Taylor v. Tenant Tracker, US 8th Cir. Brief

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Taylor v. Tenant Tracker, US 8th Cir. Brief

Postby Administrator » Thu Oct 02, 2014 12:59 pm

UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

No: 11-3466

Catherine L. Taylor, Appellant
v.
Tenant Tracker, Inc., also known as Result Matrix, Inc., Appellee

and
No: 11-3648

Catherine L. Taylor, Appellee
v.
Tenant Tracker, Inc., also known as Result Matrix, Inc., Appellant
_________________________________________________________________
Appeal from U.S. District Court for the Eastern District of Arkansas - Little Rock
(4:10-cv-00282-BSM) / (4:10-cv-00282-BSM)
APPEAL BY PLAINTIFF AND CROSS-APPEAL BY DEFENDANT
_________________________________________________________________
APPELLANT’S-PLAINTIFF’S CATHERINE L. TAYLOR’S
ORIGINAL BRIEF

Respectfully submitted:

Bodenheimer, Jones & Szwak, LLC


By: /s/David A. Szwak_______________
David A. Szwak, TA
416 Travis St., Ste. 1404
Mid South Tower
Shreveport, Louisiana 71101
[318] 424-1400
FAX 221-6555
ATTORNEYS FOR APPELLANT-PLAINTIFF CATHERINE L. TAYLOR TABLE OF CONTENTS

PAGE
TABLE OF AUTHORITIES iii
SUMMARY OF THE CASE ix
STATEMENT CONCERNING ORAL ARGUMENT ix
I JURISDICTIONAL STATEMENT AND STANDARD OF REVIEW 1
II STATEMENT OF THE ISSUES 1
III STATEMENT OF THE CASE 4
IV STATEMENT OF THE FACTS 6
V SUMMARY OF THE ARGUMENT 12
VI ARGUMENT 14
[1] ATTRIBUTING CONVICTIONS TO THE WRONG CONSUMER VIOLATES THE SECTION 1681E[B]; THE CONSUMER REPORT IS INACCURATE AND NOT EVEN A SIMPLY MISLEADING; AND “TECHNICAL ACCURACY” IS NOT THE STANDARD FOR THE REQUIRED “MAXIMUM POSSIBLE ACCURACY” 14
[2] SUFFICIENT EVIDENCE OF AN INACCURATE CONSUMER REPORT AND A SECTION 1681E[B] VIOLATION BY APPELLEE SO AS TO DEFEAT SUMMARY JUDGMENT 29
[3] APPELLANT SHOWED EVIDENCE OF DAMAGES 32
CONCLUSION 34
CERTIFICATE 36
CERTIFICATE OF COMPLIANCE WITH RULE 32[a] 37

TABLE OF AUTHORITIES
JURISPRUDENTAL AUTHORITIES PAGE[S]
Adams v. National Engineering Service Corp.,
620 F.Supp.2d 319 [U.S.D.C. Conn. 2009] 19
Agosta v. Inovision, Inc.,
No. 02–806, 2003 WestLaw 22999213, at *5, 2003 U.S. Dist. LEXIS 23889, at *17 [U.S.D.C. E.D. Pa. Dec. 16, 2003] 24
Alexander v. Moore & Associates, Inc.,
553 F.Supp. 948 [U.S.D.C. Hawaii 1982] 20
Andrews v. TRW Inc.,
225 F.3d 1063, 1068 [9th Cir. 2000] reversed on other grounds, TRW v. Andrews, 534 U.S. 19, 151 L.Ed.2d 339, 122 S.Ct. 441, 447 [2001] 28
AvidAir Helicopter Supply, Inc. v. Rolls-Royce Corp.,
663 F.3d 966 [8th Cir. [Mo.] 2011]. 1
Boris v. Choicepoint Services, Inc.,
249 F.Supp.2d 851 [U.S.D.C. W.D. Ky. 2003] 15
Bryant v. TRW, Inc.,
487 F.Supp. 1234 [U.S.D.C. Mich. 1980], affirmed, 689 F.2d 72 [6th Cir. 1982] 20, 29
Cahlin v. General Motors Acceptance Corporation,
936 F.2d 1151 [11th Cir. 1991] 3, 20, 25, 26, 27, 28
Carvalho v. Equifax Information Services, LLC,
629 F.3d 876 [9th Cir. [Cal.] 2010] 24
Dr. Chrisanne Christensen v. Acxiom Information Sec. Services, Inc.,
2009 WestLaw 2424453 [U.S.D.C. W.D. Ark. 2009] 2, 3, 17
Cortez v. Trans Union, LLC,
617 F.3d 688, 709 [3d Cir. 2010] 22, 23
Cotto v. Jenney,
721 F.Supp. 5 [U.S.D.C. Mass. 1989] 3, 17
Cousin v. Trans Union,
2001 Westlaw 277841 [5th Cir. 3/21/01] 29
Cushman v. Trans Union,
920 F.Supp. 80, 1996 Westlaw 153218, at p.3 [U.S.D.C. E.D. Pa. 1996] 33
Dalton v. Capital Associated Industries, Inc.,
257 F.3d 409 [4th Cir. 2001] [Va.] 2,3,24,2627, 28,29
Edwards v. Toys R Us,
527 F.Supp.2d 1197, 1210 [U.S.D.C. C.D. Cal. 2007] 29
Evantash v. G.E. Capital Mortg. Servs., Inc.,
No. 02–1188, 2003 WestLaw 22844198, at *4, 2003 U.S. Dist. LEXIS 23131, at *12–13 [U.S.D.C. E.D.Pa. Nov. 25, 2003] 24
Guimond v. Trans Union Credit Information, Co.,
45 F.3d 1329 [9th Cir. 1995] [Cal.] 3, 4, 15, 27, 28,33
Hodge v. Texaco, Inc.,
975 F.2d 1093 [5th Cir. [La.] 1992] 2, 3, 23
Holmes v. Telecheck Intern., Inc.,
556 F.Supp.2d 819, 847 [U.S.D.C. M.D. Tenn. 2008] 29, 32
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 4, 33
Jensen v. Experian Info. Solutions, Inc.,
2001 WestLaw 1045510 [U.S.D.C. E.D. Tex. March 30, 2001] 29
Johnson v. Equifax, Inc.,
510 F.Supp.2d 638 [U.S.D.C. S.D. Ala. 2007] 30
Jones v. Federated Financial Reserve Corp.,
144 F.3d 961 [6th Cir. 1998] [Mich.] 16
Kates v. Croker National Bank,
776 F.2d 1396, 1397 [9th Cir. 1995] 15
Kettler v. CSC Credit Service, Inc.,
2003 WestLaw 21975919 [U.S.D.C. Minn. 2003] 22
Koropoulos v. Credit Bureau, Inc.,
734 F.2d 37, 42-45 [D.C.Cir.1984] 2, 3, 23, 24, 26
Krajewski,
557 F.Supp.2d at 614 24
Lowry v. Credit Bureau, Inc. of Georgia,
444 F.Supp. 541 [U.S.D.C. Ga. 1978] 3, 20
Luster v. Retail Credit Co.,
575 F.2d 609 [8th Cir. 1978] [Ark.] 33
McLaughlin v. Richland Shoe Co., 486 U.S. 128 33
Morris v. Credit Bureau of Cincinnati,
563 F.Supp. 962 [U.S.D.C. S.D. Ohio 1983] 20
Neal v. CSC Credit Services, Inc.,
2004 WestLaw 628214 [U.S.D.C. Neb., 2004] 22
O'Connor v. Trans Union Corp.,
1999 WestLaw 773504 [U.S.D.C. E.D. Pa. 1999] 30
Olwell v. Medical Info. Bureau,
2003 U.S.Dist.Lexis 442 [U.S.D.C Minn. 2003] 29
Parker v. Parker,
124 F.Supp.2d 1216 [U.S.D.C. N.D. Ala. 2000] 3, 28
Philbin v. Trans Union,
101 F.3d 957 [3rd. Cir. 1996] 4, 33
Pinner v. Schmidt,
805 F.2d 1258 [5th Cir. 1986] 2, 23
Ramirez v. Midwest Airlines, Inc.,
537 F.Supp.2d 1161, 1168 [U.S.D.C. Kan.2008] 32
Ray v. Equifax Information Services, LLC,
327 Fed.Appx. 819 [11th Cir. [Ga.] 2009] 25
Saenz v. Trans Union, LLC,
621 F.Supp.2d 1074 [U.S.D.C. Or. 2007] 30
Safeco Ins. Co. of Am. v. Burr,
127 S.Ct. 2201, 2007 WestLaw 1582951 [2007] 4, 32
Sepulvado v. CSC Credit Servs., Inc.,
158 F.3d 890, 895 [5th Cir.1998] 21, 29
Smith v. HireRight Solutions, Inc.,
711 F.Supp.2d 426, 433–34 and n.5 [U.S.D.C. E.D. Pa. 2010] 23
Stevenson v. TRW, Inc.,
987 F.2d 288, 294 [5th Cir. 1993] 33
Stewart v. The Credit Bureau, Inc.,
734 F.2d 47 [D.C. Cir. 1984] 20,27,32
Thomas v. Trans Union, LLC,
197 F.Supp.2d 1233 [U.S.D.C. Ore. 2002] 29
Thompson v. San Antonio Retail Merchants Assn.,
682 F.2d 509, 514 [5th Cir. 1982] 4
Todd v. Associated Credit Bureau, Inc.,
451 F.Supp. 447 [U.S.D.C. E.D.Pa.1977], aff'd mem., 578 F.2d 1376 [3d Cir.1978] 26
Watson v. Citi Corp.,
2008 WestLaw 4186317 [U.S.D.C. S.D. Ohio 2008] 32
Weidman v. Federal Home Loan Mortgage Corp.,
338 F.Supp.2d 571 [U.S.D.C. E.D. Pa. 2004] 15
Williams v. LexisNexis Risk Management Inc.,
2007 WestLaw 2439463 [U.S.D.C. E.D. Va. 2007] 15
Wilson v. Carco Group, Inc.,
07-7053 [Ct App. D.C. Cir. 1/2008] 32
Wilson v. Prudential Financial,
2009 WestLaw 806147 [D.D.C. 2009] 32
Wilson v. Rental Research Services, Inc.,
165 F.3d 642 [8th Cir.[Minn.] Jan 19, 1999] [NO. 97-4386], rehearing en banc granted, opinion vacated by Wilson v. Rental Research Services, Inc., 191 F.3d 911 [8th Cir.[Minn.] Jul 16, 1999] [NO. 97-4386], and on rehearing en banc, Wilson v. Rental Research Services, Inc., 206 F.3d 810 [8th Cir.[Minn.] Mar 15, 2000] [NO. 97-4386] viii, 3, 14, 15, 17, 22, 25


