            Case: 14-11111   Date Filed: 01/05/2015   Page: 1 of 13


                                                                [PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                               No. 14-11111
                         ________________________

                    D.C. Docket No. 2:11-cv-00938-AKK


CURTIS J. COLLINS,

                                                       Plaintiff-Appellant,

                                   versus

EXPERIAN INFORMATION SOLUTIONS, INC.,

                                                       Defendant-Appellee.




                         ________________________

                 Appeal from the United States District Court
                    for the Northern District of Alabama
                       _________________________


                              (January 5, 2015)


Before MARTIN, JULIE CARNES and BLACK, Circuit Judges.

BLACK, Circuit Judge:
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       Curtis J. Collins appeals the district court’s grant of summary judgment in

favor of Experian Information Solutions, Inc. (Experian), in his lawsuit alleging

Experian negligently and willfully violated its duty under the Fair Credit Reporting

Act (FCRA), 15 U.S.C. § 1681i(a), to conduct a reasonable reinvestigation of

disputed information contained in his credit file.1 This appeal presents us with a

question of first impression—whether an allegation of a violation of § 1681i(a),

requiring a consumer reporting agency to conduct a “reasonable reinvestigation” of

disputed information contained in a consumer’s credit file, requires the consumer

reporting agency to have disclosed the consumer’s credit report to a third party in

order for a consumer to recover actual damages. Looking to the plain language of

the FCRA, we are convinced that a consumer’s credit report need not be published

to a third party in order to entitle the consumer to actual damages under § 1681i(a),

and we reverse the district court’s finding to the contrary.

                                     I. BACKGROUND

       In April 2010, Equable Ascent Financial, LLC (Equable) sued Collins in the

Small Claims Court of Jefferson County, Alabama. In its complaint, Equable

alleged it had been assigned an account from GE Capital Corp., and that Equable

had the right to bring an action for payment on that account. Collins answered,

       1
          The district court also granted summary judgment to Experian on Collins’ negligent and
willful consumer disclosure violation claims and state law tort claims. Collins does not appeal
the district court’s grant of summary judgment on these claims, instead limiting his appeal to the
district court’s grant of summary judgment on his § 1681i(a) claims.
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denying he owed Equable any money. After a trial where both parties appeared

with counsel, the court entered judgment in favor of Collins on July 26, 2010.

      The purported debt to Equable was listed on an Experian credit report pulled

in June 2010. In order to remove the Equable debt from his credit file, Collins

wrote to Experian on July 30, 2010, explaining:

      I don’t owe any money to Equable Ascent Financial for account []
      #XXX1237. This account is wrong. Delete it immediately. Equable
      Ascent sued me for this debt in the small claims court of Jefferson
      County, Alabama, case # SM-10-2973, in my answer to the lawsuit I
      denied I owed any money on the account, judgment was entered for
      defendant, you can call the court for more information at 205-325-
      XXXX or the attorneys for Equable Ascent at 205-250-XXXX.

      Experian’s corporate representative testified that due in part to a zip code

discrepancy on the envelope, Experian believed the letter may not have been sent

by Collins. Experian sent Collins a letter at his home address on August 9, 2010,

stating it had received a suspicious request regarding his personal credit

information that it had determined was not sent by Collins. The letter advised

Collins:

      If you believe that information in your personal credit report is
      inaccurate or incomplete, please [call, visit our website, or write]. Be
      sure to include all of the following: your full name including middle
      initial . . .; Social Security number; current mailing address; date of
      birth; and previous addresses for the past two years.

      Include the account name and number for any item on your credit
      report that you wish to dispute, and state the specific reason why you
      feel the information is inaccurate. We will ask the data furnisher to
      review their records to verify the information. An investigation may
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      take up to 30 days . . . . Once we receive the results of the
      investigation, we will promptly notify you of the outcome.

      Collins responded in a letter dated August 19, 2010. This letter stated:

      I don’t owe any money to Equable Ascent Financial for account
      #XXX1237. This account is wrong. Delete it immediately. Equable
      Ascent sued me for this debt in Jefferson [C]ounty Alabama and I
      won. My case number is SM-10-2973. Please delete and send me
      updated credit report.

