# Norman v. TRANS UNION, LLC

> District Court, E.D. Pennsylvania · April 11, 2023

URL: https://www.frixlaw.com/law-library/cases/10405090

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** April 11, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10405090

## How later opinions describe it (automated extraction)

- reversing certification of class when “apparently thousands” of class members suffered no injury and the mechanism identified for removing those parties did not protect the parties’ rights

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DUANE E. NORMAN, SR. :
ON BEHALF OF HIMSELF AND :
ALL OTHERS SIMILARLY SITUATED :
:
v. : CIVIL ACTION NO. 18-5225
:
TRANS UNION, LLC :

McHUGH, J. April 10, 2023
MEMORANDUM
I. Relevant Background ................................................................................................................ 2
Nature and Impact of Hard Inquiries ............................................................................ 2
Trans Union’s Procedures and Industry Practices as to Disputed Hard Inquiries ........ 5
Time and Expense Consumers Spend on Disputing a Hard Inquiry ............................ 7
Credit Repair Industry and Its Presence in Class Letters .............................................. 8
Class Letters Disputing an Inaccuracy ........................................................................ 12
Prevalence of Fraudulent Disputes Submitted to Trans Union ................................... 13
II. Standard of Review ................................................................................................................. 15
III. Discussion ............................................................................................................................... 16
Class Decertification ................................................................................................... 17
1. Plaintiffs Have Sufficiently Demonstrated Standing. ..................................... 17
2. Bibbs v. Trans Union Does Not Change My Conclusion that Plaintiffs
Do Not Have to Prove the Element of Inaccuracy in the First Instance. ........ 28
3. Defendants Fail to Demonstrate that a Significant Portion of Class
Disputes Were Sent Fraudulently by Credit Repair Clinics. .......................... 31
4. Plaintiffs’ Claims Are, in Part, Capable of Common Proof at Trial. .............. 39
Summary Judgment .................................................................................................... 46
1. Trans Union’s Reading of the FCRA is Objectively Unreasonable Under
Safeco. ............................................................................................................. 47
2. Trans Union’s Industry Practice Defense Does Not Suffice to Prove a
Lack of Willful or Reckless Conduct.............................................................. 58
IV. Conclusion .............................................................................................................................. 60
* * *
On August 14, 2020, I certified a class of plaintiffs suing Trans Union under § 1681i of the
Federal Credit Reporting Act (FCRA). The Court of Appeals declined interlocutory review. Now,
over two years later, Defendant seeks decertification of that class and summary judgment on
Plaintiffs’ claim that Trans Union willfully violated the reinvestigation provision of the FCRA.
After scrutinizing the statute, new precedential case law, and the extensive record of expert reports
and depositions submitted by both parties,1 I find that decertification of this class is not warranted.
Additionally, I find that, because Trans Union has not demonstrated that its reading of the FCRA
is objectively reasonable, summary judgment must be denied.

I. Relevant Background
The relevant factual background surrounding Mr. Norman’s dispute process is set forth in
significant detail in my prior certification memorandum. ECF 47 at 2-7. The record has since
been developed by the production of expert reports and the taking of expert depositions. It would
be impractical to set forth all that information here. I therefore proceed by framing the central
disputes and addressing the most relevant expert commentary.
Nature and Impact of Hard Inquiries
In his dispute letter, Mr. Norman alleged that an inaccurate hard inquiry was present on his
credit report. A hard inquiry is a notation placed on a consumer’s credit file when a subscriber or
end-user of Trans Union accesses that consumer’s credit report. McCawley Dep. 46:5-11, 69:18-

71:24. When an end-user contacts Trans Union, it must provide identifying information for both it
and the consumer, as well as a “permissible purpose” for accessing the consumer’s report. Id.
Once Trans Union provides the report, it makes a record of the inquiry on the consumer’s credit
file. Id. at 50:11-20; see Ulzheimer Report 33, Mar. 10, 2022, Ex. A to ECF 81 (describing a hard

1 As is now typically the case in complex class actions, both sides have filed motions to disqualify opposing
experts. All the experts in this case can be challenged on some basis, as each is retrospectively analyzing
a data set using different assumptions and models. But none will be entirely precluded as I am persuaded
that the relative strengths and weaknesses here can be properly explored on cross examination. For present
purposes, I have considered all the information submitted by the parties, making specific judgments as to
the weight to be accorded to each expert’s point. The parties’ respective motions, ECF 85 and 102, are
therefore denied, without prejudice to appropriate motions in limine closer to trial.
inquiry as “simply a factual record of credit file access”); see also Migalski Dep. 14:4-21
(confirming that a hard inquiry indicates that the “consumer applied for credit” and gave
“permission to that lender to pull their credit report”). Inquiries, as well as the end-user’s “certified
permissible purpose” for accessing a consumer’s reports, are typically retained on consumers’
credit reports for two years. Compliance Policy Statement, ECF 84-3; see Turner Report ¶ 27, Ex.

A to ECF 80 (“While hard inquiries can stay on a person’s credit reports for up to two years . . .
FICO only considers them for one year.”).
Experts from both parties debated the extent to which hard inquiries impact a consumer’s
credit score. Plaintiffs’ expert Evan Hendricks2 opines that an inaccurate hard inquiry can harm a
consumer in two ways. First, “hard inquiries typically lower a consumer’s credit score,” as pursuit
of new credit (i.e., hard inquiries) account for 10% of a consumer’s FICO score. Hendricks Report
2, July 1, 2019, ECF 95-5. Second, “the appearance in a consumer’s credit file of an inquiry that
should not be there causes harm because it distorts the consumer’s credit history by making it look
like he/she applied to an account that he/she in fact did not apply.” Id. at 2-3. According to

Hendricks, even if an inquiry is merely a factual record of file access, it remains inaccurate when
the “fact” of the inquiry is misassigned to a consumer who never applied for or sought credit. Id.
On the other hand, Defense expert Laura Migalski3 testified that “the analysis of how (if at
all) a single hard inquiry impacts a consumer’s credit risk score is multivariate and complex, and
requires an individualized consideration of a significant amount of information.” Migalski Disc.

2 Evan Hendricks has been professionally involved in credit reporting systems for several decades,
including as a qualified expert witness in several cases regarding the FCRA, and is an author of a book on
the subject. See Evan Hendricks, Credit Scores & Credit Reports: How the System Really Works, What
You Can Do (3d ed. 2007). He offered two expert reports for the purpose of this litigation. See Hendricks
Suppl. Report, Mar. 11, 2022, ECF 95-2; Hendricks Report, July 1, 2019, ECF 95-5.

3 Ms. Migalski is Trans Union’s Vice President of Data Science & Analytics and was provided as an expert
witness under Fed. R. Civ. P. 26(a)(2)(C). She thus did not author an expert report.
¶ 6, Ex. A to ECF 78; see Turner Report ¶¶ 71, 74, Ex. A to ECF 80 (opining that it is “impossible
to determine without individualized fact finding” the impact of a single hard inquiry on a particular
credit scoring model). Describing one scoring model – the VantageScore 3.0 model – Migalski
explained that a single hard inquiry, depending on other information on the consumer’s file, “in
most instances . . . will have no impact on the credit risk score at all.” Migalski Disc. ¶¶ 8, 8(a)-

(c), Ex. A to ECF 78. Defense expert Michael Turner4 agreed, stating that a single hard inquiry
“is likely to have little to no credit score impact” or have “only a minor impact on an individual’s
credit score.” Turner Report ¶¶ 24-26, Ex. A to ECF 80. But Turner acknowledged that a larger
number of inquiries in a shorter period of time communicates that the consumer represents “a
higher probability of default.” Id. Further, he notes that a hard inquiry can often have some small
negative affect on one’s credit score, opining that, “[f]or most people, one additional credit inquiry
will take less than five points off their FICO score.” Id. at ¶¶ 71, 74. Turner goes on to assert that
even when a hard inquiry causes diminution of a consumer’s credit score, it is impossible to
determine that diminution’s “real-world, material impact,” because such an impact does not

typically vary point by point but by broad bands of credit risk categories like “prime” or
“subprime.” Id. at ¶ 75.
Defense expert John Ulzheimer5 elaborates by opining that while the pursuit of credit, as
signified by the presence of hard inquiries on one’s file, is one factor in credit scoring models,
those models use multivariate and multi-scorecard systems to develop an individual’s credit score.

4 Among other qualifications, Michael Turner is the President and CEO of the Policy and Economic
Research Council (PERC), an economic policy research organization that has produced a complex study of
the accuracy of consumer credit reports and the consequences of inaccuracies on the credit market. Turner
Report ¶¶ 2, 10-14, Ex. A to ECF 80.

5 John Ulzheimer has worked in the consumer credit industry for many years, holding positions at Equifax
and FICO, and has served as an expert witness in more than 600 lawsuits. Ulzheimer Report 2, 4, Ex. A to
ECF 81.
Ulzheimer Report 7-10, Ex. A to ECF 81. Thus, Ulzheimer asserts, although it is fair to say that
any item on one’s credit file that is predictive of risk, like a hard inquiry, “might have an impact
on a consumer’s credit score . . . [i]t would be patently false to suggest everything that a credit
score considers has a measurable impact on a consumer’s credit scores.” Id. at 11. Further, he
opined that, based on his knowledge of the FICO and VantageScore scoring system, the impact of

a hard inquiry on one’s credit score is “generally immaterial relative to the consumer’s score and
credit prospects.” Id. at 14. In disagreement with Hendricks, Ulzheimer contends that hard
inquiries “may or may not” have a measurable impact on a consumer’s FICO score, and that any
impact of an inquiry on a credit score “is not uniform across consumers and certainly not uniform
across the hundreds of different credit scoring systems.”6 Id. at 32.
Trans Union’s Procedures and Industry Practices as to Disputed Hard Inquiries
Hendricks notes that Trans Union, as well as the other major credit bureaus, invite
consumers to dispute items in their credit files like hard inquiries. See Hendricks Report 1, 9, ECF
95-5 (observing that Trans Union “advises consumers to review their credit reports for
unauthorized inquiries and to dispute them,” and that the major credit reporting agencies all send

“a form for disputing errors” to consumers who have ordered their credit report). Then, when
Trans Union receives a consumer dispute regarding a hard inquiry, the agency determines if the
dispute alleges fraudulent activity, identity theft, a mixed file,7 or the inaccuracy of some other,

6 In a similar vein, Ulzheimer later argues that there is no evidence that Mr. Norman experienced any credit
related damages as a result of the Safe Home credit inquiry. Id. at 28. He explains that there is no evidence
that this singular hard inquiry impacted his inability to purchase a car, and that the volume of other
derogatory information on his credit report is more likely to blame. Id. at 29. Turner likewise argued that,
because Mr. Norman’s credit file already contained many derogatory notations, the Safe Home inquiry “had
exactly zero material impact” on Mr. Norman’s credit score, because even though his score went down
three points after the inquiry, it remained in the same “low band” of credit as beforehand. Turner Report
¶¶ 7, 48-49, Ex. A to ECF 80.

7 A mixed file occurs when two different consumers or individuals have been mixed into a single Trans
Union consumer file. McCawley Dep. 57:16-58:6. This commonly occurs with “people with same or
non-inquiry account information in the consumer’s credit file. Wagner Dep. 33:1-18, 36:9-37:5;
Compliance Policy Statement, ECF 76-3.
There was conflicting testimony as to whether Trans Union screens letters upon receipt for
indications of assistance from a credit repair organization.8 According to one Trans Union
employee, the mailroom would so mark certain disputes in its system. Tilghman Dep. 119:1-5.

According to another, it did not treat disputes it identified as credit repair any differently. See
Wagner Dep. 88:12-16.9 But the record reflects that if the dispute submitted only alleged the
inaccuracy of a hard inquiry, Trans Union would send the consumer a “502 Letter” – the form
letter that Mr. Norman received and which I discussed at length in my original certification
opinion. ECF 47 at 5; see Wagner Dep. 32:2-4, 33:1-7, 36:15-37:5. In cases like Mr. Norman’s
where the consumer only disputes a hard inquiry, Trans Union witnesses testified that it never
conducts a reinvestigation, and only sends the 502 Letter in response.10 Wagner Dep. 62:1-18,
81:4-17; see also McCawley Dep. 42:8-12.
Defense experts John Ulzheimer and Michael Turner opine that the three major credit

reporting agencies, “do not, as a practice, reinvestigate consumer disputes of credit inquiries.”
Ulzheimer Report 26, Ex. A to ECF 81; see Turner Report ¶¶ 5, 37, Ex. A to ECF 80. Instead, the
agencies all reply to hard inquiry disputes with a notice that is “almost identical” to Trans Union’s

similar first and same or similar last names perhaps living at the same address.” Id. at 57:19-22. When a
consumer disputes a hard inquiry as inaccurate due to a mixed file, Trans Union will “review by obtaining
additional information from the consumer about his or her identity and make a determination of whether or
not the information in the single file, in fact, belongs to some other consumer.” Id. at 58:16-20.

8 A credit repair organization or clinic is a third-party company that assists consumers with repairing credit
reporting errors impacting their credit scores. These organizations are described in detail below.

9 As discussed below, Trans Union’s experts represent that disputes that are deemed to have been submitted
by credit repair agencies or denied as frivolous.