STATUTORY AUTHORITIES PAGE[S]
15 U.S.C. 1681, et. seq. 1
15 U.S.C. 1681a 6, 16, 48
15 U.S.C. 1681a[f] 14
15 U.S.C. 1681a[u] 15
15 U.S.C. 1681b 16
15 U.S.C. 1681e[b] viii, 2, 5, 13, 14, 15, 16, 20, 22, 23, 24, 28, 29
15 U.S.C. 1681i 19
15 U.S.C. 1681n 32
28 U.S.C. 1291 1
42 U.S.C. 1437f[o] 7
12 C.F.R. 222.1 15
24 C.F.R. 982.552[c][1][xi] 8

SUMMARY OF THE CASE
In a false consumer report, Appellee claimed that Appellant was a convicted child sexual molester, etc. In reality, Appellant had never been arrested or convicted of any crime. Appellee’s motion for summary judgment relied heavily on the Wilson, infra, decision by an equally divided Panel of this Court and a “technical accuracy” approach, not the “maximum possible accuracy” in 15 U.S.C. 1681e[b]. This case tracks a startling trend in the use of defective match logic in a race by the industry to produce more “robust” consumer reports replete with over-information, ie., false information about the wrong consumer.
STATEMENT CONCERNING ORAL ARGUMENT
This case involves important issues concerning the standard and meaning of “maximum possible accuracy,” under 15 U.S.C. 1681e[b]. The issue impacts each citizen. This Honorable Court, since Wilson, supra, has arguably stood alone in seeming approval of a “technical accuracy” argument. This lead to “minimally accurate” consumer reports with meaningless disclaimers. Acceptance of minimal accuracy and disclaimers on consumer reports is not found anywhere in the federal Fair Credit Reporting Act. Appellee knew Appellant’s social security number did not match the social security number in Appellee’s own record of the child molester conviction data which belonged to “Chantel Taylor.” MAY IT PLEASE THE COURT:
I JURISDICTIONAL STATEMENT AND STANDARD OF REVIEW
The federal courts have subject matter jurisdiction over this Action as the case and claims arises under a federal statute, the Fair Credit Reporting Act [“FCRA”], 15 U.S.C. 1681, et. seq. Appellant appeals the District Court’s adverse decision granting Appellee’s motion for summary judgment. Tr.T. 1363-1370, 1374, DKT #83,87. Appellant filed a timely Notice of Appeal. Tr.T. 1375-1377, DKT #88. Appellee filed a timely Notice of Cross-Appeal, claiming that Judge Miller erred in not ruling upon and approving Appellee’s arguments under the First Amendment to the United States Constitution. DKT #101. This is an appeal of a final judgment resulting from disposition of all claims by Appellant. This Honorable Court is vested with appellate jurisdiction over this matter pursuant to 28 U.S.C. 1291. This Honorable Court reviews decisions granting summary judgment “de novo” on appeal. AvidAir Helicopter Supply, Inc. v. Rolls-Royce Corp., 663 F.3d 966 [8th Cir. [Mo.] 2011].
II STATEMENT OF THE ISSUES
[1] Did the District Court err in granting summary judgment to and in failing to find a genuine issue of material fact as to whether Appellee violated its duties to use reasonable procedures to assure the maximum possible accuracy of the consumer report it published about Appellant?
* Koropoulos v. Credit Bureau, Inc., 734 F.2d 37, 42-45 [D.C.Cir.1984];
* Dr. Chrisanne Christensen v. Acxiom Information Sec. Services, Inc., Slip Copy, 2009 WestLaw 2424453 [U.S.D.C. W.D. Ark.2009];
* Wilson v. Rental Research Services, Inc., 165 F.3d 642 [8th Cir. [Minn.] January 19, 1999] [NO. 97-4386], rehearing en banc granted, opinion vacated by Wilson v. Rental Research Services, Inc., 191 F.3d 911 [8th Cir.[Minn.] Jul 16, 1999] [NO. 97-4386], and on rehearing en banc, Wilson v. Rental Research Services, Inc., 206 F.3d 810 [8th Cir.[Minn.] Mar 15, 2000] [NO. 97-4386];
* Hodge v. Texaco, Inc., 975 F.2d 1093 [5th Cir. [La.] 1992].

