WILLIAMS v. FIRST ADVANTAGE LNS SCREENING SOLUTIONS INC et al
Filing
217
ORDER DENYING 207 MOTION FOR JUDGMENT AS A MATTER OF LAW OR NEW TRIAL. Signed by JUDGE MARK E WALKER on 3/2/2017. (kdm)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION
RICHARD ALEXANDER WILLIAMS,
Plaintiff,
v.
Case No. 1:13cv222-MW/GRJ
FIRST ADVANTAGE LNS
SCREENING SOLUTIONS, INC.,
F/K/A LEXISNEXIS SCREENING
SOLUTIONS, INC.,
Defendant.
__________________________/
ORDER DENYING MOTION FOR JUDGMENT AS A
MATTER OF LAW OR NEW TRIAL
You’re a college-educated, law-abiding citizen with no
criminal record. Given the abysmal post-recession job market,
you cast a broad job-search net. Many employers deny you, few
interview you, and even fewer seriously consider you for a
position. Finally, you hear the words that you have been waiting
for: “Welcome aboard (pending a criminal-background check)!”
But you have nothing to fear—you’ve never been arrested, let
alone convicted of a crime. Nonetheless, you eventually receive a
letter notifying you that, apparently, you were arrested and
convicted for selling cocaine. Knowing that to be untrue, you
1
successfully dispute the report. But it’s too late—the employer
already hired somebody else for the job.
Dejected, you continue your search and, after an even more
strenuous search, you finally hear those magic words again. Yet
this time, you receive a letter notifying you that you committed
burglary and aggravated battery on a pregnant woman. You’re
disgusted to have been accused of such a heinous crime, and you,
yet again, successfully dispute the report. Déjà vu; it’s too late,
the employer has moved on, and it takes five months for you to
convince them that you are not a criminal so that they are finally
willing to bring you on board. What are you to do—give up and
accept your fate, or file a Fair Credit Reporting Act lawsuit?
The Plaintiff in this case, Richard Williams, 1 chose the
latter option. He claims that Defendant First Advantage
Background Services Corp. (“First Advantage”)—a consumer
reporting agency (“CRA”) that runs background reports on
potential employees for various employers—erroneously reported
criminal records for a different person (career criminal “Ricky”
This Court will refer to Mr. Williams as “Plaintiff” to avoid any
(additional) confusion with “Ricky” Williams.
1
2
Williams) on two different occasions. He filed suit against First
Advantage, 2 alleging that it violated the Fair Credit Reporting
Act (“FCRA”), 15 U.S.C. § 1681 et seq.
After this Court granted summary judgment in favor of
First Advantage on two of Plaintiff’s FCRA claims, ECF No. 123,
the remaining claims were tried by a jury. After Plaintiff’s casein-chief, First Advantage moved under Rule 50(a) for judgment as
a matter of law and argued, in relevant part, that no reasonable
jury could conclude (1) that it willfully or negligently violated the
FCRA; (2) that Plaintiff was entitled to reputational damages;
and (3) that Plaintiff properly mitigated his damages. Tr. at 399–
426. This Court denied First Advantage’s motion as to the
negligence argument, the damages arguments, and took the
willfulness argument under advisement. Tr. at 444–45. After
First Advantage presented its case, the jury found in Plaintiff’s
favor and awarded him $250,000 in compensatory damages and
$3,300,000 in punitive damages. First Advantage now renews its
motion for judgment as a matter of law and, in the alternative,
Originally, Plaintiff also sued the two employers that withdrew their
employment offers—Rent-A-Center East, Inc. (“Rent-A-Center”) and WinnDixie Stores, Inc. (“Winn-Dixie”). Those parties were later voluntarily
dismissed. See ECF No. 44 (dismissing Winn-Dixie); ECF No. 42 (dismissing
Rent-A-Center).
2
3
seeks a new trial. ECF No. 207 (motion); ECF No. 208
(memorandum). For the reasons set forth below, that motion is
DENIED.
I
A. First Advantage’s Business, Policies, and Procedures
First Advantage is a CRA that provides a variety of
background-screening products and services. One of its primary
services is running criminal-background checks on prospective
employees for employers. The employers identify the background
search’s scope, their specific hiring criteria, and provide
identifying information (typically first name, last name, and date
of birth) for the prospective employee (or, in FCRA terms, the
“consumer”). First Advantage then runs that search and applies
the employer’s hiring criteria to suggest whether the consumer is
“eligible” or “ineligible” for employment.
Most of First Advantage’s criminal-background searches
are run through its National Criminal File, a self-maintained
database of criminal records. Tr. at 464. If an employer orders a
National Criminal File search, First Advantage runs the
consumer’s identifying information through an automated search
of that database and First Advantage’s Records Adjudication
4
Team “adjudicates” that application by reviewing any “hits” to
determine whether they can be matched with the consumer.
Pursuant to First Advantage’s policies and procedures, it will
only include a criminal record in a consumer’s background report
if that record contains two “identifiers”—for example, first-andlast 3 name (which counts as one identifier), social security
number, driver’s license number, date of birth, address, etc.—
that match those for the consumer, which are provided by the
employer.
Difficulties arise, however, if the consumer has a common
name. In that scenario, First Advantage will only include a
criminal record in the criminal-background report if that record
either contains three matching “identifiers” (as opposed to two) or
if a supervisor approves the record and notes that additional
attempts were made to identify a third matching identifier. Tr. at
314–15. That process may include, for example, running a creditbureau report (for example, Experian or Equifax) to crosscheck
addresses, middle initials, or social security numbers. Tr. at 314.
The first name, however, doesn’t have to be a perfect match. Rather,
First Advantage applies a self-defined “Fuzzy Logic” by allowing certain
nicknames to return as first-name matches. Tr. at 29. For example, “Robert
Smith” will match with “Bob Smith,” “Nicholas Young” will match with “Nick
Young,” and so on.
3
5
Moreover, if a common-named consumer matches a criminal
record for an individual with a different address, First Advantage
is “supposed to go to use Experian and develop some address
history information.” Tr. at 318. First Advantage, however,
approves only a limited number of its staff to run those reports.
Tr. at 317–18.
Assuming that a criminal record is matched with a
consumer, that consumer has the ability to dispute its accuracy.
First Advantage will then review any information provided by the
consumer and will order copies of the underlying record to
determine whether the criminal record was erroneously matched
with the consumer. If the match was erroneous, First Advantage
will remove the record from the report and will apply a “case
block” so that the same disputed record is not erroneously
matched at a later date. Unlike many credit bureaus, however,
First Advantage has not implemented “cross-blocking” or
“flagging” procedures that block any and all erroneous records
from one individual (the criminal) being matched with another
(the consumer) again. Tr. at 358–60.
First Advantage—which charges approximately $11 to $12
for each background report—prepared 3,554,163 background
6
reports between 2010 and 2013 containing public-record
information on a nationwide basis. Tr. at 93–94. Of those
approximately 3.5 million reports, 17,431 were disputed, 14,346
resulted in a revised background report, 4 and 13,392 of those
revised reports were based on disputes where the consumer
complained that a public record in his or her report belonged to
another individual. 5 Tr. at 93–94. That amounts to a .38%
inaccuracy rate 6 nationwide. 7 Tr. at 95.
B. Plaintiff’s Missed Opportunities
After graduating with his bachelor’s degree in criminology,
Plaintiff applied in February 2012 for an Account Representative
position at a Rent-A-Center store in Chiefland, Florida, where he
had lived his entire life. Tr. at 26, 34. As part of that application
2,038 of those disputes were made by consumers located in Florida,
and 1,746 of those disputes resulted in a revised background report. Tr. at 94.
