Shepard v. Equifax Information Services, LLC. et al

Filing 54

ORDER signed by District Judge Kimberly J. Mueller on 4/9/2019 DENYING 41 Motion for Summary Judgment. This matter is SET for a final Pretrial Conference on 5/31/2019 at 10:00 AM in Courtroom 3 (KJM) before District Judge Kimberly J. Mueller. The parties shall file the Joint Final Pretrial Conference Statement as required by the court by 14 days before. (Huang, H)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CHRISTOPHER SHEPARD,

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No. 2:17-cv-01118-KJM-CKD

Plaintiff,

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v.

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ORDER

EQUIFAX INFORMATION
SERVICES, LLC.,

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Defendant.

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In this Fair Credit Reporting Act case, plaintiff alleges defendant repeatedly

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included erroneous information in plaintiff’s credit report despite plaintiff’s numerous attempts to

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correct the errors. Defendant has moved for summary judgment. For the following reasons, the

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court DENIES the motion.

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I.

BACKGROUND

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Defendant Equifax Information Services, LLC (“Equifax”) is a consumer reporting

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agency (“CRA”) as defined in the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. §§ 1681–1681x.

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Undisputed Material Fact (“UMF”) 1, ECF No. 48-31.1 As a CRA, Equifax gathers information

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The court has determined whether a material fact is disputed by reviewing plaintiff’s responses,
ECF No. 48-31, to defendant’s statement of undisputed material facts, ECF No. 42. Where
plaintiff identifies a dispute, the court refers to the fact as a Disputed Fact (“DF”).
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about consumers from various sources, including banks, collection agencies and court records, to

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create credit files. UMF 2. This case concerns credit reports Equifax created for plaintiff

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Christopher Shepard (“Shepard”).

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Equifax contends it maintains detailed procedures to ensure the consumer

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information it reports is accurate. DF 4. These procedures include accepting credit information

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only from data furnishers Equifax deems reasonably reliable based on Equifax’s investigations, the

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source’s reputation and the source’s business relationship with Equifax. DF 5. Equifax receives

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credit information from furnishers in a standard electronic format and it runs computerized quality

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checks before adding data to its consumer database. DF 6–7. In these quality checks, Equifax

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determines whether the data is in the proper format and whether it deviates from Equifax’s expected

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norms based on its prior experience with the furnisher. DF 8. As relevant here, Equifax has deemed

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Diversified Consultants, Inc. (“DCI”) a reliable source of information based on the history of its

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relationship with DCI. DF 29.

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Equifax also maintains policies and procedures governing its reinvestigation of

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information consumers dispute as inaccurate. DF 9. When Equifax receives a consumer dispute,

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it assigns the dispute a unique confirmation number, locates the consumer’s credit file and opens

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an Automated Consumer Interview System (“ACIS”) case to track its reinvestigation process.

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UMF 10–12. Equifax then reviews and considers all relevant information, including documentation

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provided by the consumer. DF 13. When possible, Equifax updates its information. DF 14. But

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when Equifax is unable to verify the accuracy of the disputed information, it notifies the data

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furnisher of the dispute. DF 17. Equifax typically initiates such inquiries with its furnishers by

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sending a form, referred to as an Automated Consumer Dispute Verification (“ACDV”), by email.

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UMF 18. Through ACDVs, Equifax communicates with furnishers by using pre-defined codes and

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narrative phrases and, when necessary, by adding additional information in a “FCRA Relevant

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Information” field. UMF 19–20. After receiving an ACDV from Equifax, a furnisher is generally

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required to conduct its own investigation, the results of which it reports back to Equifax. UMF 21.

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When the reinvestigation is complete, Equifax takes necessary action and reports the results to the

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consumer along with a summary of the consumer’s FCRA rights, additional steps he or she may

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take, and Equifax’s procedures used to reinvestigate the dispute. UMF 22–23.

