                Case: 19-11487       Date Filed: 06/19/2020       Page: 1 of 22



                                                                       [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS
                            FOR THE ELEVENTH CIRCUIT
                              _________________________

                               Nos. 19-11487 and 19-11940
                              _________________________

                          D.C. Docket No. 2:15-cv-00952-SGC


SHAUN J YOUNGER,

                                                                           Plaintiff-Appellee,
                                            versus


EXPERIAN INFORMATION SOLUTIONS, INC.

                                                                       Defendant-Appellant.
                             ___________________________

                     Appeals from the United States District Court
                        for the Northern District of Alabama
                         ____________________________
                                       (June 19, 2020)

Before WILLIAM PRYOR, Chief Judge, and GRANT, Circuit Judge, and JUNG, *
District Judge.
JUNG, District Judge:
       Appellant Experian Information Solutions, Inc. (“Experian”) brings several

issues on appeal from a two-day jury trial in which Experian was found to have


       *The Honorable William F. Jung, District Judge for the Middle District of Florida, sitting
by designation.
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negligently and willfully violated the Fair Credit Reporting Act. With the benefit

of the parties’ briefing and oral argument, we find no competent proof at trial of a

willful violation, vacate the magistrate judge’s final judgment in that regard, and

remand for further proceedings. The remaining issues on appeal are affirmed.

                                I. BACKGROUND

      Plaintiff Shaun Younger brought this lawsuit on June 5, 2015 against

defendant Experian and others. Experian is a credit reporting agency (“CRA”)

regulated by the Fair Credit Reporting Act, 15 U.S.C. § 1681 et. seq. (“FCRA”).

After other defendants and claims were resolved, Younger’s remaining case

against Experian claimed that Experian negligently and willfully violated 15

U.S.C. § 1681i(a)(1)(A) when it did not reinvestigate an item on his credit report

that Younger asserted was in error.

      The facts show that a prior small-claims debt of Younger’s was resolved by

a dismissal with prejudice of the debt claim on January 12, 2015, in state district

court in Younger’s home county in Alabama. Younger ran his credit report on

March 30, 2015, with the assistance of his lawyer and they noticed that this debt

was still being reported on his Experian credit report. Younger and his counsel

drafted a letter to Experian and posted it from the lawyer’s office that day. The

letter attached the order of dismissal with prejudice and asked Experian to



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reinvestigate the debt listing and remove it. The letter was typed in the lawyer’s

office by Younger and his counsel. Younger identified himself in the letter by

name, date of birth, address, and last four digits of social security number. He

provided information that could be used to verify the dismissal of the debt lawsuit.

In the letter, Younger stated an incorrect account number when describing the debt.

He also mistakenly asked Experian in the letter to correct his Equifax credit report,

apparently because he and his lawyer also sent a similar letter to the Equifax credit

agency. The lawyer sent the letter from the lawyer’s local office via certified mail,

but it had Younger’s local return address on it. The envelope was typed and

apparently bar coded by an automatic postal machine with printed postage. It did

not bear a stamp or postmark.

       Experian received Younger’s letter on April 7, 2015. An unknown person in

the Experian mail room concluded that the letter qualified for diversion under

Experian’s “suspicious mail policy” and diverted the letter. Precisely why this

sorter in the mailroom determined Younger’s letter qualified under the suspicious

mail policy is unknown because Experian does not maintain a system tracking

which employee marked a letter suspicious or why an employee marked a letter

suspicious. On April 15, 2015, Experian sent to Younger at his home address the

standard letter it sends to queries that are diverted by the suspicious mail policy.

This letter stated:

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      Dear SHAUN J YOUNGER

      We received a suspicious request in the mail regarding your personal
      credit report and determined that it was not sent by you. Suspicious
      requests are reviewed by Experian security personnel who work
      regularly with law enforcement officials and regulatory agencies to
      identify fraudulent and deceptive correspondence purporting to
      originate from consumers.

      In an effort to safeguard your personal credit information from fraud,
      we will not be initiating any disputes based on the suspicious
      correspondence. Experian will apply this same policy to any future
      suspicious requests that we receive regarding your personal credit
      information, but we will not send additional notices to you of suspicious
      correspondence.

