David Smith v. LexisNexis Screening Solution

Filing

OPINION and JUDGMENT filed : The judgment of the district court is REVERSED regarding willfulness and punitive damages, and is AFFIRMED on all other grounds. IT IS FURTHER ORDERED that the case is REMANDED for entry of an order consistent with the opinion of this court. Decision for publication. Eugene E. Siler, Jr., John M. Rogers (AUTHORING), and Jeffrey S. Sutton, Circuit Judges. [15-2329, 15-2330]

Case: 15-2329

Document: 41-2

Filed: 09/13/2016

Page: 1

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 16a0230p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
┐
DAVID ALAN SMITH,
Plaintiff-Appellee/Cross-Appellant, │
│
│
v.
>
│
│
LEXISNEXIS SCREENING SOLUTIONS, INC.,
│
Defendant-Appellant/Cross-Appellee. │
┘

Nos. 15-2329/2330

Appeal from the United States District Court
for the Eastern District of Michigan at Flint.
No. 4:13-cv-10774—Mark A. Goldsmith, District Judge.
Argued: June 14, 2016
Decided and Filed: September 13, 2016
Before: SILER, ROGERS, and SUTTON, Circuit Judges.
_________________
COUNSEL
ARGUED:
Thomas J. Piskorski, SEYFARTH SHAW LLP, Chicago, Illinois, for
Appellant/Cross-Appellee. James A. Francis, FRANCIS & MAILMAN, P.C., Philadelphia,
Pennsylvania, for Appellee/Cross-Appellant. ON BRIEF: Thomas J. Piskorski, Frederick T.
Smith, Kara L. Goodwin, SEYFARTH SHAW LLP, Chicago, Illinois, for Appellant/CrossAppellee. John Soumilas, FRANCIS & MAILMAN, P.C., Philadelphia, Pennsylvania, Ian B.
Lyngklip, LYNGKLIP & ASSOCIATES CONSUMER LAW CENTER, PLC, Southfield,
Michigan, for Appellee/Cross-Appellant.
Alan Butler, ELECTRONIC PRIVACY
INFORMATION CENTER, Washington, D.C., for Amicus Curiae.

1

Case: 15-2329
Nos. 15-2329/2330

Document: 41-2

Filed: 09/13/2016

Smith v. LexisNexis Screening Solutions

Page: 2
Page 2

_________________
OPINION
_________________
ROGERS, Circuit Judge. Great Lakes Wine and Spirits contracted with LexisNexis to
carry out criminal history checks for employment applicants. Great Lakes provided Lexis with
David Alan Smith’s date of birth but not his middle name. Lexis’s check returned a fraud
conviction of a man named David Oscar Smith, resulting in six weeks’ delay in David Alan
Smith’s being hired. Lexis had requested, but not required, the input of a middle name, and did
not cross-reference the criminal history report with a credit report that showed Smith’s middle
initial. Smith sued under the Fair Credit Reporting Act (FCRA). Following a jury trial, the court
awarded Smith $75,000 in compensatory damages for six weeks of lost wages, emotional
distress, and harm to his reputation, plus $150,000 in punitive damages. Both parties appeal.
Although a reasonable jury could conclude that Lexis negligently violated the FCRA by not
requiring Smith’s middle name, there is not sufficient evidence of willfulness to support punitive
damages. A partial reversal is accordingly required.
David Alan Smith’s employer, Tasson Distributing, was sold to Great Lakes Wine and
Spirits in 2012. Former Tasson employees were not guaranteed a position with Great Lakes.
Each employee had to apply for a Great Lakes job. Smith applied for the position of delivery
driver, the same position he held at Tasson.
Great Lakes sent Smith an email less than a week later offering him a full-time
merchandiser position instead of his desired job. The merchandiser position paid $11 per hour,
which was $5 less per hour than he made as a delivery driver at Tasson. The employment offer
stated that “[c]ontinued employment, subsequent to this offer, is conditional based upon your
satisfactory completion of a . . . credit check . . . and criminal history check.” Smith, authorizing
the checks, provided Great Lakes with his first, middle, and last name, Social Security number,
driver’s license number, date of birth, sex, street address, and phone number.
Great Lakes contracted with LexisNexis Screening Solutions to complete the checks.
Neither party disputes that Lexis is a consumer reporting agency (CRA) as defined by the FCRA.