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Years ago, on an unspecified date, Shepard and his former wife divorced. Shepard

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Decl., ECF No. 48-1, ¶ 2. In late 2015, Shepard closed an AT&T Wireless account, UMF 26, and

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the outstanding AT&T bill was sent to his ex-wife and remained unpaid, Shepard Decl. ¶ 2. In

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May 2016, the AT&T account was assigned to DCI, a debt collector, with a $225 outstanding

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balance. UMF 27-28; see ECF No. 48-4 (letter from DCI identifying DCI as “a debt collector”).

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DCI then reported the account to Equifax as an unpaid account in collections and Equifax reported

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the account in Shepard’s credit report. UMF 27–28. Shepard first became aware of the bill when

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it was reported on his credit report, and he then paid the entire balance on August 9, 2016. UMF

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33; Shepard Decl. ¶¶ 2–3; see Pl.’s Ex. 1, ECF No. 48-3 (AT&T Wireless statement reflecting Aug.

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9, 2016 payment of $225). Nonetheless, Shepard’s credit report prepared by Equifax continued to

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report the AT&T Wireless account as a “[c]ollections” account with an “unpaid” $225 balance,

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though the reports noted Shepard disputed the information. Shepard Decl. ¶ 4; Pl.’s Ex. 6, ECF

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No. 48-8 at 502 (May 25, 2017 Equifax report); Pl.’s Ex. 7, ECF No. 48-9 at 5 (May 25, 2017 three

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credit bureau report).

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Over the next year, Shepard made multiple unsuccessful attempts to have the correct

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$0 balance reflected on his Equifax report, including submitting ten disputes to Equifax, making

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multiple phone calls to DCI, AT&T and Equifax, and submitting two disputes to the Consumer

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Financial Protection Bureau (“CFPB”). Those disputes, as relevant here, are briefly summarized

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below.

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On July 8, 2016, Shepard filed his first dispute with Equifax, using Equifax’s online

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dispute system. UMF 35. Shepard represented the account “was paid to ATT when the account

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was closed” and requested Equifax verify its information. UMF 35–38; Pl.’s Ex. 8, ECF No. 48-

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10. Equifax contacted DCI by ACDV that same day, and six days later, DCI employee Kylee

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Nettles verified the $225 balance. DF 39–40. DCI added a note to the account indicating Shepard

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The court’s citations to the parties’ briefs and exhibits refer to ECF page numbers, not internal
pagination.
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disputed the information reported and Equifax provided Shepard with the results of the

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reinvestigation. UMF 41−2.3

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On September 19, 2016, Shepard submitted a second online dispute to Equifax,

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again disputing the balance. UMF 43–46. Shepard’s dispute report stated: “I paid this account

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with ATT before it was sent to collections they verified on Sept 15th 2016 [sic] over the phone this

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collections [sic] should not be on my credit. The balance is 0 and the collection should have never

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been reported.” UMF 46. That day, Equifax again contacted DCI through ACDV, and, eleven

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days later, DCI employee Madison Hudson verified the $225 balance. UMF 48–49. DCI updated

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the account to include the comment “account information disputed by consumer” and Equifax sent

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Shepard its reinvestigation results UMF 50− 51.

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Shepard submitted his third online dispute on December 12, 2016, claiming the

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account was paid in August 2016. UMF 52–54. The dispute was forwarded to DCI through ACDV

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and DCI employee Casey Burden verified the $225 balance on December 20, 2016. UMF 57.4

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On December 22, 2016, Shepard submitted a telephonic dispute with Equifax. UMF

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60–63. Shepard explained he had contacted DCI and “they said that they will update this

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information on his file and be deleted [sic] on his credit report . . . .” UMF 62. Shepard filed an

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online dispute the same day. UMF 68. That day, Equifax forwarded both of Shepard’s December

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22, 2016 disputes to DCI through ACDV. UMF 64, 71; see Pl.’s Ex. 12, ECF No. 48-14; Pl.’s Ex.

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13, ECF No. 48-15.