4
First Advantage refers to this species of error as a “not me” or “not
mine” error.
5
As explained later, the problem with such a figure is that it grossly
understates the error rate given the limited universe of common-named
consumers. Common sense dictates that it is much higher. See infra pp. 19–
20.
6
The inaccuracy rate in Florida, however, was .61% in 2010, .5% in
2011, .64% in 2012, and .28% in 2013. Tr. at 95.
7
7
process, Plaintiff agreed to undergo a drug test (which he passed)
and a criminal-background check. Tr. at 116.
Rent-A-Center contracted with “Lexis Nexis” 8—which has
since been acquired by First Advantage—to perform these types
of background checks and “adjudicate” applicants. As a part of its
background check, First Advantage searched the National
Criminal File and conducted a public-record search in Levy
County. Tr. at 260, 263. Although the Levy County public-record
search came back clean, the National Criminal File search
“matched” Plaintiff with a 2009 sale-of-cocaine record 9 from Palm
Beach County, Florida for “Ricky” Williams based on his name
and date of birth. Tr. at 260. First Advantage verified that those
records existed and that the information was “complete” by
researching Palm Beach County court records online. Tr. at 261.
Despite the fact that Palm Beach County is approximately 300
miles from Chiefland, tr. at 378, Plaintiff was deemed ineligible
First Advantage acquired Lexis Nexis on February 28, 2013. Tr. at
92. In doing so, it absorbed all Lexis Nexis’s liabilities. Id. For clarity
purposes, this Court will refer to both entities as First Advantage.
8
First Advantage actually matched Plaintiff with records relating to
six crimes in Palm Beach County which listed “Ricky” Williams as the
defendant, but only reported the cocaine record because the others were more
than seven years old. Tr. at 261.
9
8
for employment by Rent-A-Center pursuant to Rent-A-Center’s
hiring criteria, tr. at 125. Critically, although First Advantage
acknowledged that “Richard Williams” is a common name, it did
not obtain three identifiers for that record or obtain supervisor
approval to include it in the report. In fact, First Advantage
mistakenly placed Plaintiff’s social security number in the
background report even though that was not used in matching
him to that record. Tr. at 287.
First Advantage then sent the report (and adjudication of
ineligibility) to Rent-A-Center, tr. at 96, and notified Plaintiff
that it was reporting the cocaine record to Rent-A-Center, tr. at
117–18. Appalled, Plaintiff disputed the cocaine record and, in
support, provided his social security number and a copy of his
driver’s license. Tr. at 126. First Advantage then reopened the
investigation and, pursuant to its policies and procedures,
obtained hard copies of the underlying court records. Plaintiff’s
dispute was resolved in his favor based on the difference between
the 6’2” height listed on “Ricky” Williams’s court records and the
5’10” height listed on Plaintiff’s driver’s license. Tr. at 264–65.
Evidence presented at trial also established that the
reinvestigation revealed that “Ricky” Williams’s listed address
9
was in Boynton Beach, Florida—not Chiefland, Florida. Tr. at
265–66. First Advantage thus removed the criminal record from
Plaintiff’s report. Unfortunately, that resolution was too late for
Plaintiff—Rent-A-Center had already moved on and hired
somebody else for the position. Tr. at 127.
Undeterred, Plaintiff continued applying for a multitude of
jobs. Plaintiff was eventually hired as a 911 dispatcher at the
Levy County Sheriff’s Office. Tr. at 135. While in the academy,
however, Donna Capps—the communications supervisor—
informed Plaintiff that he “wasn’t meeting requirements.” Tr. at
136. Plaintiff thus decided to leave the academy. Id. Plaintiff
later obtained a part-time job at a Kangaroo gas station in
Williston, Florida—which is quite some distance from
Chiefland—but left that job too because all his pay was being
spent on fuel to travel to and from work. Tr. at 137–38. Neither
the Levy County Sheriff’s Office nor Kangaroo retained First
Advantage to run their criminal-background checks.
In early 2013, Plaintiff applied for and received a
conditional offer of employment to work at a Gainesville, Florida
Winn-Dixie store as a liquor store associate. Tr. at 35. As with
the Rent-A-Center report, First-Advantage was tasked with
10
conducting the criminal-background check. And, in Plaintiff’s
words, it “happened again.” Tr. at 141. First Advantage ran a
National Criminal File search, yet this time it matched Plaintiff
with burglary and aggravated battery on a pregnant woman
records from Broward County, Florida, for “Ricky” Williams
based on his name and date of birth. Tr. at 4. First Advantage
verified that those records existed and that the information was
“complete” by reviewing the Florida Department of Corrections
website. Tr. at 289. That website noted that “Ricky” Williams was
6’2” tall. Tr. at 290. It also noted that “Ricky” Williams was
incarcerated in the Broward County Jail. Tr. at 548. Again, the
match was only based on two identifiers. Nonetheless, Plaintiff
was deemed ineligible for employment by Winn-Dixie pursuant to
Winn-Dixie’s hiring criteria. Tr. at 124–25. This is so even
though, as testified by one of First Advantage’s executives, “a
reasonable person would” conclude “with a certainty or virtual
certainty that Ricky Williams who committed burglary and
aggravated battery on a pregnant woman whose records First
11
Advantage matched with Richard Williams was not, in fact,
Richard Williams[.]” Tr. at 300.
As with the Rent-A-Center report, First Advantage sent the
report (and adjudication of ineligibility) to Winn-Dixie, tr. at 98,
and notified Plaintiff that it was reporting the records to WinnDixie, tr. at 98–99. Plaintiff again disputed the criminal records
in the report, tr. at 99, and First Advantage again reopened the
investigation. After obtaining hard copies of the underlying court
reports, 10 First Advantage discovered that “Ricky” Williams’s
social security number did not match Plaintiff’s. As a result, First
Advantage removed those records from Plaintiff’s report. Yet
again, that removal was too little, too late; Winn-Dixie had
already hired somebody else for the liquor store associate
position. Tr. at 151. Plaintiff was eventually hired by Winn-Dixie
approximately five months later. Tr. at 151, 164.
C. Trial
After this Court dismissed some of Plaintiff’s claims on
summary judgment, ECF No. 123, the remaining claims were
One of First Advantage’s executives testified that this type of public
record could have been obtained prior to Plaintiff’s adjudication, but it did not
do so.
10
12
tried before a jury. Plaintiff presented evidence that First
Advantage both willfully and negligently violated the FCRA,
arguing that it ignored certain “red flags” that distinguished
Plaintiff from “Ricky” Williams and consciously overrode its
policies and procedures. According to Plaintiff, those decisions
were made to reduce costs and ensure, in First Advantage’s
words, “[i]ndustry-leading turnaround times . . . .” Tr. at 256,
360.
Plaintiff and his mother testified that losing the Rent-ACenter and Winn-Dixie positions left Plaintiff feeling “horrible,”
wondering whether he would ever get a job, and caused
headaches, lost appetite, and insomnia. Tr. at 147–54, 241–44.
Plaintiff also testified that, although he obtained the 911dispatcher position in part due to his good reputation, that other
employers blindly trusted the First Advantage report’s accuracy.
Tr. at 150. After Plaintiff’s case-in-chief, First Advantage moved
for judgment as a matter of law, arguing that no reasonable jury
could conclude (1) that it willfully or negligently violated the
FCRA; (2) that Plaintiff was entitled to reputational damages;
and (3) that Plaintiff properly mitigated his damages. Tr. at 399–
426. That motion was denied as to the negligence and damages
13
arguments, and the willfulness argument was taken under
advisement. Tr. at 444–45.