Case: 15-2329
Nos. 15-2329/2330

Document: 41-2

Filed: 09/13/2016

Smith v. LexisNexis Screening Solutions

Page: 3
Page 3

When Lexis received Smith’s credit report from Equifax, the report listed his name as “David A.
Smith.” For the criminal history check, Great Lakes wanted Lexis to perform a database report,
for which Lexis searches its database that contains raw criminal data from court systems and
other government agencies.
In conducting a database search, Lexis inputs the information provided to it by the
customer—in this case, Great Lakes. Lexis required Great Lakes to provide, per its standard
procedure: Smith’s first name, last name, and date of birth. Lexis will only include a criminal
record on a criminal background report if the record matches all three of these pieces of
information. Lexis also had fields in its order form for Smith’s middle name and Social Security
number, but Lexis did not require this information. Great Lakes did not provide Smith’s middle
name to Lexis but did provide Smith’s Social Security number. There was evidence suggesting
that Lexis’s processes and procedures for running the criminal history check meet or exceed
industry standards.
At the time of Smith’s criminal history check, Lexis ran and sold roughly 10 million
criminal background reports a year.

Lexis tracks the overall dispute rate for its criminal

background reports. Lexis’s data shows that 99.8% of its reports are never disputed, which
means that the dispute rate is only .2%. This .2% rate includes database searches like the one
Lexis conducted on Smith for Great Lakes.
Lexis searched its database for criminal records that matched Smith’s first name, last
name, and date of birth. The search returned two sources—Bay County, Florida Circuit and
County Courts, and the Florida Department of Corrections—as having criminal records for a
David Smith born on March 12, 1965. This, however, was David Oscar Smith, not the David
Alan Smith who applied for the job with Great Lakes. The records were for David Oscar Smith’s
uttering a forged instrument. Because Lexis did not receive a middle name from Great Lakes, it
could not exclude the middle name “Oscar” from the results. The criminal records did not
contain a Social Security number, so Lexis could not exclude them on that basis. Because the
criminal records matched Smith’s first name, last name, and date of birth, Lexis included them in
the report it provided to Great Lakes.

Case: 15-2329
Nos. 15-2329/2330

Document: 41-2

Filed: 09/13/2016

Page: 4

Smith v. LexisNexis Screening Solutions

Page 4

About December 17, 2012, Smith received a letter from Great Lakes stating that it was
rejecting his application for employment. The letter stated that the action was “influenced by
information in a consumer report” made by Lexis at the request of Great Lakes, but that Lexis
“did not make the adverse decision and cannot provide the reason for the decision.” The letter
included a copy of the background report. Although Vicki Strawsine, the Human Resources
Director for Great Lakes, was suspicious of the report, she did not hire Smith and believed that it
was his responsibility to contact Lexis in order to correct the report before Great Lakes would
hire him.
The same day that Smith saw the letter and the attached report, Smith contacted Great
Lakes to state that the information in the report was incorrect. Great Lakes directed him to Lexis
to dispute inaccuracies. Smith then contacted Lexis and faxed Lexis his driver’s license so that
Lexis could conduct a proper investigation into the inaccuracies. Lexis sent Smith a letter on
January 11, 2013, stating that the investigation had concluded and the disputed criminal history
had been removed. The letter also stated that Lexis sent Great Lakes a copy of the corrected
report. On January 29th, six weeks after receiving the initial letter from Great Lakes revoking
his employment offer, Smith began working for Great Lakes as a delivery driver.
Smith’s lost wages for the job of merchandiser during this period allegedly amounted to
$2,640. With Smith and his wife’s financial situation already unsteady, his lack of employment
during the six-week stretch caused them to fall on hard times. Smith stated that he was “down in
the dumps,” “depressed,” and did not know how he was going to make a living. He did not seek
medical treatment for these negative feelings. He also claimed that the owner of a party store at
one point referred to Smith in a jocular manner as the owner’s “favorite felon.”
The testimony of Smith’s wife corroborated Smith’s downward turn in mood during the
six-week period. She testified that Smith was “a bit angry about not being able to pay the
bills, . . . short with [her], . . . [and] depressed that he couldn’t provide for his family.” She said
that the struggle to make ends meet financially was the main reason why Smith was stressed
during the time he was unemployed. When Smith and his wife were both employed, they
brought home “just enough” money after taxes to pay their monthly bills. Without Smith’s
income stream, the couple went into the red. In order to pay the bills during the six-week period,