[2] Did the District Court err in finding that the Fair Credit Reporting Act [“FCRA”], 15 U.S.C. 1681e[b], embodies “technical accuracy” as its standard for “maximum possible accuracy”?
* Koropoulos v. Credit Bureau, Inc., 734 F.2d 37, 42-45 [D.C.Cir.1984];
* Pinner v. Schmidt, 805 F.2d 1258 [5th Cir.1986];
* Wilson v. Rental Research Services, Inc., 165 F.3d 642 [8th Cir. [Minn.] January 19, 1999] [NO. 97-4386], rehearing en banc granted, opinion vacated by Wilson v. Rental Research Services, Inc., 191 F.3d 911 [8th Cir.[Minn.] Jul 16, 1999] [NO. 97-4386], and on rehearing en banc, Wilson v. Rental Research Services, Inc., 206 F.3d 810 [8th Cir.[Minn.] Mar 15, 2000] [NO. 97-4386];
* Dalton v. Capital Associated Industries, Inc., 257 F.3d 409 [4th Cir.2001] [Va.].

[3] Did the District Court err in placing emphasis on a standard disclaimer of accuracy as contained in the consumer report and somehow displaced Appellee’s duties to use reasonable procedures to assure “maximum possible accuracy”?
* Dr. Chrisanne Christensen v. Acxiom Information Sec. Services, Inc., Slip Copy, 2009 WestLaw 2424453 [U.S.D.C. W.D. Ark.2009];
* Wilson v. Rental Research Services, Inc., 165 F.3d 642 [8th Cir. [Minn.] January 19, 1999] [NO. 97-4386], rehearing en banc granted, opinion vacated by Wilson v. Rental Research Services, Inc., 191 F.3d 911 [8th Cir.[Minn.] Jul 16, 1999] [NO. 97-4386], and on rehearing en banc, Wilson v. Rental Research Services, Inc., 206 F.3d 810 [8th Cir.[Minn.] March 15, 2000] [NO. 97-4386];
* Cotto v. Jenney, 721 F.Supp. 5 [U.S.D.C. Mass.1989].

[4] If a consumer report is inaccurate, can a Plaintiff present his or her case to the jury and does the burden to prove “reasonable procedures” shift to the defendant?
* Guimond v. Trans Union Credit Information, Co., 45 F.3d 1329 [9th Cir.1995] [Cal.];
* Cahlin v. General Motors Acceptance Corporation, 936 F.2d 1151, 1156 [11th Cir.1991];
* Parker v. Parker, 124 F.Supp.2d 1216 [U.S.D.C. N.D. Ala.2000];
* Dalton v. Capital Associated Industries, Inc., 257 F.3d 409 [4th Cir.2001] [Va.].

[5] Did the District Court err in finding that the Appellee’s consumer report was accurate, although only “accurate” about someone else but not Appellant?
* Koropoulos v. Credit Bureau, Inc., 734 F.2d 37, 42-45 [D.C.Cir.1984]
* Dr. Chrisanne Christensen v. Acxiom Information Sec. Services, Inc., Slip Copy, 2009 WestLaw 2424453 [U.S.D.C. W.D. Ark.2009];
* Wilson v. Rental Research Services, Inc., 165 F.3d 642 [8th Cir. [Minn.] January 19, 1999] [NO. 97-4386], rehearing en banc granted, opinion vacated by Wilson v. Rental Research Services, Inc., 191 F.3d 911 [8th Cir.[Minn.] Jul 16, 1999] [NO. 97-4386], and on rehearing en banc, Wilson v. Rental Research Services, Inc., 206 F.3d 810 [8th Cir.[Minn.] March 15, 2000] [NO. 97-4386];
* Hodge v. Texaco, Inc., 975 F.2d 1093 [5th Cir. [La.] 1992].


[6] Did the District Court err in failing to find a genuine issue of material fact as to whether Appellant sustained damages as a result of the subject consumer report?
* Safeco Ins. Co. of Am. v. Burr, 127 S.Ct. 2201, 2007 WestLaw 1582951 [2007];
* 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;
* Philbin v. Trans Union, 101 F.3d 957 [3rd. Cir.1996];
* Guimond v. Trans Union Credit Information, Co., 45 F.3d 1329 [9th Cir.1995] [Cal.].