10 Despite this testimony, and its position at earlier stages of this litigation, Trans Union now maintains that
receipt of a 502 Letter does not mean that the consumer has disputed the inaccuracy of a hard inquiry.
502 Letter.11 Ulzheimer Report 26-27, Ex. A to ECF 81. Turner and Ulzheimer assert that this is
justified on the ground that such inquiries are not the type of thing that can be readily investigated
for accuracy or inaccuracy. Id. at 31-33; see Turner Report ¶¶ 37-44, Ex. A to ECF 80. Instead,
because an inquiry is “simply a factual record of credit file access,” he contends that it is “accurate”
so long as the end-user actually accessed the consumer’s file. Ulzheimer Report 33, Ex. A to ECF

81; see Turner Report ¶¶ 21-22, 37, 42, Ex. A to ECF 80. Thus, Ulzheimer and Turner assert that,
even if Mr. Norman did not give his permission to Safe Home to access his credit report, the
inquiry itself is still accurate because Safe Home did, indeed, access his report. Ulzheimer Report
34, Ex. A to ECF 81; see Turner Report ¶ 22, Ex. A to ECF 80. These experts do not address
whether an entry can be factually accurate but nonetheless misleading.
Time and Expense Consumers Spend on Disputing a Hard Inquiry
The experts also debate what kind of time and resources a consumer might expend in
lodging a dispute with Trans Union. To calculate the time and expense spent on a single hard
inquiry dispute, Plaintiffs’ expert Evan Hendricks outlined the steps required for the dispute
process. See Hendricks Suppl. Report 1-2, Mar. 11, 2022, ECF 95-2. According to Hendricks,

the consumer must review his credit file, locate the inaccurate item, prepare a written dispute letter,
print the letter if not handwritten and any supporting documents, and, finally, mail the letter and
pay for postage. Id. “Depending on how many of these steps the consumer takes, this process can
consume between 45 and 90 minutes.” Id. at 2. Accounting for that range of time, and relying on
the federal minimum wage and the United States Bureau of Labor Statistics, Hendricks determined
that “the cost of the time spent disputing an item on a consumer’s file can range – minimally –

11 In support of their opinion on industry practices, both experts cite declarations from defense witnesses
Kimberly Cave, Compliance and Litigation Analyst at Experian, and Celestine Gobin, Litigation Support
Manager for Equifax. See Ulzheimer Report 26-27, Ex. A to ECF 81; Turner Report ¶ 37 n. 31, Ex. A to
ECF 80; see also Cave Dec., ECF 76-10; Gobin Dec., ECF 76-11.
between $5.44 and $30.26, plus out-of-pocket resources of at least another $1.00.” Id. He
concludes that consumers who make a written dispute of a hard inquiry “suffer an ascertainable
economic impact in the form of wasted time and resources [] because Trans Union does not
reinvestigate the consumers’ disputes upon receipt.” Id.
Mr. Ulzheimer responded on behalf of Trans Union, questioning whether consumers would

actually spend between 45 and 90 minutes on drafting and mailing a dispute letter. See Ulzheimer
Suppl. Report 2, Apr. 14, 2022, Ex. B to ECF 81. Ulzheimer argued that Hendricks’ report did
not account for the presence of credit repair, and that consumers who rely on credit repair clinics
to dispute information in their credit files may not have participated in the dispute process
whatsoever. Id. Likewise, Ulzheimer objects that Hendricks did not consider the high occurrence
of template letters,12 undercutting the estimate of a 45-minute dispute-drafting process, as the time
to complete one of these “fill in the blank” forms requires no more than a couple of minutes. Id.
at 2-3. These factors, Ulzheimer argues, undermine Hendricks’ calculations.
Credit Repair Industry and Its Presence in Class Letters
Credit repair organizations or credit repair clinics, briefly mentioned above, are companies

that, in exchange for a fee, assist consumers in improving their credit record. Although some of
these organizations work legitimately for their clients, Defense experts opine that many credit
repair clinics operate in a deceitful manner, disputing as a matter of course all the information in
a client’s report that may be lowering the consumer’s score even if there is no basis to believe that
the information is inaccurate. Turner Report ¶¶ 59-60, Ex. A to ECF 80; Ulzheimer Report 19-20,
Ex. A to ECF 81. This tactic is often called “jamming,” and is “one example of a frivolous or
irrelevant dispute.” See Ulzheimer Report 19-20, Ex. A to ECF 81; Kuehn Dep. 59:4-60:4

12 As will be discussed below, Defense expert Dr. Lasater’s statistical study of the class letters led him to
conclude that approximately 45% of disputes reflected one of 16 different template letters.
(explaining that “disputes of massive amounts of tradelines or inquiries” is evidence of credit
repair that an agency may rely on to find that dispute frivolous or irrelevant).
Defense expert Ulzheimer opines that there are many ways to identify credit repair
disputes; for example, credit repair disputes are frequently delivered by U.S. mail in “large, white,
plastic bins, hundreds per bin.” Id. at 20. Often times, these letters all have the same postmark,

the same address format, and the same letter template. Id. According to Ulzheimer, “the most
common and prevalent evidence” of credit repair is when a dispute displays a “mismatch between
the [address of the] postmark and the consumer’s actual address.” Id. In addition, letters sent by
credit repair companies are often created with “letter generating software,” such that they are
worded identically with only slight variations in grammar or typographical errors. As a result,
Ulzheimer asserts that “a template letter can also reasonably suggest the consumer is using a credit
repair company.” Id. at 20, 23. Mr. Ulzheimer added that credit repair organizations attempt to
conceal themselves because “credit reporting agencies enjoy the right to disregard disputes they
believe to be frivolous, which would include more credit repair disputes.” Id. at 21.
Using Ulzheimer’s criteria, Defense expert Dr. Lasater13 sought to determine the percent

of class letters that bore some indicia of the credit repair industry, homing in on the use of template
letters and on mismatched postmarks. To form his opinions based on an unbiased sample of the
class members’ letters, Dr. Lasater employed a methodology called stratified sampling. He
divided the class letters in the 34-month class period chronologically into 16 segments of two to
three months each. Lasater Report ¶ 25, Mar. 11, 2022, Ex. A to ECF 77. To achieve a 95% rate

13 Dr. David Lasater is a senior managing director at a company called FTI Consulting and has provided
statistical analyses in “more than 200 engagements,” including in the litigation context. Lasater Report ¶¶
1-2, Mar. 11, 2022, Ex. A to ECF 77. He filed three expert reports on behalf of Trans Union. See Lasater
Rebuttal Report ¶ 2, Apr. 15, 2022, Ex. B to ECF 77; Lasater Suppl. Rebuttal Report ¶ 3, May 3, 2022, Ex.
C to ECF 77.
of confidence in his analysis, Dr. Lasater selected a sample of about 400 letters across the temporal
segments, with 25 selections coming from each. Id. at ¶¶ 19, 23-26. A second sample was selected
using the same methodology. Id. at ¶ 39. After analyzing both samples, Dr. Lasater concluded –
purportedly with 95% confidence – that 1) approximately 45% of disputes reflected one of 16
different template letters and 2) 29.4% to 35.8% of letters sent to Trans Union were postmarked at

a location at least 60 miles away from the consumer’s known residential address, both of which
indicate the prevalence of credit repair. Id. at ¶¶ 13, 58-59.
Plaintiffs’ expert Jonathan Jaffe14 responded to Lasater’s methodology and to his
conclusions. First, as to his method, Jaffe argues that, if Lasater wanted to maintain a 5% margin
of error, he would have needed to select 384 letters from each of the 16 temporal periods he defined
and could not have selected 384 letters in total. Jaffe Reply Report ¶ 30, Apr. 15, 2022, ECF 95-
11. Because Lasater created his sample by selecting only 25 letters per temporal strata, Jaffe
concludes that his margin of error is actually 20%.15 Id.
Second, Jaffe opines that, even if Dr. Lasater’s sampling methodology was acceptable, the

results do not support his conclusions. Id. at ¶¶ 33, 37, 42. As to the prevalence of credit repair,
Jaffe points out that USPS postmarks are not necessarily indicators of the consumer’s “local post
office,” but instead are “most frequently indications of the Processing Distribution Center.” Id. at
¶ 41. Because there are only 251 Processing and Distribution Centers in the United States, Jaffe

14 Jonathan Jaffe is a technology consultant retained by Plaintiffs to provide data science consulting
services. See Jaffe Report ¶¶ 1, 4, Mar. 11, 2022, ECF 95-3. Because the parties rely most heavily on
opinion stated in Mr. Jaffe’s reply, I will focus on summarizing his second report. See Jaffe Reply Report,
Apr. 15, 2022, ECF 95-11.

15 Lasater responded to this critique in his rebuttal report, defending his strategy of randomly selecting a
sample size of about 400 letters across the “period strata” to accomplish a random sample. Lasater Suppl.
Rebuttal Report ¶¶ 5-8, Ex. C to ECF 77. Lasater argues that the consistency between his first and second
samples, which Jaffe acknowledges were not statistically significantly different, supports the soundness of
his overall method. Id
argues that it is likely that a consumer’s residential address will not be located within a center’s
60-mile radius. Id. at ¶¶ 47-53. Jaffee thus concludes that the 60-mile geographic differential
between postmark and residential address is an arbitrary indicator of credit repair. Id. at ¶ 52.
Jaffe further argues that Lasater’s report does not account for individuals who sent their dispute
from their workplace, individuals who were traveling for any number of reasons, or individuals

who needed assistance to print and mail their letters. Id. at ¶ 53. Likewise, Mr. Jaffe questions
Dr. Lasater’s conclusion on the use of template letters, noting that “substantially similar” templates
to those identified by Lasater can easily be found on the internet. Id. at ¶ 54-55. The use of a
template letter, Jaffe concludes, does not necessarily indicate that “an agent” sent that letter on a
consumer’s behalf. Id. at ¶ 57.
Jaffe also offers an alternative, automated method for identifying letters from credit repair
by searching for indicia of bulk rate postage. Id. at ¶¶ 83-84. Examining a large sample of letters,
Jaffe identified eight categories of indicia for bulk mailing. Based on these categories, Jaffe
constructed a query to analyze a sample of 10,000 class letters. Id. at ¶¶ 85-89. The results of the

query showed that 4.1% of letters included one or more categories of terms associated with bulk
mailing. Id. at ¶ 93. And he noted that if the Court or parties selected another set of categories
representing indicia of credit repair, he could easily run a similar query for the class. Id. at ¶ 97.
Dr. Lasater responded in kind, also critiquing Jaffe’s methodology for its reliance on class
counsel to identify letters in his sample that bore indicia of postage. Lasater Rebuttal Report ¶ 11,
Apr. 15, 2022, Ex. B to ECF 77.16 Referencing Jaffe’s review of the sample, Lasater noted that
128 of the 384 letters (or 33%) were mailed or faxed from a location at least 60 miles from the
consumer’s known residential address, raising “substantial uncertainty that those letters were sent

16 In this vein, Lasater also questions how Jaffe could conduct an automated review of the letters if he relied
in his report on a manual review from plaintiffs’ counsel. Id. at ¶¶ 19-20.
by the consumers themselves.” Id. at ¶¶ 13-14. Lasater added that, of the letters that were mailed
at least 60 miles away from a class members’ residential address, 28% were sent from Denver,
Colorado. Id. at ¶ 16. Lasater argued that the disproportionate share of letters from certain cities
“suggests the potential those letters are from credit repair shops in those cities.” Id.
Class Letters Disputing an Inaccuracy

The parties also dedicated time to determining what percent of class letters actually
disputed an inaccuracy in the consumer’s credit file, as opposed to raising some other concern or
complaint. Defense expert Dr. Lasater reviewed the two samples he created, as discussed above,
to identify various categories of letter-type.17 Lasater Report ¶¶ 28-29, Ex. A to ECF 77. A team
of retained attorneys then sorted the sampled letters into the respective categories, classifying them
in more than one category where appropriate. Id. at ¶¶ 30-32. Of the letter categories that he
identified, Lasater determined that five categories involved “a complaint, assertion, or question
about the accuracy of the consumer’s account.” Id. at ¶¶ 49-50. After sorting both samples,
Lasater concluded (1) that the letters presented a wide variety of complaints, assertions, questions,
and demands, and (2) that 40.4% to 47.1% of letters did not fall into a category reflecting a

complaint about the inaccuracy of one’s credit file. Id. at ¶¶ 13, 50, 58-59.