Case: 15-2329
Nos. 15-2329/2330

Document: 41-2

Filed: 09/13/2016

Smith v. LexisNexis Screening Solutions

Page: 5
Page 5

Smith had to borrow money from his parents and his sister, an action that left him feeling
“ashamed.”
Smith filed suit against Lexis, asserting that Lexis violated 15 U.S.C. § 1681e(b), part of
the FCRA, by failing to follow reasonable procedures that would assure maximum possible
accuracy in the information it reported to Great Lakes. The case proceeded to a jury trial. Lexis
made an oral motion for judgment as a matter of law pursuant to Fed. R. Civ. P. 50(a). The
district court took Lexis’s motion under advisement and submitted the case to the jury. The jury
found in Smith’s favor, finding that Lexis both negligently and willfully violated the FCRA
provision, and awarded Smith $75,000 in compensatory damages as well as $300,000 in punitive
damages. The district court then denied Lexis’s motion for judgment as a matter of law after
requiring supplemental briefing. Smith v. LexisNexis Screening Solutions, Inc., 76 F. Supp. 3d
651, 653, 657 (E.D. Mich. 2014) (order denying motion for a judgment as a matter of law).
After the court denied the initial motion, Lexis filed a renewed motion for judgment as a
matter of law or, in the alternative, for a new trial and/or remittitur. The district court denied the
renewed motion for judgment as a matter of law. Smith v. LexisNexis Screening Solutions, Inc.,
138 F. Supp. 3d 872, 877 (E.D. Mich. 2015) (order denying renewed motion for a judgment as a
matter of law). The court held that there was sufficient evidence from which a reasonable jury
could conclude that Lexis’s failure to require a middle name and its failure to cross-reference the
credit report, which contained Smith’s middle initial, with the criminal records were both
negligent and willful violations of the FCRA provision. See id. at 879-82. The district court also
held that there was sufficient evidence of economic loss and emotional distress to submit the
claim to the jury. Id. at 887-89. Thus, the court denied in full Lexis’s renewed motion for
judgment as a matter of law.
The district court denied in part and granted in part Lexis’s motion for a new trial and/or
remittitur. The court reiterated its analysis regarding the sufficiency of the evidence and held
that it also supported a denial of the motion for a new trial, because the jury’s verdict was not
“against the weight of the evidence.” Id. at 890. Also, Lexis did not meet its burden of showing
that mistakes were made during trial that warranted a new trial. Id. at 899. However, on the
issue of remittitur, the court granted the motion and reduced the punitive damages to $150,000.

Case: 15-2329
Nos. 15-2329/2330

Document: 41-2

Filed: 09/13/2016

Smith v. LexisNexis Screening Solutions

Page: 6
Page 6

Id. at 888-98. The court first stated that the award of $75,000 for compensatory damages,
although possibly sitting “on the high end of what would be appropriate,” did not warrant
remittitur, because it did not shock the court’s conscience or differ too greatly from awards that
other courts in analogous cases had deemed appropriate. Id. at 893. The court then analyzed
whether the award of $300,000 for punitive damages was excessive, and the court concluded that
it was.1 Id. at 898. According to the court, because Lexis’s conduct in this case was not very
reprehensible, and because the highest constitutional ratio of compensatory damages to punitive
damages was 2:1 in this case, the punitive damages award had to be reduced to $150,000. Id. at
895-96.
Lexis appeals and argues that there is no evidence from which a reasonable jury could
conclude that Lexis either negligently or willfully violated the FCRA. Lexis also argues that the
evidence does not support the awards of compensatory or punitive damages. Smith appeals the
district court’s decision to reduce the punitive damages to $150,000, arguing that Lexis’s
conduct was sufficiently reprehensible and that the 4:1 ratio between the jury’s awards for
compensatory and punitive damages was constitutionally appropriate. Because there is sufficient
evidence of negligence but not of willfulness, only compensatory but not punitive damages were
appropriate in this case.
Although it is a close call, the evidence in the record was sufficient to support the jury’s
finding of negligence. Lexis required Smith’s birthdate in addition to his first and last name, and
this additional requirement certainly lowered the possibility of a false positive. Lexis also has a
policy of using Social Security numbers—when provided—to further lower that possibility.
Further, Lexis points to the fact that this was a single mix-up corrected shortly after Smith made
Lexis aware of it and argues that its .2% dispute rate is evidence that the risk of this inaccuracy’s
occurrence was close to non-existent. But the relevant statutory language and Smith’s particular
situation cut against Lexis. 15 U.S.C. § 1681e(b) mandates that CRAs “follow reasonable
procedures to assure maximum possible accuracy of the information concerning the individual
about whom the report relates.” “David Smith” is an exceedingly common first-and-last-name
1

The court analyzed the distinction between claims that punitive damages are constitutionally excessive
and claims for remittitur. Id. at 896-98. Because Lexis argued that the punitive-damages award was constitutionally
excessive, the court tailored its relief to that claim.

