Jury Instructions: Mendoza v. Experian, USDC, SD, TX

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Jury Instructions: Mendoza v. Experian, USDC, SD, TX

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Summary of Contents of Draft Jury Instructions - Instructions Are Below Summary

1 CRA has duty of reasonable care under e(b) and i(a).
2 e[b] duty of CRA.
3 Breaches duty under e[b] if leaves in data knew/should have
known was inaccurate.
4 Laundry list of compensatory/actual damages available under
FCRA.
5 Duties under e[b] are continuous apply to each new item of
data; also reasonable procedures in 1681i(a).
6 Malice not required for willfulness; punitives require
willfulness only; actions or inactions.
7 Negligent = compensatories; economic and non-economic.
8 Each transmission separate distinct FCRA violation and tort
9 Failure to mitigate.
10 Victim of ID theft is not liable for account and credit
reportings about the victim are false.
11 FCRA not apply to business, commercial matters.
12 Duty reasonable procedures maximum accuracy as to each file in
its system.
13 Duty reasonable procedures maximum accuracy.
14 Duty to maintain and actually use reasonable procedures on
reinvestigation and permanent deletion.
15 Willful if allowed employee to report inaccurate information
due to failure to train and recheck work.
16 If willful, can award punitives.
17 Punitives need not bear any relationship to compensatory;
Determine/punish for reprehensible conduct.
18 Punitives do not require malice/evil motive.
19 Punitive factors to consider (4).
20 Reasonable prudent person standard/balancing test
(reasonableness).
21 CRA cannot ignore disputes by attorney.
22 In preparation of report - CRA maintain/use reasonable
procedures at time report is prepared.
23 FCRA equals strict/automatic.
24 Plaintiff need not suggest improvements.
25 Standard accuracy equals objective measure/even-handed.
26 Post report prep - Experian reasonable reinvestigation upon
dispute.
27 Reasonable efforts to reinvestigate/correct - if Experian
could have remedied errors by uncovering added facts.
28 If told plaintiff it would DEC but didn’t - must find FCRA
violation.
29 Duty to evaluate information in files.
30 Preparing report equals continuing process - obligation
regarding maximum accuracy arises with every added item of
information.
31 Reasonable efforts to reinvestigate on dispute (duplicate
#27?).
32 Reinvestigation not terminated because data is about someone
else.
33 Cannot parrot upon dispute - no longer rely exclusively on
Verizon’s word, much different position .
34 Can’t pull plaintiff’s credit report after suit filed.
Impermissible.
35 Substantial factor test in causation. Not sole factor.
36 Not reasonable procedure if merely contacts furnisher, relates
disputed and does nothing else.
37 Liable if fails to reconcile inaccuracy information previously
corrected/fail to prevent re-reporting.
38 If gross negligence or reckless disregard or conscious
indifference - malice is presumed. Only if flagrant
disregard. Presumed malice equals actual evil intent to
injure.
39 CRA must do more than conduct - not compliant with law just by
reporting data as furnisher supplies it.
40 FCRA purpose.
41 If liable - liable all republications which are reasonably
foreseeable.
42 Erroneous report serve no purpose but to harm.
43 Burden of proof - 1681e(b). Burden shifts to CRA regarding
reasonable procedures.
44 Technical accuracy not the standard; balance test.
45 Factual inaccuracies or inconsistencies can prove lack of
reasonable procedures regarding maximum accuracy.
46 CRA must act impartially/good faith/evaluate all information
for through reinvestigation.
47 Merely contacting furnisher does not equal reasonable
procedures; must decide if Experian could have determined the
accounts were opened fraudulently, if reasonable
reinvestigation (see #36 and #33).
48 CRA has burden of EVALUATION - SQUARELY on shoulders of
Experian.
49 If Experian proves Verizon was objectively thought to be
credible data source before plaintiff’s first dispute, then
Experian can initially rely on incoming reportings. But once
notified regarding dispute, exclusive reliance is not
reasonable or justified.
50 Once notified - very DIFFERENT position.
51 Exercise grave responsibilities - fairness, impartiality.
52 Reinvestigation shifting burden back to consumer and furnisher
not legal. Scope of duty to go beyond source depends on
factors cited.
53 More than mere post AD HOC correction.
54 Actual not limited to out of pocket and may include non-
economics.
55 Out of pockets not required. Credit denial not required.
Stress alone is okay. If willful do not need actuals.
56 Malice equals with knowledge it was false or reckless
disregard for whether it was false or not.
57 Reckless disregard is not whether reasonable prudence would
publish or investigate before public but if defendant
entertained serious doubts as to truth.

JURY INSTRUCTION NO. 1

Experian Information Solutions has a duty of reasonable care
in the preparation of Mrs. Mendoza’s consumer reports and duties
to reinvestigate information in those reports and to delete
information from her consumer reports which is found to be
inaccurate or no longer verifiable once Mrs. Mendoza or her
attorneys, on her behalf, disputed the information as inaccurate.
15 U.S.C. 1681e(b), 1681i(a); Pinner v. Schmidt, 805 F.2d
1258 (5th Cir. 1986).