17 Those categories include: (1) Letter mentions only Experian or Equifax inquiries; (2) Letters demands an
answer as to why an entry is on a credit report or file; (3) Letter asserts that an inquiry is damaging
consumer’s credit rating or lowering credit score; (4) Letter centers on consumer’s assertion that he/she
didn’t authorize the end-user’s inquiry; (5) Letter demands TU prove that an inquiry is permissible; (6)
Consumer asserts the inquiry is “not mine” without providing proof; (7) Letter asserts inquiry is a result of
fraud or identity theft without providing support; (8) Letter asserts inquiry belongs to another consumer;
(9) Letter acknowledges the inquiry relates to consumer’s application for credit; (10) Letter claims multiple
inquiries were associated with a single transaction; (11) Letter describes an inquiry as “soft,” or uses
words/phrases like “account review” or “promotional”; (12) Letter claims the end user told the consumer
the inquiry would not be a hard or regular inquiry or that the inquiry would be a soft or “account review”
inquiry; (13) Letter references at least one inquiry two years older than the date of the postmark; (14) Letter
doesn’t fit into any of these categories. Lasater Report Table 2, Ex. A to ECF 77.
Plaintiffs’ expert Jonathan Jaffe offered two responses to Lasater’s findings. First, he
argued that Lasater “did not have his reviewers indicate whether the sampled letters were directly
related to the accuracy of an inquiry despite the fact that letters not falling into one of the 5
categories were not categorically known not to have directly related.” Jaffe Reply Report ¶¶ 35-
37, ECF 95-11. Second, Jaffe offered an alternative methodology, which he described as

automated and therefore less subjective, to determine whether consumers were disputing allegedly
inaccurate inquiries in their letters. Id. at ¶¶ 60-64. To do so, Jaffe identified “13 categories of
terms consistent with dispute letters,”18 and “used a regular expression” to refine his searches. Id.
at ¶¶ 66-67. From his search, which was completed in less than two minutes, Jaffe found that
96.7% of letters contained at least one of these categories of terms, and 70.4% contained at least
three categories. Id. at ¶¶ 69, 74. Jaffe predicted that performing this process for the entire class
would take just four hours and noted that he could construct a similar query with categories or
characteristics agreed upon by the parties, should it be necessary. Id. at ¶¶ 72, 78-80.
Prevalence of Fraudulent Disputes Submitted to Trans Union
In 2019, unrelated to this lawsuit and as a part of her professional duties, Trans Union

employee Ahunya Tilghman19 observed that many consumers who disputed certain credit
information in their files as fraudulent were submitting forged letters from purported creditors to
support their disputes. Tilghman Discl. ¶ 6, Ex. A to ECF 79. To better understand this pattern,
Tilghman selected a random sample of 75 Trans Union consumers – none of whom are in this class

18 Those terms include: dispute, not mine, not or never applied, unauthorized, unauthorized inquiry,
permission or permissible purpose, not authorized, inquir(ies), remove or deleted or erase, inaccurate, legal
terms, do not recall, and consent. Id. at ¶¶ 66.

19 Defendant has put forth Ahunya Tilghman as an expert witness who does not need to provide a written
report. Tilghman Discl., Ex. A to ECF 79; see Fed. R. Civ. P. 26(a)(2)(C). Ms. Tilghman is employed as
a Fraud Services Specialist with Trans Union. Tilghman Discl. ¶ 1.
– who successfully disputed information on their credit report “based on a purported letter from
the creditor (or other documentation)” sent to the agency by the consumer. Id. at ¶ 7(b). Tilghman
reviewed these accounts and found that 73 of the 75 randomly selected disputes involved a
fraudulent or forged letter from a purported creditor. Id. at ¶ 8(a). To confirm her findings,
Tilghman reached out to each creditor that purportedly supported the consumer’s dispute and, of

the 33 that responded, all confirmed that the purported creditor letters were forged. Id. at ¶ 8(c).
Tilghman prepared a presentation of her findings, in which she also identified several hallmarks
of fraud. Id. at ¶ 9. Later, for the purposes of this lawsuit, Tilghman reviewed the disputes and
accounts of 10 class members. Id. at ¶ 10. She determined that eight of the 10 class members’
disputes bore indicia of fraud and “were suspected of being falsified or forged,” and provided her
reasoning based on her observations of each of the eight letters as well. Id.
In response, Plaintiffs’ expert Jonathan Jaffe examined Tilghman’s study of fraudulent
letters. First, he noted that her random sample of 75 letters was not representative of the class in
this case because it was drawn from a different population – indeed, consumers from Tilghman’s

study actually had some information on their credit reports removed based on their disputes. Jaffe
Reply Report ¶¶ 98-99, ECF 95-11. Second, Jaffe argued that, instead of relying on Tilghman’s
analysis of just 10 class letters, he could design a query based on her observations to search the
entire population of class letters for indicia of fraud. Id. at ¶¶ 100-13. As an example, Jaffe
examined the letters Tilghman identified as fraudulent, and observed that all but one used a
variation of the phrase “apologize for any inconvenience” as a means of ingratiating themselves
with the reviewer. Id. at ¶ 108. He used this phrase to filter a sample of 10,000 letters from the
class and found that 0.14% of letters included some variation of it. Id. at ¶ 112. He concluded
that there is an easy process for identifying the small number of class letters that, like those that
Tilghman identified, are fraudulent. Id. at ¶ 111-13.
II. Standard of Review
The summary judgment motion is governed by the well-established standard for summary
judgment set forth in Fed. R. Civ. P. 56(a), as described by Celotex Corporation v. Catrett, 477

U.S. 317, 322-23 (1986). As to decertification, although Plaintiffs maintain that Defendant carries
a “heavy burden” of proof, courts are divided on who shoulders the burden of proof at the
decertification stage. See In re Pharmacy Benefit Managers Antitrust Litig., No. 06-1782, 2017
WL 275398, at *34 (E.D. Pa. Jan. 18, 2017) (Jones, J.) (“The question of which party has the
burden on a motion to decertify a previously certified class is not settled.”). Compare In re Atlantic
Fin. Fed. Sec. Litig., No. 89-645, 1992 WL 50072, at *2 (E.D. Pa. Feb. 28, 1992) (Yohn, J.)
(“Consequently, when seeking decertification of a class, the defendant bears a heavy burden to
show that there exist clearly changed circumstances to make continued class action treatment
improper.”), with Marlo v. United Parcel Service, Inc., 639 F.3d 942, 947 (9th Cir. 2011) (“Thus,

as to the class-decertification issue, [Plaintiff], as the party seeking class certification, bears the
burden of demonstrating that the requirements of Rules 23(a) and (b) are met.”) (cleaned up).
Regardless of where the burden lies – and, here, my conclusion is the same in either case –
decertification is an “extreme step particularly at a late stage in litigation.” Korrow v. Aaron’s
Inc., No. 10-6317, 2015 WL 7720491, at *10 (D.N.J. Nov. 30, 2015) (cleaned up); see Chiang v.
Veneman, 385 F.3d 256, 268 (3d Cir. 2004), abrogated on other grounds by In re Hydrogen
Peroxide Antitrust Litig., 552 F.3d 305, 318 n.18 (3d Cir. 2008) (identifying decertification as a
“drastic course” and preferring modification of class definition).
The essential question, however, is whether circumstances have changed since
certification. In re Processed Egg Products Antitrust Litig., No. 08-md-2002, 2017 WL 3494221,
at *3 (E. D. Pa. Aug. 14, 2017) (“Generally, class decertification is prompted by a change in factual
circumstances or developments in applicable substantive or procedural law.”).
III. Discussion

In my class certification memorandum, I made several pertinent findings regarding the
arguments that Trans Union now raises again. Those findings include the following:
1. To trigger the agency’s reinvestigation duty, a consumer’s dispute may concern
“any item of information contained in [the] consumer’s file,” which includes
hard inquiries. ECF 47 at 12.
2. The “accuracy” of an item in one’s file is disputed when the consumer calls into
question the validity, truth, correctness, or precision of that item or when the
consumer calls into question whether some item of information is free from
mistake or error.20 Id. at 13-15.
3. Trans Union’s understanding of “inaccuracy” is “artificially narrow,” because
although it argues that inquiries are “accurate” so long as the credit report was
actually provided to the creditor in question, hard inquiries do not just convey
the fact that a credit file was provided to a creditor – they also convey the
misleading impression that the consumer applied for credit.21 Id. at 15-17.
4. The consumer need not first “show” an inaccuracy to trigger the credit reporting
agency’s reinvestigation duty – when a consumer lodges a dispute and the
agency has not yet conducted a reinvestigation, the cost-benefit analysis of
maintaining accuracy, as codified in the FCRA, places the burden of
reinvestigation squarely on the credit reporting agency.22 Id. at 17-22.

20 This definition of “inaccuracy” was later endorsed by the Third Circuit, which held that information that
is “technically accurate but materially misleading is sufficient to trigger § 1681i(a).” Bibbs v. Trans Union,
43 F.4th 331, 345 (3d Cir. 2022).

21 To use Plaintiffs’ analogy, arguing that a hard inquiry is accurate because the credit report was in fact
provided to a creditor is akin to arguing that a recording of the repossession of a car accurately reflects a
consumer’s creditworthiness when the consumer’s car was repossessed wrongfully. ECF 47 at 15; see Pls.
Reply Br. Class Certification, ECF 38 at 20-21.

22 See Cushman v. Trans Union Corp., 115 F.3d 220, 224-25 (3d Cir. 1997), which described the FCRA as
containing two complementary provisions that account for the costs and benefits of placing various burdens
5. The reinvestigation duty is not limited to information supplied by “furnishers,”
as the broad language of § 1681i(a)(1)(A) is qualified only by subsections (f)
and (g) of that same provision, and allows no room for ambiguity. Id. at 28-32.
6. The FCRA gives credit reporting agencies three options when responding to a
direct dispute of an inaccurate item in a consumer’s credit file – the agency may
delete the disputed item, determine the dispute is frivolous and notify the
consumer of that determination, or proceed with a reasonable reinvestigation.23
So, if the agency elects not to delete the disputed item or mark it frivolous, it
must reinvestigate. Id. at 34-35.
7. The specific language of the 502 Letter supports the reasonable inference that
consumers who received the letter have disputed the inaccuracy of a hard
inquiry in their credit file. Id. at 41-46.
Because I find that neither the law nor the facts have sufficiently changed to justify decertification,
and because Trans Union’s view of the law is not sufficiently reasonable to justify summary
judgment, Defendant’s motions will be denied.
Class Decertification
The legal standard governing class certification is discussed at length in my certification
memorandum. Id. at 9. Instead of repeating that standard and analysis here, I will address each
of Defendant’s arguments in favor of decertification in turn. Trans Union asserts that
decertification is appropriate because Plaintiffs cannot demonstrate (1) a concrete injury, (2)
inaccuracy as an essential element of the claim, or (3) a “direct” dispute for the entire class, and
(4) that each failure undermines the predominance requirement of Rule 23. See Fed. R. Civ. P.
23(b)(3). I disagree, with one exception: as to one of Plaintiffs’ theories of injury, they cannot
show predominance at this stage.
1. Plaintiffs Have Sufficiently Demonstrated Standing.

on credit reporting agencies: § 1681e requires “maximum possible accuracy” in the first instance, and §
1681i requires a reasonable reinvestigation when consumers raise a dispute of inaccuracy.

23 See 15 U.S.C. § 1681i(a)(1), (a)(3), (a)(5); ECF 47 at 34-35.
Article III of the United States Constitution limits federal courts’ jurisdiction to “Cases”
and “Controversies.” U.S. Const. art. III, § 2. At its core, “the question of standing is whether the
litigant is entitled to have the court decide the merits of the dispute or of particular issues.” Warth
v. Seldin, 422 U.S. 490, 498 (1975). To demonstrate standing to file suit, Plaintiffs must show (1)
an “injury in fact” or an “invasion of a legally protected interest,” (2) a “causal connection between

the injury and the conduct complained of,” and (3) a likelihood “that the injury will be redressed
by a favorable decision.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992) (cleaned up).
Plaintiffs’ burden to demonstrate standing evolves as the case proceeds. At summary judgment,
Plaintiffs must demonstrate standing with more than “mere allegations,” and must “set forth by
affidavit or other evidence specific facts, which . . . will be taken as true.” Id. at 561 (internal
quotations and citations omitted). These standing requirements also apply in the class action
context. See Trans Union v. Ramirez, 141 S. Ct. 2190, 2208 (2021) (“Every class member must
have Article III standing in order to recover individual damages.”); Tyson Foods, Inc. v.
Bouaphakeo, 577 U.S. 442, 466 (2016) (Roberts, C.J., concurring) (“Article III does not give

federal courts the power to order relief to any uninjured plaintiff, class action or not.”).
Here, Plaintiffs have alleged two central theories of injury to support standing: diminution
of credit score and wasted time and resources. Defendant argues that under Ramirez, a decision
issued after my certification memorandum, neither harm that Plaintiffs allege establishes a
concrete injury that is fairly traceable to Trans Union’s purported statutory violation. I disagree,
and find that Plaintiffs have demonstrated two concrete injuries, both fairly traceable to Trans
Union’s statutory violation and neither of which is barred by the recent Supreme Court decision in
Ramirez.
i. Plaintiffs Established Injury-In-Fact Under Two Theories of Standing
Plaintiffs must first demonstrate what is called an injury-in-fact. The injury-in-fact
requirement is intended to “distinguish a person with a direct stake in the outcome of a litigation
– even though small – from a person with a mere interest in the problem.” United States v. Students
Challenging Regul. Agency Procs. (SCRAP), 412 U.S. 669, 689 n.14 (1973). This standard has

been described as “not Mount Everest,” Danvers Motor Co., Inc. v. Ford Motor Co., 432 F.3d 286,
294 (3d Cir. 2005), and demands only that the plaintiff “allege some specific, ‘identifiable trifle’
of injury.” Cottrell v. Alcon Laboratories, 874 F.3d 154, 162 (3d Cir. 2017) (citing Bowman v.
Wilson, 672 F.2d 1145, 1151 (3d Cir. 1982)). Even so, an injury-in-fact “must be concrete in both
a qualitative and temporal sense.” Reilly v. Ceridian Corp, 664 F.3d 38, 42 (3d Cir. 2011)
(citations omitted). For this reason, “allegations of possible future injury” will not suffice, and a
plaintiff “lacks standing if his ‘injury’ stems from an indefinite risk of future harms inflicted by
unknown third parties.” Id. (citations omitted and cleaned up).
In Ramirez, the United States Supreme Court elaborated on what makes a harm “concrete”
under its formulation of Article III. In general, to determine if a party states a concrete injury,

courts “should assess whether the alleged injury to the plaintiff has a ‘close relationship’ to a harm
‘traditionally’ recognized as providing a basis for a lawsuit in American courts.” 141 S. Ct. at
2204 (quoting Spokeo, Inc. v. Robins, 578 U.S. 330, 341 (2016)). Some harms are so grounded in
“history and tradition” that they “readily qualify as concrete injuries under Article III.” Id. Those
injuries include the “traditional tangible harms, such as physical harms and monetary harms.” Id.
But intangible harms can also establish Article III standing – “reputational harms, disclosure of
private information, and intrusion upon seclusion,” for example, are the types of injuries which
are “traditionally recognized as providing a basis for lawsuits in American courts” and, thus, confer
standing upon injured plaintiffs. Id. And while courts are to “afford due respect” to
congressionally created statutory injuries, like those under the FCRA, Congress “may not simply
enact an injury into existence, using its lawmaking power to transform something that is not
remotely harmful into something that is.” Id. at 2204-05 (citations omitted); see Spokeo, 578 U.S.
at 341 (“Article III standing requires a concrete injury even in the context of a statutory
violation.”).