Case: 15-2329
Nos. 15-2329/2330

Document: 41-2

Filed: 09/13/2016

Smith v. LexisNexis Screening Solutions

Page: 7
Page 7

combination—to the tune of over 125,000 individuals living in the United States. The jury could
conclude that a reasonably prudent CRA, when presented with such a common name, would
have required additional identifying information—like a middle name—to heighten the accuracy
of its reports. The fact that requiring a middle name is an inarguably reasonable procedure
(considering Lexis already had a field for middle names on the form that Great Lakes filled out)
is what tips the scales against Lexis. Moreover, because the Florida criminal records for David
Oscar Smith did not contain a Social Security number, Lexis’s use of Smith’s Social Security
number would not have helped. Thus, although there is evidence that Lexis attempted to ensure
that its reports produced a very low rate of false positives, there is sufficient record evidence
supporting the jury’s conclusion that Lexis’s failure to require a middle name constituted
negligence.
The discrepancy between the credit report from Equifax, which named “David A. Smith,”
and the criminal records, which named “David Oscar Smith,” provides a little additional weight
in Smith’s favor. At the time Lexis provided the report to Great Lakes, Lexis had within its
possession a credit report from Equifax that named “David A. Smith” as the subject. Lexis could
have cross-referenced this name with the name on the criminal records, which was “David Oscar
Smith.” A failure to cross-reference such information, standing alone, might not have any
bearing on whether a CRA’s actions were reasonable. See Sarver v. Experian Info. Sols.,
390 F.3d 969, 972 (7th Cir. 2004). In this case, however, the fact that Lexis possessed a report
with Smith’s middle initial serves as additional evidence supporting the jury’s finding as to
negligence.
Although the jury could find that Lexis was negligent in compiling Smith’s report, that is
a far cry from being willful. In order to willfully violate the FCRA, a CRA’s action must entail
“an unjustifiably high risk of harm that is either known or so obvious that it should be known.”
Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 68 (2007) (internal quotation marks and citation
omitted). According to Smith, the risk of which Lexis should have known was that failing to
require a middle name before it ran a report would not “assure maximum possible accuracy” as
required by the FCRA. This argument, however, fails to acknowledge Lexis’s efforts to combat
inaccuracies: requiring an individual’s first name, last name, and birthdate, and also—when

Case: 15-2329
Nos. 15-2329/2330

Document: 41-2

Filed: 09/13/2016

Smith v. LexisNexis Screening Solutions

Page: 8
Page 8

provided—using a middle name and Social Security number. These procedures have kept
Lexis’s dispute rate at just .2%, which is remarkably low. Furthermore, a single inaccuracy,
without more, does not constitute a willful violation of the FCRA. See Nelski v. Trans Union,
LLC, 86 F. App’x 840, 844 (6th Cir. 2004). Although this inaccuracy might have resulted from
Lexis’s carelessness, it did not result from Lexis’s disregarding a high risk of harm of which it
should have known. The district court thus should have granted judgment as a matter of law
with respect to the willfulness claim.
Dalton v. Capital Associated Industries, Inc., 257 F.3d 409 (4th Cir. 2001), buttresses this
conclusion. In that case, a CRA conducted a criminal history check and reported that the
plaintiff had been convicted of a felony. Id. at 413. As a result, the plaintiff’s prospective
employer withdrew its offer of employment. Id. In analyzing the plaintiff’s FCRA claim against
the CRA, the Fourth Circuit stated that no reasonable jury could conclude that the CRA acted
willfully. Id. at 418. The record, according to the court, lacked any evidence of willfulness:
there was no evidence that other individuals had lodged complaints similar to the plaintiff’s, the
CRA’s track record with its procedures had been reliable, and the CRA corrected its mistake
shortly after the plaintiff challenged the accuracy of the report. Id. The Fourth Circuit also held
that, despite these facts, a reasonable jury could conclude that the CRA acted negligently. Id.
The same is true in this case. Smith has presented no evidence that anyone had lodged similar
complaints against Lexis. Further, Lexis’s low dispute rate showed that its procedures had been
generally reliable. Finally, Lexis corrected the mistake not long after Smith complained—there
was no protracted process before the record was set straight. The facts of the present case
therefore line up neatly with the facts in Dalton, and Dalton supports the conclusion that Lexis
negligently—but not willfully—violated the FCRA.
Regarding damages, the record evidence is sufficient to support the jury’s award of
compensatory damages. Smith and his wife testified that Smith was depressed, angry, stressed,
and “down in the dumps” due to their financial woes when he was unemployed. Smith testified
that he had to borrow money from family members to make ends meet, which made him feel
“ashamed.” Smith further testified that the owner of a party store in town jokingly called Smith
his “favorite felon,” a comment that a reasonable jury could conclude caused embarrassment and