III STATEMENT OF THE CASE
In September, 2008, Appellant and her disabled husband, with children, applied for public housing benefits during a period of her unemployment. The application process is protracted. Subsequently, as part of the process, in early April, 2010, Benton Public Housing Authority [“Benton”] requested a consumer report concerning Appellant from Appellee, a consumer reporting agency. Benton supplied Appellee with an accurate, complete set of Appellant’s personal identifiers for Appellee to use in the consumer report match and compilation process. Appellee had criminal records data, including a record of a child molester conviction concerning “Chantel Taylor” listing a different social security number from that of Appellant. Appellee prepared and published a false consumer report concerning Appellant which included the Chantel Taylor child molester conviction and other convictions of other persons. Appellant was damaged. Appellant filed this Action against Appellee based on violation of the Fair Credit Reporting Act [“FCRA”], 15 U.S.C. 1681e[b]. Tr.T. 1-15, DKT #1. Appellant alleged willful or, alternatively, negligent violation of the FCRA, 15 U.S.C. 1681e[b]. Tr.T. 8, ¶35-36, complaint. Causation and damages were plead. Id., esp. Tr.T. 14-15, ¶65-67, complaint. Appellee moved to dismiss the Action. DKT #7. Judge Miller denied the motion. DKT #18. Appellee filed a Counterclaim. Tr.T. 34-49, DKT #36. Appellant moved to dismiss it. Tr.T. 52-53, DKT #37. Appellant’s motion to dismiss the Counterclaim was granted. Tr.T. 1371-1373, DKT #86. Appellee moved for summary judgment dismissal. Tr.T. 63-64, DKT #40. Jury Trial was set to commence on November 8, 2011. DKT #72. Less than 24 hours before the decision on Appellee’s motion for summary judgment, Judge Miller’s law clerk alerted undersigned counsel that the Clerk of Court had never transmitted Appellant’s evidentiary filings to the Judge’s office and undersigned counsel emailed the deposition transcript of Keith Clifton, Appellee’s corporate representative and only defense witness deposed, to the law clerk. That evidentiary item was particularly important to Appellant’s response in opposition and is cited heavily. Undersigned counsel had properly filed the deposition, which contained testimony and exhibits that listed confidential personal identifiers, under seal with a timely motion and order. Tr.T. 1351-1352, DKT #54. Judge Miller granted the motion to have the exhibits filed under seal. Tr.T. 1354, DKT #55. The exhibits were taken by the Clerk of Court to a sealed evidence room in the courthouse but were not transmitted to Judge Miller, according to the law clerk. The law clerk indicated that the Judge was not in his office that date, November 3, but that if undersigned counsel emailed the Appellee’s deposition transcript and exhibits, which were quite voluminous, to the law clerk, that the Judge would get them and review them. As stated, the next morning, on November 4, 2011, Judge Miller granted Appellee’s motion for summary judgment and provided a written opinion in support of his Judgment. Tr.T. 1363-170, 1374, DKT #83,87. Appellant filed a timely Notice of Appeal. Tr.T. 1375-1376, DKT #88. Appellee has filed a timely Notice of Cross-Appeal. DKT #101. Other post-trial motions in the lower court have been filed and briefed.
IV STATEMENT OF THE FACTS
Appellant is a consumer. Appellee is a consumer reporting agency. Tr.T. 19, Par. 21. Appellee’s report, at issue, was a consumer report. 15 U.S.C. 1681a; Tr.T. 19, Par. 22. The consumer report prepared by Appellee ascribed to Appellant a number of criminal convictions with detailed information as to the court, charge, conviction, location, disposition, etc. Tr.T. 129-151, 204-207. In the inaccurate consumer report, Appellee claimed that Appellant had been convicted of multiple felonies, including a conviction for child molestation. Tr.T. 4, ¶15, complaint; Tr.T. 142-143, 175-176, 193-196, 204-207. Benton Public Housing Authority [“Benton”] is a subscriber and user of the consumer reports from Appellee. Tr.T. 18, 21, ¶14,61. Benton obtained and used the false consumer report prepared and published by Appellee and that report was pertaining to Appellant although the data therein actually pertained to more than one different persons. Tr.T. 110-126, 129-151, 191-192, 204-207. The face of the public record, in each instance, was not inaccurate and had adequate identifiers to distinguish the true target of the criminal conviction public record however Appellee’s unreasonable and defective procedures resulted in Appellee ascribing the felony convictions to Appellant through a loose and faulty match logic and procedures. Appellee called the report a “Public Record Report” and a “Public and Criminal Record Report” and “Residential Report.” Tr.T. 110-116, 125-126, 129-150, 193-196, 204-207. Appellee used a partial name and possible date of birth [mis]match procedure to compile and prepare the consumer report concerning Appellant.
Appellant and her husband applied with Benton for rental assistance pursuant to the Section 8 Existing Housing Voucher Program, under the Housing and Urban-Rural Recovery Act of 1983, 42 U.S.C. 1437f[o]. On April 7, 2010, Benton requested a consumer report concerning Appellant from Appellee, to screen Appellant pursuant to 24 CFR 982.552[c][1][xi]. Benton received from Appellant and her husband and re-transmitted to Appellee a complete and accurate set of personal identifiers. Tr.T. 110-116, 121-126, 129-156, 191-192, [showing multiple pieces of ID data], 193-196, [Part II[A], requiring inquiry requests to include “sufficient information to identify” applicant; Part V, Appellee requires inclusion of name, address, social security numbers for each tenant in each reporting], 205 [showing multiple pieces of ID data], 206 [the consumer report itself bearing Appellant’s name, date of birth, social security number, state of issuance of her social security number, and Arkansas drivers license number, as indicative identifiers “APPLICANT IDENTIFICATION”], 207 [Page 2 of the same report as Exh. 10, showing Appellant’s address [“RESIDENTIAL HISTORY”], 209-210 [Appellee’s “cleaned up” report].
In the lower court, Appellee repeatedly misstated the number and types of personal identifiers that Benton provided. In the lower court, Appellee again stated “that the information provided merely matched the public record identifying criteria submitted...” Appellee’s statements were false. Tr.T. 191-193; Compare to Tr.T. 110-116, 121-126, 129-150, 191-192, 204-207. Appellee attempted to claim that only a name and date of birth was provided by Benton in the inquiry. That was shown to be false. Appellee had to admit that the name “Catherine L. Taylor” did not match the identifiers tied to criminal conviction data that Appellee ascribed to Appellant, ex., CHANTEL TAYLOR. Tr.T. 110-116, 121-126, 129-150, 191-192, 204-207. Appellee’s notion that CHANTEL and CATHERINE are common misnomers [or aliases] for one another is nonsense and unfounded.
Benton’s reasonable expectation and sole purpose for obtaining the consumer report was to be able to rely on the accuracy of the report. Tr.T. 140-152, 149. Benton believed the report content and that the convictions belonged to Appellant. Id. The false consumer report led to suspicions about Appellant’s truthfulness. Tr.T. 142-146. Benton screens applicants for convictions. Convicts are undesirables and frequently seek to deceive Benton. Tr.T. 145. Benton lacked research abilities and hired Appellee to supply accurate and reliable consumer reports. Tr.T. 143-147. Appellee argued that its report contained a generic disclaimer of accuracy however the disclaimer was not known to Benton and contradicted the sole purpose for the report and was a useless gesture. Tr.T. 146-156.