The injury at issue in Ramirez was an intangible one – defamation. There, approximately
8000 class members sued Trans Union after the agency’s OFAC Name Screen Alert software,
which flags consumers whose names appear on a list of “specially designated nationals”
maintained by the United States Treasury Department’s Office of Foreign Assets Control, falsely
flagged consumers who share a name with someone on the list. 141 S. Ct. at 2200-02. The Court
found that class members who were falsely flagged as terrorists and whose credit reports were
actually disclosed to creditors (i.e., whose credit reports were “published”) suffered a concrete
injury, emphasizing that such an injury is closely related to the traditional harm of defamation. Id.
at 2208-09. But, because publication is an essential element of the common-law cause of action

for defamation, class members whose reports were never disseminated suffered no reputational –
and, thereby, no concrete – injury. See id. at 2209-10 (“The mere presence of an inaccuracy in an
internal credit file, if it not disclosed to a third party, causes no concrete harm.”). Significantly,
there was no allegation in Ramirez that the challenged information played a role in any credit
scoring system; it was unflattering collateral information without quantitative effect.
For the group of plaintiffs who could not prove dissemination, the risk that the misleading
OFAC alerts would be disseminated and cause those consumers harm was deemed too speculative
to support standing. Id. at 2210-11. The Court distinguished actions for injunctive relief from
actions for damages, explaining that, in actions for damages, the risk of future harm does not
evolve into a concrete harm until that risk materializes. See id. at 2211 (elaborating that, if a
woman drives ahead of a reckless driver, but still makes it home safely, she has not suffered a
concrete harm because the risk of injury from the reckless driver never materialized). In Ramirez,
because the risk of dissemination of these class members’ credit reports with misleading OFAC
data never materialized, and because those plaintiffs otherwise failed to demonstrate a “sufficient

likelihood” of dissemination, they could not establish a concrete injury. Id. at 2211-12.
Unlike Ramirez, the harm claimed here is not an intangible one. Turning first to Plaintiffs’
theory of harm regarding the diminution of credit scores, I find that Ramirez poses no bar to
establishing a concrete injury. As noted above, the injury there was a classic reputational harm,
independent of the quantification of the credit score. In describing the harm claimed, the Ramirez
Court observed that financial harms are traditional, tangible harms that “readily qualify” as
concrete injuries for which publication plays no role.24 Id. at 2204.
Several courts have found that diminution of credit score confers standing as a financial
harm that impacts a consumer’s economic condition. See Coulter v. Chase Bank USA, N.A., No.

18-1538, 2020 WL 5820700, at *7 (E.D. Pa. Sept. 30, 2020) (Schmehl, J.) (“Moreover, many
courts – including within this Circuit – have found that a lowered credit score constitutes an injury
in fact for purposes of Article III standing.”); Boone v. T-Mobile USA Inc., No. 17-378, 2018 WL
588927, at *8-9 (D.N.J. Jan. 29, 2018) (McNulty, J.) (explaining that “[t]he alleged negative
impact on [Plaintiff’s] credit score is also a concrete injury” in part because “[h]arm to one’s credit

24 Defendant cites Grauman v Equifax Info. Servs., LLC, 549 F. Supp. 3d 285, 292 n.3 (E.D.N.Y. 2021),
for the proposition that, after Ramirez, a drop in credit score is no longer a concrete injury “where plaintiffs
do not allege that their reduced credit score was disseminated, or was accompanied by any other injury
resembling a historically recognized harm.” See also Zlotnick v. Equifax Info. Servs., LLC, 583 F. Supp.
3d 387, 391 (E.D.N.Y. 2022) (finding inaccurate credit information creates no injury if not disseminated
and that any “chilling effect” injury is too speculative). In my view, these decisions failed to recognize the
nature of the injury in Ramirez and failed to account for the quantitative effect of hard inquiries.
score might make it more difficult or more expensive to obtain credit cards, auto loans, and
mortgages”); Rivera v. Equifax Info. Servs., LLC, 341 F.R.D. 328, 330 (N.D. Ga. Mar. 30, 2022)
(finding that “one or more ‘hard inquiry’ notations can negatively impact a consumer’s credit score
or his ability to obtain credit in the future”); see also Santangelo v. Comcast Corp., 162 F. Supp.
3d 691, 698 (N.D. Ill. 2016) (“In short, the Court agrees with [Plaintiff] that a depleted credit score

is sufficient to constitute an injury-in-fact for the purposes of establishing Article III standing.
Credit scores are of great importance in our economy, and a depleted credit score could affect a
consumer in numerous ways, inflicting harm that often may be difficult to prove or quantify . . .
even when the depleted score cannot be neatly tied to a financial harm”).25 And because
publication is not an essential element of a financial harm – even when that financial harm arises
from an inaccuracy in a consumer’s credit file – Plaintiffs’ theory of harm sufficiently
demonstrates a concrete injury.
Defendant’s central rejoinder, as demonstrated through its experts’ reports and
declarations, is that hard inquiries do not necessarily decrease a consumer’s credit score and, even

if they did, such diminutions do not necessarily result in the denial of credit. ECF 84 at 23-24, 57-
58; see, e.g., Turner Report ¶ 7, Ex. A to ECF 80 (“While a hard inquiry (a request for a credit file
by an entity) can be a factor in a person’s credit score, it is generally a minor one, is highly unlikely
to have any material impact on an individual’s credit standing and only impacts credit scores (if at
all) for a short period of time.”); Migalski Disc. ¶ 6, Ex. A to ECF 78 (explaining that several
different variables affect how much, if at all, any singular hard inquiry will impact any individual
consumer’s credit score). But these litigation opinions conflict with what Trans Union has

25 But see Maddox v. Bank of N.Y. Mellon Tr. Co., N.A., 19 F.4th 58, 65 (2d Cir. 2021) (finding that a bank’s
delay in recording plaintiff’s satisfaction of mortgage, which impacted the plaintiff’s credit score and made
“it difficult to obtain financing had they needed it in an emergency or for a new home,” did not confer
standing because the risk of harm never materialized).
otherwise represented publicly: “Because hard inquiries show that you’re potentially looking for
new credit, they do impact your credit score.” Why Did I Get an Inquiry on My Credit Report?
(Dec. 11, 2019), https://www.transunion.com/blog/credit-advice/why-did-i-get-an-inquiry-on-
my-credit-report.26 Similarly, they conflict with the caution expressed by federal regulators:
“These inquiries will impact your credit score because most scoring models look at how recently

and how frequently you apply for credit.” Consumer Financial Protection Bureau, What’s a Credit
Inquiry? (Sept. 4, 2020), https://www.consumerfinance.gov/ask-cfpb/whats-a-credit-inquiry-en-
1317/. Even one of Defendant’s experts has acknowledged that hard inquiries typically have a
“minor impact” on an individual’s credit score. Turner Report ¶ 26, Ex. A to ECF 80.
When compounded with basic consumer knowledge and experience, Plaintiffs’ experts
have done enough to demonstrate a concrete injury at this stage of litigation. Evan Hendricks, for
example, opines that a single hard inquiry does injure a consumer, lowering that individual’s credit
score and misleading future creditors about the consumer’s risk of default. See Hendricks Report
1, 7, ECF 95-5 (“First, it [] has been well-known for many years in the field of credit reporting and

credit scoring that ‘hard inquiries,’ as a general rule, lower credit scores. Second, the appearance
in a consumer’s credit file of an inquiry that should not be there causes harm because it
misrepresents the consumer’s credit history by making it look like he/she applied for an account
that he/she in fact did not apply.”). The expert analysis submitted by Trans Union may suffice to
raise issues as to the degree of injury, but for purposes of standing does not demonstrate an absence
of injury.

26 See also Why Good Credit Habits Matter (Apr. 10, 2019), https://www.transunion.com/blog/credit-
advice/why-good-credit-scores-matter (cautioning consumers on Trans Union’s website that their credit
score impacts everything from their ability to obtain lower loan rates on mortgages, auto loans, and personal
loans, to applications for credit and higher credit spending limits, as well as rental apartment applications).
Plaintiffs’ second theory of harm also establishes a concrete injury. Plaintiffs allege that
class members sustained a traditional monetary harm when they “lodge[d] disputes with Defendant
which were predestined to be doomed because of Defendant’s uniform corporate practice of
ignoring such disputes.” ECF 95 at 7, 9-12. Quantifying these harms, Plaintiffs’ expert Evan
Hendricks opines that the consumer dispute process, which includes reviewing one’s file, drafting

a dispute, and mailing that dispute to the agency, takes a consumer between 45 and 90 minutes and
costs a consumer between $5.44 and $30.26, plus out-of-pocket resources of at least another $1.00.
Hendricks Suppl. Report 1-2, ECF 95-2. Because wasted time and expense are concrete harms,
Plaintiffs sufficiently establish injury-in-fact on this theory as well. See Ramirez, 141 S. Ct. at
2204 (reiterating those suffering “monetary harms” have suffered “a concrete injury in fact under
Article III”); Cortez v. Trans Union, 617 F.3d 688, 719 (3d Cir. 2010) (explaining that “time spent
trying to resolve problems with the credit reporting agency may also be taken into account” when
analyzing injury); Losch v. Nationstar Mortg. LLC, 995 F.3d 937, 943 (11th Cir. 2021) (“Because
there is no question that wasted time is a concrete harm, [Plaintiff] has standing to pursue his

claims.”) (citations omitted).
Trans Union argues that it cannot be liable for time or expense incurred in filing a claim,
because any such loss would be incurred pre-violation. In some contexts that argument would
prevail. But the nature of the claim here is different. Because of Trans Union’s blanket policy of
ignoring disputes over hard inquiries – a policy unknown to consumers – any time spent in lodging
the dispute was invariably in vain and therefore wasted. See Hines v. Equifax Info. Servs., Inc.,
No. 19-6701, 2022 WL 2841909, at *8 (E.D.N.Y. July 16, 2022) (report and recommendation)
(“This wasted time and expense is a traditional monetary harm that is fairly traceable to Equifax’s
policy of summarily categorizing and handling such disputes without a thorough investigation and
without contacting the creditor responsible for the inquiry and is redressable by judicial relief.”).
The defense relies on Casella v. Equifax Credit Info. Servs., 56 F.3d 469 (2d Cir. 1995), to
argue that out-of-pocket expenses incurred when lodging a dispute are not compensable. ECF 84
at 59. Preliminarily, it should be noted that this case did not involve standing, but the scope of

recoverable damages. It held that attorneys’ fees amassed while preparing to submit a dispute
were not compensable because, until the defendant credit reporting agency was on notice of the
dispute, it had no duty to reinvestigate. Id. The analysis was rooted in a lack of causal connection.
Indeed, in the very same opinion, the court acknowledged that “actual damages may include out-
of-pocket expenses for attorney’s fees incurred by a plaintiff prior to litigation of his FCRA
claims.” Id. Here, the causal relationship that is missing in Casella is present because Trans
Union’s policy of non-investigation applied uniformly to every hard inquiry dispute. Moreover,
keeping in mind that the present issue is standing, the Second Circuit also observed that Plaintiff
could have been entitled to punitive damages had he successfully established a willful violation of

the FCRA. Id. at 476.
In addition, Trans Union objects that individualized investigations into this theory of injury
will dominate litigation, as separate inquiries will be required to determine, for example, whether
some class members paid for postage while others did not. ECF 84 at 74. But, again, this argument
confuses injury with damages. See In re Lamictal Purchaser Antitrust Litig., 957 F.3d 184, 194-
95 (3d Cir. 2020) (“We have consistently distinguished injury from damages.”). Whether a class
member used a stamp or, for that matter, downloaded a template letter from the internet, does not
indicate whether that class member is injured or not; instead, those inquiries seek to determine the
extent of the class member’s injury or the amount of damages that the consumer may be entitled
to recover should the class prevail on the merits of its claim. Moreover, courts “apply a more
lenient predominance standard for damages than for injury. While every plaintiff must be able to
show [] injury through evidence that is common to the class, damages need not be susceptible of
measurement across the entire class.” Id. at 195 (citations omitted and cleaned up). And, because
Mr. Hendricks can provide common proof of time and expense incurred for the sake of concrete

injury, Defendant’s argument that individualized questions of how much time and how much
expense each class member sustained will dominate litigation is of no concern. See also In re
Suboxone Antitrust Litig., 967 F.3d 264, 272 (3d Cir. 2020) (explaining that individualized
differences “among the class members concerning the precise damages they suffered . . . are of no
consequence in determining whether there are common questions concerning liability”).27
ii. Plaintiffs Have Established Causation and Redressability for Both
Theories of Standing
Having demonstrated injury-in-fact under both asserted theories, Plaintiffs must next show
that their injuries are “fairly traceable to the challenged conduct of the defendant.” Cottrell, 874
F.3d at 162. “[T]he traceability element is ‘akin to ‘but for’ causation in tort.’” LaSpina v. SEIU
Pa. State Council, 985 F.3d 278, 284 (3d Cir. 2021) (citation omitted). In addition, Plaintiffs must