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On December 28, 2016, DCI employee Courtney Bryant submitted to Equifax an

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automated universal data form (“AUD”) report, marked “AUD Control#: 82402320,” which

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indicated Shepard’s AT&T account had “0” balance. Pl.’s Ex. 19, ECF No. 48-21; see also Pl.’s

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Ex. 25, ECF No. 48-27, at 3 (Equifax designee Pamela Smith testimony explaining an AUD “is one

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way that [a furnisher] can update [a consumer’s] account information” with a CRA). The next day,

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For every reinvestigation identified hereafter, DCI added a note indicating Shepard disputed the
reported information and Equifax sent Shepard the results of each reinvestigation.

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Plaintiff’s responses to defendant’s statement of undisputed facts repeats paragraph 57 twice.
Here, the court cites both paragraphs plaintiff identified as 57.
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on December 29, 2016, DCI employee Courtney Bryant verified the $225 balance in responding to

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the ACDV on Shepard’s December 22, 2016 telephonic dispute and, separately, the ACDV

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concerning Shepard’s December 22, 2016 online dispute. UMF 65, 72.

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On January 12, 2017, Shepard submitted another online dispute to Equifax. UMF

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74; see Pl.’s Ex. 14, ECF No. 48-16. He attached a copy of an email5 from DCI stating DCI

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“requested a credit report deletion for this matter on your behalf,” and providing confirmation

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number 82402320. UMF 76; Pl.’s Ex. 14 at 4. The number 82402320 is also the “AUD Control

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#” in the December 28, 2016 AUD that DCI employee Courtney Bryant submitted to Equifax. See

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Pl.’s Ex. 19. Equifax contacted DCI through ACDV and Courtney Bryant verified the balance on

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January 16, 2017. UMF 77–78.

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Shepard submitted another online dispute a week later, on January 19, 2017,

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attaching a January 19, 2017 letter from DCI to Shepard advising the account was “paid in full,”

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but noting the letter would be invalid if the payment was returned. UMF 81, 83; Pl.’s Ex. 15, ECF

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No. 48-17. Equifax contacted DCI through ACDV, and DCI employee Elaine Brantley verified

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the $255 balance as outstanding. UMF 84–85. Also on January 19, 2017, Shepard submitted a

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dispute by facsimile to Equifax, attaching the same letter from DCI. UMF 88–89; Pl.’s Ex. 16,

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ECF No. 48-18. DCI employee, Leesandra Arocho, verified the $225 balance through ACDV.

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UMF 91–92.

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On January 26, 2017, DCI submitted a second AUD report to Equifax, reflecting a
“0” balance on the AT&T account. Pl.’s Ex. 20, ECF No. 48-22.

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On February 7, 2017, Shepard submitted another dispute, this time by mail, again

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attaching DCI’s January 19, 2017 letter and an AT&T statement showing a “$0.00” balance. UMF

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95–96; Pl.’s Ex. 17, ECF No. 48-19. In response to Equifax’s ACDV, DCI employee Leesandra

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Arocho verified the $225 balance. UMF 98–99.

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On March 17, 2017, DCI submitted its third AUD report to Equifax, again reporting

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a “0” balance on the AT&T account. Pl.’s Ex. 21, ECF No. 48-23. On May 17, 2017, DCI sent a

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The date of this email is illegible in both parties’ exhibits, though it responds to an earlier email
from Shepard dated December 28, 2016.
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letter to Shepard stating the “account has been paid in full and [DCI] will no longer be servicing

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this account.” Pl.’s Ex. 3, ECF No. 48-5. DCI further stated it “ha[d] submitted a trade line update

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as paid to the credit reporting agencies” and provided AUD confirmation number 83510211.6 Id.

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On May 24, 2017, Shepard submitted a new dispute to Equifax by telephone. UMF 102. In

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response, DCI employee Elaine Brantley verified the balance through ACDV. UMF 105–06; Pl.’s

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Ex. 18, ECF No. 48-20.