JURY INSTRUCTION NO. 2

Experian Information Solutions has a duty to follow reasonable
procedures to assure the maximum possible accuracy of information
in consumer reports which it prepares about Mrs. Mendoza.
15 U.S.C. § 1681e(b); Pinner v. Schmidt, 805 F.2d 1258
(5th Cir. 1986).


JURY INSTRUCTION NO. 3

If Experian Information Solutions failed to alter or delete
information in Mrs. Mendoza’s consumer report when the Experian
Information Solutions knew or should have known the information was
inaccurate, then Experian Information Solutions has breached its
duty to follow reasonable procedures to assure the maximum possible
accuracy of the information in her consumer report.
Pinner v. Schmidt, 805 F.2d 1258 (5th Cir. 1986).


JURY INSTRUCTION NO. 4

If you find that Experian Information Solutions breached a
duty to Mrs. Mendoza and that she was harmed by such action, then
you may award compensatory damages to her for:
a) Humiliation.
Fischl v. GMAC, 708 F.2d 143 (5th Cir. 1983); Jones v.
Credit Bureau of Huntington, 399 S.E.2d 694 (W. Va.
1990); Bryant v. TRW, Inc., 487 F.Supp. 1234 (U.S.D.C.
Mich. 1980).

b) Mental Distress.
Fischl v. GMAC, 708 F.2d 143 (5th Cir. 1983); Jones v.
Credit Bureau of Huntington, 399 S.E.2d 694 (W. Va.
1990); Bryant v. TRW, Inc., 487 F.Supp. 1234 (U.S.D.C.
Mich. 1980).

c) Injury to Reputation and Creditworthiness.
Fischl v. GMAC, 708 F.2d 143 (5th Cir. 1983).

d) Emotional Distress.
Smith v. Law Offices of Mitchell N. Kay, 124 B.R. 182
(U.S.D.C. Del. 1991); Bryant v. TRW, Inc., 487 F.Supp.
1234 (U.S.D.C. Mich. 1980).

e) Injury to Plaintiff's Reputation.
Jones v. Credit Bureau of Huntington, Inc., 399 S.E.2d
694 (W. Va. 1990).

f) Injury to Plaintiff's Credit Rating.
Jones v. Credit Bureau of Huntington, Inc., 399 S.E.2d
694 (W. Va. 1990).

g) Anxiety and mental pain.
Bryant v. TRW, Inc., 487 F.Supp. 1234 (U.S.D.C. Mich.
1980); Bakker v. McKinnon, 152 F.3d 1007 [8th Cir. 1998]
[“mere mental pain and anxiety” are adequate as actual
damages].

h) Embarrassment;
Bryant v. TRW, Inc., 487 F.Supp. 1234 (U.S.D.C. Mich.
1980).
and
xxi) Out-of-pocket expenses for attorney's fees incurred by a
plaintiff prior to litigation of her FCRA claims.
Thomas v. Trans Union, 1992 Westlaw 280516, at *4 [U.S.D.C.
N.D. Ill. 1992]; Casella v. Equifax Credit Information
Services, 56 F.3d 469, 474 [2d Cir. 1995] [N.Y.]; Cook v.
Equifax, 1992 Westlaw 356119 [U.S.D.C. Md. 1992]..

JURY INSTRUCTION NO. 5

Experian Information Solutions must exercise reasonable
procedures and care in the preparation of consumer reports.
Experian Information Solutions’ duty is viewed as a continuous
process with obligations to ensure the accuracy of each and every
additional item of information. Experian Information Solutions
must also exercise reasonable procedures and care in
reinvestigating and updating consumer reports.
15 U.S.C. 1681e(b); Pinner v. Schmidt, 617 F.Supp. 342
(U.S.D.C. La. 1985), reversed, 805 F.2d 1258 (5th Cir.
1986).



JURY INSTRUCTION NO. 6

Mrs. Mendoza need not show malice or evil motive on the part
of Experian Information Solutions in order for you to award
punitive damages against Experian Information Solutions under the
FCRA. You need only find that the action[s] or inaction[s] of
Experian Information Solutions was [were] willful.
Fischl v. GMAC, 708 F.2d 143 (5th Cir. 1983).



JURY INSTRUCTION NO. 7

If you find that Experian Information Solutions was negligent
then you may award Mrs. Mendoza compensatory damages under FCRA.
Compensatory damages may include economic harms she sustained and
non-economic harms she sustained.
15 U.S.C. § 1681e(b); Colletti v. Credit Bureau Services,
644 F.2d 1148 (5th Cir. 1981).




JURY INSTRUCTION NO. 8

Each transmission of an erroneous consumer report may be a
separate and distinct violation of the FCRA and a separate and
distinct tort.
Hyde v. Hibernia Nat. Bank of Jefferson Parish, 861 F.2d
446 (5th Cir. 1988), cert. denied, Credit Bureau Services
- New Orleans v. Hyde, 109 S.Ct. 3199, 491 U.S. 910, 105
L.Ed.2d 706; James Young v. Equifax Credit Information
Services, 294 F.3d 631 [5th Cir. 2002]; Whitesides v.
Equifax, 125 F.Supp.2d 807 and 813 [U.S.D.C. W.D. La.
2000]; Parker v. Parker, 124 F.Supp.2d 1216 [U.S.D.C.
M.D. Ala. 2000]; Jaramillo v. Experian, 155 F.Supp.2d
356, 2001 U.S.Dist.Lexis 6745 [U.S.D.C. E.D. Pa. 2001].