27 Trans Union also argues that Plaintiffs cannot provide common, class-wide proof of the injury for time
and expense, in part because Mr. Hendricks cannot be qualified as an expert and his opinion is not reliable.
The Third Circuit has made clear that Rule 702 “has a liberal policy of admissibility,” and it is clear that
Mr. Hendricks has “specialized expertise.” See Pineda v. Ford Motor Co., 520 F.3d 237, 244-45 (3d Cir.
2008). Hendricks is the author of Credit Scores & Credit Reports: How the System Really Works, What
You Can Do, in which he wrote a chapter on “Disputing Errors,” which I ordered counsel to submit for
review. There, like his supplemental report, ECF 95-2, Hendricks describes in detail how to draft a dispute
letter, what documentation and information to include, and what forms to fill out. He relies on his expertise
to estimate a range of time that a consumer might spend on a dispute process, and then uses the federal
minimum wage and median hourly wage from the United States Bureau of Labor Statistics to calculate a
range of expense incurred. Hendricks Suppl. Report 1-2, ECF 95-2. Much of Trans Union’s arguments as
to reliability are premised upon its assumption that its experts are correct, and as noted above each of their
experts has their own vulnerabilities.
demonstrate that a favorable judicial decision will redress the injuries caused by Defendant’s
alleged statutory violation. Spokeo, 578 U.S. at 338.
Analysis of Plaintiffs’ first injury – diminution of class members’ credit score – is relatively
straightforward. Plaintiffs have shown that the diminution of class members’ credit scores is fairly
traceable to Trans Union’s alleged failure to conduct a reasonable reinvestigation in response to

their disputes of inaccurate hard inquiries in their files. But for Trans Union’s failure to follow its
statutory obligation in response to disputes, which requires it to either delete the disputed
information, mark the dispute as frivolous, or reinvestigate the allegedly inaccurate item, the
inaccurate hard inquiries that lowered consumers’ credit scores would not have remained on
consumers’ credit files without any agency inspection. See Rivera, 341 F.R.D. at 342-43 (finding
Plaintiff’s injury of a lowered credit score is “sufficiently traceable to Equifax’s alleged failure to
reinvestigate, consistent with its systematic practice, as required by § 1681i this particular category
of complaints”). And, because Plaintiffs consequently suffered the financial harm of a lowered
credit score, their injury is redressable by a favorable decision in this Court that will lead to

damages.
As to Plaintiffs’ second asserted injury – wasted time and expense – I noted above that the
systemic policy followed by Trans Union is what supplies the causal link. As Hendricks explains,
Trans Union “advises consumers to review their credit reports for unauthorized inquiries and to
dispute them,” even though Trans Union systematically ignored these disputes. Hendricks Report
1, 9, ECF 95-5. With that understanding, I am convinced that the wasted effort of drafting a dispute
over an inaccurate hard inquiry is caused by Trans Union’s policy of inviting these disputes and
deliberately ignoring them. See Hines, 2022 WL 2841909, at *8 (“This wasted time and expense
is a traditional monetary harm that is fairly traceable to Equifax’s policy of summarily categorizing
and handling such disputes without a thorough investigation and without contacting the creditor
responsible for the inquiry, and is redressable by judicial relief.”); Losch, 995 F.3d at 943 (finding
wasted time to be a concrete harm “so long as even a small part of the injury is attributable to
Experian”). With causation established, Plaintiffs can easily demonstrate redressability, as a
judgment of monetary damages will redress the class’s injury of wasted time and expense.

Because Plaintiffs have shown that both theories of harm establish a concrete, financial
injury that is fairly traceable to Trans Union’s alleged misconduct and that can be redressed
through successful litigation for damages, decertification on the basis of standing is not
appropriate.
2. Bibbs v. Trans Union Does Not Change My Conclusion that Plaintiffs Do Not
Have to Prove of Inaccuracy as an Element in the First Instance.
Next, Defendant argues that, under Bibbs v. Trans Union, 43 F.4th 331 (3d Cir. 2022), all
class members must now prove as an essential element of their FCRA claim that the item of
information which they complained of in their dispute letter is in fact inaccurate. But Bibbs
fundamentally differs from the case at hand in both the nature of the consumer disputes at issue
and the nature of the statutory violations alleged, and the case has not changed the substantive law
applied upon initial certification. In Bibbs, a reinvestigation was conducted and the issue before
the court was the reasonableness of the result of that investigation. The statutory violation here
differs.

In Bibbs, appellants defaulted on their loan payments, resulting in their lenders closing
their accounts and transferring their balances. Id. at 337. Although appellants owed no further
payments to their previous lenders once their accounts were transferred, a negative pay status
remained on their credit reports because, when the loans were closed, they were in fact “120 days
past due date.” Id. Contending that these notations were misleading, counsel for all three
appellants sent Trans Union a letter disputing the accuracy of their credit reports. Id. Trans Union
responded with a report of its “investigation results,” which explained that the pay status notations
properly represented the last known status of the accounts and thus were not inaccurate. Id. at 338.
Appellants sued, arguing in part that Trans Union violated the FCRA because it failed to conduct
a good faith reinvestigation, and further failed to “permanently delete or modify inaccurate

information” in appellants’ credit reports. Id. at 344.
The Third Circuit held that “before a court can consider whether an agency’s
reinvestigation was reasonable, it must first determine that the disputed information was in fact
inaccurate.” Id. (emphasis added). In short, Bibbs involved a case in which an agency
reinvestigated a consumer’s dispute, the results of the reinvestigation were before the court, and
the court was tasked with determining whether that reinvestigation was reasonable. In Bibbs,
however, the items complained of in appellants’ credit files were not actually inaccurate – they
were instead accurate albeit historical notations of closed accounts. Applying the “reasonable
reader standard,” the Court held that a reasonable person reading appellants’ credit files in their

entirety would understand that that these old accounts were closed, and that appellants had no
financial obligation to their previous lenders. Id. at 343-45. In sum, appellants’ credit reports
were “neither inaccurate nor misleading to a reasonable reader,” and, for that reason, the Court
rejected their claims. Id. at 345.
Significantly for purposes of this case, the Third Circuit concluded that “information that
is technically accurate but materially misleading is sufficient to trigger” the credit reporting
agency’s reinvestigation duty. Id. at 344-45. Here, class members disputed hard inquiries in their
files, which communicate to a reasonable reader of a credit file that the relevant consumer sought
a form of credit. See Migalski Dep. 14:12-21 (confirming that a hard inquiry indicates that the
“consumer has applied for credit”). So, if the consumer did not actually seek that credit or if, for
some other reason, the creditor did not have a permissible purpose for accessing his or her report,
then the inquiry is misleading even if “technically accurate.” See Turner Report ¶ 22, Ex. A to
ECF 80 (explaining that the inclusion of an inquiry on a consumer’s file “is, strictly speaking,
verified accurate” if the creditor accessed the consumer’s report). It bears mention that when a

consumer contests the inclusion of a hard inquiry in their file, the essence of the dispute is that a
third party has accessed the consumer’s credit without authorization. Ironically, Trans Union
seems to acknowledge that because its uniform response – the 502 Letter – includes a sale pitch
for its identity theft product.
The nature of the statutory violation alleged in Bibbs is also considerably different than
that alleged here. In this case, Trans Union concedes that no reinvestigation of class members’
disputes occurred. That is so because Trans Union never conducts a reinvestigation when it sends
a consumer the 502 Letter. See Wagner Dep. 62:1-18; see also McCawley Dep. 41:19-42:12.
Bibbs involved an analysis of the results of a reinvestigation, where Trans Union did reinvestigate

appellants’ disputes, concluding that the late payment notations were not inaccurate and merely
constituted historical file notations. 43 F.4th at 338. It follows that, when a reinvestigation has
already occurred, to successfully challenge that reinvestigation as unreasonable, consumers must
demonstrate inaccuracy as an element of the claim. But when the agency performs no
reinvestigation at all, requiring the consumer to prove the inaccuracy of their disputed items in the
first instance would be inconsistent with the structure the FCRA, which squarely places the burden
of determining accuracy on the credit reporting agency after a dispute has been lodged. There is
no indication that the Circuit in Bibbs intended to retreat from what it held in Cushman, that a
“reinvestigation that merely shifts the burden back to the consumer and the credit grantor cannot
fulfill the obligations contemplated by the statute.” 115 F.3d at 225; see Rivera, 341 F.R.D. at 344
(“Equifax attacks Plaintiff’s class by arguing that each class member must provide up-front
absolute proof of the facts that Equifax itself was, according to Plaintiff’s merits theory, duty-
bound to investigate under the plain text of the statute.”). The violation alleged in this case is
upstream from that in Bibbs, and when the alleged statutory violation is a refusal to reinvestigate

at all, the agency cannot in the first instance shift its burden to demonstrate accuracy to the
consumer.28
I thus find that Bibbs neither changed the substantive law nor the conclusions reached in
my certification opinion, and that class members here need not first prove the inaccuracy in their
credit files as a threshold requirement for bringing a claim.
3. Defendants Fail to Demonstrate that a Significant Portion of Class Disputes
Were Sent Fraudulently by Credit Repair Clinics.
A consumer must “notif[y] the agency directly” of their dispute to trigger the
reinvestigation duty of 15 U.S.C. § 1681i(a). Focusing on this language, Defendant argues that
consumers who utilized the assistance of credit repair organizations cannot demonstrate a “direct”
dispute under the statute and thus must be excluded from the class. Defendant further argues that
if one assumes that any involvement by a credit repair organization is disqualifying, then a large
percentage of the class lacks a cognizable claim under the FCRA, and it must be decertified under

28 Defendant’s other authority does not compel a different conclusion. In Klotz v. Trans Union, LLC, 246
F.R.D. 208, 210, 212-13 (E.D. Pa. 2007) (McLaughlin, J.), for example, the defendant exercised one of its
three statutory options by finding that plaintiff’s dispute letter was sent by a credit repair clinic and rejecting
it as frivolous – here, however, defendant neither deemed class letters frivolous nor conducted a
reinvestigation. Likewise, Harper v. Trans Union, LLC, No. 04-3510, 2006 WL 3762035, at *2, *8-9 (E.D.
Pa. Dec. 20, 2006), had to do with a § 1681e lawsuit, for which an element of the claim is that the “the
credit reports at issue included inaccurate information,” whereas, in this case, Plaintiffs need only
demonstrate that they disputed the accuracy of an item in their credit files such that their complaints
triggered the reinvestigation duty of § 1681i – they do not have to show that the outcome of the
reinvestigation would have resulted in a finding of inaccuracy.
Rule 23(b)(3). Federal courts have not adopted the absolutist position advanced by Trans Union
and, although the issue of credit repair is relevant, it is not dispositive.
A credit repair organization or clinic is a third-party company that assists consumers with
repairing credit reporting errors impacting their credit scores. These entities are regulated by the
Credit Repair Organization Act. See 15 U.S.C. § 1679(b). While some credit repair clinics assist

customers overwhelmed by the world of credit reporting, according to Defense expert John
Ulzheimer, some credit repair organizations resort to “frivolous attempts to have accurate
information removed from consumer credit reports prematurely.” Ulzheimer Report 19, Ex. A to
ECF 81. Using a practice known as “jamming,” some clinics may try to dispute every item of
derogatory information in a consumer’s credit report, even if there is no reason to believe that
those items are inaccurate. Turner Report ¶ 60, Ex. A to ECF 80. For this reason, presumably,
Defense experts testified that letters coming into the Trans Union mailroom that are believed to be
frivolous or fraudulent disputes sent by credit repair clinics are marked accordingly in Trans
Union’s system. Tilghman Dep. 119:1-19; see Kuehn Dep. 59:4-60:4 (explaining that credit

reporting agencies that identify letters as bearing indicia of credit repair will treat those disputes
as frivolous).
As a preliminary matter, Defendant argues that, in granting certification, I found that letters
sent by or with the assistance of credit repair should be excluded from the class. ECF 84 at 65.
Not quite. In passing, I observed that “neither party devotes serious time in their pleadings
discussing whether some portion of the proposed class comprises not consumers but, for example,
credit repair organizations instead. Differentiating between bona fide consumers and third-party
organizations does not seem like a difficult task, and certainly is not sufficient to defeat
predominance.” ECF 47 at 57-58. At the time of certification, I did not address the substantive
import of involvement by credit repair organizations, but only noted that any problem with the
inclusion of letters sent by credit repair clinics could be solved by separating out those letters,
should they exist.
Trans Union argues that when a credit repair clinic sends a dispute on a consumer’s behalf,
the agency’s duty to reinvestigate the dispute is not triggered because the consumer has not notified

the agency of their dispute “directly.” See 15 U.S.C. § 1681i(a)(1)(A) (requiring that the consumer
“notifies the agency directly” of a dispute before the agency is required to conduct a reasonable
reinvestigation). It advances a grammatical argument, noting that the word “directly” is an adverb
which therefore must modify the verb “notifies,” such that the consumer must personally notify
the agency of any dispute. ECF 193 at 42-43. Most courts, however, have refused to hold that
involvement by a credit repair agency is invariably fatal to a FCRA claim. To the contrary, several
lower courts agree that if a credit repair organization assists a consumer in sending a dispute, but
the consumer remains at least somewhat involved in the process, the dispute is still “direct” under
the statute. See Klotz v. Trans Union, LLC, No. 05-4580, 2008 WL 2758445, at *5 (E.D. Pa. July

