Experian's arguments re causation:Toler v. PHH,et al, WD Ark

Proving the proximate and legal cause of your damages may be more tricky than you think.
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Experian's arguments re causation:Toler v. PHH,et al, WD Ark

Postby Administrator » Fri Nov 21, 2014 3:08 am

A. Plaintiffs Failed to Show That Experian Proximately Caused any Genuine Injury
To prevail under § 1681 e(b) or § 168li, Plaintiffs must show that Experian proximately
caused them genuine injury. See Gorman v. Experian Info. Solutions, Inc., No. 07-CV-1846,
2008 U.S. Dist. LEXIS 94083, at *19 (S.D.N.Y. Nov. 18, 2008); Morris v. Trans UnifJn LLC,
420 F. Supp. 2d 733, 751 (S.D. Tex. 2005). To satisfy this burden in the presence of multiple
potential causes, Plaintiffs must show that Experian itself proximately caused the claimed
emotional distress, as opposed to either: (a) the furnisher of the disputed information (PHH); (b)
reports from other consumer reporting agencies (Equifax I TransUnion); or (c) other distressing
circumstances unrelated to Experian's actions (financial hardship I Eagle Rock litigation). See,
e.g., Casella v. Equifax Credit Info. Servs., 56 F.3d 469, 474-75 (2d Cir. N.Y. 1995) (affirming
summary judgment for Equifax and TransUnion because "[the plaintiff] had failed to show that
his emotional distress was caused by Equifax and Trans Union, as opposed to [the furnisher of
the allegedly inaccurate information,] San Diego."); Zean v. Unifund CCR Partners., No. 08­
1091,2009 U.S. Dist. LEXIS 69707, at *17 (D. Minn. Aug. 10,2009) (rejecting emotional
distress claims because "[t]he more conspicuous target of Plaintiffs claims was [the creditor,]
U.S. Bank" and H[p]laintiff did not similarly draw a specific connection between his distress and
[defendant's] actions."); Gorman, 2008 U.S. Dist. LEXIS 94083 at *23 (rejecting injury
stemming from a credit denial that "was based in whole or in part on a credit report provided by
a different consumer reporting agency"); Bermudez v. Equifax Info. Servs., LLC, No. 6:07-cv­
1492-0rl-31GJK, 2008 U.S. Dist. LEXIS 100900, at *9-10 (M.D. Fla. Dec. 15, 2008) (rejecting
emotional distress claims because Hit include[d] all of her health and other problems resulting the

Case 6:12-cv-06032-RTD Document 262 Filed 11/20/14 Page 3 of 17 PageID #: 7166
identity theft, rather than just those caused by Equifax in reporting (or failing to reinvestigate)
the MMCA debt.").
Here, Plaintiffs have failed to show that any genuine injury of emotional distress is
attributable specifically to Experian. It is clear that the "conspicuous target" of the claimed
emotional distress for the relevant timeframe is PHH, and Plaintiffs failed to show a similarly
specific connection between Experian's actions and any particular distress. See Zean, 2009 U.S.
Dist. LEXIS 69707, at *17. Moreover, Plaintiffs admit that the earliest potential date they could
attribute any alleged damages to Experian's actions is November 2011, yet Plaintiffs testified as
to the numerous sources of claimed emotional distress prior to this date. Plaintiffs then
improperly attempt to point to conduct occurring after they filed suit against Experian (less than
three months later), a period of time when Plaintiffs and PHH were in a legal dispute regarding
how the account should be reported.
Plaintiffs failed to establish that Experian proximately caused their purported emotional
distress and simply cannot ask the jury to speculate on the amount of cumulative distress that is
attributable to Experian as a matter oflaw. See Rambarran v. Bank ofAmerica, NA, 609 F. Supp.
2d 1253, 1259 (S.D. Fla. 2009) (rejecting emotional distress claims because "[a] factfinder
would have to engage in impermissible speculation in order to create a causal link between
Plaintiffs alleged emotional distress injuries-which occurred over an eight-year period-and
Bank ofAmerica's alleged failure to properly investigate its reporting of a charged off account­
which occurred over a three-month period.").
Finally, it is clear that a large portion of Plaintiffs' claimed distress stems from their
business and financial losses, which, as this Court has already acknowledged, Experian is not
responsible for. Accordingly, Experian cannot be responsible for the emotional distress from

Case 6:12-cv-06032-RTD Document 262 Filed 11/20/14 Page 4 of 17 PageID #: 7167
these losses as a matter of law. In Rambarran, the court explained that the defendant could not
be held liable for emotional distress damages stemming from monetary losses that were not
caused by the defendant:
The bulk of Plaintiffs emotional distress damages rely on his claim that he suffered monetary losses; and, for the reasons discussed above, none of those monetary losses could have been caused by Bank of America's alleged FCRA violation. Plaintiffs Statement of Claim demonstrates that his emotional distress damages are only indirectly related to Bank of America's conduct, in that Bank of America's alleged error precluded him from obtaining credit and his inability to obtain credit, in tum, gave rise to his financial problems and the symptoms that he attributes to emotional distress ("Plaintiffs inability to pay expenses on time ... caused Plaintiff to develop a bad image.") ("The problems arising out of [P]laintiffs predicament of not being able to secure credit facilities to pay for the maintenance of his home and family resulted in tremendous stress which affected his health ....").
609 F. Supp. 2d at 1269 (citations omitted). For these reasons, because Plaintiffs failed to show
that Experian was a proximate cause of any specific element of their alleged emotional distress,
Experian is entitled to judgment as a matter of law on Plaintiffs' § 1681 e(b) and § 1681 i claims
for this independent reason.
David A. Szwak
Bodenheimer, Jones & Szwak, LLC
416 Travis Street, Suite 1404, Mid South Tower
Shreveport, Louisiana 71101
318-424-1400 / Fax 221-6555
President, Bossier Little League
Chairman, Consumer Protection Section, Louisiana State Bar Association

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