      If you believe that information in your personal credit report is
      inaccurate or incomplete, please call us at 1 (855) 435-9429 to speak
      directly to an Experian consumer assistance representative.

      Experian did nothing further with Younger’s request, and so it did not

reinvestigate within 30 days of receiving his letter. See 15 U.S.C § 1681i(a)(1)(A).

Younger did not phone Experian as suggested in the letter, although his decision

not to call Experian did not affect Experian’s duty to reinvestigate, which attached

when it received his request. See id. Instead, he filed suit against Experian on

June 5, 2015. On June 10, 2015, pursuant to a communication from the debt

holder, Experian deleted from Younger’s credit file and report the information

about which Younger had complained. Very shortly thereafter, Younger served

Experian in this lawsuit.

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      The parties stipulated to dispositive jurisdiction before the United States

Magistrate Judge under 28 U.S.C. § 636(c). Prior to trial, the magistrate judge

denied Experian’s motion for summary judgment, but granted Younger’s summary

judgment motion in part. The magistrate judge found that Experian violated its

duty to reinvestigate Younger’s disputed credit data. In other words, the court held

Experian was negligent in not following through with Younger’s letter and

reinvestigating the disputed entry. Based on the magistrate judge’s ruling,

Younger would still have to prove causation and damages at trial on the negligence

claim, but the court found a breach of the statutory duty to reinvestigate under 15

U.S.C. § 1681i(a)(1)(A). The court held “no reasonable factfinder could find the

March 30 letter’s contents presented anything to suggest it was not ‘from’

Plaintiff.” “This [letter] triggered Experian’s duty to conduct a reinvestigation,

which Experian failed to do.”

      One week prior to trial Experian moved in limine to preclude mention,

comment, or reference to any other settlements Experian may have executed,

whether in lawsuits or administrative actions. Younger filed no response to this

motion although he was instructed to do so. The magistrate judge granted the

motion. The court held “[s]uch evidence is irrelevant to the instant action and

prejudicial for the purposes of Rule 403. Even if such evidence has some




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probative value, it would likely confuse and mislead the jury from evaluating

[Younger’s] claims in this case.”

       In this very short trial the parties selected a jury and rested by 11:00 am the

second morning. During trial, only Younger and Experian’s corporate

representative testified. Our review of this short trial is hampered by the failure to

report or otherwise contemporaneously record the eight mid-trial sidebar

conferences, most of which appear to have discussed substantive case issues and

objections. Off-the-record sidebars or bench conferences concerning case-related

substance in a jury trial are not proper. 28 U.S.C. § 753(b); see also United States

v. Smith, 591 F.2d 1105, 1108–09 (5th Cir. 1979).1

       At trial, Younger moved into evidence Experian’s suspicious mail policy.

The policy states that a sorter is to evaluate each piece of mail for certain “listed”

characteristics that might suggest a letter is not from the consumer. For example,

“suspicious” characteristics include envelopes that are “similar” in type or size;

envelopes that contain “similar” ink color or font; letters with a “similar letter

format”; “hand addressed envelopes” with “a typed letter”; and “[u]nique

handwriting.” Other suspicious characteristics include “[a] signature found on [an]



       1
        In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior
to October 1, 1981.

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attachment” that differs from “the signature on the letter”; “[d]ata on an attachment

document [that] appears to have been manipulated”; “[d]ata on an attachment

document [that] does not appear logical”; a “return address [on the letter itself]

which differs from the return address appearing on the envelope”; and “[a] series

of envelop[e]s where the postmark is in the same city but the return address[es] are

in different cities.” When five or more letters from different consumers in a batch

of mail contain the same listed characteristic, the policy counsels that a sorter can

“reasonabl[y] . . . conclude that the[y] . . . may not have been mailed by the

consumer” and mark them suspicious.