JURY INSTRUCTION NO. 9

If you find in favor of Mrs. Mendoza, then you should at
least consider that Experian Information Solutions has alleged that
she failed to mitigate or lessen her alleged damages. If you find
that Mrs. Mendoza failed to take affirmative, reasonable steps to
lessen her damages, then you are instructed that the mere failure
of a consumer to file suit when first injured may amount to a
failure to mitigate damages, which may bear only upon the your
calculation of damages but cannot preclude the consumer’s claims
for damages arising out of subsequent transmissions of erroneous
consumer reports or other FCRA violations or torts.
Hyde v. Hibernia Nat. Bank in Jefferson Parish, 861 F.2d
446 (5th Cir. 1988), cert. denied, Credit Bureau Services
- New Orleans v. Hyde, 109 S.Ct. 3199, 491 U.S. 910, 105
L.Ed.2d 706; Jaramillo v. Experian, 155 F.Supp.2d 356,
2001 U.S.Dist.Lexis 6745 [U.S.D.C. E.D. Pa. 2001].



JURY INSTRUCTION NO. 10

The victim of a credit card application forgery or fraud
cannot be held liable for the fraud account or charges and the
credit reportings in connection with the fraud account, if made
about the victim, are false.
First Nat. Bank of Commerce v. Ordoyne, 528 So.2d 1068
(La. App. 5th Cir. 1988), w.d., 532 So.2d 179 (La. 1988).


JURY INSTRUCTION NO. 11

The Fair Credit Reporting Act applies to consumer credit
matters.
Zeller v. Samia, 758 F.Supp. 775 (U.S.D.C. Mass. 1991);
Hussain v. Carteret Sav. Bank, F. A., 704 F.Supp. 567
(U.S.D.C. N.J. 1989).



JURY INSTRUCTION NO. 12

Experian Information Solutions has a duty to follow reasonable
procedures to assure the maximum possible accuracy of each item of
information in each consumer's file held by Experian Information
Solutions.
Koropoulas v. Credit Bureau, Inc., 734 F.2d 37 (C.A. D.C.
1984); 15 U.S.C. 1681e(b).

JURY INSTRUCTION NO. 13

Experian Information Solutions has a duty to maintain and
actually use reasonable care in the preparation of consumer reports
about Mrs. Mendoza.
Pinner v. Schmidt, 805 F.2d 1258 (5th Cir. 1986), reh.
den., 812 F.2d 1405, cert. den., 107 S.Ct. 3267, 483 U.S.
1022, 97 L.Ed.2d 766; Cahlin v. GMAC, 936 F.2d 1151 (11th
Cir. 1991).



JURY INSTRUCTION NO. 14

Experian Information Solutions has a duty to maintain and
actually use reasonable care in the in reinvestigation of Mrs.
Mendoza’s disputes and in the permanent deletion of inaccurate
information from Mrs. Mendoza’s consumer reports, once Mrs.
Mendoza or her attorneys, on her behalf, disputed the inaccurate
information.
Pinner v. Schmidt, 805 F.2d 1258 (5th Cir. 1986), reh.
den., 812 F.2d 1405, cert. den., 107 S.Ct. 3267, 483 U.S.
1022, 97 L.Ed.2d 766; Dalton v. Capital Associated
Industries, 257 F.3d 409 [4th Cir. 2001]; Cahlin v. GMAC,
936 F.2d 1151 (11th Cir. 1991).



JURY INSTRUCTION NO. 15

Experian Information Solutions has wilfully violated the FCRA,
and you may award punitive damages in favor of Mrs. Mendoza if you
find that Experian Information Solutions allowed its employee[s] or
its computer system to report incorrect information by reason of
the Experian Information Solutions' failure to properly train its
employee[s] and Experian Information Solutions’ failure to have the
employee's work checked by a second person, and the employee's
actions adversely affected Mrs. Mendoza.
Jones v. Credit Bureau of Huntington, Inc., 399 S.E.2d
694 (W. Va. 1990); 15 U.S.C. § 1681-1681t.


JURY INSTRUCTION NO. 16

If you find that Experian Information Solutions has violated
the FCRA, and Experian Information Solutions’ conduct was willful,
then you may award punitive damages against Experian Information
Solutions.
Jones v. Credit Bureau of Huntington, Inc., 399 S.E.2d
694 (W. Va. 1990).



JURY INSTRUCTION NO. 17

If you choose to award punitive damages against Experian
Information Solutions under FCRA, it is not necessary that your
award of punitive damages bear any relationship to any award of
compensatory damages you may award to Mrs. Mendoza. Punitives
damages are used to punish a defendant for reprehensible conduct
and to deter others from similar conduct.
Jones v. Credit Bureau of Huntington, Inc., 399 S.E.2d
694 (W. Va. 1990).