As for its case-in-chief, First Advantage argued that it took
steps to ensure that its policies and procedures are consistently
followed, see, e.g., tr. at 473–74, that no screening companies
require more than two matching identifiers to include a criminal
record in a consumer’s background report, see, e.g., tr. at 383, and
that no other similar companies implement tools that attempt to
prevent information from appearing on the wrong consumer’s
record if that information was matched to another person in the
past, tr. at 371. The jury apparently disagreed; it found in
Plaintiff’s favor and awarded him $250,000 in compensatory
damages and $3.3 million in punitive damages. ECF No. 188. 11
First Advantage now renews its pre-verdict Rule 50 motion
and, in the alternative, asks for a new trial. ECF No. 207.
Specifically, it argues that there is insufficient evidence from
which a reasonable jury could conclude that it negligently and
willfully violated the FCRA. ECF No. 208, at 2. Further, even
Plaintiff argued that $3.3 million was appropriate as it represents
1% of the $336.5 million that First Advantage paid when acquiring Lexis
Nexis. Tr. at 332.
11
14
assuming liability, First Advantage argues that Plaintiff is not
entitled to emotional-distress damages and that Plaintiff’s lostwage damages should be reduced because he failed to mitigate
his damages. Id. at 2–3. Finally, First Advantage asserts that the
jury’s punitive-damages award is “manifestly unjust, arbitrary,
falls far outside of constitutional limits, and must be, at the very
least, greatly reduced.” Id. at 29.
II
Federal Rule of Civil Procedure 50 authorizes courts “to
remove cases or issues from the jury’s consideration when the
‘facts are sufficiently clear that the law requires a particular
result.’” Weisgram v. Marley Co., 528 U.S. 440, 447–48 (2000)
(citation omitted). Parties may only move for judgment as a
matter of law on grounds that were advanced in a pre-verdict
motion. Fed. R. Civ. P. 50(b). The ultimate question “is whether
the evidence is ‘legally sufficient . . . to find for the party on that
issue.’” McGinnis v. Am. Home Mortg. Serv., Inc., 817 F.3d 1241,
1254 (11th Cir. 2016) (quoting Fed. R. Civ. P. 50(a)(1)). A motion
for judgment as a matter of law should only be granted “‘[i]f the
facts and inferences point so strongly and overwhelmingly in
favor of one party that the Court believes that reasonable
15
[persons] could not arrive at a contrary verdict . . . .’” Lipphardt v.
Durango Steakhouse of Brandon, Inc., 267 F.3d 1183, 1186 (11th
Cir. 2001) (quoting Watts v. Great Atl. & Pac. Tea Co., 842 F.2d
307, 309–10 (11th Cir. 1988)).
III
As to liability, First Advantage has two arguments;
namely, that a reasonable jury could not find that it negligently
or willfully violated the FCRA. This Court disagrees.
A
First Advantage contends that Plaintiff failed to meet his
burden in proving that it willfully violated the FCRA. An FCRA
violation is willful if the defendant violates that statute with
“reckless disregard.” Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47,
68–69 (2007); see also Harris v. Mexican Specialty Foods, Inc.,
564 F.3d 1301, 1310 (11th Cir. 2009) (“A violation is ‘willful’ for
the purposes of the FCRA if the defendant violates the terms of
the Act with knowledge or reckless disregard for the law.” (citing
Safeco, 551 U.S. at 60)). A violation is deemed reckless if,
objectively, it “entail[s] ‘an unjustifiably high risk of harm that is
either known or so obvious that it should be known.’” Safeco, 551
U.S. at 68 (quoting Farmer v. Brennan, 511 U.S. 825, 836 (1994)).
16
In other words, the violation at issue must be “not only a
violation under a reasonable reading of the statute’s terms, but
shows that the company ran a risk of violating the law
substantially greater than the risk associated with a reading that
was merely careless.” Id. at 69.
The jury could have, and did, reasonably find that First
Advantage willfully violated the FCRA. For example, First
Advantage clearly knew of the potential for harm to those with
common names. Indeed, it implemented procedures in an
apparent attempt to mitigate that risk. See tr. at 318 (referencing
the requirement that if a common-named consumer matched an
individual with a different address, then an address history
should be developed). The problem is that the procedures were
woefully insufficient to mitigate that risk. Rather than providing
all employees access to databases like Experian—which could be
used to help distinguish one individual from another—First
Advantage arguably padded its bank accounts by restricting that
access to a limited number of individuals. Indeed, had that access
been provided to all individuals, First Advantage likely would
have discovered the numerous disparities—including social
17
security number, address, height, etc.—between Plaintiff and
“Ricky” Williams prior to the dispute-resolution process.
Furthermore, the jury could have reasonably concluded
that First Advantage neglected to implement procedures so that
repeat-mismatched consumers could have their record flagged to
prevent those consumers from being mismatched with the same
similarly named individual. But First Advantage says that its
system effectively “flags” records by automatically blocking all
previous charges that have been successfully disputed and only
releasing the background report to the client after it has verified
that any matched records are not being erroneously reported for a
second time. And that procedure was effective, argues First
Advantage; namely, “Ricky” Williams’s cocaine charge was
blocked from the Winn-Dixie report after Plaintiff successfully
disputed that charge in the Rent-A-Center report. But that
misses the point. Recidivism rates demonstrate that it is likely—
and, quite possibly, more likely than not—that the subject of the
mismatched criminal report (here, “Ricky” Williams) will commit
another crime even after an erroneous criminal-background
report is issued. See Daniel S. Nagin, et al., Imprisonment and
Reoffending, 38 Crime & Just. 115, 120 (2009) (“[R]eoffending
18
among prison inmates is high, with rates of official recidivism
often reaching 60 percent within 3 years . . . .” (citation omitted)).
First Advantage not only knows about this possibility, see tr. at
305–06 (agreeing that “folks who commit crimes often commit
other crimes”), but its procedures do nothing to prevent that
harm. Indeed, assuming “Ricky” Williams persisted in his
criminal endeavors, Plaintiff could continue to be erroneously
matched with him for eternity, thus foreclosing—or at least, at a
minimum, making it much more difficult to obtain—any future
employment opportunities.
Nevertheless, First Advantage argues, and argued ad
nauseam at trial, that their procedures “did and do in fact assure
maximum possible accuracy because during the relevant time
period First Advantage accurately matched criminal records with
consumers 99.62% of the time.” ECF No. 208, at 16 (emphasis in
original). That argument is like the thirteenth chime of a clock.
You not only know it is wrong, but it leads you to question
everything you heard before it. It isn’t First Advantage’s accuracy
rate as applied to all consumers that matters; it is First
Advantage’s accuracy rate as applied to common-name
consumers. Although neither party presented definitive evidence
19
on that issue, it is far more likely that one would erroneously
match a common-name consumer than a unique-name
consumer. 12 Common sense thus suggests that many of the
14,346 “not-me” errors were for common-name consumers.
But even assuming those procedures were sufficient, they
simply were not followed here. First Advantage’s policies and
procedures for common names required that “[a]dditional
attempts must be made to obtain a third identifier on common
names, (i.e. Robert Jones). If a third identifier cannot be located,
appropriate notes should be included . . . as to attempts made,
and the record reported with supervisor approval.” Tr. at 314–15.
For example, if a common-name consumer matches to a record
containing a different address, then the adjudicator shall develop
additional address-history information by using an outside
resource, such as Experian. Tr. at 318–19. Had that procedure
been followed, First Advantage would have learned what they
later learned in the dispute process; namely, that Plaintiff was
For example, as this Court suggested at trial, it is much more likely
that First Advantage would mismatch two common-name consumers—such
as John Smith or even Richard Williams—than it would “mismatch Xavier
Simpatico with Mark Walker.” Tr. at 404–05. Similarly, the universe of
unique-name consumers is likely much larger than the universe of commonname consumers. That may also help explain First Advantage’s low error
rate.