      Younger twice cross-examined Experian’s corporate representative, once

during his own case-in-chief and once during Experian’s case-in-chief. Younger

elicited testimony from the representative that established Experian misclassified

his letter, the misclassifying of his letter occurred pursuant to Experian’s

suspicious mail policy, and that Experian agreed his letter contained no

characteristics raising suspicion. Indeed, although the representative could not

identify any suspicious characteristic of Younger’s letter at trial, she maintained

that the letter was marked suspicious and not reinvestigated “pursuant to

Experian’s policies and procedures.” She explained that Experian receives

“anywhere from 3,000 to 10,000 pieces of mail every day” but employs only 10 to

14 sorters to review the mail for suspicious characteristics. She testified that

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thousands of letters are marked suspicious each day, and suspicious letters are not

reinvestigated without further action by the consumer even though the duty to

reinvestigate attaches when the consumer reporting agency receives the letter and

nothing in the FCRA requires a consumer to take additional action. 15 U.S.C.

§ 1681i(a)(1)(A). Although the corporate representative agreed Experian’s policy

has led it to misclassify other letters besides Younger’s, neither party presented any

evidence of how often Experian misclassifies genuine consumer-dispute letters.

      Younger also questioned the representative about a previous settlement

agreement Experian had executed, contrary to the in limine order. As described,

the court’s in limine order precluded any mention or use of Experian’s legal or

administrative settlements. Younger asked the representative if an ulterior purpose

for the suspicious mail policy is to induce the consumer to phone Experian, so

Experian can sell or market to him during a dispute call. The representative denied

that the dispute agents tried to sell things. At this point, Younger showed the

representative a settlement agreement between several state attorneys general and

several credit reporting agencies, including Experian. Basically, the settlement

agreement imposed “best practices” by agreement. Titled “Assurance of Voluntary

Compliance/Assurance of Voluntary Discontinuance,” the settlement agreement

contained all the formal caveats that it contained no admissions by the CRAs, no

findings of fact or law, and no liability found or admitted by the CRAs; indeed it

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contained a denial of liability by the CRAs. The settlement agreement did mention

the states’ “concerns” that the CRAs were violating the FCRA and stated that the

states had investigated various topics including whether the CRAs “engage in

improper disclosure or marketing practices relating to the sale of direct-to-

consumer products to consumers during credit report dispute phone calls.”

Younger asked a 12-line speaking question to the representative, which

inaccurately stated that the settlement agreement contained,

      [a]s a result of the findings of this multistate committee, according to
      this document that your lawyer and Experian signed—or your lawyer’s
      law firm, rather—it says that y’all shall adopt a script for use in post-
      dispute marketing phone calls to communicate to consumers in a clear
      and comprehensible language when the dispute portion ends and when
      the marketing products and services begins.

      The representative then twice denied that Experian marketed to consumers

who called into the dedicated consumer dispute phone line. Younger responded,

“Well, then, based on your own personal knowledge, is it surprising to you that

Experian agreed that they would enter into this compliance order and change their

business practices to make it clear that they were marketing?” At this point the

defense counsel objected on relevance. Neither party reminded the magistrate

judge of the in limine order, and the court overruled the relevance objection. After

this ruling, Younger then repeated the question for seven lines, again premised on

whether the representative would be “surprise[d]” and repeating the insinuation

that the settlement agreement showed “that Experian would enter into this

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assurance of voluntary compliance agreeing that they would not—or they would

delineate and stop marketing to people at the same time . . . ?” The representative

answered “no.” Although Younger stated before the jury “we’ll show the jury [the

document] in a minute,” he never offered the exhibit or marked it for identification.

      In its examination of its representative, Experian asked about the benefits of

the suspicious mail policy. Its representative testified that Experian considers it

“really important to . . . protect the consumer’s privacy.” When Experian

completes a reinvestigation, it must send the consumer “the results of the

reinvestigation” and “a full personal credit report,” which contains “a lot of

information,” such as

      phone numbers, addresses that [a consumer] live[s] at now, addresses
      [a consumer] used to live at, [a consumer’s] employment information,
      all of the different banks that [a consumer] do[es] business with, credit
      card companies, partial account numbers, the phone numbers and
      addresses to those companies, anybody that’s looked at your credit
      report in the last two years.
See id. §§ 1681a(d) (defining “consumer report”), 1681i(a)(6)(B)(ii) (requiring a

credit reporting agency to provide “a consumer report” to the consumer upon

completion of the reinvestigation). Because “potential fraudsters could use [this

kind of information] to do bad things,” Experian attempts to “protect” the

consumer’s privacy by ensuring “the consumer initiated the dispute.” So Experian

created the suspicious mail policy both “to comply with the FCRA” and “to add

that extra layer of protection for the consumer.”