Following receipt of the false report concerning Appellant, Benton held a meeting with Appellant to discussed the report. Appellant had a complete meltdown when confronted about the alleged numerous felony criminal convictions and had to be calmed. Ultimately Benton approved the voucher. Benton subsequently learned that none of the felony convictions actually belonged to Appellant and Appellee’s report was inaccurate. Tr.T.149-152. Appellant was not denied the assistance sought from Benton but delays resulted in Appellant’s return to work and she was unable to use the voucher benefits as she no longer qualified due to increased salary in the interim. Tr.T. 1198-1199, 1280-1281; Contrast Tr.T. 166, 172. [lack of knowledge as to what exactly happened]. Appellant experienced humiliation due to the false report. Appellant suffered no economic loss but it is not required. Stress induced maladies are sufficient damages. Tr.T. 1188-1192, 1226-1284. She suffered extreme embarrassment and humiliation when summoned into Benton’s office and interrogated about the false report. She is not a child molester/abuser, thief, forger, etc. Tr.T. 1188-1192, 1226-1233; Corroborated by Tr.T. 154-156 [“pretty upset,” “genuinely” upset, Appellant cried]. She was so very upset and convulsive she was asked to calm down. Tr.T. 1188-1192. She described crying and feelings of severe shock. Tr.T. 1230-1232. She explained legitimate fears of continued false reports about her. Tr.T. 1228-1233, 1254-1257. She experienced extreme emotional distress and aggravation. Tr.T. 1230-1254. She had to hire an attorney. Being accused of multiple crimes, as defamation per se, created presumed damages however, here, Appellant sustained real non-economic damages despite Benton’s failure to deny her a housing voucher. Appellant should not have been forced to explain that she was not a child molester, etc. Tr.T. 1230-1257. In its motion, Appellee offered its owner’s Affidavit [Clifton], who never met Appellant and who tried to claim she was not damaged. Tr.T. 226. As objected to, Clifton lacked the requisite foundation to testify about damages. Tr.T. 455-457.
Appellant contested the entries to Benton and Benton notified Appellee. As agent, Benton communicated with Appellee. Appellant had no direct dealings with Appellee. Tr.T. 1206-1207, 1278-1281; Tr.T. 110-126, 150-151, 176-177, 191-192, 204-210. Appellee’s falsely claimed, in its motion, that Appellant “did not deny the facts reported to Benton were or were not attributable to her.” That statement is contrary to all evidence and testimony. Id. This represented another major lie to the lower court. Id. Benton acted to dispute the report to Appellee. Appellant had no information about Appellee, at the time, to do so. Benton was interested in resolving Appellant’s disputes. Id.
Some key facts were established in evidence in the lower court. Tr.T. 574-580. Historically, Appellant had a false criminal records consumer report published about her by ChoicePoint, Inc., and by PublicData.com, which are unrelated consumer reporting agencies. Appellant filed suit against each as each instance violated the FCRA and resulted in damages. Appellee castigated Appellant about these suits, albeit totally unrelated to Appellee. Id. Appellee has not shared system or involvement with ChoicePoint, Inc., and/or PublicData.com. Id. These prior lawsuits have nothing to do with Appellee. Id. Appellee’s false report concerning Appellant was completely unexpected. Id. Benton chose to contact Appellee and request a consumer report. Id. That report was replete with criminal records data improperly attributed to Appellant. Tr.T. 140-152. Appellant supplied Benton with her accurate personal identifiers, as requested. Benton accurately conveyed those identifiers [multiple identifiers, not merely name and address] to Appellee. Tr.T. 110-116, 121-126, 129-130, 191-192, 204-207. Appellee mixed Appellant’s true “NO RECORD” with criminal records of two other persons based solely on matching the same LAST NAME and DATE OF BIRTH only and then melded the information of criminal convictions into a completed consumer report which it published about Appellant. Supra. This is not an “identity theft” case. Absent any basis, Appellee suggested that Appellant was required to preemptively explain that “in the past” certain consumer reporting agencies reported convictions about her falsely, as if to forewarn of an expected false consumer report. Tr. 574-580.
V SUMMARY OF THE ARGUMENT
Summary judgment dismissal of Appellant’s claims was improper. There were genuine issues of material fact as to whether Appellee violated its duties to use reasonable procedures to assure the maximum possible accuracy of the consumer report it published about Appellant. The District Court err in applying “technical accuracy” as the standard for “maximum possible accuracy” under Section 1681e[b] of the Fair Credit Reporting Act, 15 U.S.C. 1681e[b]. The District Court also erred in placing emphasis on a standard disclaimer of accuracy as contained in the consumer report. A disclaimer cannot displace legal duties or the purpose for the customer purchasing the report. If a consumer report is inaccurate, the burden to prove “reasonable procedures” should shift to the defendant. The consumer report was not accurate about the person inquired about and listed as the target of the report, that being Appellant. The felony convictions listed were accurate public records about someone, not Appellant. The District Court also erred in failing to find a genuine issue of material fact as to whether Appellant sustained damages. Of course, statutory damages are available if the violation was wilful and even absent any actual damage. Stress induced maladies are sufficient damages.
Perhaps the single glaring fact is that Appellee had Appellant’s social security number and it did not match the social security number in the Appellee’s record concerning the child molestation conviction. The public record, as obtained by Appellee, listed the convict’s social security number and, in its defective match process, Appellee ignored that identifier [and others] and posted the molestation conviction to Appellant’s consumer report. The face of the public record, in each instance, was not inaccurate and had adequate identifiers to distinguish the true target of the criminal conviction public record . Appellee chose to use loose and faulty match logic and procedures resulting in a more “robust file,” ie., “over-information.” A partial name and possible date of birth [mis]match procedure to compile and prepare consumer reports is an unreasonable procedure.
Has this Honorable Court, based on the unusual history of Wilson, supra, really adopted “technical accuracy” as argued by Appellee and suggested by the lower court? Appellant believes that this Honorable Court has not and, for good reason, should not. The Wilson decision of this Honorable Court is very brief but expressed that the en banc panel, at that time, was equally divided. 206 F.3d 810.
VI ARGUMENT
1. ATTRIBUTING CONVICTIONS TO THE WRONG CONSUMER VIOLATES THE SECTION 1681E[B]; THE CONSUMER REPORT IS INACCURATE AND NOT EVEN A SIMPLY MISLEADING; AND “TECHNICAL ACCURACY” IS NOT THE STANDARD FOR THE REQUIRED “MAXIMUM POSSIBLE ACCURACY”