JURY INSTRUCTION NO. 18

In order to award punitive damages under FCRA, you need not
find that the consumer reporting agency has acted with malice or
evil motive, but you need only find that the agency has acted
wilfully.
Jones v. Credit Bureau of Huntington, Inc., 399 S.E.2d
694 (W. Va. 1990); Stevenson v. TRW, Inc., 987 F.2d 288,
293 [5th Cir. 1993]; Pinner v. Schmidt, 805 F.2d 1258,
1263 [5th Cir. 1986]; Fischl v. GMAC, 708 F.2d 143, 151
[5th Cir. 1983]; Jones v. Credit Bureau of Huntington,
Inc., 703 F.Supp. 897 [U.S.D.C. Kan. 1988]; Thornton v.
Equifax, Inc., 619 F.2d 700 [8th Cir. 1980]; Sheffer v.
Experian Info. Solutions, Inc., 2003 U.S. Dist. LEXIS
12728 [U.S.D.C. E.D. Pa. 2003]; Trans Union Corporation
v. Crisp, 896 S.W.2d 446 [Ark. App. 1995].


JURY INSTRUCTION NO. 19

If you choose to award punitive damages against Experian
Information Solutions under FCRA, you may consider the following
factors in assessing the award:
a) The remedial purpose of the FCRA;
v) The harm(s) to Mrs. Mendoza and others which are
intended to be avoided or corrected by the FCRA;
w) The manner in which Experian Information Solutions
conducted its business; and
x) Experian Information Solutions’ income and net worth.
Jones v. Credit Bureau of Huntington, Inc., 399 S.E.2d
694 (W. Va. 1990).

JURY INSTRUCTION NO. 20

In determining whether Experian Information Solutions has
employed reasonable procedures under FCRA, you must judge Experian
Information Solutions’ conduct by what a "reasonably prudent person
would do under the circumstances." You must balance the potential
harm resulting from inaccuracy of the information against the
burden which might or would be placed on Experian Information
Solutions in safeguarding against such inaccuracy.
Boris v. Choicepoint Servs., 249 F.Supp.2d 851, 2003
U.S.Dist.Lexis 4050 [U.S.D.C. W.D. Ky. 2003]; Jones v.
Credit Bureau of Garden City, Inc., 703 F.Supp. 897
(U.S.D.C. Kan. 1988); Houston v. TRW Informational
Services, Inc., 707 F.Supp. 689 (U.S.D.C. S.D. N.Y.
1989); 15 U.S.C. § 1681e(b); Bryant v. TRW, Inc., 487
F.Supp. 1234 (U.S.D.C. Mich. 1980).

JURY INSTRUCTION NO. 21

Experian Information Solutions, as a consumer reporting agency
under the FCRA, is not privileged to ignore Mrs. Mendoza’s
disputes simply because the dispute is submitted by her attorney.
Milbauer v. TRW, Inc., 707 F.Supp. 92 (U.S.D.C. E.D. N.Y.
1989).

JURY INSTRUCTION NO. 22

In the preparation of each consumer report, Experian
Information Solutions must maintain and actually use reasonable
procedures to ensure the maximum possible accuracy of the
information in each report at the time each such report is
prepared.
Houston v. TRW Informational Services, Inc., 707 F.Supp.
689 (U.S.D.C. S.D. N.Y. 1989).

JURY INSTRUCTION NO. 23

The FCRA does not impose strict, absolute or automatic
liability on Experian Information Solutions for damages upon
reporting inaccurate information.
Jones v. Credit Bureau of Garden City, Inc., 703 F.Supp.
897 (U.S.D.C. Kan. 1988); Hussain v. Carteret Sav. Bank,
F.A., 704 F.Supp. 567 (U.S.D.C. N.J. 1989); Beard v.
Goodyear Tire & Rubber Co., 587 A.2d 195 (D.C. App.
1991); Cahlin v. GMAC, 936 F.2d 1151 (11th Cir. 1991);
Hauser v. Equifax, Inc., 602 F.2d 811 (C.A. Neb. 1979).

JURY INSTRUCTION NO. 24

In an FCRA action, Mrs. Mendoza does not have the burden of
proving or suggesting ways of improving Experian Information
Solutions’ operations.
Jones v. Credit Bureau of Garden City, Inc., 703 F.Supp.
897 (U.S.D.C. Kan. 1988); Boris v. ChoicePoint Services,
249 F.Supp.2d 851 (U.S.D.C. W.D. Ky. 2003); Morris v.
Credit Bureau of Cincinnati, 563 F.Supp.962, 968
(U.S.D.C. S.D. Ohio 1983).

JURY INSTRUCTION NO. 25

The standard of accuracy for consumer reports embodied in FCRA
is an objective measure that should be interpreted in even-handed
manner toward interests of Mrs. Mendoza and other consumers and
Experian Information Solutions in fair and accurate reporting.
Cahlin v. GMAC, 936 F.2d 1151 (11th Cir. 1991); 15 U.S.C.
1681e(b).

JURY INSTRUCTION NO. 26

Even after a Experian Information Solutions prepares a
consumer report, Experian Information Solutions retains a duty
under the FCRA to make reasonable efforts to reinvestigate and
permanently correct inaccurate or incomplete information brought to
its attention by Mrs. Mendoza or her attorneys, on her behalf.
15 U.S.C. 1681i(a); Cahlin v. GMAC, 936 F.2d 1151 (11th
Cir. 1991); Lowry v. Credit Bureau, Inc. of Georgia, 444
F.Supp. 541 (U.S.D.C. Ga. 1978).