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On May 26, 2017, Shepard filed the instant suit. ECF No. 1. In September 2017,

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Equifax removed the AT&T account from Shepard’s credit file. DF 32.

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II

LEGAL STANDARD

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A court will grant summary judgment “if . . . there is no genuine dispute as to any

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material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The

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“threshold inquiry” is whether “there are any genuine factual issues that properly can be resolved

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only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson

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v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

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The moving party bears the initial burden of showing the district court “there is an

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absence of evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S.

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317, 325 (1986). Then the burden shifts to the non-movant to show “there is a genuine issue of

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material fact . . . .” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585 (1986).

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In carrying their burdens, both parties must “cit[e] to particular parts of materials in the record . . .;

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or show [] that the materials cited do not establish the absence or presence of a genuine dispute, or

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that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P.

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56(c)(1); see also Matsushita, 475 U.S. at 586 (“[the non-movant] must do more than simply show

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that there is some metaphysical doubt as to the material facts”). “Only disputes over facts that

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might affect the outcome of the suit under the governing law will properly preclude the entry of

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summary judgment.” Anderson, 477 U.S. at 247–48.

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Neither party submitted an actual AUD report bearing this confirmation number.
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In deciding summary judgment, the court draws all inferences and views all

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evidence in the light most favorable to the non-movant. Matsushita, 475 U.S. at 587–88. “Where

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the record taken as a whole could not lead a rational trier of fact to find for the [non-movant], there

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is no ‘genuine issue for trial.’” Id. at 587 (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co., 391

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U.S. 253, 289 (1968)). District courts should act “with caution in granting summary judgment,”

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and have authority to “deny summary judgment in a case where there is reason to believe the better

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course would be to proceed to a full trial.” Anderson, 477 U.S. at 255. A trial may be necessary

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“if the judge has doubt as to the wisdom of terminating the case before trial,” Gen. Signal Corp. v.

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MCI Telecomms. Corp., 66 F.3d 1500, 1507 (9th Cir. 1995) (quoting Black v. J.I. Case Co., 22

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F.3d 568, 572 (5th Cir. 1994)), “even in the absence of a factual dispute[,]” Rheumatology

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Diagnostics Lab., Inc v. Aetna, Inc., No. 12-05847, 2015 WL 3826713, at *4 (N.D. Cal. June 19,

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2015) (quoting Black, 22 F.3d at 572).

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III.

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DISCUSSION
A.

Reasonable Preparation Procedures

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Under the FCRA’s reasonable procedures provision, a CRA preparing a consumer

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report “shall follow reasonable procedures to assure maximum possible accuracy of the information

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concerning the individual about whom the report relates.” Shaw v. Experian Info. Sols., Inc., 891

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F.3d 749, 755 (9th Cir. 2018) (quoting 15 U.S.C. § 1681e(b)) (footnote omitted). “Liability under

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this reasonable procedures provision is predicated on the reasonableness of the credit reporting

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agency’s procedures in obtaining credit information.” Id. (internal quotation marks omitted)

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(quoting Guimond v. Trans Union Credit Info. Co., 45 F.3d 1329, 1333 (9th Cir. 1995)). A CRA

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is not liable for erroneous reports if it can demonstrate it followed reasonable procedures to assure

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maximum accuracy when preparing the credit report. Guimond, 45 F.3d at 1333. But “the

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reasonableness of a [CRA’s] procedures is ‘normally a question for trial unless the reasonableness

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or unreasonableness of the procedures is beyond question.’” Shaw, 891 F.3d at 755 (quoting Cortez

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v. Trans Union, LLC, 617 F.3d 688, 709 (3d Cir. 2010)); Guimond, 45 F.3d at 1333 (“The

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reasonableness of the procedures and whether the agency followed them will be jury questions in

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the overwhelming majority of cases.”).
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Equifax contends it is entitled to summary judgment because it deemed DCI a

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reliable source of information based on its “history” with DCI, because Equifax runs “computerized