The letter also included a copy of Collins’ driver’s license and social security card,

and listed his birth date.

      In response to this second letter, Experian sent an Automated Consumer

Dispute Verification form (ACDV) to Equable. The ACDV listed the dispute

reason as “EQUABLE ASCENT SUED ME FOR THIS DEBT IN JEFFERSON

COUNTY ALABAMA AND I WON.” In response to the ACDV, Equable

wrongly responded that the debt was still valid. Experian did nothing else to

investigate Collins’ claim.

      Experian’s system generated an investigation results summary that was sent

to Collins on September 9, 2010. The summary stated the claim had been

“reviewed” and that Collins could visit Experian’s website to “check the status of

[his] pending disputes at any time.” The letter stated “reviewed” meant “[t]his

item was either updated or deleted; review this report to learn its outcome.” The

summary also provided a mailing address for Collins to request a hard copy of his

corrected credit report by mail.
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      When Collins visited the Experian website on November 23, 2010, he

learned his Equable account was still being reported. Collins subsequently filed a

lawsuit against Experian in state court on February 5, 2011. A credit report dated

February 28, 2011, continued to include the disputed debt. Experian removed the

Equable account from Collins’ credit report on March 10, 2011, and removed the

case to federal court on March 11, 2011. After the district court granted summary

judgment to Experian, Collins filed a timely notice of appeal.

                                 II. DISCUSSION

      “Congress enacted FCRA in 1970 to ensure fair and accurate credit

reporting, promote efficiency in the banking system, and protect consumer

privacy.” Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 52, 127 S. Ct. 2201, 2205

(2007). The FCRA creates a private right of action against consumer reporting

agencies for the negligent, see 15 U.S.C. § 1681o, or willful, see 15 U.S.C.

§ 1681n, violation of any duty imposed under the statute. See Safeco, 551 U.S. at

53, 127 S. Ct. at 2206. Collins asserts Experian’s reinvestigation of his disputed

debt with Equable was unreasonable, and that Experian was liable for both

negligent and willful violations of the FCRA in its handling of the reinvestigation.

We review the district court’s grant of summary judgment on these issues de novo.

Wollschlaeger v. Governor of Fla., 760 F.3d 1195, 1208 (11th Cir. 2014).




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A. Collins’ Negligent Violation Claim

      Section 1681o of the FCRA governs civil liability for negligent

noncompliance with the statute. That section provides, in relevant part, that “[a]ny

person who is negligent in failing to comply with any requirement imposed under

this subchapter with respect to any consumer is liable to that consumer in an

amount equal to the sum of . . . any actual damages sustained by the consumer as a

result of the failure.” 15 U.S.C. § 1681o(a)(1).

      The district court concluded there were sufficient facts for a jury to find that

Experian was negligent in failing to conduct a reasonable reinvestigation, as

required by 15 U.S.C. § 1681i(a)(1), to determine whether the Equable debt was

accurate. According to the district court, an issue of material fact remained as to

whether Experian’s investigation was reasonable when it disregarded the small

claims court information Collins provided and instead relied solely on Equable to

verify the debt. See Pinner v. Schmidt, 805 F.2d 1258, 1262 (5th Cir. 1986)

(concluding it was unreasonable for a credit reporting agency to contact only the

creditor in its reinvestigation of a disputed debt); see also Bryant v. TRW, Inc., 689

F.2d 72, 79 (6th Cir. 1982) (making two telephone calls to the creditor was

insufficient to re-verify disputed information). Because there was a genuine issue

of material fact regarding whether Experian was negligent in failing to comply

with the reasonable reinvestigation requirement, the district court then had to


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decide whether there was a genuine issue of material fact regarding whether

Collins could show “actual damages sustained by the consumer as a result of the

failure.” 15 U.S.C. § 1681o(a)(1).

        The district court granted summary judgment to Experian on Collins’

negligence claim because it determined Collins could not show actual damages

since he failed to present evidence that the erroneous information regarding his

Equable account was ever published to a third party. The district court collected

persuasive authority and determined “the majority of courts have consistently

required a plaintiff to prove actual harm resulting from the [consumer reporting

agency’s] disclosure of the erroneous report to a third party in order to recover

damages for emotional distress.”