JURY INSTRUCTION NO. 27

Experian Information Solutions is at least negligent, and
possibly wilful, in violating the FCRA if you find that Experian
Information Solutions failed to make reasonable efforts to
reinvestigate and correct inaccurate information brought to its
attention by Mrs. Mendoza or her attorneys, on behalf of Mrs.
Mendoza, if Experian Information Solutions could have remedied the
errors by uncovering additional facts that provide an accurate
representation about the particular, contested information.
15 U.S.C. 1681i(a); Cahlin v. GMAC, 936 F.2d 1151 (11th
Cir. 1991); Williams v. Colonial Bank, 826 F.Supp. 415
[U.S.D.C. M.D. Ala. 1993].

JURY INSTRUCTION NO. 28

If you find that Experian Information Solutions advised Mrs.
Mendoza that Experian Information Solutions would delete a disputed
entry on her credit report, then Experian Information Solutions
neither effected permanent deletion nor recorded the information
which Mrs. Mendoza or her attorneys, on her behalf, had provided,
then you must find that Experian Information Solutions violated
FCRA, and you may award punitive damages if you find such
violation(s) to be willful.
Grant v. TRW, Inc., 789 F.Supp. 690 (U.S.D.C. Md. 1992).


JURY INSTRUCTION NO. 29

Experian Information Solutions has a duty to evaluate
information in its credit files under FCRA.
McPhee v. Chilton Corp., 468 F.Supp. 494 (U.S.D.C. Conn.
1978).

JURY INSTRUCTION NO. 30

The preparation of a consumer report may be viewed as a
continuing process, and the obligation to ensure maximum possible
accuracy arises and begins with every addition of information.
Lowry v. Credit Bureau, Inc. of Georgia, 444 F.Supp. 541
(U.S.D.C. Ga. 1978); 15 U.S.C. § 1681e(b).

JURY INSTRUCTION NO. 31

Experian Information Solutions has a duty to make reasonable
efforts to reinvestigate the accuracy of information as it relates
to a dispute entered by Mrs. Mendoza or her attorneys, on her
behalf.
Lowry v. Credit Bureau, Inc. of Georgia, 444 F.Supp. 541
(U.S.D.C. Ga. 1978); 15 U.S.C. § 1681i(a).

JURY INSTRUCTION NO. 32

Experian Information Solutions’ duty to conduct reasonable
reinvestigation, after accuracy of information is disputed, is not
terminated by fact that information is accurate about someone else
if that information is presented in such a manner as to create
inaccurate impressions as to the credit history of a particular
individual.
Lowry v. Credit Bureau, Inc. of Georgia, 444 F.Supp. 541
(U.S.D.C. Ga. 1978); 15 U.S.C. § 1681i(a).

JURY INSTRUCTION NO. 33

Experian Information Solutions, in the face of dispute as to
information that Experian Information Solutions is reporting,
cannot be absolved of responsibility for furnishing inaccurate
information on the ground that Experian Information Solutions is
reporting the information exactly as the contested information is
reported by its subscriber, in this case, Verizon Wireless. In
sum, a consumer reporting agency may not simply parrot its
creditor-furnisher of information. Once Experian Information
Solutions knew that Mrs. Mendoza contested information in her
consumer report, then Experian Information Solutions could no rely
exclusively on its subscriber’s word in reporting the contested
credit information. Once Experian Information Solutions is aware
of a dispute then Experian Information Solutions is in a much
different position in trying to rely on the subscriber’s word.
Cushman v. Trans Union Corp., 115 F.3d 220, 225 [3d Cir.
1997]; Bryant v. TRW, Inc., 487 F.Supp. 1234 (U.S.D.C.
Mich. 1980); Swoager v. Credit Bureau of Greater St.
Petersburg, 608 F.Supp. 972 (U.S.D.C. M.D. Fla. 1985);
Richardson v. Fleet Bank, 190 F.Supp.2d 81 [U.S.D.C.
Mass. 2001]; Schueller v. TRW, Inc., 892 F.2d 1046
[Table, Unpublished] [9th Cir. 1989]; McPhee v. Chilton
Corp., 468 F.Supp. 494, 496 [U.S.D.C. Conn. 1978]; Cahlin
v. GMAC, 936 F.2d, at 1160 [11th Cir. 1991].

JURY INSTRUCTION NO. 34

Defendant violates FCRA if it obtains a consumer report on
Plaintiff after Plaintiff institutes an action. Such an inquiry is
not permissible under FCRA.
15 U.S.C. 1681b(f) Rice v. Montgomery Wards & Co., Inc.,
450 F.Supp. 668 (U.S.D.C. N.C. 1978).