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quality checks” on data before adding that data to Equifax’s database, and because “Shepard offers

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no evidence that Equifax has reason to believe that DCI was not a reasonably reliable source of

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information.” Mot., ECF No. 43, at 8–10. As to DCI’s reliability, Equifax provides a declaration

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from its own Legal Support Leader, Celestina Gobin, who states, “DCI is an entity that Equifax has

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determined to be a reliable source of information based upon the history of their relationship” and

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“DCI did not report the Account with any other account numbers.” Def.’s Ex. O, ECF No. 42-15,

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at ¶¶ 34-35. This is Equifax’s only evidence of DCI’s reliability.

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On this record, a triable issue of fact remains regarding whether Equifax reasonably

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believed DCI was a reliable furnisher of information and thus whether Equifax’s preparation

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procedures were reasonable. Shepard’s evidence indicates DCI repeatedly submitted conflicting

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information to Equifax, reporting Shepard’s AT&T account had a “0” balance with one report and

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then verifying the $225 balance as owing with the next. These conflicting reports were sometimes

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issued only a day apart and sometimes, conceivably at least, by the same DCI representative.

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Compare Pl.’s Ex. 19 at 2 (Dec. 28, 2016 DCI AUD report authorized by “Courtney Bryant”

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reflecting a zero balance for the AT&T account), with Pl.’s Ex. 12 (Dec. 29, 2016 ACDV response

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from “Courtney Bryant” verifying $225 balance still owed).

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reference to the AUDs in its opening brief, it addresses them only in reply, and unpersuasively at

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that, arguing it is “legally entitled to rely on DCI’s reporting” and could not “have known which of

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the conflicting information reported to Equifax was accurate” because it is not obligated to

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“privileg[e] the AUDs over the ACDV emails.” Reply at 5. The mere fact that Equifax repeatedly

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received conflicting information that required it to privilege some DCI information over other

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conflicting DCI information suggests Equifax had reason to doubt DCI’s reliability.

Because Equifax omitted any

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Notably, all evidence of DCI’s unreliability is drawn from Equifax’s

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reinvestigations, which Shepard contends violated 15 U.S.C. § 1681i(a)(1)(A), discussed below.

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In persuasive decisions, courts have observed that claims challenging a CRA’s reasonable reporting

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procedures under 15 U.S.C. § 1681e(b) differ from claims challenging a CRA’s reasonable
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reinvestigation procedures under 15 U.S.C. § 1681i(a)(1)(A). See, e.g., Grigoryan v. Experian Info.

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Sols., Inc., 84 F. Supp. 3d 1044, 1069–71 (C.D. Cal. 2014). Because the latter concerns only

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whether the CRA used reasonable procedures in obtaining credit information, courts also have

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found “evidence of inadequacies in [a CRA’s] reinvestigation procedures under § 1681i . . . is not

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probative of the fact that [a CRA] ha[s] violated § 1681e(b) . . . .” Id. (granting summary judgment

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on reasonable preparation claim because plaintiff “failed to adduce any evidence that [furnishers]

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are not reputable sources” despite finding a triable issue of fact as to CRA’s reinvestigation

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procedures).

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Here, however, Equifax argues its procedures are reasonable in part because DCI is

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a reliable reporter, relying only on vague and conclusory references to its “history” with DCI, while

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evidence before the court supports an inference that Equifax could or should not reasonably have

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considered DCI a reliable source. Cf. id. at 1068 (“Grigoryan adduces no evidence, and does not

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argue, that defendants had reason to believe that BOA, Sequoia, and CMI were not reputable

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sources of information”). Moreover, as Shepard notes, Equifax produced at least two credit reports

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after receiving the conflicting information from DCI. Opp’n, ECF No. 48, at 9–10. In light of this

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evidence, and observing that the reasonableness of a CRA’s procedures is generally a question

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reserved to the trier of fact, the court cannot conclude Equifax is entitled to judgment as a matter

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of law on this claim. In sum, a reasonable jury could conclude Equifax did not “follow reasonable

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procedures to assure maximum possible accuracy of the information concerning the individual

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about whom the report relates.” See Shaw, 891 F.3d at 755. The motion is DENIED in this respect.