Appellee is a consumer reporting agency. Supra; 15 U.S.C. 1681a[f]; Williams v. LexisNexis Risk Management Inc., 2007 WestLaw 2439463 [U.S.D.C. E.D. Va. 2007]. Appellee is not a “furnisher” under the FCRA. Weidman v. Federal Home Loan Mortgage Corp., 338 F.Supp.2d 571 [U.S.D.C. E.D. Pa. 2004]. Appellee prepared and published a consumer report about Appellant. Supra. Appellee is also a reseller of information which contained public records data that it did not garner and did nothing to verify. Boris v. Choicepoint Services, Inc., 249 F.Supp.2d 851 [U.S.D.C. W.D. Ky. 2003]. Resellers are a subset of consumer reporting agencies. Appellee is a reseller and consumer reporting agency. Wilson v. Rental Research Servs., Inc., 165 F.3d 642 [8th Cir. 1999], vacated on other grounds [Rental Research Services, Inc., is a "reseller" and a "consumer reporting agency" under the FCRA]; 15 U.S.C. 1681a[u]; eff. March 31, 2004, 12 C.F.R. 222.1. All consumer reporting agencies have a legal obligation that arises each and every time it prepares a consumer report. The agencies must have and actually use reasonable procedures to assure the maximum possible accuracy of the reports that it prepares. 15 U.S.C. 1681e[b].
The FCRA was crafted to protect consumers from the transmission of inaccurate information about them and is to be liberally construed in favor of consumers. 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.]; Jones v. Federated Financial Reserve Corp., 144 F.3d 961 [6th Cir. 1998] [Mich.].
Appellee’s argument that a “misleading or incomplete report” is the same as a report “about the wrong person” requires a long leap of imagination. Appellee falsely suggesting that it was “accurately” reporting the public record. It is not “accurate” to report information truly pertaining to another person [and not Appellant] about the Appellant. One cannot dissect the individual entries of data in the report from the report itself. Appellee could forever claim that the false statement, taken in pieces, must be true about “someone.” Parsing out entries to try and make a report “accurate” defies the purpose of the FCRA and is nonsensical.
Appellee analogized itself to the “press.” A consumer report is a special kind of communication governed by a federal law, the FCRA. 15 U.S.C. 1681a, 1681e[b]. Consumer reports cannot be prepared and published to the public absent a permissible purpose. 15 U.S.C. 1681b. It is not a news reporting. Appellant’s housing benefit application is not a matter of public concern or interest nor the subject of a news story. Appellee is engaged in a lucrative business, where industry abuses have been so extraordinary, over so many decades, that Congress repeatedly enacted [and amended] laws designed to protect consumers from the agencies [not vice-versa] and to regulate Appellee’s industry. Those laws include the FCRA. State legislatures likewise acted in response over decades reaching back to pre-computer days and the advent of mercantile agencies [later called credit bureaus]. Yet, the overwhelming source of consumer complaints at the Federal Trade Commission continues to be credit reporting abuses. That trend has continued year-after-year, for decades. If this Appellee is unable or unwilling to render reports about the target of the inquiry and seeks to use a “disclaimer” [telling its customers to “go figure it out”] then Appellee should not have chosen that line of business at all. The “disclaimer” defense was rejected in Cotto v. Jenney, 721 F.Supp. 5 [U.S.D.C. Mass. 1989]. This Honorable Court cited Cotto favorably in Wilson, 165F.3d 642. The point is this: If Appellee cannot perform the business that it chose to do, in a lawful and proper manner, then Appellee should not do it or should be prepared to pay the price from its hefty profits.
In a very similar case, Dr. Chrisanne Christensen v. Acxiom Information Sec. Services, Inc., 2009 WestLaw 2424453 [U.S.D.C. W.D. Ark. 2009], Judge Hendren found the same report to be inaccurate. The key facts were:
“* In connection with a job application to Mount Mercy College [“Mount Mercy”], plaintiff Chrisanne Christensen [“Christensen”] consented to a background investigation.
* Mount Mercy requested the background investigation from defendant Per Mar Security and Research Corp. [“Per Mar”], a consumer reporting agency as defined in 15 U.S.C. §1681a.
* Per Mar, in turn, sought information about Christensen from Acxiom Information Security Services, Inc. [“Acxiom”], another consumer reporting agency as defined in 15 U.S.C. §1681a.
* Mount Mercy provided Per Mar with Christensen's name, date of birth, and social security numbers, and Per Mar in turn provided Acxiom with that information.
* A consumer report, as defined in 15 U.S.C. §1681a, regarding Christensen was eventually prepared and presented to Mount Mercy. This consumer report contained inaccurate information to the effect that Christensen had been convicted of a crime [“assault, family violence”] in Uvalde, Texas.
* Christensen was not hired by Mount Mercy [emphasis added.].”
Dr. Christensen’s consumer report contained criminal conviction information that actually belonged to a man from Uvalde County, Texas, with a different name. The report also contained an awkward disclaimer suggesting that Mount Mercy should not rely on the content but Judge Hendren rejected the ‘technical accuracy’ contention and found the report was “inaccurate.” Further, placing a disclaimer on the product which suggests that the product is defective for the intended purpose is awkward at best and useless. The user relies on the product for the intended purpose, ie., information about the target of the inquiry. Judge Hendren denied defense motions attempting to obtain dismissal.
In Adams v. National Engineering Service Corp., 620 F.Supp.2d 319 [U.S.D.C. Conn. 2009], the court distinguished Henson, appellate jurisprudence involving an error on the face of the public record. Henson held that the agency required prior notice and dispute before rechecking the corrected public record. In Adams, the court held: “Unlike in Henson, however, there is no indication of court error in the present case. Rather, the record shows that the defendants erred in attributing accurate court records to the wrong individual. And while requiring a consumer reporting agency to “go beyond the face of court records to determine whether [those records] correctly report the outcome of the underlying action” may be too much to ask, requiring a consumer reporting agency to correctly determine which public records belong to which individual consumers is not. Consequently, the court rejects Verifications' argument and does not shift the burden onto Adams.” Comparably, under Section 1681i, an agency’s duties to conduct reasonable reinvestigations, after dispute, exists when the information is accurate about someone else and the agency presented that information in such a manner as to create inaccurate impressions about the wrong consumer. Lowry v. Credit Bureau, Inc. of Georgia, 444 F.Supp. 541 [U.S.D.C. Ga. 1978].
The standard of “maximum possible accuracy” for consumer reports in Section 1681e[b] is an objective measure that should be interpreted in even-handed manner toward interests of consumers and creditors in fair and accurate reporting. Cahlin v. GMAC, 936 F.2d 1151 [11th Cir. 1991] [Fla.]. “Technical accuracy” is not the standard. A consumer report must be accurate to the maximum possible extent. The trier of fact must weigh the potential that 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]. Here, Appellee had the correct social security number of the child molester in the same data record that it placed in the report about Appellant. Further, Appellee has Appellant’s social security number as supplied by Benton, from the inception and inquiry. Appellee’s records and report contained glaring inconsistencies sufficient to prove the lack of reasonable procedures to assure the maximum possible accuracy of information in plaintiff’s credit file held by defendant. 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].
The report here was not a “technically accurate” consumer report. It was a patently false consumer report that contained information about wholly different consumers [criminals] but Appellee ascribed that set of maximum derogatory conviction data to Appellant. That is not merely “misleading” or “technically accurate.” Appellant has no criminal record whatsoever. The data was of a maximum derogatory nature. Probability of harm and risk to Appellant were great. The cost to verify and cure the mismatch was “nothing” more than just looking at the social security number in Appellee’s own data record on the child molester file and seeing that it did not match the number of Appellant, which Appellee had. The balancing test approach leads to an inescapable conclusion of negligent procedures, at a minimum.
Further, what is “inaccurate” as opposed to “technically accurate” is a factual issue in and of itself. In this case, the reporting of criminal convictions about Appellant was not “technical accuracy” under any broad stretch of the imagination. Even under technical accuracy, courts look to see if the report was misleading in such a way and to such an extent that it can be expected to adversely affect credit decisions. Sepulvado v. CSC Credit Servs., Inc., 158 F.3d 890, 895 [5th Cir.1998]. That is a fact issue as well.