JURY INSTRUCTION NO. 35

In order to recover damages tied to a credit denial, Mrs.
Mendoza must show that Experian Information Solutions prepared and
published an inaccuracy report and that the report was a
“substantial factor” is causing the denial, which, in turn, was
caused by agency's failure to use reasonable procedures. Mrs.
Mendoza need not show that the report or the inaccuracy were the
“sole factor” in causing the denial. Mrs. Mendoza must produce
evidence from which a reasonable trier of fact could infer that the
inaccurate entry was a 'substantial factor' that brought about the
denial of credit.
15 U.S.C. § 1681e(b); Richardson v. Fleet Bank, 190
F.Supp.2d 81, 87-88 [U.S.D.C. Mass. 2001]; Philbin v.
Trans Union Corp., 101 F.3d 957, 970 [3d Cir. 1996];
O'Connor v. Trans Union Corp., 1999 U.S.Dist.Lexis 14917
[U.S.D.C. E.D. Pa. 1999]; Lang v. Trans Union Corp., 1999
U.S.Dist.Lexis 18584 [U.S.D.C. W.D. Pa. 1999]; Frost v.
Experian, 1999 U.S.Dist.Lexis 6783 [U.S.D.C. S.D. N.Y.
1999]; Pendleton v. Trans Union Systems Corp., 76 F.R.D.
192 (U.S.D.C. Pa. 1977).

JURY INSTRUCTION NO. 36

Experian Information Solutions has not performed a reasonable
investigation of a consumer dispute if the agency merely contacts
the creditor (subscriber) reporting the disputed entry, relates to
the subscriber the dispute, and then does nothing further to
reinvestigate the dispute.
Swoager v. Credit Bureau of Greater St. Petersburg, 608
F.Supp. 972 (U.S.D.C. M.D. Fla. 1985).

JURY INSTRUCTION NO. 37

Experian Information Solutions is at least negligent, and
possibly wilful, if it fails to reconcile inaccurate information in
a consumer's credit file which had been previously corrected at the
consumer's request and by not following procedures that would
prevent re-reporting of the inaccurate information.
15 U.S.C. § 1681e; Morris v. Credit Bureau of Cincinnati,
563 F.Supp. 962 (U.S.D.C. S.D. Ohio 1983).

JURY INSTRUCTION NO. 38

If you find that Experian Information Solutions’ conduct
evidences gross negligence or reckless disregard or conscious
indifference for Mrs. Mendoza's rights or property, then "malice"
is presumed. Malice is also presumed if Experian Information
Solutions has exhibited flagrant disregard of Mrs. Mendoza's
rights or property. Presumed malice is the equivalent to actual
evil intent to injure Mrs. Mendoza or her property.
Sopkin v. Premier Pontiac, Inc., 539 P.2d 1393, 1397
(Okl. App.).

JURY INSTRUCTION NO. 39

Experian Information Solutions must do more than be a mere
"conduit of information". In essence, Experian Information
Solutions does not satisfy its duties under the law by accurately
reporting data as it is supplied by its subscriber. Experian
Information Solutions must maintain reasonable procedures to ensure
the maximum possible accuracy of each new piece of data entered in
each credit file.
Bryant v. TRW, Inc., 689 F.2d 72, 78 (6th Cir. 1982).


JURY INSTRUCTION NO. 40

The FCRA was crafted to protect consumers from the
transmission of inaccurate information about them. It is to be
liberally construed in favor of Mrs. Mendoza, not in favor of
Experian. The FCRA was crafted to prevent consumers from being
unjustly damaged because of inaccurate or arbitrary information in
a credit report.
Kates v. Croker National Bank, 776 F.2d 1396, 1397 [9th Cir.
1995]; Guimond v. Trans Union Credit Information, Co., 45 F.3d
1329 [9th Cir. 1995] [Cal.]; Boris v. Choicepoint Servs., 249
F.Supp.2d 851, 2003 U.S.Dist.Lexis 4050 [U.S.D.C. W.D. Ky.
2003]; Jones v. Federated Financial Reserve Corp., 144 F.3d
961 [6th Cir. 1998] [Mich.]; Hovater v. Equifax, Inc., 823
F.2d 413, 417 [11th Cir. 1987]; Equifax, Inc. v. Federal Trade
Comm'n, 678 F.2d 1047, 1048 [11th Cir.1982], quoting S.Rep.
No. 517, 91st Cong., 1st Sess. 1 [1969].

JURY INSTRUCTION NO. 41

If you find defendant liable for violating the FCRA, then
Experian may be liable for any and all republications which were
reasonably foreseeable.
Luster v. Retail Credit Co., 575 F.2d 609 [8th Cir. 1978]
[Ark.]; Sheppard v. Nabb, 581 A.2d 839 [Md. 1990]; Sears,
Roebuck & Co. v. Ulman, 412 A.2d 1240 [Md. 1980].