12
20
not the criminal, “Ricky” Williams. Yet First Advantage
consciously ignored this procedure. Tr. at 320. That evinces
willfulness. See Lee v. Sec. Check, LLC, No. 3:09-cv-421, 2010 WL
3075673, at *12 (M.D. Fla. Aug. 5, 2010) (acknowledging that “[a]
credit reporting agency cannot [merely] rely on the fact that it
has established some procedures,” and that those “procedures
must be reasonable with respect to the particular dispute
presented”).
In any event, First Advantage relies on Singletary v.
Equifax Info. Servs., LLC, No. 2:09-cv-489, 2011 WL 9133115
(N.D. Ala. Sept. 22, 2011), to argue that any FCRA violation was
not willful. That case is distinguishable. The FCRA violations in
that case were not caused by the defendant intentionally failing
to follow its own procedures to mitigate a known risk. Nor did the
defendant know with virtual certainty when preparing that
report that there would be an error. In this case, however, the
errors were “so prevalent and continuous that a reasonable
inference can be drawn that [First Advantage] was not interested
in correcting the errors and, thus, recklessly disregard[ed]” the
FCRA. Id. at *16. Moreover, the Singletary court emphasized
that a miniscule .00213% of the approximately 40 million credit21
disclosure requests went unfulfilled due to some sort of
procedural error. Id. at *13 n.13. That pales in comparison to
First Advantage’s error rate here.
First Advantage also cites Smith v. LexisNexis Screening
Solutions, Inc., 837 F.3d 604 (6th Cir. 2016), to argue that it did
not willfully violate the FCRA. Such reliance is misplaced. 13 The
plaintiff in Smith—David A. Smith—was not retained by his
employer after it received a criminal-background report from the
defendant, which erroneously listed a felony conviction for David
O. Smith. Id. at 607–08. The defendant argued that any FCRA
violation was not willful and, in support, noted that this “single
mix-up” was the first of its kind (an erroneous criminal record
based on first name, last name, and date of birth). Id. at 610; see
also Brief for Defendant at 26, Smith v. LexisNexis Screening
Solutions, Inc., 837 F.3d 604 (6th Cir. 2016) (Nos. 15-2329, 15-
The same is true regarding LaGrassa v. Jack Gaughen, LLC, No.
1:09-cv-0770, 2011 WL 1257384 (M.D. Pa. Mar. 11, 2011), and Dalton v.
Capital Assoc. Indus., Inc., 257 F.3d 409 (4th Cir. 2001), where the courts
held that an alleged FCRA violation was not willful because a single
“violation of the FCRA by itself does not amount to willful noncompliance
with the FCRA.” LaGrassa, 2011 WL 1257384, at *5; see also Dalton, 257
F.3d at 418 (holding that defendant did not act willfully because there was
“no evidence that other consumers ha[d] lodged complaints similar to [the
plaintiff’s] against [the defendant]”). That is undoubtedly true. It just has no
persuasive effect here; the violations at issue were not standalone FCRA
violations.
13
22
2330), 2016 WL 284755, at *26 (“Smith’s situation is the first
time a problem has arisen by using first name, last name, and
date of birth for a criminal record report.”). On the other hand,
the plaintiff asserted that the defendant’s failure to require a
middle-name match willfully violated the FCRA. Smith, 837 F.3d
at 610.
Siding with the defendant, the Sixth Circuit held that the
violation “did not result from Lexis’s disregarding a high risk of
harm which it should have known.” Id. at 611. That was in part
because “a single inaccuracy, without more, does not constitute a
willful violation of the FCRA.” Id. (citing Nelski v. Trans Union,
LLC, 86 F. App’x 840, 844 (6th Cir. 2004)). Moreover, the
defendant’s policies and procedures “kept Lexis’s dispute rate at
just .2%, which is remarkably low.” Id. at 610–11.
It is unquestionable that a single inaccuracy, by itself, does
not amount to a willful FCRA violation. That premise is just
inapplicable here. Unlike Smith, this wasn’t a single inaccuracy;
it was one of thousands. 14 Nor was it First Advantage’s first
In a similar vein, the Smith defendant’s error rate can be
distinguished from the one here. In Smith, the defendant’s error rate was .2%
for all errors in criminal-background reports (that is, not just “not-me” or
“not-mine” errors). Smith, 837 F.3d at 607. Conversely, First Advantage’s
national error rate—which only implicates “not-me” or “not-mine” errors—is
14
23
FCRA violation based on its use of a first name, last name, and
date of birth match; in fact, it happened twice to the same
individual in this case. 15 That alone distinguishes this case from
Smith. There is more. Nothing in Smith established either that
the defendant knew about the high risk of repeat false matches
(that is, a second false match with the same individual)
associated with common-name consumers or that the defendant
consciously disregarded its own policies and procedures in
matching that particular plaintiff to an erroneous criminalbackground report.
Yet the record establishes both of those facts here. First
Advantage’s executives and employees testified that they knew
that individuals that have previously committed a crime are
likely to commit another crime in the future, see tr. at 305–06
(acknowledging that “folks who commit crimes often commit
approximately double that in Smith (and that puts aside the Florida error
rate of .51%, ECF No. 210, at 7, which was more than 2.5 times larger than
the error rate in Smith).
This Court acknowledges that there is no direct evidence in the
record of other erroneous first name, last name, and date of birth matches.
But given the sheer number of “not-me” or “not-mine” errors—errors where
the records contained in the background report are not that of the job
applicant—the jury could have reasonably inferred that others, and likely
many others, have occurred. Such an inference is particularly appropriate in
that the defendant in Smith is the same entity as First Advantage. Thus,
First Advantage cannot reasonably assert that this is the first occurrence.
15
24
other crimes”), thus increasing the risk of a repeat erroneous
match. Additionally, those employees testified that they knew
with absolute precision that a criminal possessed the same dateof-birth and a nearly identical name as Plaintiff. Tr. at 299–300.
Even worse, those same employees testified that any reasonable
person preparing the Winn-Dixie report would have known with
virtual certainty (if not absolute certainty) that Plaintiff, in fact,
was not the “Ricky” Williams that committed aggravated battery
on a pregnant person. Id. Moreover, as explained above, First
Advantage blatantly ignored its own procedures when preparing
the Winn-Dixie report. See supra pp. 20–21. Thus, the jury could
reasonably have concluded that First Advantage acted willfully
in violating § 1681e(b). 16
B
First Advantage next argues that no reasonable jury could
conclude that it was negligent in preparing the Rent-A-Center
See Taylor v. First Advantage Background Servs. Corp., No. 15-cv02929, 2016 WL 4762268, at *12–14 (N.D. Cal. Sept. 13, 2016) (concluding
the same in a similar case against First Advantage); see also Adams v. Nat’l
Eng’g Serv. Corp., 620 F. Supp. 2d 319, 330 n. 7 (D. Conn. 2009) (“[A]
reasonable jury could find that, in preparing a background investigation
report for [the plaintiff] which included convictions pertaining to an
individual with a different first name from a different state, [the defendant]
created ‘an unjustifiably high risk of harm . . . so obvious that it should [have
been] known.’” (quoting Safeco, 551 U.S. at 68)).