       Collins asserts the cases cited by the district court requiring publication to

third parties in order to recover emotional distress damages in an FCRA action are

distinguishable from this case. We agree. The cases contain language that, taken

out of context, seems to apply. None of the cases, however, conducted a statutory

analysis, and many also involved different subsections of the FCRA. 2 None

answered the question presented here—whether a plaintiff seeking damages for a


       2
          See Wantz v. Experian Info. Solutions, 386 F.3d 829, 834 (7th Cir. 2004), abrogated on
other grounds by Safeco, 551 U.S. at 56 & n.8, 127 S. Ct. at 2208 & n.8; Cousin v. Trans Union
Corp., 246 F.3d 359, 370 (5th Cir. 2001); Casella v. Equifax Credit Info. Servs., 56 F.3d 469,
474-75 (2d Cir. 1995). But see Guimond v. Trans Union Credit Info. Co., 45 F.3d 1329, 1333
(9th Cir. 1995).


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negligent violation of this specific subsection, § 1681i(a), must show the inaccurate

information was published to a third party. 3 We are the first Circuit to address the

issue as presented.

       We have “long recognized that our authority to interpret statutory language

is constrained by the plain meaning of the statutory language in the context of the

entire statute, as assisted by the canons of statutory construction.” Edison v.

Douberly, 604 F.3d 1307, 1310 (11th Cir. 2010). Our first step in interpreting a

statute is to determine whether the statutory language has a plain and unambiguous

meaning. Shotz v. City of Plantation, 344 F.3d 1161, 1167 (11th Cir. 2003). If the

meaning of the words Congress used is clear, we need not resort to legislative

history. Id.; see also Silva-Hernandez v. U.S. Bureau of Citizenship &

Immigration Servs., 701 F.3d 356, 363 (11th Cir. 2012) (“Where the language of a

statute is unambiguous . . . we need not, and ought not, consider legislative

history.” (quotation omitted)).

       The important distinction in this case is the difference in the FCRA’s

definitions of the terms “consumer report” and “file.” Congress provided

       3
         Experian argues our statement in Cahlin v. General Motors Acceptance Corp., 936
F.2d 1151, 1160 (11th Cir. 1991), that “[w]e need not reach the substance of [the plaintiff’s]
FCRA claims . . . because we find that he has utterly failed to produce any evidence tending to
show that he was damaged as a result of an allegedly inaccurate . . . credit report,” decides this
issue. Experian, however, reads that sentence far too broadly. Whether a plaintiff must show a
consumer reporting agency published his credit report to third parties in order to be entitled to
actual emotional distress damages was not at issue in Cahlin because there was at least
circumstantial evidence a credit report was published, and we had no opportunity to and did not
discuss emotional distress damages in that case. Id. at 1161.
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definitions in the FCRA for both of these terms and gave them different meanings.

A “consumer report” is defined 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
      serving as a factor in establishing the consumer’s eligibility for . . .
      credit or insurance . . .; employment purposes; or any other
      purpose . . . .

15 U.S.C. § 1681a(d)(1) (emphasis added). In contrast, “[t]he term ‘file’, when

used in connection with information on any consumer, means all of the information

on that consumer recorded and retained by a consumer reporting agency

regardless of how the information is stored.” 15 U.S.C. § 1681a(g) (emphasis

added). According to the FCRA’s definitions, a “consumer report” is

communicated by the consumer reporting agency, while a “file” is retained by the

consumer reporting agency.

      Collins claims Experian violated 15 U.S.C. § 1681i(a), which imposes on a

consumer reporting agency the duty of conducting a reasonable reinvestigation of

disputed information in a consumer’s credit file. That provision states:

      [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
      directly . . . of such dispute, the agency shall, free of charge, conduct a
      reasonable reinvestigation to determine whether the disputed
      information is inaccurate . . . .


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15 U.S.C. § 1681i(a)(1)(A). The reinvestigation provision addresses the

“completeness or accuracy of any item of information contained in a consumer’s

file.” Id. (emphasis added). This stands in stark contrast to the language of 15

U.S.C. § 1681e(b), 4 which requires a consumer reporting agency to follow

reasonable procedures to assure maximum possible accuracy of a consumer report,

specifically providing that “[w]henever 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.” 15 U.S.C. § 1681e(b) (emphasis added).