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B.

Reasonable Reinvestigation

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When a consumer disputes the accuracy of his or her file with the CRA, the CRA

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“shall, free of charge, conduct a reasonable reinvestigation to determine whether the disputed

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information is inaccurate and record the current status of the disputed information, or delete the

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item from the file . . . .” 15 U.S.C. § 1681i(a)(1)(A). Whether a CRA’s reinvestigation was

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reasonable depends on the circumstances of the case. Shaw, 891 F.3d at 756 (citing Gorman v.

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Wolpoff & Abramson, LLP, 584 F.3d 1147, 1160 (9th Cir. 2009)).

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The record before the court precludes summary judgment on this claim. Despite

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evidence suggesting DCI repeatedly submitted conflicting information to Equifax, nothing in the

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record indicates Equifax’s procedures were equipped to recognize much less respond to these

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discrepancies when Equifax reinvestigated Shepard’s disputes. For example, Shepard expressly

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alerted Equifax to an AUD report from DCI confirming the “0” balance, but Equifax either did not

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review this report or chose to believe DCI’s conflicting verification of the $225 balance. Compare

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Pl.’s Ex. 14 at 4 (Jan. 12, 2017 dispute with attached DCI email confirming it requested Equifax

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indicate a “0” balance on the account and providing report confirmation number 82402320), with

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Pl.’s Ex. 19, ECF No. 48-21 at 2 (Dec. 28, 2016 DCI AUD with “AUD Control # 82402320”), and

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Pl.’s Ex. 14 at 2 (Jan. 16, 2017 ACDV from DCI verifying $225 owing in response to Shepard’s

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Jan. 12, 2017 dispute).

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conducting reinvestigations do not have access to AUDs.

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representative testified that AUDs are “one way that [a furnisher] can update [a consumer’s]

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account information,” id. at 3, and it is not clear to the court how reinvestigation procedures

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precluding the ability to consult AUDs can be considered reasonable.

In fact, an Equifax representative testified that Equifax employees
Pl.’s Ex. 25 at 9.

That same

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Equifax appears to argue it need not consult AUDs to conduct a reasonable

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reinvestigation, or employ any method outside the ACDV process, because that process is “far more

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thorough and reliable” than any alternative. Reply at 6. But other courts have found, “where a

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CRA is affirmatively on notice that information received from a creditor may be suspect, it is

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unreasonable as a matter of law for the agency to simply verify the creditor’s information through

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the ACDV process without additional investigation.” See Bradshaw v. BAC Home Loans Servicing,

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LP, 816 F. Supp. 2d 1066, 1073–74 (D. Or. 2011) (collecting cases); see also Johnson v. MBNA

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Am. Bank, NA, 357 F.3d 426, 430 (4th Cir. 2004) (“[T]he plain meaning of ‘investigation’ clearly

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requires some degree of careful inquiry by creditors.”). Cf. Wood v. Credit One Bank, 277 F. Supp.

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3d 821, 851 (E.D. Va. 2017) (granting plaintiff summary judgment where evidence showed CRA

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conducted only “cursory” review of disputes).

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With evidence supporting an inference that Equifax’s reinvestigation procedures

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were unable to account for AUDs, and gave weight to information Equifax should have known was
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unreliable, there is a triable issue of fact as to the reasonableness of those procedures. Equifax’s

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motion is DENIED in this respect as well.

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C.