The District Court relied on this Honorable Court’s decision in Wilson v. Rental Research Services, Inc., 165 F.3d 642 [8th Cir. [Minn.] January 19, 1999] [NO. 97-4386], rehearing en banc granted, opinion vacated by Wilson v. Rental Research Services, Inc., 191 F.3d 911 [8th Cir.[Minn.] Jul 16, 1999] [NO. 97-4386], and on rehearing en banc, Wilson v. Rental Research Services, Inc., 206 F.3d 810 [8th Cir.[Minn.] Mar 15, 2000] [NO. 97-4386], where a three judge panel had its decision reconsidered en banc. It was an FCRA case involving a consumer report containing housing court [detainer] public records data improperly attributed to the wrong consumer. Equally divided, this Court affirmed dismissal of the action. The decision at 165 F.3d 642, by the three judge panel, was vacated. Respectfully, since Wilson was decided, it has not been followed by any of the other sister circuits or lower courts, until Taylor, except by two lower District Courts in unreported decisions: Neal v. CSC Credit Services, Inc., 2004 WestLaw 628214 [U.S.D.C. Neb., 2004]; Kettler v. CSC Credit Service, Inc., 2003 WestLaw 21975919 [U.S.D.C. Minn. 2003]. The rather unusual result in the District Court in Wilson is clearly a minority approach. The Third Circuit recently noted in Cortez v. Trans Union, LLC, 617 F.3d 688, 709 [3d Cir. 2010], that “the distinction between ‘accuracy’ and ‘maximum possible accuracy’ ... is ... quite dramatic.” Section 1681e[b] requires and commands “MAXIMUM POSSIBLE ACCURACY” not half-truths, innuendo, or “technical accuracy” as suggested by defendant/”the industry.” The Cortez court then went on to cite favorably the Fifth Circuit opinion, Pinner v. Schmidt, 805 F.2d 1258 [5th Cir. 1986], where a statement on a credit report, although true, was “woefully misleading” and therefore inaccurate for purposes of §1681e[b]. Cortez, 617 F.3d, at 709. The other more recent decisions continue to reaffirm the long-standing Koropoulos/maximum possible accuracy approach.
The Fifth Circuit Court of Appeals, in Hodge v. Texaco, Inc., 975 F.2d 1093 [5th Cir. [La.] 1992], in considering an action for an alleged false drug screen/urine test consumer report, stated: “Of course, the accuracy of the reports will depend on whether LSI actually obtained Hodge's urine sample and not someone else's urine for their tests.” In Smith v. HireRight Solutions, Inc., 711 F.Supp.2d 426, 433–34 and n.5 [U.S.D.C. E.D. Pa. 2010], the court stated: “[T]he majority of Circuit Courts have adopted the maximum possible accuracy approach which holds that a credit entry can be incomplete or inaccurate within the meaning of the FCRA either because it is patently incorrect, or because it is misleading in such a way and to such an extent that it can be expected to adversely affect credit decisions.... [T]his Court will follow the majority of authority and adopt the maximum accuracy approach over the technical accuracy approach. [internal quotations and citations omitted].” Also, see Krajewski, 557 F.Supp.2d at 614 [“I, too, will follow Koropoulos and deny summary judgment if there is a genuine issue of material fact as to whether the report was ... misleading.”]; Agosta v. Inovision, Inc., No. 02–806, 2003 WestLaw 22999213, at *5, 2003 U.S. Dist. LEXIS 23889, at *17 [U.S.D.C. E.D.Pa. Dec. 16, 2003] [“Though ‘technically accurate,’ a derogatory entry on a credit report is actionable because it is misleading or materially incomplete.”]; Evantash v. G.E. Capital Mortg. Servs., Inc., No 02–1188, 2003 WestLaw 22844198, at *4, 2003 U.S. Dist. LEXIS 23131, at *12–13 [U.S.D.C. E.D.Pa. Nov. 25, 2003] [“Because the Third Circuit has not endorsed the ‘technical accuracy defense,’ we shall apply the less stringent approach articulated in Koropoulos. Applying that approach, we find there is a genuine issue of material fact as to whether Trans Union's treatment of the Account was so misleading as to be inaccurate within the meaning of Section 1681e[b]. A reasonable jury could find that the bankruptcy reference in Plaintiff's credit report misled potential creditors into believing that she had filed for bankruptcy.”]. The Ninth Circuit has likewise refused to permit agencies to allow technical accuracy. Carvalho v. Equifax Information Services, LLC, 629 F.3d 876 [9th Cir. [Cal.] 2010]. The Fourth Circuit even more strenuously rejected the technical accuracy position of the industry. Dalton v. Capital Associated Industries, Inc., et al, 2001 U.S.App. LEXIS 15902, 257 F. 3d 409 [4th Cir. 7/16/01] [Va.]. The Eleventh Circuit rejected technical accuracy. Cahlin v. GMAC, 936 F.2d 1151 [11th Cir. 1991] [Fla.] [The standard of accuracy for credit reports embodied in FCRA is objective measure that should be interpreted in even-handed manner toward interests of consumers and creditors in fair and accurate reporting].
Has this Honorable Court, based on the unusual history of Wilson, really adopted “technical accuracy” as argued by Appellee and suggested by the lower court? Appellant believes that this Honorable Court has not and, for good reason, should not. The Wilson decision of this Honorable Court is very brief but expressed that the en banc panel, at that time, was equally divided. 206 F.3d 810.
In reviewing a decision on summary judgment under Rule 56, the Eleventh Circuit Court of Appeals in Ray v. Equifax Information Services, LLC, 327 Fed.Appx. 819 [11th Cir. [Ga.] 2009], explained the “technical accuracy” debate in a footnote recently: “We acknowledge that different interpretations of what constitutes an “accurate” credit report have led to the development of two differing judicial perspectives. These are the “technically accurate” approach where a credit reporting agency satisfies its duty if it produces a report containing “actually correct information about a consumer that might nonetheless be misleading or incomplete in some respect,” Cahlin v. General Motors Acceptance Corp., 936 F.2d 1151, 1157 [11th Cir.1991] [citing Todd v. Associated Credit Bureau, Inc., 451 F.Supp. 447 [U.S.D.C. E.D.Pa.1977], aff'd mem., 578 F.2d 1376 [3d Cir.1978]], and the “maximum possible accuracy” approach where a credit reporting agency is unable to prevail on summary judgment if the agency “reported factually correct information that could also be interpreted as being misleading or incomplete.” Cahlin, 936 F.2d at 1157 [citing Koropoulos v. Credit Bureau, Inc., 734 F.2d 37, 42-45 [D.C.Cir.1984]]. Neither “technical accuracy” or “maximum possible accuracy” involve reportings about the wrong person.
The leading and most-cited case on the “technical accuracy” issue, being Koropoulos, supra, stated: “Congress did not limit the Act's mandate to reasonable procedures to assure only technical accuracy; to the contrary the Act requires reasonable procedures to assure “maximum accuracy.” ... Certainly reports containing factually correct information that nonetheless mislead their readers are neither maximally accurate nor fair to the consumer who is the subject of the reports.”
In Dalton v. Capital Associated Industries, Inc., 257 F.3d 409 [4th Cir. 2001] [Va.], the Fourth Circuit reversed the lower court in an FCRA action and found that plaintiff had never been convicted of a felony as claimed in his consumer report. Though previously charged with felony assault, he was only convicted of misdemeanor assault. The court held that defendant and its source failed to take any independent steps to verify the substance of erroneous information. Finding that employers placed increasing reliance on credit reports from consumer reporting agencies and that the agencies’ inaccuracies, in too many instances, adversely affected the ability of individuals to obtain employment and benefits, the court found that the misleading report was "inaccurate" when it is "patently incorrect" or when it is "misleading in such a way and to such an extent that it can be expected to [have an] adverse" effect. The Fourth Circuit found that a prima facie case is made by showing that the agency prepared a report containing inaccurate information. The court noted a split in the circuits on the issue of who bears the burden of proof on "reasonable procedures." The Ninth and Eleventh Circuits have held that the defendant has the burden of proof. Guimond v. Trans Union, 45 F.3d at 1333 [9th Cir.]; Cahlin, 936 F.2d, at 1156 [11th Cir.]. Only the D.C. Appellate Circuit and the Fourth Circuit have held otherwise. Stewart, 236 U.S.App.D.C. 146 [1984]; Dalton v. Capital Associated Industries, Inc., 257 F.3d 409, 416 [4th Cir. 2001] [noting the split]. The Fourth Circuit, siding with the Stewart [D.C. Cir.] opinion, found that plaintiff bears the burden, contrasting Guimond and Cahlin. In order to make out a prima facie violation of Section 1681e[b], the FCRA implicitly requires that a consumer must present some minimal evidence tending to show that a credit reporting agency prepared a report containing 'inaccurate' information. Cahlin v. General Motors Acceptance Corporation, 936 F.2d 1151, 1156 [11th Cir. 1991]. The court held that "a plaintiff may present his case to the jury on the issue of reasonable procedures merely by showing an inaccuracy in the consumer report and nothing more..." Parker v. Parker, 124 F.Supp.2d 1216 [U.S.D.C. N.D. Ala. 2000]. This Honorable Court does not appear to have taken a position on this issue yet.
The Dalton court declined to consider whether an inaccuracy can be so egregious that it is presumed that the agency’s procedures were unreasonable. The issue of reasonable procedures will be a "jury question" in the overwhelming majority of cases," citing Guimond and Andrews, both from the Ninth Circuit. The plaintiff must present some minimal amount of proof of unreasonableness. Again, all courts are consistent in holding that “reasonableness” is a question of fact reserved solely unto the jury. Guimond v. Trans Union, 45 F.3d, at 1333 [9th Cir.] ["The reasonableness of the procedures and whether the agency followed them will be jury questions in the overwhelming majority of cases."]; Andrews v. TRW Inc., 225 F.3d 1063, 1068 [9th Cir. 2000] reversed on other grounds, TRW v. Andrews, 534 U.S. 19, 151 L.Ed.2d 339, 122 S.Ct. 441, 447 [2001]; Dalton v. Capital Associated Industries, Inc., 257 F.3d 409 [4th Cir. 2001]; Thomas v. Trans Union, LLC, 197 F.Supp.2d 1233 [U.S.D.C. Ore. 2002]; Olwell v. Medical Info. Bureau, 2003 U.S.Dist.Lexis 442 [U.S.D.C Minn. 2003]; Jensen v. Experian Info. Solutions, Inc., 2001 WestLaw 1045510 [U.S.D.C. E.D. Tex. March 30, 2001]. The same is true of “willfulness.” Edwards v. Toys R Us, 527 F.Supp.2d 1197, 1210 [U.S.D.C. C.D. Cal. 2007] [“Willfulness under the FCRA is generally a question of fact for the jury.”]; Holmes v. Telecheck Intern., Inc., 556 F.Supp.2d 819, 847 [U.S.D.C. M.D. Tenn. 2008] [“Willfulness under the FCRA is generally a question of fact for the jury.”]. Claims under Section 1681e[b] involving “reasonableness” are always fact intensive and the trier of fact must examine the agency’s conduct in light of what a reasonably prudent person would do under the circumstances. Bryant, 689 F.2d 72, 78; Sepulvado, 158 F.3d 890, 896; Cousin v. Trans Union, 2001 Westlaw 277841 [5th Cir. 3/21/01].
2. SUFFICIENT EVIDENCE OF AN INACCURATE CONSUMER REPORT AND A SECTION 1681E[B] VIOLATION BY APPELLEE SO AS TO DEFEAT SUMMARY JUDGMENT

