holding that testimony by the plaintiff that he “felt like nobody was listening,” he was “very upset, angry,” and that he felt like he was “trapped inside of something that you can’t get out of” was insufficient to establish emotional damages for a violation of the Fair Credit Reporting Act
How later courts described this case
- holding that testimony by the plaintiff that he “felt like nobody was listening,” he was “very upset, angry,” and that he felt like he was “trapped inside of something that you can’t get out of” was insufficient to establish emotional damages for a violation of the Fair Credit Reporting Act
- holding, in the context of the FCRA, that a claim for “emotional distress must be supported by evidence of genuine injury ... requiring] ‘a degree of specificity which may include corroborating testimony or medical or psychological evidence in support of the damage award.’ ”
- holding that judgment against the defendant, TransUnion, was improper where the evidence showed that the credit grantor “denied [the plaintiff]’s application based on an internal credit report and a report from Equifax, not Trans Union”
- noting that although issues not raised in initial brief are normally waived, we have discretion to decide the issue
Written by the judges who cited it.
The opinion
ROBERT M. PARKER, Circuit Judge,
dissenting:
Because the evidence, taken in the light most favorable to the jury verdict, supports that verdict, I respectfully dissent. “Our assigned role is neither to re-try the case de novo nor to supplant the jury verdict so long as it is supported by substantial evidence.” Pinner v. Schmidt, 805 F.2d 1258 (5th Cir.1986).
I agree that with the majority that Trans Union’s cloaking procedure cannot be held reasonable as a matter of law and that the issue of reasonableness was properly submitted to the jury. However, I would hold that the evidence of actual damages was sufficient to warrant the jury’s award of $50,000. Actual damages may include out-of-pocket losses, damages for injury to reputation and creditworthiness and for humiliation or mental distress. See Fischl v. General Motors Acceptance Corp., 708 F.2d 143, 151 (5th Cir.1983). Cousin and his attorney, over a four-and-one-half year period, repeatedly advised Trans Union that specific derogatory credit information in its files was inaccurate. Cousin commenced two successive federal lawsuits in an effort to obtain Trans Union’s compliance with the Fan-Credit Reporting Act (“FCRA”), 15 U.S.C. §§ 1681 -1681u. Moreover, Cousin testified concerning his mental and emotional pain arising from the ongoing struggle. The jury’s conclusion that Cousin suffered actual financial and emotional damages was entirely reasonable in light of the evidence presented at trial.
Further, I conclude that the evidence supports the jury’s punitive damage award of one percent of Trans Union’s net worth. Cousin presented evidence of Trans Union’s willful noncompliance with 15 U.S.C. § 1681e(b)’s requirement that a credit reporting agency shall follow reasonable procedures to assure maximum possible accuracy of credit information. Again, the majority does not find as a matter of law that Trans Union complied with the reasonableness requirement of FCRA. Rather, it reverses the jury verdict on the basis that the evidence was insufficient for the jury to conclude that its noncompliance was willful. I disagree. At the heart of our inquiry lies Trans Union’s policy of limiting its cloaking of erroneous information to one year. The evidence was more than sufficient for a jury to conclude that Trans Union was aware that one-year cloaking limit was inadequate, and that it could have addressed the prob *377 lem by implementing permanent cloaking procedures. Further, Trans Union knew, after years of repeated complaints and a prior lawsuit, that Cousin’s file had been the target of “ID FRAUD,” yet the majority holds that a reasonable juror could not conclude that the decision to uncloak the file and release a consumer report while it reinvestigated yet another complaint was a willful violation of its duty to behave reasonably. In short, both Trans Union’s general cloaking policy and its specific handling of Cousin’s file support the jury’s finding of willful noncompliance.
Based on the foregoing, I would affirm the verdict for Cousin in toto.