16, 2008) (McLaughlin, J.) (explaining that if a plaintiff used a CRO to find problems in her credit
report, but then reviewed the documents, checked them for accuracy, and sent them to the credit
reporting agency, that consumer would be eligible for relief under the FCRA); Rivera., 341 F.R.D.
at 347 (“In assessing whether a dispute came ‘directly’ from a consumer, courts have generally
reasoned that a consumer who was involved in either the drafting, finalizing, or sending of the
dispute letter has sent the letter ‘directly’ even if he had assistance in doing so. Only where an
individual had no role in preparing, reviewing, or sending the letter, does he fail to satisfy the
direct requirement.”) (emphasis added). As recently formulated by one district court, “[m]ere
assistance in preparing a letter does not prevent the consumer from sending the letter. To hold
otherwise would impose a requirement more rigid than necessary to ‘confirm[] that the disputes’
are ‘legitimate’ – the function of the direct notification requirement.” Henry v. Freedom Mortgage
Corp., No. CV-19-01121, 2020 WL 8921079, at *4 (D. Ariz. Apr. 27, 2020) (citing Warner v.
Experian Info. Sols., Inc., 931 F.3d 917, 918-19 (9th Cir. 2019)).
It is only when consumers play virtually no role in disputing their credit files that courts

find the dispute not to be “direct.” See e.g., Turner v. Experian Info. Sols., Inc., No. 16-360, 2017
WL 2832738, at *1, *8 (N.D. Ohio June 30, 2017) (finding the dispute was not direct when nine
derogatory accounts were disputed and plaintiff did not write, review, or sign the letter); Cohen v.
Equifax Info. Servs., LLC, No. 18-6210, 2019 WL 5200759, at *6 (S.D.N.Y. Sept. 13, 2019) (“The
Court is confident, however, that a consumer has not ‘directly’ contacted a credit reporting agency
when, as here, she merely signs up for a credit repair service and then has no further involvement
with, or even knowledge of, the disputes submitted putatively on her behalf.”).29 So, for example,
if a credit repair company helps a consumer draft a dispute letter, but the consumer prints that
dispute letter at home, reviews it, and mails it, then that person would not be barred from relief

under the FCRA or from participating in this class. See Ulzheimer Report 21, Ex. A to ECF 81
(suggesting that many credit repair companies “allow their clients to print letters at home and mail
them locally”).
For its position, Trans Union cites a 2011 report from the Federal Trade Commission called
40 Years of Experience with the Fair Credit Reporting Act: An FTC Staff Report with Summary of
Interpretations.30 There, the FTC observed that a “CRA need not investigate a dispute about a

29 I am only aware of one case in which a federal court held that § 1681i requires a consumer to send a
dispute “without any intervening actor,” and that case is not binding here. See In re Experian Info. Sols.,
Inc., No. 16-01888, 2017 WL 3559007, at *3-4 (D. Ariz. Aug. 17, 2017).

30 Available at https://www.ftc.gov/reports/40-years-experience-fair-credit-reporting-act-ftc-staff-report-
summary-interpretations. The 40 Years Report is described as a “compendium of interpretations” of the
consumer’s file raised by a third party – such as a ‘credit repair organization’ – because the
obligation under this section arises only where file information is disputed ‘by the consumer’ who
notifies the agency ‘directly’ of such dispute.” Id. at 78. But the report goes on to explain what is
meant by that, further observing that a “CRA is not required to respond to a dispute of information
that the consumer merely conveys to others . . . .” Id. The use of the word “merely” appears to

mirror the distinction drawn by the reported cases, namely, that the key question is the degree of
involvement by the consumer. Consequently, I do not view the 40 Years Report as inconsistent
with the consensus view discussed above.
Assuming, however, that there is a need to address some credit repair disputes, I am not
persuaded that credit repair within this class is as rampant as Trans Union suggests it to be. Trans
Union relies on retrospective analysis by its experts to advance its credit repair defense. But their
conclusions are undercut by the underlying factual record. The Defense experts agree that letters
bearing indicia of credit repair are properly deemed frivolous. See Kuehn Dep. 40:7-46:15, 57:4-
60:23 (confirming that credit reporting agencies may treat letters sent by credit repair clinics as

“frivolous”); Ulzheimer Report 19, Ex. A to ECF 81 (characterizing letters bearing some indicia
of credit repair repeatedly as “frivolous disputes”). There is no evidence that any class members’
disputes in this case were treated as frivolous, and Trans Union’s experts conceded that they saw
no evidence that they were deemed frivolous at the time. Ulzheimer Dep. 72:13-21, 73:8-25
(verifying that he saw no evidence that Trans Union determined any class letter was from credit
repair or was frivolous at the time it processed the disputes). To the contrary, class letters were
internally categorized by Trans Union as disputes warranting a 502 letter, which Trans Union

FCRA, created by FTC staff to assist CFPB staff in rulemaking, businesses who are subject to the FCRA,
and consumers.” Id. at 7. It incorporates material from informal staff opinions and interpretations, as well
as commission enforcement actions and rulemaking proceedings. Id.
employees have stated are sent to consumers who exclusively dispute the inaccuracy of a hard
inquiry in their credit files. See Wagner Dep. 32:2-4, 33:1-7, 36:15-37:5, 62:1-18, 81:4-17. One
Trans Union witness even testified that letters showing signs of credit repair would have been
noted by the Trans Union mailroom in an internal record system called OnBase. See Tilghman
Dep. 119:1-19.

It is against this factual background that I examine the analyses provided by Trans Union’s
experts. Trans Union relies on two indicators of credit repair to conclude that more than one third
of class letters were not sent “directly” – (1) the use of template letters and (2) the mismatch of a
consumer’s address with the postmark on their dispute letter. See Lasater Report ¶¶ 13, 58-59, Ex.
A to ECF 77. But the premises on which both indicators are based are not entirely sound. First,
Dr. Lasater concludes that approximately 45% of disputes reflected one of 16 identified template
letters, which Trans Union argues supports the high rate of class letters sent by credit repair clinics.
Id. But Plaintiffs’ expert Jonathan Jaffe notes that dispute-letter templates are widely available on
the internet for consumers to print out and fill in at home. Jaffe Reply Report ¶¶ 44, 54-57, ECF

95-11; see Ulzheimer Report 22, Ex. A to ECF 81 (“Many such letter templates can be easily found
online . . . [and] result in a consumer being able to print the letter and mail it from their local post
office.”). Even Mr. Norman’s letter, which has not been regarded as one from credit repair,
appeared to make use of a template. See Ulzheimer Dep. 92:18-22 (observing that Mr. Norman’s
dispute “certainly bear[ed] some resemblance to letters, template letters that come from CROs”
but unable to say whether “he hired a CRO to submit those”). In a digital age, the mere fact that
consumers made use of template letters from the internet is hardly a basis on which to conclude
that their disputes were necessarily submitted by credit repair clinics without the personal interest
and involvement of the individual consumer.
Second, Dr. Lasater opined that 29.4% to 35.8% of letters sent to Trans Union were
postmarked at a location at least 60 miles away from the consumer’s known residential address,
again indicating the prevalence of credit repair. Lasater Report ¶ 13, Ex. A to ECF 77; see
Ulzheimer Report 20, Ex. A to ECF 81 (explaining that the most “common and prevalent”
evidence of credit repair he saw when working in the credit reporting industry was the “mismatch

between the postmark and the consumer’s actual address”). Once again, Jaffe responds that this
metric is misleading, as postmarks are often not stamped at local post offices but at USPS
Processing Distribution Centers, of which there are only 251 in the country. See Jaffe Reply Report
¶¶ 41, 48, ECF 95-11 (noting the difference between local postmarks, which contains the full name
of a post office, and postmarks from a Processing Distribution Center, which only include the two-
letter state abbreviation and zip code).31 Not only that, but Jaffe points out that Lasater’s analysis
fails to account for consumers who may travel for personal reasons or commute long distances for
work. Id. at ¶ 53. Thus, this metric sweeps too broadly.
When compared with Defendants’ experts, the facts on the ground carry more weight.

Indeed, the 502 Letter, showing that Trans Union initially viewed these disputes as genuine,
strongly suggests that the number of class letters from credit repair is not nearly as high as
Defendant suggests.
For the same reasons, Defendant’s reliance on the global industry statistic that “50% of
consumer disputes received by the credit reporting agencies are submitted by credit repair
organizations” is misleading. Ulzheimer Report 19, Ex. A to ECF 81; see Turner Report ¶ 64, Ex.

31 One of Trans Union’s objections to Jaffe’s report is that he is not a postal expert. That is true, but he is
not offered as one. He is offered as an expert in data analytics, and he is responding to a report from a
witness who is also not a “postal” expert. I believe it is appropriate for Jaffe to test Lasater’s assumptions
by looking to information of public record from the U.S. Postal System and to identify weaknesses in the
model Lasater employed.
A to ECF 80. There is no reason to believe that it logically applies to this class. As discussed
above, this proposed class is based on individuals who received a 502 Letter, which means that
Trans Union already identified their letters as those disputing a hard inquiry in a credit file, and
there is no evidence that Trans Union (1) identified any class members’ disputes as being from
credit repair at the time, or (2) treated any consumer dispute in this class as frivolous, despite the

industry practice of rejecting such claims as frivolous. See, e.g., Ulzheimer Dep. 72:13-21; Kuehn
Dep. 40:07-46:15, 57:04-60:23 (explaining that credit repair letters are those which reporting
agencies consider to be and treat as “frivolous” under the FCRA).
To the extent that there are some number of letters sent fraudulently by credit repair
organizations, then there is a more logical way to weed those disputes out fairly and
administratively than what is suggested by Defendant. For example, if a consumer’s letter does
not identify a specific item, disputing every hard inquiry on that consumer’s credit report and
evincing signs of “jamming,” then the letter may be excluded as a credit repair letter that likely
was not sent “directly” by the consumer. See Turner Report ¶ 60, Ex. A to ECF 80 (explaining

that “jamming” is a tactic used by credit repair that “involves gaming the system by disputing all
information in a client’s credit report that may be lowering their credit score, even if accurate”).32
Such disputes can be identified on the face of the class members’ letters with objective criteria.
See also Kelly v. RealPage Inc., 47 F.4th 202, 224-25 (3d Cir. 2022) (noting in its analysis
regarding whether the class is ascertainable that “a straightforward ‘yes-or-no’ review of existing

32 Alternatively, experts from both parties seem to agree that indicia of bulk rate postage or the inclusion of
different consumer disputes within one correspondence are reliable indicators of involvement by credit
repair agencies. See Tilghman Decl. 122:6-12 (stating one sign of credit repair is when different consumers’
complaints are sent within one correspondence); Ulzheimer Report 20, Ex. A to ECF 81 (explaining that
most credit repair disputes were sent by USPS and “delivered in large, white, plastic binds, hundreds per
bins”); Jaffe Reply Report ¶¶ 83-94, ECF 95-11 (identifying letters from credit repair based on categories
of terms associated with bulk mailing).
records to identify class members is administratively feasible” and that the size of the class cannot
impact the analysis). As discussed below, this is an ascertainable, administrative task that will not
offend Trans Union’s ability to defend itself, because the mechanism relies on the face of the
disputes.

4. Plaintiffs’ Claims Are, in Part, Capable of Common Proof at Trial.
Federal Rule of Civil Procedure 23(b)(3) requires Plaintiffs to show that “common
questions of law or fact predominate” the litigation. To satisfy predominance, the plaintiff class
must demonstrate that every element of the legal claim “is capable of proof at trial through
evidence that is common to the class rather than individual to its members.” In re Lamictal, 957
F.3d at 190 (citing Marcus v. BMW of N. Am., LLC, 687 F.3d 583, 600 (3d Cir. 2012)). The Court
must conduct a “rigorous analysis” to ensure that predominance is satisfied by (1) finding Rule 23
requirements are met by a preponderance of the evidence, (2) resolving factual or legal disputes
relevant to certification, even if they overlap with the merits, which requires the court to “weigh
the competing evidence and make a prediction as to how they would play out at trial,” and (3)

considering all relevant evidence and argument, including expert reports and testimony. Id. at
190-91, 194; see In re Hydrogen Peroxide, 552 F.3d at 311-12.
Defendant argues that Plaintiffs cannot demonstrate predominance to satisfy Rule 23(b)(3)
because a substantial portion of the class either cannot show injury by common proof or cannot
show one of the § 1681i(a) essential elements by common proof. ECF 84 at 71-72. I agree with
Trans Union as to one of Plaintiffs’ theories of injury, but I also conclude that Plaintiffs can prove
class-wide injury as to their theory of wasted time. As to Trans Union’s other objections, the
factual record significantly undermines the expert analysis on which it relies.
i. Plaintiffs Can Show Common, Class-Wide Disputes as to Accuracy
Defendant argues that 40.4% to 47.1% of class members’ letters do not reflect complaints
about an inaccuracy in a consumer’s credit report, signifying that thousands of class members
cannot establish an essential element of the § 1681i(a) claim. To reach this result, Lasater took
two samples of about 400 class letters, evenly distributed across 16 chronological segments.