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      During closing arguments, Younger stressed both that Experian created an

overbroad policy to screen consumer disputes and that Experian created the policy

to increase its revenue. As to the latter point, Younger again mentioned the

settlement agreement. And Experian again objected, but this time it cited the in

limine order. The magistrate judge overruled the objection because she concluded

Experian had waived this ground by not asserting it when Younger first elicited the

testimony on the settlement agreement. In its rebuttal, Experian told the jury that

this settlement agreement had nothing to do with the suspicious mail policy.

      The jury returned a verdict on the trial’s second afternoon, finding that

Experian’s negligent failure to reinvestigate had caused harm to Younger,

awarding $5,000 in compensatory damages. The jury further found Experian’s

violation of the FCRA was willful and assessed $3 million in punitive damages.

      Experian brought post-trial motions for a new trial on all jury findings, based

upon Younger’s use of the settlement agreement. Experian also sought judgments

as a matter of law for failure of proof on willfulness and on compensatory injury,

and sought a vacatur or remittitur of punitive damages. The magistrate judge

denied these post-trial motions2 except to remit the punitive damages amount to

$490,000 based upon due process principles.



      2
          There were other post-trial motions made that are not relevant to this appeal.

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      On appeal, Experian seeks a judgment as a matter of law upon the

willfulness claim, asserting there was an insufficient evidentiary basis. Experian

seeks a similar remedy on Younger’s $5,000 compensable damages verdict,

arguing that Younger omitted sufficient proof of personal injury. Also, Experian

seeks a new trial on both the compensatory and remitted punitive damages verdicts

based upon Younger’s use of the settlement agreement stratagem at trial. Finally,

Experian seeks to have the $490,000 punitive damage award vacated for being

constitutionally excessive.

                           II. STANDARD OF REVIEW

      A district court’s denial of a defendant’s motion for judgment as a matter of

law is reviewed de novo, applying the same legal standard as the district court. See

Bianchi v. Roadway Express, Inc., 441 F.3d 1278, 1282 (11th Cir. 2006).

Judgment as a matter of law should be granted when “there is no legally sufficient

evidentiary basis for a reasonable jury to find for that party on that issue.”

Commodores Entm’t Corp. v. McClary, 879 F.3d 1114, 1130 (11th Cir. 2018)

(internal quotation marks omitted). This review draws “all reasonable inferences

most favorable to the party opposed to the motion.” Simon v. Shearson Lehman

Bros., Inc., 895 F.2d 1304, 1310 (11th Cir. 1990) (internal quotation marks

omitted).



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      We review the district court’s denial of a motion for new trial for abuse of

discretion. Bianchi, 441 F.3d at 1282. “A judge should grant a motion for a new

trial when the verdict is against the clear weight of the evidence or will result in a

miscarriage of justice, even though there may be substantial evidence which would

prevent the direction of a verdict.” Lipphardt v. Durango Steakhouse of Brandon,

Inc., 267 F.3d 1183, 1186 (11th Cir. 2001) (internal quotation marks omitted).

“Because it is critical that a judge does not merely substitute his judgment for that

of the jury, new trials should not be granted on evidentiary grounds unless, at a

minimum, the verdict is against the great—not merely the greater—weight of the

evidence.” Id. (internal quotation marks omitted).

                                 III. DISCUSSION

      The statutory reinvestigation procedure for CRAs provides 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 directly, or indirectly
      through a reseller, 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 … 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.