16
25
and Winn-Dixie reports. For the reasons explained above—and
then some—that is incorrect. 17
The FCRA requires all agencies preparing consumer
reports to “follow reasonable procedures to assure maximum
possible accuracy of the information concerning the individual
about whom the report relates.” 16 U.S.C. § 1681e(b). Implicit
within this requirement is that those reports contain accurate
information. Lazarre v. JPMorgan Chase Bank, N.A., 780 F.
Supp. 2d 1330, 1334 (S.D. Fla. 2011).
But that does not mean that credit reporting agencies are
strictly liable for all inaccuracies. Cahlin v. General Motors
Acceptance Corp., 936 F.2d 1151, 1156 (11th Cir. 1991) (citations
omitted). Rather, the preparing agency may only be held liable if
First Advantage’s main argument to the contrary is that by relying
on two identifiers, it “me[e]t[s] or exceed[s] industry standards” and is thus
acting as a reasonably prudent consumer reporting agency. ECF No. 208, at
2. The Sixth Circuit rejected that argument, Smith, 837 F.3d at 610, and this
Court does as well. In any event, that other agencies also require two
identifiers is not dispositive—it is merely evidence that the jury considered
and, presumably, rejected. The jury could have concluded, for example, that
the entire consumer-reporting industry violated the FCRA. See Ray Evers
Welding Co. v. OSHRC, 625 F.2d 726, 732 (6th Cir. 1980) (“Industry
standards and customs are not entirely determinative of reasonableness
because there may be instances where a whole industry has been negligent . .
. .” (citing Diebold Inc. v. Marshall, 585 F.2d 1327, 1336 (6th Cir. 1978))).
Because this Court finds that the jury could have reasonably concluded that
First Advantage was negligent on other grounds, it need not decide that
issue.
17
26
it failed to exercise reasonable care in generating that inaccurate
report, Spence v. TRW, Inc., 92 F.3d 380, 383 (6th Cir. 1996); see
also Johnson v. Equifax, Inc., 510 F. Supp. 2d 638, 647 (S.D. Ala.
2007) (“[The plaintiff] bears the burden to establish that the
procedures followed by [the defendant] were unreasonable.”
(citations omitted)), which is guided by reference to what a
reasonably prudent person would do under the circumstances,
Davis v. Equifax Info. Servs. LLC, 346 F. Supp. 2d 1164, 1171
(N.D. Ala. 2004) (citing Thompson v. San Antonio Retail Merch.
Assoc., 682 F.2d 509, 513 (5th Cir. 1982)). That is a highly factsensitive inquiry, and as such, is “a jury question in the
overwhelming majority of cases.” Cahlin, 936 F.2d at 1156.
Although First Advantage unsuccessfully hangs its
willfulness hat on Smith, that same case all but dooms its
negligence argument. The Smith court rejected the defendant’s
argument that this “single mix-up” did not support the jury’s
negligence finding. 837 F.3d at 610. That was because the “jury
could conclude that a reasonably prudent CRA, when presented
with . . . a common name [like David Smith], would have required
additional identifying information—like a middle name—to
heighten the accuracy of its report.” Id. Moreover, when
27
preparing the criminal-background report at issue, the defendant
possessed a credit report for the plaintiff—David A. Smith—
which could have been cross-referenced with the name on the
criminal record—David Oscar Smith. Id. Nonetheless, it failed to
do so.
That case is on all fours here. First Advantage could have
required an additional identifier—like an address—to further
ensure the accuracy of its reports. Ironically, that was First
Advantage’s policy for common-name consumers. Tr. at 317–19.
It just failed to follow it. Tr. at 318–20. That First Advantage,
unlike in Smith, had a policy to mitigate those concerns is of no
matter. If an agency can be found negligent for failing to adopt a
policy requiring additional identifiers for common names, Smith,
837 F.3d at 610, it certainly could also be found negligent for
ignoring that policy altogether, see § 1681e(b) (applying
“[w]henever a consumer reporting agency prepares a consumer
report” (emphasis added)); see also Farmer v. Phillips Agency,
Inc., 285 F.R.D. 688, 696 (N.D. Ga. 2012) (defining “whenever” for
purposes of another FCRA provision to mean “‘at any time’”). A
policy adopted in name-only is no policy at all.
To make matters worse, like the defendant in Smith, First
28
Advantage possessed and reviewed information establishing that
Plaintiff was not the subject of the underlying criminal
allegations in the Winn-Dixie report. In preparing that report,
one of First Advantage’s employees reviewed a Florida
Department of Corrections website which showed that “Ricky”
Williams—who had committed the crimes listed in the criminalbackground report—was incarcerated at the Broward County
Jail. Tr. at 274, 290–91. Moreover, “Ricky” Williams’s height was
listed at 6’2”. Tr. at 290. Yet First Advantage knew from the
Rent-A-Center dispute that Plaintiff—who quite clearly was
actively pursuing employment opportunities and not sitting in
jail—had spent his entire life over 300 miles away in Chiefland,
Florida, tr. at 545, and was 5’10” tall, tr. at 126. An executive of
First Advantage even testified that a reasonable person would
have known with “certainty or virtual certainty” that Plaintiff
was not the subject of that criminal report. Tr. at 300.
Nonetheless, it failed to include this information in the WinnDixie report and, again, erroneously mismatched Plaintiff with
“Ricky” Williams.
One last distinction makes the negligence issue presented
in this case even easier to decide than that presented in Smith.
29
The record is replete with evidence that a consumer’s social
security number is the quintessential identifier. See tr. at 269
(explaining that social security numbers are, “[o]ther than
fingerprints, . . . the most unique identifier”). Thus, it would be
highly detrimental, if not fatal, for a criminal-background report
to erroneously associate a social security number with a
consumer’s criminal-background report. Yet that is precisely
what happened here; Plaintiff’s Rent-A-Center report erroneously
listed his social security number as one of the identifiers
matching him to the cocaine charges. Tr. at 287. The jury could
have concluded that a reasonably prudent agency would have
cross-referenced Plaintiff’s social security number with the
relevant charges to verify that (1) the charges listed a social
security number, and (2) that number matched Plaintiff. By
failing to do so, the jury could have concluded that First
Advantage negligently violated the FCRA.
III
Similarly, First Advantage makes three arguments
regarding compensatory damages. First, First Advantage argues
that the evidence cannot support the emotional-distress damages
generally. Second, First Advantage argues the same as applied to
30
the reputational damages specifically. Third, First Advantage
argues that Plaintiff’s lost-wage damages are unwarranted
because he failed to mitigate those damages. These arguments
are misdirected.
A
First Advantage first argues that the trial testimony does
not support the emotional-distress damages. That argument is
arguably procedurally improper and, at any rate, unpersuasive.
As a threshold matter, First Advantage’s motion is
procedurally worrisome. Rule 50(a) motions for judgment as a
matter of law may be brought “at any time before the case is
submitted to the jury.” In contrast, Rule 50(b) “expressly provides
only for renewed JMOL motions, and thus a district court can
grant a Rule 50(b) motion ‘only on grounds advanced in the
preverdict [Rule 50(a)] motion.’” McGinnis, 817 F.3d at 1260
(citation and footnote omitted). Because that rule is harsh,
though, courts construe those motions liberally. Nat’l Indus., Inc.
v. Sharon Steel Corp., 781 F.2d 1545, 1549 (11th Cir. 1986)
(citing Quinn v. Sw. Wood Prods., Inc., 597 F.2d 1018, 1025 (5th
Cir. 1979)). Thus, courts may consider Rule 50(b) motions if the
grounds asserted are “closely related” to those previously argued
31
in a Rule 50(a) motion. Ross v. Rhodes Furniture, Inc., 146 F.3d
1286, 1289 (11th Cir. 1998) (citing Nat’l Indus., Inc., 781 F.2d at
1549–50). On the other hand, if the new and old grounds vary
greatly, the court must not “ambush” the Seventh Amendment
right by relying on the new grounds to set aside the jury’s verdict.