To defeat a summary judgment motion testing a Section 1681e[b] claim, courts uniformly apply this test: “[C]laimant must minimally present some evidence from which it can be inferred that consumer reporting agency failed to follow minimum standard of reasonable procedures.” Saenz v. Trans Union, LLC, 621 F.Supp.2d 1074 [U.S.D.C. Or. 2007]; Johnson v. Equifax, Inc., 510 F.Supp.2d 638 [U.S.D.C. S.D. Ala. 2007]; O'Connor v. Trans Union Corp., 1999 WestLaw 773504 [U.S.D.C. E.D. Pa. 1999]. Appellee was less than truthful in its rendition of the facts to the lower court. Appellant supplied Benton with all of her personal identifiers, including her social security number. In turn, Benton supplied all of those identifiers, including her social security number, to Appellee in the inquiry process. Appellee had the social security number of CHANTEL TAYLOR in its data record of the child molestation conviction. That is the same data that Appellee attributed to Appellant. Despite having more identifiers, Appellee chose to use solely the “FIRST NAME,” “LAST NAME,” AND “DATE OF BIRTH” for data matching and comparative purposes. In fact, Appellee utilized a PARTIAL MATCH LOGIC on the FIRST NAME data field leading to inclusion of other persons with the LAST NAME “TAYLOR”and having different FIRST NAMES. For example, “CHANTEL TAYLOR” Appellant is not “CHANTEL” and never has been known by such a name and has no connection to anyone with such a name. CHANTEL and CATHERINE are not aliases. Appellant has never lived in the states where the other multiple “TAYLOR” convicts live[d] and Appellant does not know them or have any relation to any of them. Matching other persons with the same LAST NAME and some potential similarity in date of birth [or even same date of birth] is not a reasonable procedure. While reasonableness is a jury issue, not proper for summary judgment, it must be considered by the jury under the balancing test of reasonableness and what a reasonably prudent person would have done under such circumstances. Is it reasonable to ascribe the criminal convictions for child sexual predator/abuser, forgery, thefts and drug possession and distribution to Appellant under the circumstances? Tr.T. 142-143, 175-176, 196-196, 204-207. The names, addresses and other indicative information, when considered globally, did not match. Even if the criminals had the LAST NAME Taylor, that is not adequate. Even if some of the records matched the FIRST NAME Catherine, other records clearly did not. Even with a FIRST NAME and LAST NAME match, that is not adequate. Dates of birth are but one other potential identifier, of many, that Appellee chose to use for possible match. A date of birth is a non-unique identifier of extremely limited use for identification purposes. The potential for extreme harm was great. Attributing criminal convictions that are the most damning kind of information weighs heavily in finding negligence as the risk of harm is absolute. What is the burden of re-checking its so-called “possible matches” before publishing a consumer report assured to damage Appellant? The cost to recheck [even when using a defective, loose matching logic] was minimal especially when a minimal review of Appellee’s own internal records disclosed that Appellant is not CHANTEL TAYLOR, nor does she live in multiple other states [where the other TAYLORS resided and were convicted] and there were other indicative information items in Appellee’s possession that did not match, particularly the unique identifier, the social security number. Inaccurate consumer reports themselves may be sufficient to demonstrate the unreasonableness of a reporting agency's procedures and the absence of direct evidence may not always be fatal to a plaintiff's claim. Stewart v. Credit Bureau, Inc., 734 F.2d 47, 52 [D.C.Cir.1984]; Wilson v. Carco Group, Inc., 07-7053 [Ct App. D.C. Cir. 1/2008]; Wilson v. Prudential Financial, 2009 WestLaw 806147 [D.D.C. 2009].
3. APPELLANT SHOWED EVIDENCE OF DAMAGES
Statutory damages are recoverable upon proof of willfulness even in the absence of actual damages. 15 U.S.C. 1681n; Ramirez v. Midwest Airlines, Inc., 537 F.Supp.2d 1161, 1168 [U.S.D.C. Kan.2008]. Whether conduct is willful is a question of fact. Holmes v. Telecheck Int'l, Inc., 556 F.Supp.2d 819, 847 [U.S.D.C. M.D. Tenn. 2008]; Watson v. Citi Corp., 2008 WestLaw 4186317 [U.S.D.C. S.D. Ohio 2008]. The U.S. Supreme Court’s decision in Safeco Ins. Co. of Am. v. Burr, 127 S.Ct. 2201, 2007 WestLaw 1582951 [2007], in a Fair Credit Reporting Act case, corrected a trend of intermediate appellate authorities mis-defining “willfulness.” The High Court found that a willfulness covers a violation committed in reckless disregard of the duties imposed by law. McLaughlin v. Richland Shoe Co., 486 U.S. 128.
The FCRA requirement that the consumer sustain some injury can be established by merely showing that the consumer reporting agency issued an erroneous reports to an institution with whom the consumer was [is] dealing. 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. Stress induced maladies alone are sufficient. Guimond v. Trans Union Credit Info. Co., 45 F.3d 1329 [9th Cir. 1995] [Cal.]; Cushman v. Trans Union, 920 F.Supp. 80, 1996 Westlaw 153218, at p.3 [U.S.D.C. E.D. Pa. 1996]. A consumer need not even prove out-of-pocket expenses. Stevenson v. TRW, Inc., 987 F.2d 288, 294 [5th Cir. 1993]. The causation test which has been adopted nationwide, as enunciated by the Third Circuit in Philbin v. Trans Union, 101 F.3d 957 [3rd. Cir. 1996], is a “substantial factor” test, not “sole factor” test. Whether damage was caused by a false consumer report is a factual issue for the jury. Luster v. Retail Credit Co., 575 F.2d 609 [8th Cir. 1978] [Ark.]. Appellant’s testimony was fully supported by that of Benton and proved that Appellant sustained damages. The substantial [and only] factor was the inaccurate, subject consumer report about Appellant. That is a credibility call for the jury, not on summary judgment. Tr.T. 1188-1192, 1226-1284.
Appellant need not belabor her damages. Appellant explained the extreme embarrassment and humiliation she suffered when Benton summoned and interrogated her about the false consumer report, which suggested that Appellant was a child molester, etc. Tr.T. 1188-1192, 1226-1233. Appellant was very upset and convulsive. Tr.T. 1188-1192. She described crying and feelings of severe shock. Tr.T. 1230-1232. Appellant explained her legitimate fears of continued false reportings. Tr.T. 1228-1233, 1254-1257. Appellant experienced extreme emotional distress and aggravation. Tr.T. 1230-1254. She had to hire an attorney. Being accused of multiple crimes, as defamation per se, created presumed damages however Appellant sustained real non-economic damages and should not have been forced to explain that she was not a child molester, forger, thief, etc. Tr.T. 1230-1257.
CONCLUSION
Appellant respectfully requests that this Honorable Court reverse the summary judgment dismissal of her claims for relief against Appellee Tenant Tracker and remand the case for further proceedings. Appellant further requests that the Court reject the cross-appeal points, demands and requests by Appellee-cross-appellant. Certificate of Service
I hereby certify that a copy of the above and foregoing has been served upon all counsel of record by ECF and placing a copy of same in the United States Mail, properly addressed and first class postage pre-paid on this the 3rd day of February, 2012.


/s/David A. Szwak
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1. This brief complies with the type-volume limitation of Fed. R. App. P.32[a][7][B] because:

[X] this brief contains 7,697 [number of] words, excluding the parts of the brief exempted by Fed. R. App. P. 32[a][7][B][iii], or

[ ] this brief uses a monospaced typeface and contains 712 lines of text, excluding the parts of the brief exempted by Fed. R. App. P. 32[a][7][B][iii].

2. This brief complies with the typeface requirements of Fed. R. App. P.32[a][5] and the type style requirements of Fed. R. App. P. 32[a][6] because:

[X] this brief has been prepared in a proportionally spaced typeface using WordPerfect 12 for Windows XP in 14pt Times New Roman., or

[ ] this brief has been prepared in a monospaced typeface using word processing program with characters per inch and style.

By:
/s/David A. Szwak _____________
David A. Szwak,LBR#21157, TA
Bodenheimer, Jones & Szwak, LLC
416 Travis Street, Ste. 1404
Mid South Tower
Shreveport, Louisiana 71101
[318] 424-1400
FAX 221-6555
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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