15 U.S.C. § 1681i(a)(1)(A). The CRA must promptly notify the data furnisher of

any disputed information, and the CRA’s notice to the furnisher must include “all

relevant information regarding the dispute” that the CRA has received from the

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consumer. Id. § 1681i(a)(2). In conducting the reinvestigation, the CRA “shall

review and consider all relevant information submitted by the consumer . . . with

respect to [such] information.” Id. § 1681i(a)(4). Information in a consumer’s file

which is found to be inaccurate must be “promptly” deleted or modified, and the

CRA must notify the furnisher of the information. Id. § 1681i(a)(5). A CRA may

cease reinvestigating if it determines the consumer’s dispute is “frivolous or

irrelevant,” including by reason of the consumer’s failure to provide sufficient

information to investigate the disputed information. Id. § 1681i(a)(3)(A).

However, the CRA must notify the consumer within five (5) days if it determines

the dispute is frivolous or irrelevant and terminates the reinvestigation. Id.

§ 1681i(a)(3)(B).

      Within five (5) days after completing the reinvestigation, the CRA must

provide the consumer with notice of the results and the consumer’s rights relating

to those results. Id. § 1681i(a)(6). In addition to providing the consumer the results

of the reinvestigation, the CRA “shall provide . . . a consumer report that is based

upon the consumer’s file as that file is revised as a result of the reinvestigation.” Id.

§ 1681i(a)(6)(B)(ii). But the furnishing of consumer reports is heavily regulated

under the FCRA. Section 1681b provides a narrow set of circumstances for when

a CRA “may furnish a consumer report,” including “[i]n accordance with the

written instructions of the consumer to whom it relates.” Id § 1681b(a)(2). In

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accordance with this restriction, the FCRA in turn imposes a duty on the CRA to

“maintain reasonable procedures designed . . . to limit the furnishing of consumer

reports to the purposes listed under section 1681b of this title.” Id. § 1681e(a)

(“These procedures shall require that prospective users of the information identify

themselves . . . . No consumer reporting agency may furnish a consumer report to

any person if it has reasonable grounds for believing that the consumer report will

not be used for a [section 1681b] purpose”).

       “The FCRA creates a private right of action against [CRAs] 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.” Collins v. Experian Info. Sols., Inc., 775 F.3d

1330, 1333 (11th Cir. 2015). A negligent violation permits actual damages and

attorneys’ fees. Id.; 15 U.S.C. § 1681o. In order to recover for a negligent

violation, a plaintiff must show actual damages. Collins, 775 F.3d at 1335. Actual

damages may include mental distress, even in the absence of out-of-pocket

expenses or physical injury. Levine v. World Fin. Network Nat’l Bank (Levine I),

437 F.3d 1118, 1124–25 (11th Cir. 2006); see also Guimond v. Trans Union Credit

Info. Co., 45 F.3d 1329, 1333 (9th Cir. 1995); Thompson v. San Antonio Retail

Merchs. Ass’n, 682 F.2d 509, 513 (5th Cir. 1982).

      Where the violation is willful, the FCRA provides for statutory damages of

$100 - $1,000 per violation, attorneys’ fees, costs, and other forms of relief,

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including punitive damages. 15 U.S.C. § 1681n. Under Safeco Ins. Co. v. Burr,

551 U.S. 47 (2007), the “willfulness” standard set forth in § 1681n encompasses

not only “knowing” violations of the statute but also those committed in “reckless

disregard” of the statute’s requirements. Id. at 57. In other words, a “reckless

disregard of a requirement of [the] FCRA would qualify as a willful violation

within the meaning of § 1681n(a).” Collins, 775 F.3d at 1336 (quoting Safeco, 551

U.S. at 71). A company’s action is a willful violation if it “shows that the

company ran a risk of violating the law substantially greater than the risk

associated with a reading that was merely careless.” Id. (internal quotation marks

omitted). That is, a company acts recklessly when its “‘conduct . . . entail[s] an

unjustifiably high risk of harm that is either known or so obvious that it should be

known.’” Marchisio v. Carrington Mortg. Servs., LLC, 919 F.3d 1288, 1303 (11th

Cir. 2019) (quoting Safeco, 551 U.S. at 68).

