reported to
its subscribers. Inter Med. Supplies, Ltd. v. EBI Med. Sys., Inc.,
181 F.3d 446, 467 (3d Cir. 1999) (the degree of reprehensibility
of a defendant’s conduct includes whether the conduct “involves
deliberate false statements rather than omissions”). Moreover,
although Cortez did not suffer severe physical harm, the gravity
of harm that could result from Trans Union’s “match” of Cortez
with an individual on a “terrorist” list cannot be over stated.
89
This is especially true because Trans Union’s subscribers rely on
the accuracy of the detailed personal information Trans Union
provides. Given the severe potential consequences of such an
association, Trans Union’s failure to take the utmost care in
ensuring the information’s accuracy – at the very least,
comparing birth dates when they are available – is reprehensible.
The damages award also survives scrutiny under the
second guidepost. An award that is twice the compensatory
damages award falls well within the Supreme Court’s standard
for ordinary cases of a single-digit ratio. Campbell, 538 U.S. at
425.
Finally, we agree with the parties that the third guidepost
is not useful in the analysis of punitive damages here as there is
no “truly comparable” civil penalty to a FCRA punitive damages
award. Cortez Reply Br. at 46; Trans Union Reply Br. at 23-26.
Accordingly, we affirm the district court’s remitted
punitive damages award of $100,000.
IV. CONCLUSION
In summary, we affirm the district court’s orders denying
90
Trans Union’s motion for judgment as a matter of law and
entering a remitted judgment, including $50,000 in
compensatory damages and $100,000 in punitive damages,
against Trans Union.
91