Id. (citing Sulmeyer v. Coca Cola Co., 515 F.2d 835, 845–46 (5th
Cir. 1975)). 18
First Advantage moves for judgment as a matter of law as
to Plaintiff’s emotional-distress damages, including both ordinary
emotional-distress damages and reputational damages. ECF No.
208, at 23–26. But in its Rule 50(a) motion, First Advantage only
moved to dismiss the “reputational damages component” of the
emotional-distress damages. Tr. at 421. That is problematic. This
would be an easier decision if, for example, First Advantage’s
Rule 50(a) motion encompassed Plaintiff’s emotional-distress
damages generally, yet the argument’s focus was on the
reputational-damages component. See, e.g., Shepherd v. Honda of
Am. Mgf., Inc., 160 F. Supp. 2d 860, 866 (S.D. Ohio 2001)
Decisions of the Fifth Circuit prior to October 1, 1981, are binding
within the Eleventh Circuit. Bonner v. City of Pritchard, 661 F.2d 1206, 1207
(11th Cir. 1981) (en banc).
18
32
(addressing a Rule 50(b) motion on the merits as “closely related”
because it simply addressed each element at issue in the Rule
50(a) motion).
Instead, First Advantage based its Rule 50(a) emotionaldistress damages motion on the sole ground that Plaintiff failed
to prove reputational damages. See tr. at 420 (“We also move for
dismissal with prejudice to plaintiff’s claim for compensatory
damages in the form of damages to his reputation.”). First
Advantage stressed that “Mr. Williams had a good reputation
and that a good reputation is at least part of the reason why he
secured a full-time job with benefits at the Levy County Sheriff’s
Office, you know, seven months after being mismatched in a
consumer report.” Tr. at 420–421. At no point did First
Advantage reference Plaintiff’s testimony that he was upset or
his mother’s corroboration of that testimony. Moreover this Court
specifically asked Plaintiff to respond to the reputationaldamages argument, tr. at 429, and ruled only on that aspect of
the emotional-distress damages, tr. at 444. Even under Rule 50’s
liberal construction, this Court would be inclined to rule that
First Advantage’s motion as to non-reputational emotionaldistress damages raises “new grounds” which cannot be
33
considered here. See Baker v. Soil Tech Distribs., Inc., No. 0722254-CIV, 2009 WL 195938, at *2 (S.D. Fla. Jan. 26, 2009)
(denying a Rule 50(b) motion because it was “based on ‘new
grounds’ which were not raised in Defendant’s Rule 50(a)
motion”).
Nonetheless, even if those grounds are not “new grounds,”
First Advantage’s motion is unconvincing on the merits. FCRA
plaintiffs may recover emotional-distress damages. See Thomas v.
Gulf Coast Credit Servs., Inc., 214 F. Supp. 2d 1228, 1235 (M.D.
Ala. 2002) (citing Stevenson v. TRW, Inc., 987 F.2d 288, 296 (5th
Cir. 1993)); see also Casella v. Equifax Credit Info. Servs., 56 F.3d
469, 474 (2d Cir. 1995) (“‘[A]ctual damages’ may include
humiliation and mental distress, even in the absence of out-ofpocket expenses.” (collecting cases)). But a claim for emotionaldistress damages must be supported by something more than the
plaintiff’s bare allegations. See Rambarran v. Bank of Am., N.A.,
609 F. Supp. 2d 1253, 1268 (S.D. Fla. 2009) (“[A]n FCRA
plaintiff’s ‘testimony of emotional distress must be coupled with
additional evidence [of] . . . some kind of actual or genuine
injury.’” (citations omitted)). That “something more” can take the
form of testimony regarding “the surrounding circumstances or
34
other ‘evidence of genuine injury, such as the evidence of the
injured party’s conduct and the observations of others.’” Riley v.
Equifax Credit Info. Servs., 194 F. Supp. 2d 1239, 1245 (S.D. Ala.
2002) (quoting Cousin v. Trans Union Corp., 246 F.3d 359, 371
(5th Cir. 2001)); see also Patterson v. P.H.P. Healthcare Corp., 90
F.3d 927, 940 (5th Cir. 1996) (explaining that damages stemming
from intangible loss require “a degree of specificity which may
include corroborating testimony or medical or psychological
evidence in support of the damage award” (citing Carey v. Piphus,
435 U.S. 247, 264 (1978))).
The evidence presented at trial is more than sufficient to
support the emotional-distress damages. Plaintiff testified that
he was “highly upset” after receiving the Rent-A-Center report, in
part because he “would never commit a crime like [selling
cocaine].” Tr. at 125. And the Winn-Dixie report only made
matters worse. Indeed, Plaintiff testified that report “[h]ad [him]
feeling horrible” and caused him to think that he would “never
get a job.” Tr. at 148. He was gravely concerned that any
prospective employer who used First Advantage’s services would
blindly trust an erroneous report, thus leading that employer to
“think that [he was] hiding something.” Id. Just the mere
35
possibility that he could be dragged through this rigmarole again
“ma[de] [him] cringe.” Tr. at 149. This distress was not
asymptomatic; Plaintiff suffered physical harm including
insomnia, headaches, and stomach distress. Tr. at 154, 244.
First Advantage nonetheless asserts that Plaintiff’s
emotional-distress damages are only supported by “self-serving,
vague, and conclusory testimony presented at trial.” ECF No.
208, at 23. That couldn’t be further from the truth. Unlike many
of the cases relied on by First Advantage, 19 Plaintiff’s testimony
was corroborated by evidence “‘reasonably and sufficiently
explain[ing] the circumstances’ surrounding [his] emotional
injuries.” 20 Smith, 837 F.3d at 611 (quoting Bach v. First Union
Nat’l Bank, 149 F. App’x 354, 361 (6th Cir. 2005)). For example,
Plaintiff’s mother testified that the erroneous reports “bothered
him” and that it was a “rough” experience for him. Tr. at 243.
Namely, Ruffin–Thompkins v. Experian Info. Solutions, Inc., 422
F.3d 603 (7th Cir. 2005), Cousin v. Trans Union Corp., 246 F.3d 359 (5th Cir.
2001), and Riley v. Equifax Credit Info. Servs., Inc. 194 F. Supp. 2d 1239
(S.D. Ala. 2002).
19
Plaintiff also relies on Wilson v. Taylor, 733 F.2d 1539 (11th Cir.
1984), to argue that the emotional-distress award cannot stand. That case too
is distinguishable. The plaintiff in Wilson did not provide evidence as to any
physical symptoms of his emotional distress. See id. at 1549 (noting that the
most relevant testimony is that Plaintiff “was frustrated and angry”). The
opposite is true here.
20
36
Moreover, she testified that Plaintiff lost his appetite and had
difficulty sleeping. Tr. at 244. That testimony substantiated
Plaintiff’s emotional-distress damages with the necessary degree
of specificity. See Smith, 837 F.3d at 611 (upholding emotionaldistress damages when the plaintiff’s testimony was corroborated
by testimony from his wife); see also Cousin, 246 F.3d at 371
(acknowledging that intangible loss—including emotional
distress—requires “‘a degree of specificity which may include
corroborating testimony . . . in support of the damage award’”
(quoting Patterson, 90 F.3d at 940)).
One final note on this point. In so ruling, this Court makes
plain that it is not basing its decision off a cold, lifeless record.