        Looking at the entire statute, Congress chose to give different statutory

definitions to the terms “consumer report” and “file,” and used the different terms

in different subsections. See United States v. Steele, 147 F.3d 1316, 1318 (11th

Cir. 1998) (en banc) (“[W]e must presume that Congress said what it meant and

meant what it said.”); Iraola & CIA, SA v. Kimberly-Clark Corp., 232 F.3d 854,

859 (11th Cir. 2000) (“[W]hen Congress uses different language in similar

sections, it intends different meanings.”). A “consumer report” requires

communication to a third party, while a “file” does not. See Russello v. United

States, 464 U.S. 16, 23, 104 S. Ct. 296, 300 (1983) (“Where Congress includes

       4
          Collins originally claimed Experian also violated 15 U.S.C. § 1681e(b). Collins
dropped his claim under § 1681e(b) prior to summary judgment, when discovery provided no
evidence that Experian had ever furnished Collins’ credit report containing the disputed debt to a
third party.
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particular language in one section of a statute but omits it in another section of the

same Act, it is generally presumed that Congress acts intentionally or purposely in

the disparate inclusion or exclusion.” (brackets and quotations omitted)). Thus, by

its plain terms, § 1681i(a) does not require communication to a third party; it

provides a consumer reporting agency violates that provision if a consumer notifies

the agency there is inaccurate information contained in his file and the agency does

not conduct a reasonable reinvestigation into the matter. A file is simply the

information retained by a consumer reporting agency. Thus, we hold that the plain

language of the FCRA contains no requirement that the disputed information be

published to a third party in order for a consumer to recover actual damages under

§ 1681i(a).

      The district court viewed Collins’ actual damages evidence under the belief

that Collins’ credit report had to have been published to a third party, so it did not

have an opportunity to analyze whether Collins’ evidence of emotional distress

was sufficient to present a jury question on actual damages. See Levine v. World

Fin. Network Nat’l Bank, 437 F.3d 1118, 1124 (11th Cir. 2006) (stating “the

existence of compensable emotional distress is relevant to the amount of damages

a plaintiff will ultimately recover” in an FCRA case). We therefore remand to the

district court to conduct this inquiry in the first instance.




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B. Collins’ Willful Violation Claim

      Under 15 U.S.C. § 1681n(a), “[a]ny person who willfully fails to comply

with any requirement imposed under this subchapter with respect to any consumer

is liable to that consumer” for actual, statutory, or punitive damages. See Harris v.

Mexican Specialty Foods, Inc., 564 F.3d 1301, 1306 (11th Cir. 2009). The

Supreme Court has held that “reckless disregard of a requirement of FCRA would

qualify as a willful violation within the meaning of § 1681n(a).” Safeco, 551 U.S.

at 71, 127 S. Ct. at 2216; see also Harris, 564 F.3d at 1310 (“A violation is

‘willful’ for the purposes of the FCRA if the defendant violates the terms of the

Act with knowledge or reckless disregard for the law.”). “[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, 127 S.

Ct. at 2215.

      The district court did not err in finding that while a jury could find

Experian’s reinvestigation conduct negligent, Experian’s conduct did not rise to the

level of running “a risk of violating the law substantially greater than the risk

associated with a reading that was merely careless.” See id. Taking no steps other

than contacting only Equable with an ACDV form regarding the disputed entry


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might have been negligent, but willfulness or recklessness is a higher standard that

has not been met in this case. Therefore, we affirm the district court’s grant of

summary judgment on Collins’ claim that Experian willfully violated § 1681i(a)

when reinvestigating his disputed debt.

                                III. CONCLUSION

      We reverse the district court’s determination that third-party publication is

necessary in order for a consumer to be entitled to actual damages under 15 U.S.C.

§ 1681i(a), and remand to the district court to determine in the first instance

whether Collins has presented sufficient evidence of actual damages to create a

jury question. We affirm the district court’s grant of summary judgment on

Collins’ claim Experian willfully violated its duty of conducting a reasonable

reinvestigation.

      AFFIRMED IN PART, REVERSED AND REMANDED IN PART.




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