Lasater Report ¶¶ 25-26, 39, Ex. A to ECF 77. Relying on the first sample, Lasater, with the
assistance of counsel, identified a “categorical list” of 15 types of “complaints, assertions,
questions, or demands reflected in the letters.” Id. at ¶¶ 27-28. Then, two contracted attorneys
and a quality assurance reader reviewed each letter from both samples. Id. at ¶ 32. Based on their
categorizations of the letters, Lasater concluded that up to 47.1% of disputes “do not complain
directly about the accuracy of an inquiry on a consumer’s Trans Union file.” Id. at ¶ 13. As a
result, Defendant argues that receipt of a 502 Letter cannot serve as common proof of Plaintiffs’
claim, because many consumers who received a 502 Letter did not actually dispute an inaccuracy
in their credit file.
Plaintiffs respond by arguing that Lasater’s opinion should not change my prior finding

that a consumer’s receipt of a 502 Letter proves by a preponderance of the evidence that the
consumer disputed the completeness or accuracy of an item of information in their file. ECF 47
at 56-57. Indeed, regardless of any retroactive statistical analysis, the fact remains that the 502
Letter opens with Trans Union’s goal to “maintain complete and accurate credit information” and
that Trans Union produced the class letters in response to Mr. Norman’s request for
communications which “disputed a hard inquiry included in the consumer’s Trans Union file.”
Id.; see Def.’s Objs. and Resps. to Pls.’ First Set of Req. for Produc., ECF 23-13 at 8. In addition,
Plaintiffs provide expert analysis from Jonathan Jaffe, who took a random sample of 10,000 letters
and identified 13 categories of terms that he believed were consistent with dispute letters. Jaffe
Reply Report ¶¶ 65-66, ECF 95-11. Using a regular expression engine to refine his search, Jaffe
concluded that 96.7% of class letters contained at least one of the categories of terms associated
with letters disputing an inaccuracy. Id. at ¶¶ 67, 74. Further, Jaffe argues that he can manageably
sort and identify all the class letters with a similar textual analysis based on the same or similar set
of categories. Id. at ¶¶ 72, 78-80.

As a factual dispute relevant to certification, I must weigh the competing views to make a
prediction as to how they will play out at trial and determine whether Plaintiffs have shown by a
preponderance of the evidence their ability to establish their claim with common proof. In re
Lamictal, 957 F.3d at 191, 194. I first observe that there remains a difference between historical
facts and the retrospective perspectives on those facts that arise for the purpose of litigation. The
screening conducted by Trans Union when it received class members’ letters in the first instance
favors the view advanced by Plaintiffs that recipients of the 502 Letter are those who disputed the
inaccuracy of a hard inquiry in their credit files. See Wagner Dep. 32:2-33:7, 36:24-37:5, 38:12-
19 (explaining that Trans Union sends a consumer the 502 Letter when the consumer’s dispute

exclusively alleges the inaccuracy of a hard inquiry); Ulzheimer Report 26-27, Ex. A to ECF
(explaining that all three credit bureaus reply to hard inquiry disputes with a notice that is “almost
identical” to Trans Union’s 502 Letter and “do not, as a practice, reinvestigate consumer disputes
of credit inquires”). The subsequent analysis of experts on both sides as to whether class members
actually disputed an inaccuracy in their files results in a draw. In that context, it is my view that
more weight ought to be placed on the pre-litigation facts on the ground. I thus find that Plaintiffs
have demonstrated by a preponderance of the evidence their ability to demonstrate their FCRA
claim, including the essential element of “inaccuracy,” with class-wide proof.
ii. Proof of Injury from Diminished Credit Scores Requires
Individualized Proof, But Proof of Injury in the Form of Wasted Time
Does Not
Although I have concluded that Plaintiffs need not prove inaccuracy as an element of their
failure to investigate claim, at this stage of litigation, injury in the form of a diminution in credit
score would require proof of inaccuracy. If a hard inquiry was properly made, then the credit file
was accurate and any diminution in credit score would be neither misleading nor the result of a
FCRA violation. That would, in turn, erode standing as to such members of the class, and I can
identify no way in which to resolve that issue without individualized inquiries as to the propriety
of each instance in which the file was accessed. There is a certain unfairness in this conclusion in
that Trans Union has taken a blanket position as to the entire class that I am persuaded violates the
FCRA, but individual consumers affected must pursue remedies separately. But injury cannot be
presumed and, under the precedent that controls here, Plaintiffs cannot show common proof of
injury in the form of diminished credit scores.
In contrast, the injury represented by wasted time was invariably suffered by every member
of the class by virtue of Trans Union’s uniform policy of refusing to investigate disputes

challenging hard inquiries. The extent of such injury might differ, but the existence of injury does
not. Trans Union argues that even under this theory of the case, individualized investigations will
predominate litigation, using as an example whether some class members paid for postage while
others did not. ECF 84 at 74. But, again, this argument improperly confuses injury with damages.
See In re Lamictal, 957 F.3d at 194-95 (“We have consistently distinguished injury from
damages.”). Significantly, courts “apply a more lenient predominance standard for damages than
for injury. While every plaintiff must be able to show [] injury through evidence that is common
to the class, damages need not be ‘susceptible of measurement across the entire class.’” Id. at 195
(citations omitted and cleaned up); see Tyson Foods, 136 S. Ct. at 1045. And – as mentioned
previously – because Mr. Hendricks can provide common proof of time and expense incurred for
the sake of concrete injury, Defendant’s argument that individualized questions of how much time
and how much expense each class member incurred will dominate litigation is of no concern. See
also In re Suboxone, 967 F.3d at 272 (explaining that individualized differences “among the class
members concerning the precise damages they suffered . . . are of no consequence in determining

whether there are common questions concerning liability”).
iii. Presence of Credit Repair Does Not Defeat Predominance
Defendant also argues that a substantial number of class members have no injury and
cannot state an essential element of their claim because a significant portion of the class was
assisted by credit repair. ECF 84 at 71-74; see In re Asacol Antitrust Litig., 907 F.3d 42, 53-54
(1st Cir. 2018) (reversing certification of class when “apparently thousands” of class members
suffered no injury and the mechanism identified for removing those parties did not protect the
parties’ rights); see also In re Lamictal, 957 F.3d at 192-94 (reversing when the District Court
failed to conduct a rigorous analysis of Plaintiff’s proffered common proof to demonstrate that
their antitrust injury could withstand predominance). Credit repair poses some degree of threat to

establishing common proof for standing and for success on the merits, as anyone who relied
completely on credit repair to send disingenuous disputes (1) may not have incurred any wasted
time and expense disputing an inquiry, defeating standing and (2) did not “directly” notify the
agency of their dispute, failing to establish an essential element of the FCRA claim.
Preliminarily, as I discussed above, the consensus view is that assistance from a credit
repair clinic does not automatically disqualify a consumer from recovering under the FCRA and
does not necessarily render that consumer uninjured. Of course, the assistance of credit repair may
reduce the amount of time or expense a consumer spent on a dispute letter, but so long as the
dispute is a bona fide one in which the consumer was even minimally involved in the process, that
consumer has still suffered some concrete injury and belongs in this class. In re Lamictal, 957
F.3d at 194-95 (distinguishing the extent of one’s damages from whether one was injured).
Second, as noted above, Trans Union has not convincingly shown that the use of credit repair
organizations is as prevalent in this class as it suggests, as both metrics for measuring use of credit
repair rest on what I identified as questionable premises. Template letters, as noted above, are

widely available on the internet and thus not a definitive sign of credit repair. Likewise, excluding
disputes with mismatched postmarks and residential addresses as credit repair fails to account for
letters from consumers who may have been traveling or commuting or for the fact that many letters
are postmarked at one of a limited number of USPS Processing Distribution Centers and not a
local post office. Most importantly, as already stated, there is no evidence that Trans Union
marked any of these disputes as frivolous or as from credit repair clinics at the time of receipt,
despite having the ability to do so. I am thus not concerned that the number of class letters from
credit repair is nearly as high as Defendant suggests. Cf. Sheet Metal Workers Local 441 Health
& Welfare Plan v. GlaxoSmithKline, PLC, No. 04-5898, 2010 WL 3855552, at *28 (E.D. Pa. Sept.

10, 2010) (Stengel, J) (denying certification when District Court was “satisfied the defendant has
shown there are a great number of uninjured class members” and when Plaintiffs failed to show
that they could “exclude these uninjured consumers”).
Nonetheless, if a class member’s dispute appears to be an example of jamming, such that
the dispute is not a bona fide one but the result of a credit repair clinic seeking to eliminate every
item of derogatory information on a consumer’s credit report, then such letters can be removed
from the class in a way that is “administratively feasible” and “protective of defendants’ Seventh
Amendment and due process rights.” In re Asacol, 907 F.3d at 52 (quoting In re Nexium Antitrust
Litig., 777 F.3d 9, 19 (1st Cir. 2015)). The ability to do so in this case can be shown by way of
comparison. In Asacol, the class complained that a drug manufacturer’s coordinated withdrawal
of one patented drug with the entry of another precluded generic manufacturers from introducing
lower cost alternatives, causing monetary injury to the class of people who purchased Defendant’s
drug. Id. at 45-46. Although the District Court found that about 10% of that class suffered no
injury, as expert reports showed that some class members would have opted for Defendant’s drug

even in the presence of generic options, it still certified the class, finding that uninjured class
members could be administratively removed. Id. at 46-47. The First Circuit reversed, holding that
there was no pathway for the court to fairly determine which plaintiffs would have remained loyal
to Defendant’s brand. Id. at 52-53. The Court reasoned that the District Court’s proposal of having
each class member submit “unrebutted” testimony to the claims administrator for evaluation was
untenable because Defendants intended to challenge any such affidavit, and there was no basis on
which to conclude that “the number of affidavits to which defendants will be able to mount a
genuine challenge is so small that it will be administratively feasible” to resolve them at trial. Id.
Moreover, any class members’ affidavits would be inadmissible hearsay, precluding proof of their

injuries at trial if they did not give live testimony. Id. at 52-54. And, with thousands of potentially
uninjured plaintiffs, the Court held that there was no administratively manageable mechanism to
remove uninjured persons from the class in a way that protected Defendant’s rights. Id. at 53-54,
58.
Here, however, no testimony or consumer affidavits are needed to determine which letters
were the result of the credit-repair tactic of jamming. Instead, one need only look at the face of
the disputes to determine if the letter seeks to remove every piece of derogatory information in a
consumer’s credit file. See Kelly, 47 F.4th at 224-25 (explaining that, to determine whether the
class was ascertainable, “a straightforward ‘yes-or-no’ review of existing records to identify class
members is administratively feasible even if it requires review of individual records with cross-
referencing of voluminous data from multiple sources” because to hold otherwise would
“categorically preclude class actions where defendants purportedly harmed too many people”).
Because this task can be accomplished without relying on hearsay or offending Defendant’s rights,
there is no need to decertify the class on the grounds of predominance.