JURY INSTRUCTION NO. 42

An erroneous or careless consumer report serves no purpose but
to substantially damage the target of the consumer report, who
after publication can do little to correct the damage caused by the
consumer report.
Bartels v. Retail Credit Co., 175 N.W.2d 292 [Neb. 1970].
JURY INSTRUCTION NO. 43
To recover against Experian Information Solutions under 15
U.S.C. 1681e[b], Mrs. Mendoza must present proof tending to show
that:
a] Experian Information Solutions reported inaccurate
information about the Mrs. Mendoza;
c] Mrs. Mendoza was injured; and
d] Experian Information Solutions’ negligence or wilful
conduct was the proximate cause of such injury.
Once Mrs. Mendoza has shown some proof of the lack of reasonable
procedures on the part of Experian Information Solutions, then the
burden of proving reasonable procedures shifts to Experian
Information Solutions.
Guimond v. Trans Union Credit Info. Co., 45 F.3d 1329, 1333
[9th Cir. 1995] [Cal.]; Cahlin v. GMAC, 936 F.2d 1151 [11th
Cir. 1991] [Fla.]; Jensen v. Experian Info. Solutions, Inc.,
2001 U.S. Dist. Lexis 15134 [U.S.D.C. E.D. Tex. 2001].; Dalton
v. Capital Associated Industries, 257 F.3d 409 [4th Cir.
7/16/01].

JURY INSTRUCTION NO. 44
“Technical accuracy” is not the standard, as a consumer credit
report must be accurate to the maximum possible extent. In
essence, you must weigh the potential that the disputed information
will create a misleading impression against availability of more
accurate information and the burden of providing such information.
Alexander v. Moore & Associates, Inc., 553 F.Supp. 948
[U.S.D.C. Hawaii 1982]; Cisneros v. U.S. Registry, Inc., 46
Cal.Rptr.2d 233, 39 C.A.4th 548 [Cal. App. 2d Dist. 1995].

JURY INSTRUCTION NO. 45
You may find that a showing of factual inaccuracies in a
single report or inconsistencies between two files on one consumer
prove the lack of reasonable procedures to assure the maximum
possible accuracy of information in Mrs. Mendoza’s credit file
held by Experian Information Solutions.
Stewart v. The Credit Bureau, Inc., 734 F.2d 47 [D.C. Cir.
1984]; Morris v. Credit Bureau of Cincinnati, 563 F.Supp. 962
[U.S.D.C. S.D. Ohio 1983]; Bryant v. TRW, Inc., 487 F.Supp.
1234 [U.S.D.C. Mich. 1980], affirmed, 689 F.2d 72 [6th Cir.
1982].

JURY INSTRUCTION NO. 46
Experian Information Solutions must act impartially and in
good faith in carefully evaluating all information and making a
thorough and complete investigation before disseminating
information to its subscribers.
Bartels v. Retail Credit Co., 175 N.W.2d 292 [Neb. 1970].

JURY INSTRUCTION NO. 47
Merely contacting a subscriber/furnisher about disputed data
is not a reasonable procedure to investigate disputes. You must
decide whether whether Experian Information Solutions could have
determined that the account(s) was/were opened fraudulently if it
had reasonably investigated the matter.
Swoager v. Credit Bureau of Greater St. Petersburg, 608
F.Supp. 972 [U.S.D.C. M.D. Fla. 1985]; Cushman v. Trans Union
Corp., 1996 Westlaw 153218 [U.S.D.C. E.D. Pa. 1996]; Bryant v.
TRW, Inc., 689 F.2d 72 [6th Cir. 1982][Mich.]; Dynes v. TRW
Credit Data, 652 F.2d 35 [9th Cir. 1981][Cal.].

JURY INSTRUCTION NO. 48
In reinvestigation, Experian Information Solutions bears
responsibility for evaluating the accuracy of the information
obtained from its subscribers. The burden of reinvestigation is
saddled "squarely" on the shoulders of Experian Information
Solutions.
Stevenson v. TRW, Inc., 987 F.2d 288, 293 [5th Cir. 1993];
Swoager, supra.

JURY INSTRUCTION NO. 49
If Experian Information Solutions proves that Verizon Wireless
was objectively thought to be a credible credit data source before
Mrs. Mendoza’s first dispute, then Experian Information Solutions
is initially entitled to rely on incoming reported information from
Verizon Wireless, as it would be unduly burdensome and inefficient
to require Experian Information Solutions on the very front
end/receipt to look beyond the face of every item of incoming data.
However, once Experian Information Solutions was notified that the
Mrs. Mendoza disputed the information contained in Experian
Information Solutions’ records, as reported by Verizon Wireless,
then exclusive reliance on Verizon Wireless’s position is neither
reasonable or justified.
Barron v. Trans Union Corp., 82 F.Supp.2d 1288, 1295-96, 2000
U.S.Dist.Lexis 971 [U.S.D.C. M.D. Ala. 2000]; Henson v. CSC
Credit Servs., 29 F.3d 280, 285 [7th Cir. 1994].

JURY INSTRUCTION NO. 50
Once Experian Information Solutions has been notified of
potentially inaccurate information in a consumer's credit report
then Experian Information Solutions is in a very different position
than one who has no such notice.
Henson v. CSC Credit Servs., 29 F.3d 280, 285-86 [7th Cir.
1994]; Gill v. Kostroff, 2000 U.S.Dist.Lexis 1161, Civ.A. 98-
930- T17A, 2000 WestLaw 141258, at *6 [U.S.D.C. M.D. Fla.
2000]; Cushman v. Trans Union, 115 F.3d, at 226; Stevenson v.
TRW, 987 F.2d, at 293.

JURY INSTRUCTION NO. 51
Experian Information Solutions must exercise its “grave
responsibilities with fairness, impartiality, and a respect for the
consumer's right to privacy."
15 U.S.C. 1681[a][4][2003].