Nor is it making this decision on a whim. Rather, this Court
makes its decision after enjoying “the ‘unique opportunity to
consider the evidence in the living courtroom context.’” Johansen
v. Combustion Eng’g, Inc., 170 F.3d 1320, 1335 (11th Cir. 1999)
(quoting Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 437
(1996)). That Plaintiff did not break down in tears or lose his
composure while testifying is irrelevant. It is relevant, though,
that Plaintiff’s emotional distress was palpable to any person in
the courtroom. This Court saw the pain in Plaintiff’s eyes. It saw
37
the frustration. It saw the fear that this could happen again. The
jury enjoyed that opportunity as well, and this Court was able to
observe their reaction first-hand. It was abundantly clear that
Plaintiff’s testimony had an impact on them, and their award
should not be disturbed. See Munoz v. Oceanside Resorts, Inc.,
223 F.3d 1340, 1349 (11th Cir. 2000) (“As we have observed, ‘[t]he
standard of review for awards of compensatory damages for
intangible, emotional harms is deferential to the fact finder
because the harm is subjective and evaluating it depends
considerably on the demeanor of the witnesses.’” (quoting Ferrill
v. Parker Grp., Inc., 168 F.3d 468, 476 (11th Cir. 1999)));
Bozeman v. Pollock, No. 14-CIV-60493, 2015 WL 5016510, at *11
(S.D. Fla. Aug. 25, 2015) (“Of important note is the deference
given to a jury’s determination of compensatory damages. . . .
Further, ‘[t]he Seventh Amendment prohibits re-examination of a
jury’s determination of the facts, which includes its assessment of
the extent of the plaintiff’s injuries.’” (quoting Peer v. Lewis, No.
06-60146-CIV, 2008 WL 2047978, at *4 (S.D. Fla. May 13,
2008))).
B
Similarly, First Advantage argues that Plaintiff failed to
38
present evidence corroborating any reputational-damages award.
The argument goes as follows. Plaintiff eventually obtained a
full-time position with the Levy County Sheriff’s Office, in part
due to his good reputation; thus, that reputation could not have
possibly been damaged and any award is unjustified. In the
words of ESPN College Gameday’s Lee Corso, “Not so fast, my
friend!” First, the jury could have concluded that it wasn’t
Plaintiff’s good reputation that led to the position with the Levy
County Sheriff’s Office—it was his father’s. See tr. at 170
(showing that Plaintiff’s and his father’s good reputation in the
community helped “to get that job with the sheriff’s department”).
Second, even assuming Plaintiff’s reputation earned him that
position, it could have been diminished in other respects. For
example, Plaintiff testified that the Rent-A-Center manager’s
“demeanor changed” after the criminal-background report was
issued because he trusted its accuracy. Tr. at 150. Plaintiff also
testified that this is a small community where everyone knows
one another. While it may not have been reasonable for the jury
to infer that others in the community heard about this incident
and trusted the report if Plaintiff lived in, say, Atlanta,
Jacksonville, or Miami, that inference is reasonable given
39
Chiefland’s small size and rural nature. Indeed, the jury’s finding
is particularly appropriate in that this case was tried in
Gainesville, Florida—a small community. Accordingly, even if
Plaintiff’s good reputation (and not his father’s) earned him the
position with the Levy County Sheriff’s Office, the jury could
have reasonably concluded that it was nonetheless tarnished.
C
First Advantage argues that the lost-wage damages should
be reduced because Plaintiff failed to mitigate his damages and
the jury erred in relying on Plaintiff’s inconsistent and insidious
trial testimony. Unfortunately for First Advantage, that
argument is unsound on multiple grounds.
Plaintiffs in employment-related actions are generally
“‘required to mitigate damages by being reasonably diligent in
seeking employment substantially equivalent to the position []he
was denied.’” Weatherly v. Ala. State Univ., 728 F.3d 1263, 1272
(11th Cir. 2013) (quoting Smith v. Am. Serv. Co. of Atlanta, 796
F.2d 1430, 1431 (11th Cir. 1986)). Plaintiff therefore had a duty
to seek “employment that affords virtually identical promotional
opportunities, compensation, job responsibilities, working
conditions, and status” as he would have had with the Rent-A40
Center position. Weaver v. Casa Gallardo, Inc., 922 F.2d 1515,
1527 (11th Cir. 1991), superseded by statute on other grounds as
recognized in Munoz, 223 F.3d at 1347. The failure to mitigate
damages is an affirmative defense and, as such, First Advantage
bore the burden of establishing that defense at trial. Munoz, 223
F.3d at 1347.
Preliminarily, this Court is not convinced that Plaintiff’s
testimony was inconsistent at all. At his deposition, Plaintiff
testified that he “couldn’t [work as an emergency dispatcher], you
know, the people committing suicide and then the phone calls,
people cursing and all that.” Tr. at 172. He also testified that he
“tried to stay and just couldn’t do it. Because Ms. Capps had
asked [him] did [he] want to continue, you know, because once
[he] g[o]t in there and, you know, complete[d] the Academy and
[he] decide[d] to quit, [he] would have to reimburse them all that
training money.” Tr. at 173. That is not inconsistent with
Plaintiff’s trial testimony, where he testified that he was going to
be let go by his supervisor, Ms. Capps, because he “wasn’t
meeting requirements and that they had to let [him] go, so [he]
just left the Academy.” Tr. at 136. No matter how you slice it, the
41
testimony supports the conclusion that Plaintiff did not leave of
his own volition; rather, he left at the behest of Ms. Capps.
Moreover, even assuming Plaintiff’s testimony was
inconsistent, which it was not, that does not justify stripping him
of the jury’s lost-wage award. First Advantage argues the
contrary and, in support, cites Stegall v. Audette, 212 F. App’x
402 (6th Cir. 2006). That case—which addressed an appeal of an
order granting summary judgment—holds no weight here. Id. at
403. There, the Sixth Circuit held that “no reasonable jury could”
find in the plaintiff’s favor given the conflicting testimony. Id. at
405.
But that is not the case here. This is not a hypothetical
question; a reasonable jury, in fact, found in Plaintiff’s favor.
That is so even after First Advantage forcefully cross-examined
Plaintiff on that issue and later argued in closing that Plaintiff’s
trial testimony was self-serving and should be accorded no
weight. See tr. at 592. The jury—as they should have—considered
First Advantage’s cross-examination and its closing argument.
See Othman v. City of Chicago, No. 11-cv-5777, 2016 WL 612809,
at *5 (N.D. Ill. Feb. 16, 2016) (refusing to grant a new trial based
on allegedly inconsistent testimony because “the jury was made
42
aware of the allegedly inconsistent testimony on multiple
occasions, and was thus given the opportunity to consider
Plaintiffs’ argument during its deliberations”); see also Ledbetter
v. Goodyear Tire and Rubber Co., Inc., 421 F.3d 1169, 1177 (11th
Cir. 2005) (asserting that courts “do not assume the jury’s role of
weighing conflicting evidence or inferences, or of assessing the
credibility of witnesses” (citing Brochu v. City of Riviera Beach,
304 F.3d 1144, 1144–45 (11th Cir. 2002))); Iglesias v. J.C. Penney
Corp., No. 8:09-cv-1608, 2010 WL 4854973, at *5 (M.D. Fla. Nov.
20, 2010) (noting that inconsistent testimony does “not justify
dismissal” but rather provides opposing counsel “with potent
topics for cross-examination and fertile ground for impeachment”
(citing Bologna v. Schlanger, 995 So.2d 526, 538 (Fla. 5th DCA
2008))). The jury just didn’t buy it. First Advantage’s beef,
therefore, isn’t with the jury’s lost-wages award; it’s with the
efficacy of its own arguments. Frustration alone is not a valid
reason to ignore the jury’s award and reduce Plaintiff’s lostwages damages.