Summary Judgment
In addition to decertification, Defendant moves for summary judgment on Plaintiffs’ claim
that Trans Union willfully violated § 1681i.33 To prevail, Trans Union must demonstrate that no
reasonable juror would find its reading of its statutory obligations to be “objectively
unreasonable,” such that it raises an unjustifiably high risk of violating the statute. Safeco Ins. Co.
of Am. v. Burr, 551 U.S. 47, 68-70 (2007); Fuges v. Sw. Fin. Servs., Ltd., 707 F.3d 241, 248-49,
251 (3d Cir. 2012). But, because Trans Union’s interpretation of the FCRA contradicts the plain
language of the statute and binding Third Circuit case law, I find that there are serious questions
as to whether Trans Union acted reasonably. See Burns v. Ford Motor Credit Co. LLC, No. 19-
1647, 2021 WL 1962856, at *5 (E.D. Pa. May 17, 2021) (Surrick, J.) (“Because questions exist as

to whether Ford Motor’s investigative procedures were reasonable, we cannot find as a matter of
law that Ford Motor complied with its duties under the statute.”). Trans Union’s only support is
prevailing practice in the industry, a factor of less significance, and one that must be considered
with the recognition that all credit reporting agencies have the same financial incentive to minimize
their reinvestigation costs. Because a jury could find that Trans Union’s blanket policy of refusing

33 Defendant only seeks summary judgment on Plaintiffs’ willfulness claim and not on Plaintiffs’ negligence
claim; while willfulness claims under the FCRA allow plaintiffs to recover statutory and punitive damages,
negligence claims only allow actual damages. 15 U.S.C. §§ 1681n, 1681o.
to reinvestigate disputes of hard inquiries is not reasonable under the law, summary judgment is
inappropriate.
1. Trans Union’s Reading of the FCRA is Objectively Unreasonable Under
Safeco.
i. Safeco Standard
Under the FCRA, an aggrieved party can claim punitive and statutory damages when the
defendant “willfully fails to comply” with the statute. 15 U.S.C. § 1681n(a); see Fuges, 707 F.3d
at 247. In matters of civil liability, the Supreme Court has interpreted “willful” violations to cover
knowing and reckless violations as well. Safeco, 551 U.S. at 68, 71. A civil defendant’s conduct
is reckless when it arises from an “objectively unreasonable” reading of the controlling law.
Fuges, 707 F.3d at 249; see Safeco, 551 U.S. at 68-70 (citing Farmer v. Brennan, 511 U.S. 825,

836 (1994)) (defining reckless conduct as that which presents “an unjustifiably high risk of harm
that is either known or so obvious that it should be known”). Consequently, a credit reporting
agency like Trans Union acts willfully when its conduct is pursuant to an “objectively
unreasonable” reading of the FCRA. See Fuges, 707 F.3d at 249 (citations omitted) (“[E]ven when
a court disagrees with a party’s reading of FCRA, it may not impose liability for a reckless, and
therefore willful, violation of the statute unless that party’s reading is ‘objectively
unreasonable.’”).
To determine if a credit reporting agency’s reading of the FCRA is objectively
unreasonable, Safeco instructs courts to consider 1) whether the agency’s interpretation has a
“foundation in the statutory text,” and whether there is 2) circuit authority or 3) regulatory guidance

that “might have warned [Defendant] away from the view it took.” 551 U.S. at 69-70.
Accordingly, if Trans Union’s reading of § 1681i is reasonable in light of the text and other judicial
and regulatory authority, then Trans Union has committed no willful violation as a matter of law.
See e.g., Fuges, 707 F.3d at 243, 252-53 (holding that no reasonable juror could find Defendant
willfully violated the FCRA because it reasonably interpreted its obligations under the statute);
Kelly v. RealPage, Inc., 539 F. Supp. 3d 374, 376, 380 (E.D. Pa. 2021) (Wolson, J.) (granting
summary judgement when Defendant’s reading of the FCRA was not objectively unreasonable
and was “at least consistent with the statutory language”).

ii. Trans Union’s Reading of the FCRA and its Corresponding
Procedures
Trans Union seeks to give § 1681i a narrow scope, arguing that the duty of reinvestigation
only requires credit reporting agencies to notify a particular furnisher when a consumer disputes
information provided by that furnisher as incomplete or inaccurate. ECF 76 at 7. According to
Trans Union, a hard inquiry is not furnished information, but a factual record created internally by
Trans Union to indicate that an end-user accessed the consumer’s credit file, and the
reinvestigation provision does not require the agency to convey non-furnished information like a
hard inquiry dispute to any third party or, for that matter, to take any other action. Id.; see
Ulzheimer Report 33, Ex. A to ECF 81. On the facts here, Trans Union maintains that because
Safe Home Security is not a furnisher and not the source of the disputed inquiry data on Mr.
Norman’s credit file, it had neither a statutory duty to convey Norman’s dispute to Safe Home nor
a duty to take any further action. ECF 76 at 7. In its view, this is a reasonable reading of the
FCRA’s requirements and therefore not a willful violation under Safeco. I cannot agree.
iii. Safeco Part One: Trans Union’s Interpretation of its Obligations is
Unreasonable Under the FCRA’s Plain Language
In my class certification memorandum, I explained at length why Trans Union’s narrow
reading of the reinvestigation requirement was a flawed one. ECF 47 at 28. Here, Trans Union
attempts to relitigate many of the same arguments, contending that, regardless of whether I agree
with its interpretation, Trans Union’s reading of the FCRA has “some foundation in the text.”
Long v. Tommy Hilfiger U.S.A., Inc., 671 F.3d 371, 377 (3d Cir. 2012). I therefore return to the
language of the statute, which begins: “Subject to subsection (f) and except as provided in
subsection (g), if the completeness or accuracy of any item of information contained in a
consumer’s file . . . .” 15 U.S.C. § 1681i(a)(1)(A). The term “any” is all inclusive. The term
“information” is generally descriptive and not limited to specific categories of information. And

the breadth of the duty is further underscored by explicitly extending it to disputes over
“completeness or accuracy.” Significantly, Trans Union cites nothing within § 1681i(a) to support
its narrow reading. Its interpretation of the statute is wholly dependent upon arguments derived
from other provisions. Such an approach is foreclosed by the structure and language of § 1681i(a)
which begins by specifically listing the only exceptions to its scope.
To argue that the statute’s express language supports its reading of the reinvestigation duty
as one limited to furnisher-provided information, Trans Union observes that § 1681i(a)(1), which
defines the reinvestigation duty, is followed by § 1681i(a)(2), which is titled “prompt notice of
dispute to furnisher of information.” The latter section instructs credit reporting agencies to

“provide notification of the [consumer’s] dispute to any person who provided any item of
information in dispute.” 15 U.S.C. § 1681i(a)(2)(A). Trans Union contends that when these
sections are read together, the duty of reinvestigation is limited to conveying the dispute to the
furnisher who provided that information. ECF 76 at 26-27. And, under Defendant’s definition of
the term “furnisher,” end-users like Safe Home Security who access credit files do not qualify
because they do not provide information, like detailed credit accounts, to the agency.34 Id. at 14,

34 I have previously noted that the term “furnisher” is not defined anywhere in this section of the FCRA.
ECF 47 at 29-31. A separate provision, § 1681s-2(a), titled “Duty of furnishers of information to provide
accurate information,” sets forth duties of entities supplying information to credit agencies, while § 1681m
puts forth other requirements on “users of consumer reports.” It is based on these provisions that Trans
Union imports a strict interpretation of the word “furnisher” into § 1681i. While I am not convinced that
this interpretation is correct, I ultimately find the definition used has no influence on my decision.
17. But Congress did not include either of these sections within the specific exceptions to the
scope of § 1681i(a)(1)(A).
Furthermore, I have previously noted that “the title of a statute cannot limit the plain
meaning of the text.” Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 212 (1998) (quoting Bhd. of R.R.
Trainmen v. Balt. & Ohio R. Co., 331 U.S. 519, 528-29 (1947)) (cleaned up). Indeed, headings

are only useful when they “shed light on some ambiguous word or phrase.” Trainmen, 331 U.S.
at 529. But here, the plain meaning of § 1681i(a)(1)(A) allows no room for ambiguity, particularly
when the statute itself specifically enumerates the only exceptions to its scope, using the phrase
“except for.” And because the body of the text cannot be limited by the title of a subsequent
subsection, Defendant’s argument about the title and content of § 1681i(a)(2) cannot provide
reasonable support for its contention that “any information” is limited to that supplied by
“furnishers.”
Even if § 1681i(a)(2)(A) had some relevance, nothing in its text suggests that it was meant
to limit the scope of the reinvestigation duty of § 1681i(a)(1)(A). It simply defines the specific

obligations of credit reporting agencies when the source of the disputed information is a furnisher.
In fact, the term “reinvestigation,” which Trans Union suggests was limited by § 1681i(a)(2), does
not even appear in that subsection.
Defendant next points to the 1996 Amendment to the FCRA, which it raises for the first
time in this litigation. Those amendments reiterated the duties discussed above and required credit
reporting agencies to convey disputes to furnishers,35 introduced new obligations for furnishers,36

35 15 U.S.C. § 1681i(a)(2)(A); see S. Rep. 104-185 (1995), at 43; S. 650, 104th Cong. § 409.

36 15 U.S.C. § 1681s-2(b); see S. Rep. 104-185 (1995), at 49 (“The Committee believes that bringing
furnishers of information under the provisions of the FCRA is an essential step in ensuring the accuracy of
consumer report information.”); S. 650, 104th Cong. § 413.
and mandated that the credit reporting agencies create an automated system to facilitate
communication with furnishers about disputed information.37 Citing no authority or source, Trans
Union summarily maintains that it was not until these amendments that “the statute clarified what
a reinvestigation entailed.” ECF 76 at 27. Further, Trans Union notes that when the three credit
bureaus jointly developed the newly required automated system for communicating with

furnishers, now known as E-Oscar, no individual from Trans Union, Equifax, or Experian
considered enabling the program to convey disputes of inquiry data to end users.38 Id. at 28.
The 1996 Amendment, however, did not alter the broad language of § 1681i(a)(1)(A). Had
Congress intended to change or limit that language, it could have done so. Instead, it left the
sweeping language of § 1681i(a)(1)(A) untouched, offering no reason for the agencies to believe
that new provisions adding obligations for furnishers and facilitating communication between
furnishers and the bureaus also had the effect of narrowing or replacing the overall reinvestigation
requirement that already existed. These additional duties, imposed when disputes involve certain
types of information, do not negate the statutory duties already present, and Trans Union’s

assumption to the contrary – without any statutory language or legislative history suggesting as
much – is unreasonable.
Because I view Trans Union’s reading of the FCRA as contorted and inconsistent with the
clear language of the statutory text, I cannot find its interpretation of § 1681i to be objectively
reasonable. And although the analysis could stop here, the applicable Third Circuit case law
precisely reaffirms Plaintiffs’ statutory reading. See Cortez, 617 F.3d at 722 (denying summary
judgment when there was no judicial guidance on the issue but the “statute [was] far too clear”).

37 15 U.S.C. § 1681i(a)(5)(D); see S. 650, 104th Cong. § 409(a)(5)(D).

38 Trans Union here cites to the Deposition of Tracy DeMarco, but the pages it cites with relevant
information on this topic are not included in the attached exhibit. ECF 76-10.
iv. Safeco Part Two: Third Circuit Case Law Warned Trans Union Away
From Its Interpretation
Even if the statutory text were ambiguous, judicial guidance suggesting that Trans Union’s
reading of the text contradicted the statute’s intended meaning should have warned Defendant
against its policy of ignoring disputes over hard inquiries. Cf. Fuges, 707 F.3d at 252-53 (granting
summary judgment when Defendant’s reading of the FCRA had some grounding and no other
judicial or agency guidance was available). As stated in my certification opinion, Cushman and
Cortez describe the duties of the credit reporting agencies with clarity and precision and, by
implementing procedures that contradict the essential meaning of those cases, Trans Union ran an
unjustifiably high risk of violating the law. Id. at 248. Having analyzed these opinions now for a
second time, I further conclude that Trans Union’s understanding of the FCRA was objectively

unreasonable in light of available precedent. Safeco, 551 U.S. at 70.
In Cushman, a consumer twice disputed inaccurate information in her credit file after
someone fraudulently applied for several credit accounts under her name. 115 F.3d at 222. When
Trans Union confirmed with the credit grantors that the consumer’s correct verification
information was used upon application, it refused to remove the inaccurate information from the
consumer’s account. Id. Trans Union argued that its conduct complied with its statutory
obligations because credit reporting agencies conducting reinvestigations are “obliged only to
confirm the accuracy of the information with the original source of the information” and are “never
required to go beyond the original source in ascertaining whether the information is accurate.” Id.

at 224.
The Third Circuit disagreed and, in so doing, carefully explained the evolving duties of
credit reporting agencies under the FCRA. As an initial matter, when a credit report is prepared,
§ 1681e(b) requires credit reporting agencies to follow “reasonable procedures to assure maximum
possible accuracy.” The Court explained that, at this early stage, credit reporting agencies are not
expected “to go beyond the original source of information” to confirm accuracy, because the costs
of doing so would far outweigh any potential benefits. Id. at 225. But “once a claimed inaccuracy
is pinpointed” by a consumer’s direct dispute, “a consumer reporting agency incurs only the cost
of reinvestigating that one piece of disputed information.” Id. Thus, once a dispute has been

lodged, the cost-benefit analysis shifts, and the statute imposes upon credit reporting agencies a
“grave responsibility” to ensure accuracy. See id. (“[W]hen one goes from the § 1681e(b)
investigation to the § 1681i reinvestigation, the likelihood that the cost-benefit analysis will shift
in favor of the consumer increases markedly.”) (emphasis in original). This statutory structure
“evinces Congress’s intent that consumer reporting agencies, having the opportunity to reap profits
through the collection and dissemination of credit information, bear grave responsibilities to ensure
the accuracy of that information.” Id. (internal quotation and citation omitted); see also Stevenson
v. TRW Inc., 987 F.2d 288, 293 (5th Cir. 1993) (“The statute places the burden of investigation
squarely on [the credit reporting agency].”).

Cushman also made clear that, in some circumstances, the credit reporting agency’s “grave
responsibility” of reinvestigation will require the agency to “verify the accuracy of its initial source
information.” 115 F.3d at 225. The Court reiterated that a credit reporting agency conducting a
reinvestigation may have to “go beyond the original source” and do more than “merely parrot[]
information received from other sources.” Id. (quoting Henson v. CSC Credit Servs., 29 F.3d 280,
287 (7th Cir. 1994)); see Stevenson, 987 F.3d at 293 (“In a reinvestigation of the accuracy of credit
reports, a credit bureau must bear some responsibility for evaluating the accuracy of information
obtained from subscribers.”). Cushman thus emphasizes the breadth of the reinvestigation
requirement, specifically rejecting the proposition that an agency could meet its burden in every
instance simply by conveying the dispute to the original source.
The Third Circuit took a similarly broad view of the reinvestigation requirement in Cortez.
There, like the plaintiffs in Ramirez, a consu

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10405090. Public record. Not legal advice.