Credit Denials

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The FCRA permits a plaintiff to recover actual damages for a CRA’s negligent non-

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compliance with FCRA provisions. 15 U.S.C. § 1681o(a)(1). Denial of credit is not a prerequisite

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to recovery under this FCRA provision, and a consumer may recover actual damages for emotional

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distress and humiliation. Guimond, 45 F.3d at 1333. Further, “absent some authority stating that

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a denial of credit, and not mere credit inaccuracies, are necessary for recovery under FCRA, the

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issue of causation should [] be[] left for a fact finder to determine.” Id. Nonetheless, some courts

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have held that “to create an issue of fact as to causation, a plaintiff must produce evidence that the

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alleged inaccurate entry was a ‘substantial factor’ in the denial of credit, adverse credit, or other

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harm.” See Bradshaw, 816 F. Supp. 2d at 1075.

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Shepard states under penalty of perjury that he “applied for and was denied credit

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with Chase during Equifax’s inaccurate reporting of the [AT&T] Account” and “Chase informed

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[him] that [he] was denied due to an active derogatory account on [his] credit.” Shepard Decl. ¶ 11.

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The AT&T account was the only account in collections showing on his credit report. Id. Shepard

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also states he had been saving to purchase a home and “was ready to apply for a home loan” but

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was told by “a mortgage broker who explicitly referenced the [AT&T] Account [that] . . . [he]

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would not be approved for a home loan until the AT&T account was updated to ‘paid.’” Id. ¶ 12.7

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The parties submit dueling expert reports on whether Shepard’s denial of credit can

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be attributed to the allegedly erroneous balance. Compare Mot. at 14–15 (summarizing Equifax

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expert’s opinion that Equifax accurately reported the AT&T account was in collections and

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“[w]hether a collection account shows a balance or not has no effect on a consumer’s ability to

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obtain credit,” and arguing Shepard was likely denied credit because of other derogatory accounts

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in his credit history), with Opp’n at 14 (summarizing Shepard expert’s opinion lenders often use

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automated decision making in credit decisions and will automatically deny credit to applicants with

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Shepard also seeks damages for emotional distress, but Equifax clarified it does not seek
summary judgment on this portion of Shepard’s claim. See Reply at 8.
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collection accounts and unpaid balances more than 120 days past due). Equifax also contends

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Shepard has no admissible evidence he was denied credit by Chase and cannot rely on his

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speculation he would have been denied a mortgage loan to establish damages. Mot. at 16–17.

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While Shepard’s ability ultimately to establish he was denied credit by Chase and was precluded

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from obtaining a home loan because of Equifax’s alleged misconduct is far from assured, these are

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disputed issues and the court declines to decide them prematurely. The motion is DENIED on this

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claim as well.

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D.

Willful Violation of FCRA

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Certain damages are available under the FCRA only if the plaintiff shows the CRA

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willfully failed to comply with the statute. See 15 U.S.C. § 1681n(a); Safeco Ins. Co. of Am. v.

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Burr, 551 U.S. 47, 56–57 (2007). FCRA violations committed in reckless disregard of statutory

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duties satisfy the willful violation requirement. Safeco, 551 U.S. at 57. Reckless disregard

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“conduct violating an objective standard,” satisfied when a defendant’s action is both “a violation

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under a reasonable reading of the statute’s terms, [and] shows that the company ran a risk of

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violating the law substantially greater than the risk associated with a reading that was merely

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careless.” Id. at 68–69.

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Citing its reinvestigation of each of Shepard’s disputes, Equifax argues Shepard

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cannot meet the willfulness showing necessary to sustain his claim. Mot. at 18. For the reasons

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discussed above, however, a reasonable juror could find Shepard’s allegations and supporting

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evidence, if accepted, constitute willful violations of the FCRA. The motion on this claim too is

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DENIED.

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IV.

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CONCLUSION
For reasons explained above, defendant’s motion is DENIED, resolving ECF No.

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41.

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This matter is set for a final pretrial conference on May 31, 2019 at 10:00 a.m. The

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parties shall file the Joint Final Pretrial Conference Statement as required by the court by fourteen

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(14) days before.

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IT IS SO ORDERED.
DATED: April 9, 2019.

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UNITED STATES DISTRICT JUDGE

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