JURY INSTRUCTION NO. 52
A 'reinvestigation' that merely shifts the burden back to the
consumer and the furnisher cannot fulfill the obligations
contemplated by the statute. The scope of an agency's duty to go
beyond the original source depends on a number of factors,
including: [1] whether the consumer has alerted the reporting
agency to the possibility that the source may be unreliable or the
reporting agency knows or should know that the source is
unreliable; and [2] the cost of verifying the accuracy of the
source versus the possible harm inaccurately reported information
may cause the consumer.
Henson v. CSC Credit Servs., 29 F.3d 280, 287 [7th Cir. 1994];
Cushman v. Trans Union Corp., 115 F.3d 220, 225 [3d Cir.
1997].

JURY INSTRUCTION NO. 53
Experian Information Solutions must do more than be a mere
post hoc correction of erroneously reported data.
Miller v. Credit Bureau, Inc., 4 CCH [Consumer Credit Guide]
p.99,173 [D.C. Super. Ct. 1972].


JURY INSTRUCTION NO. 54
Actual damages under the FCRA are not limited to out-of-pocket
expenses and may instead various non-economic harms, including
humiliation and mental distress.
Cousin v. Trans Union, 246 F.3d at 369 [5th Cir.]; Casella v.
Equifax Credit Information Servs., 56 F.3d 469, 474 [2nd Cir.
1995]; Boris v. Choicepoint Servs., 249 F.Supp.2d 851, 2003
U.S.Dist.Lexis 4050 [U.S.D.C. W.D. Ky. 2003]; Guimond v.
Trans Union Credit Information Co., 45 F.3d 1329, 1333 [9th
Cir. 1995]; Bryant v. TRW, Inc., 487 F. Supp. 1234, 1240 [E.D.
Mich. 1980]; Johnson v. Department of Treasury, I.R.S., 700
F.2d 971, 984 [5th Cir. 1983]; Thompson v. San Antonio Retail
Merchants Assn., 682 F.2d 509, 514 [5th Cir. 1982].

JURY INSTRUCTION NO. 55
Out-of-pocket expenses are not even required to recover under
the FCRA. A credit denial is not even required to recover under
the FCRA. Stress induced maladies alone are sufficient as damages
under FCRA. If willfulness is proven, Mrs. Mendoza need not even
show any actual damages.
Stevenson v. TRW, Inc., 987 F.2d 288, 294 [5th Cir. 1993]
(credit denial is not required; out of pocket losses are not
required); Boris v. Choicepoint Servs., 249 F.Supp.2d 851,
2003 U.S.Dist.Lexis 4050 [U.S.D.C. W.D. Ky. 2003]; Guimond
v. Trans Union Credit Info. Co., 45 F.3d 1329 [9th Cir. 1995]
[Cal.]; Cushman v. Trans Union Corporation, 920 F.Supp. 80
[U.S.D.C. E.D. Pa. 1996]; Cushman v. Trans Union, 1996 Westlaw
153218, at p.3 [U.S.D.C. E.D. Pa. 1996]; Arriola v. Safeco, 15
F.3d 1082 [Table, unpublished] 1993 Westlaw 530480 [9th Cir.
1993] [Idaho]; Northrop v. Hoffman of Simsbury, Inc., 12
Fed.Appx. 44, 50 [2nd Cir. 2001] ["Actual damages are not a
statutory prerequisite to punitive damages"]; Bakker v.
McKinnon, 152 F.3d 1007 [8th Cir. 1998]; Yohay v. City of
Alexandria Employees Credit Union, Inc., 827 F.2d 967, 972
[4th Cir.1987] ["award of punitive damages in the absence of
any actual damages, in an appropriate case, comports with the
underlying deterrent purpose of the FCRA"]; TRW, Inc. v.
Andrews, 534 U.S. 19, 122 S. Ct. 441, 451, 151 L. Ed. 2d 339
[U.S. 2001] ["Punitive damages, which [plaintiff] sought in
this case, could presumably be awarded at the moment of TRW's
alleged wrongdoings, even if 'actual damages' did not accrue
at that time."]; Casella v. Equifax Credit Information
Services, 56 F.3d 469, 476 [2d Cir. 1995] [N.Y.].

JURY INSTRUCTION NO. 56
Malice means a statement made with knowledge that it was false
or with reckless disregard of whether it was false or not.
Whelan v. Trans Union Credit Reporting Agency, 862 F. Supp.
824, 834 [E.D.N.Y. 1994] [citing New York Times Co. v.
Sullivan, 376 U.S. 254, 279-80, 11 L. Ed. 2d 686, 84 S. Ct.
710 [1964]]; Stafford v. Cross Country Bank, 2003 U.S. Dist.
Lexis 8215 [U.S.D.C. W.D. Ky. 2003].

JURY INSTRUCTION NO. 57
Reckless disregard of the truth is not measured by whether a
reasonably prudent person would have published or would have
investigated before publishing but means that the defendant in fact
entertained serious doubts as to the truth of the communication.
Furgason v. Clausen, 785 P.2d 242, 248 [N.M. Ct. App. 1989].

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