Case: 15-2329
Nos. 15-2329/2330

Document: 41-2

Filed: 09/13/2016

Smith v. LexisNexis Screening Solutions

Page: 9
Page 9

anger. Plaintiffs are required to allege more than “mere conclusory statements” and must
“reasonably and sufficiently explain[] the circumstances” surrounding their emotional injuries.
Bach v. First Union Nat’l Bank, 149 F. App’x 354, 361 (6th Cir. 2005). Lexis argues that
Smith’s and his wife’s testimony is merely conclusory and is not sufficient to warrant an award
for emotional distress. Smith’s and his wife’s statements, however, are extensive. They describe
his shame, anger, and stress that stemmed from financial hardships.

This situation, and

particularly the financial hardships involved in it, is one with which reasonable jurors could
identify and infer that a reasonable person in the same situation would suffer emotional distress.
In Wantz v. Experian Information Solutions, 386 F.3d 829, 834 (7th Cir. 2004), abrogated on
other grounds by Burr, 551 U.S. 47, the Seventh Circuit preserved the possibility of mental
distress damages where “the facts are so inherently degrading that a jury could infer . . .
emotional distress.” Here, Smith elicited enough evidence for a reasonable jury to conclude that
he suffered emotional distress and was accordingly due damages.
The district court did not err in denying Lexis’s motion to remit the award of $75,000 in
compensatory damages. That amount was not too far afield from awards in similar cases.
Smith’s alleged lost wages amounted to $2,640, which means that the remaining non-economic
damages totaled at least $72,360. The jury did not allocate the amount of damages among lost
wages, emotional distress, and harm to reputation. Smith v. LexisNexis Screening Solutions, Inc.,
138 F. Supp. 3d 872, 890-91 (E.D. Mich. 2015) (order denying renewed motion for a judgment
as a matter of law). Lexis argues that the $72,360 amount is clearly excessive in light of other,
similar cases. Lexis breaks down the awards in the other cases into per-week amounts and
multiplies those amounts by the four weeks it took Lexis to correct Smith’s credit report in order
to demonstrate the excessiveness of the award in this case.2 Although the $72,360 might be a
higher per-week amount than the awards in many of the cases Lexis cites, juries are not required
to award compensatory damages based only on the temporal extent of suffering. Furthermore, as
stated above, there was ample record evidence of Smith’s distress. A district court is allowed to
interfere with a jury’s award “only when, after reviewing all the evidence in the light most
favorable to the prevailing party, [the court] is convinced that the verdict is clearly excessive;
2

In fact, Lexis’s FCRA violation was the but-for cause of Smith’s unemployment for six weeks, not four.

Case: 15-2329
Nos. 15-2329/2330

Document: 41-2

Filed: 09/13/2016

Smith v. LexisNexis Screening Solutions

Page: 10
Page 10

resulted from passion, bias, or prejudice; or is so excessive or inadequate as to shock the
conscience of the court.” Am. Trim., L.L.C. v. Oracle Corp., 383 F.3d 462, 475 (6th Cir. 2004).
This is a very deferential standard, as juries have broad discretion to set damages amounts. The
severity and the extent of Smith’s woes, viewed through an appropriately deferential lens,
demonstrate that the district court’s denial of Lexis’s motion to remit the $75,000 award was not
in error.
Punitive damages, however, are not appropriate in this case. The FCRA provides for an
award of punitive damages only for willful violations of the statute. 15 U.S.C. § 1681n(a)(2);
see also Bach, 149 F. App’x at 364. Because the record contains no evidence of willfulness, the
award of punitive damages cannot stand.
The district court’s judgment is accordingly reversed regarding willfulness and punitive
damages, and the judgment is affirmed on all other grounds. The case is remanded for entry of
an order consistent with this opinion.