      A company violates the FCRA where its action, based on a reading of the

statute’s terms, is more than “merely careless” and, instead, it engages in conduct

which amounts to an “objectively unreasonable” view of the company’s duties

under the statute. Safeco, 551 U.S. at 69. In Safeco, the defendant’s policy

stemmed from a reading of the FCRA that was flawed but “ha[d] a foundation in

the statutory text” and, thus, was not objectively unreasonable. Id. at 69–70

(explaining that a reading that is not objectively unreasonable “falls well short of

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raising the ‘unjustifiably high risk’ of violating the statute necessary for reckless

liability”).

       After drawing “all reasonable inferences” in Younger’s favor, Simon, 895

F.2d at 1310, (internal quotation marks omitted), we conclude that there is an

insufficient evidentiary basis to support the verdict, Commodores Entm’t, 879 F.3d

at 1130. Although Experian’s corporate representative admitted that, in addition to

misclassifying Younger’s dispute letter, Experian has misclassified other genuine

letters under its policy, nothing in the record suggests that Experian does so often

enough for a jury to permissibly infer that Experian ran an “unjustifiably high risk”

of violating its duty to reinvestigate. Safeco, 551 U.S. at 68 (internal quotation

marks omitted). Younger offered no evidence of a broad or systemic problem with

Experian’s suspicious mail policy. That the policy contains some broad

characteristics, that Experian employs few persons to sort a large volume of mail,

and that Experian has misclassified an unknown number of letters cannot, on their

own, establish by clear and convincing evidence that Experian ran an unjustifiably

high risk of violating its duties under the FCRA, especially in the light of another

duty imposed by the FCRA. See Eleventh Circuit Pattern Jury Instructions (Civil

Cases) 1.2 (2018) (“[C]lear and convincing evidence . . . is a higher standard of




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proof than proof by a preponderance of the evidence. It means the evidence must

persuade you that the claim or defense is highly probable or reasonably certain.”). 3

       The FCRA imposes an additional duty on Experian to adopt reasonable

procedures to guard against the furnishing of a consumer report for an

impermissible purpose. See 15 U.S.C. §§ 1681b(a), 1681e(a); see also Levine v.

World Fin. Network Nat’l Bank (Levine II), 554 F.3d 1314, 1317–18 (11th Cir.

2009). And, in conjunction with its duty to reinvestigate disputes that originate

“directly” with the consumer, id. § 1681i(a)(1)(A), Experian must provide the

consumer “a consumer report that is based upon the consumer’s file as that file is

revised as a result of the reinvestigation.” Id. § 1681i(a)(6)(B)(ii). Experian’s

policy allows it to sort out claims that do not appear to come “directly” from

consumers. With these considerations in mind, we cannot say that Younger

provided sufficient evidence to establish that Experian recklessly disregarded the

reinvestigation duty. See Safeco, 551 U.S. at 69–70 (concluding Safeco did not act

unreasonably when its actions “ha[d] a foundation in the statutory text”); see also

Levine II, 554 F.3d at 1317–19 (evaluating whether Experian willfully violated its

duty to ensure consumer reports were not furnished for an impermissible purpose).

Experian’s actions had a foundation in the statutory text, even if the application of


       3
          Before trial the parties agreed that the standard to establish willfulness was clear and
convincing evidence and the jury was so instructed. This appeal does not present any issues
related to the appropriate burden of proof.

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its policy was negligent as applied to Younger. Safeco, 551 U.S. at 69–70; accord

Collins, 775 F.3d at 1336 (CRA “[t]aking no steps other than contacting only [a

furnisher of data with a form] regarding the disputed entry might have been

negligent, but willfulness or recklessness is a higher standard that has not been met

in this case.”). Thus, Experian’s conduct was not willful within the meaning of

§ 1681n(a).

      The verdict of willfulness cannot stand on this record. The magistrate judge

should have granted Experian’s Rule 50 motions for judgment as a matter of law at

trial, or upon Experian’s post-trial motion. The magistrate judge on remand shall

enter judgment for Experian on the willfulness claim, pursuant to Fed. R. Civ. P.

