Louisiana law: Young v. Equifax

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Louisiana law: Young v. Equifax

Postby Administrator » Sun Dec 04, 2005 11:49 am

Young v. Equifax Credit Information Services, Inc.
294 F.3d 631
C.A.5 (La.),2002.

In Louisiana, the elements of a defamation action are: (1) defamatory words; (2) publication; (3) falsity; (4) malice, actual or implied; and (5) resulting injury.

Even if Young's state law claims are not preempted, he has failed to present competent evidence regarding at least two elements of a defamation claim. In Louisiana, the elements of a defamation action are "(1) defamatory words; (2) publication; (3) falsity; (4) malice, actual or implied; and (5) resulting injury." Cangelosi v. Schwegmann Bros. Giant Super Markets, 390 So.2d 196, 198 (La.1980). As we noted above, Young has not produced competent evidence of malice. Further, he has not produced competent evidence that Penney republished the Penney account information to Equifax and CBLC after the Young I settlement.
As evidence of the republication, Young points first to the deposition of Equifax representative Janet Mullins. We note that this deposition was not taken until after Young responded to Penney's motion for summary judgment and may not be properly part of the Penney case summary judgment record. Even if it is properly considered, the deposition does not support Young's contention. Mullins testified that an Equifax "snapshot" [FN4] showed that Equifax had deleted the Penney account information from Young's credit file in July 1998 and went on to state that the "snapshot" "says [the Penney account information was] reported July of '98". Mullins did not specify who did the reporting or to whom the report was made. [FN5] Young *639 next points to his own affidavit, which says that Penney continued to report the allegedly fraudulent information. Conclusory affidavits are not sufficient to defeat a motion for summary judgment. See Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir.1985). Young also directs us to the deposition of Penney representative Elaine Underwood. When Young's counsel asked Underwood if she could "refute Ms. Mullins' testimony that J.C. Penney reported its account in July of 1998 to Equifax," Underwood said that she could not. As we have noted, Mullins did not actually testify that Penney reported the account information. In any event, Underwood's inability to either confirm or deny this ultimate issue of fact is not probative.

FN4. A "snapshot" or "frozen data report" is a computer printout that summarizes the status of a consumer's credit file at a given point in time. It reflects the data that the credit reporting agency has received and reports to potential creditors.

FN5. The "snapshot" does not state that Penney transmitted the Penney account data to Equifax after the September 1997 Young I settlement and Mullins did not testify that the "snapshot" indicated such a transmission.
Although it can be inferred that Penney initially reported the data to Equifax, nothing supports the inference that the July 1998 "snapshot" reflected a new publication of that data. It is just as likely that Equifax simply retained the previously reported data in its database.

Young has abandoned his breach of contract claim. Therefore, Young's claims arising under the FCRA are all that remain against Penney.

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