50(e). This eliminates the remitted punitive damages judgment, as punitive

damages are only available for willful violations. 15 U.S.C. § 1681n(a)(2). Our

ruling will likely require the magistrate judge to revisit the attorneys’ fees award

upon remand.

      We now turn to Experian’s other grounds on appeal. Experian next contends

that Younger’s use of the settlement agreement was improper and requires a new

trial on the negligence claim. Younger argues that defense counsel did not

preserve this error by sufficient contemporaneous objections. Based upon our

ordering a judgment as a matter of law on the willfulness claim, we deny this point

on appeal. Considering all matters in a light favoring the verdict, even assuming

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that contemporaneous objections sufficiently preserved this point, we do not

believe that the trial stratagem using this settlement agreement contributed

materially to the $5,000 personal injury judgment for negligence or rendered it

suspect. As noted, the magistrate judge entered summary judgment for Younger,

finding that the breach element of Younger’s negligence claim was not a contested

issue of fact and directing the jury that Experian breached its duty to reinvestigate

upon receipt of Younger’s letter. Experian does not contest this ruling on appeal.

      Experian further asserts concerning the negligence claim that Younger’s

compensatory damages case failed for indefiniteness. Experian argues that the

negligence claim failed at trial because damages as to pain and suffering were

generalized and illusory; thus judgment as a matter of law is appropriate on this

claim. Experian argues that Younger’s proof of actual injury causation for mental

distress and pain was insufficient to support the $5,000 jury award to him for these

damages.

      Although this is a closer call, we conclude that the admitted evidence

supports Younger’s relatively modest damages verdict. A plaintiff asserting claims

for negligent compliance with the FCRA must show actual damages. 15 U.S.C.

§ 1681o; see Levine, 437 F.3d at 1123. At trial, Younger testified that a previous

spinal surgery left him with permanent nerve damage, which caused severe pain

when he got upset or stressed. He testified that Experian’s refusal to acknowledge

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his complaint, and the letter they sent him, exacerbated his preexisting injuries by

generating additional stress which caused loss of sleep and greater nerve pain. He

testified as to definite, albeit impalpable, injuries directly caused by Experian.

        To consider the jury’s outcome in this regard we look to how they were

instructed, under the agreed-upon jury instructions. The instructions required

Younger to prove damages proximately flowing from Experian’s negligent

noncompliance. The instructions informed the jury that present damages for

mental anguish, emotional distress, and pain and suffering were recoverable both

for past injury and prospectively. The court instructed the jury that:

      If any item of damage is of a continuing nature, you must decide how
      long it may continue. You must decide which, if any, of these items of
      damage has been proved by Mr. Younger based upon the evidence and
      not upon speculation, guess, or conjecture. The amount of money to be
      awarded for certain of these items of damages such as mental anguish
      cannot be proved in a precise dollar amount. That law leaves such
      amounts to your sound judgment.

      Actual damages under the Fair Credit Reporting Act can include
      recovery for physical injury, personal humiliation, embarrassment,
      mental anguish, and emotional distress.
      ...
      Damages for mental anguish and emotional distress are not presumed
      to have occurred.
      ...
      In order to be recoverable, the emotional distress must be significant,
      that is, beyond generalized stress, and must be proximately caused by
      the defendant’s conduct that violated the act, that is, Experian’s failure
      to reinvestigate.



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On these agreed-upon jury instructions, we think the jury could rationally have

credited Younger’s testimony and found that he proved more than generalized

stress caused by Experian’s negligent handling of his dispute and its mistaken

letter to him.

                                  IV. CONCLUSION

         The proof of a willful violation under 15 U.S.C. § 1681n was plainly not

established by clear and convincing evidence at trial. We vacate the magistrate

judge’s final judgment in this regard, and remand to that court for entry of

judgment under Fed. R. Civ. P. 50(e) for Experian on Younger’s willfulness claim.

We affirm the magistrate judge’s final judgment as to the Younger’s negligence

claim.

VACATED IN PART AND AFFIRMED IN PART AND REMANDED.




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