IV
Finally, First Advantage contends that the $3.3 million
punitive-damages award is unconstitutional and, at the very
43
least, must be reduced. Given the reprehensibility of First
Advantage’s actions and the need to deter it from engaging in
this type of conduct in the future, this Court finds otherwise.
Punitive-damage awards—which are primarily tools of
deterrence and retribution—are limited in magnitude by the
“‘[e]lementary notions of fairness’” contained in the Due Process
Clause. State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408,
417 (2003) (quoting BMW of N. Am., Inc. v. Gore, 517 U.S. 559,
574 (1996)). “[G]rossly excessive or arbitrary punishments” are
therefore disallowed, as they “further[] no legitimate purpose and
constitute[] an arbitrary deprivation of property.” Id. at 416–17
(citations omitted). In determining whether a punitive-damage
award is unconstitutionally excessive, courts consider three
guideposts: “(1) the degree of reprehensibility of the defendant’s
misconduct; (2) the disparity between the actual or potential
harm suffered by the plaintiff and the punitive damages award;
and (3) the difference between the punitive damages awarded by
the jury and the civil penalties authorized or imposed in
comparable cases.” Id. at 418 (citing Gore, 517 U.S. at 575).
44
Because the third guidepost is of no real utility in FCRA cases, 21
this Court will only focus on the first two.
A
The first guidepost is the degree of reprehensibility, and it
“is considered to be the ‘most important’ indicator of the
reasonableness of the damage award.” Sepulveda v. Burnside,
432 F. App’x 860, 865 (11th Cir. 2011) (quoting State Farm, 538
U.S. at 419). In making this determination, courts weigh the
following five factors: (1) whether “the harm caused was physical
as opposed to economic”; (2) whether “the tortious conduct
evinced an indifference to or a reckless disregard of the health or
safety of others”; (3) whether “the target of the conduct had
financial vulnerability”; (4) whether “the conduct involved
repeated actions or was an isolated incident”; and (5) whether
“the harm was the result of intentional malice, trickery, or deceit,
See Cortez v. Trans Union, LLC, 617 F.3d 688, 724 (3d Cir. 2010)
(“[W]e agree with the parties that the third guidepost is not useful in the
analysis of punitive damages here as there is no ‘truly comparable’ civil
penalty to a FCRA punitive damages award.”); Saunders v. Branch Banking
and Tr. Co. of Va., 526 F.3d 142, 152 (4th Cir. 2008) (“Congress specifically
chose not to limit punitive damages in suits brought by private parties . . . .
Thus, we agree . . . that the third guidepost provides ‘little assistance’ in
FCRA suits.” (quoting Bach, 486 F.3d at 154 n.1)); Brim v. Midland Credit
Mgmt., Inc., 795 F. Supp. 2d 1255, 1265 (N.D. Ala. 2011) (“The court
therefore finds the third factor to be of limited usefulness.”).
21
45
or mere accident.” 22 State Farm, 538 U.S. at 419 (citing Gore, 517
U.S. at 576–77). While there is no set quota on the number of
factors required to support a finding of reprehensibility,
“reprehensibility grows more likely as more factors are present.”
Sepulveda, 432 F. App’x at 865 (citing State Farm, 538 U.S. at
419).
The first factor weighs in Plaintiff’s favor. First Advantage
strongly disagrees, arguing that the harm caused to Plaintiff, if
any, was “purely economic rather than physical.” ECF No. 208, at
31. The Eleventh Circuit says otherwise. Although Plaintiff’s
injuries at first glance appear to be merely economic, for purposes
of the reprehensibility analysis, psychological harm suffices. See
Goldsmith v. Bagby Elevator Co., Inc., 513 F.3d 1261, 1283 (11th
Cir. 2008) (“One factor that suggests that the misconduct of [the
defendant] was reprehensible is that [the plaintiff] suffered both
economic harm and emotional and psychological harm.”). Thus,
Some courts have stated that, in FCRA cases, the first two factors in
the State Farm reprehensibility analysis—whether the harm was physical or
economic and whether the conduct evinced an indifference to or a reckless
disregard of the health or safety of others—“must be given less, or no weight
than the remaining factors.” Saunders v. Equifax Into. Servs., LLC, 469 F.
Supp. 2d 343, 351 (E.D. Va. 2007). The thrust of that ruling was to ever so
slightly tilt the scales in plaintiffs’ favor, thus, effectively, leveling the
playing field. Given that both those factors weigh in Plaintiff’s favor, this
Court need not decide whether it agrees. See infra pp. 46–49.
22
46
that Plaintiff was “feeling horrible” and thought he would “never
get a job,” tr. at 148, supports his reprehensibility argument, see
Goldsmith, 513 F.3d at 1283 (noting that the fact that the
defendant felt “‘hurt’ and ‘upset’” weighed in favor of
reprehensibility); see also Daugherty v. Ocwen Loan Serv., LLC.,
No. 5:14-cv-24506, 2016 WL 6656750, at *3 (S.D. W. Va. Oct. 12,
2016) (finding that the first prong weighed in the plaintiff’s favor
in an FCRA case due to the “emotional toll that [the defendant’s]
conduct inflicted upon him”). That Plaintiff never sought
treatment for his emotional turmoil holds little-to-no persuasive
value. See Miller v. Equifax Info. Servs., LLC, No. 3:11-cv-01231,
2014 WL 2123560, at *4 (D. Ore. May 20, 2014) (holding in an
FCRA case that the first factor weighed in Plaintiff’s favor based
on emotional distress even though “there was not any trial
evidence . . . that [the plaintiff] sought [medical attention] for her
emotional distress”). In any event, Plaintiff actually did suffer
physical harm; namely, he lost his appetite and suffered from
insomnia. Both of those harms, over time, can lead to serious
illness.
At bottom, First Advantage invited the jury and now
invites this Court to devalue the impact that the loss of
47
employment has on an hourly employee. This Court makes plain
that not a jury, judge, or reviewing court should minimize the
suffering or humiliation that loss can inflict. Of course, it may be
easier for, say, a disbarred attorney or an injured surgeon to
expand on that difficulty while testifying. But that doesn’t mean
that a low-wage, hourly employee is immune to the bite of
unemployment. Nor does one have to weep and wail to felt that
bite. See supra pp. 37–38.
The second factor also weighs in Plaintiff’s favor. First
Advantage contends the opposite, arguing that because Plaintiff’s
injuries are only economic, that it could not have acted
indifferently or with reckless disregard to the health or safety of
others. ECF No. 208, at 32. That belies logic. Unlike the other
FCRA cases cited by First Advantage—which involved a loss of
credit, see, e.g., Bach, 149 F. App’x at 361—this case does not
involve a mere reduction in buying power. Nor does it involve an
erroneous report causing a high-earning individual to choose one
of many employment options available to them—for example, an
attorney switching firms or a physician switching practices. First
Advantage’s willful FCRA violations put Plaintiff’s livelihood at
stake. Losing the Rent-A-Center and Winn-Dixie employment
48
opportunities affected Plaintiff’s ability to obtain health
insurance. The jury could also have reasonably inferred that it
affected his ability to pay for basic necessities like food, water,
shelter, and clothing. And, in a very real way, it affected his
mental health and his ability to eat and sleep.
Moreover, when evaluating this factor, courts consider “the
possible harm to other victims that might have resulted if similar
future behavior were not deterred.” TXO Prod. Corp. v. Alliance
Res. Corp., 509 U.S. 443, 460 (1993). First Advantage hasn’t
erred in this fashion once or twice; it has done so, quite literally,
thousands of times in the last few years alone. Tr. at 94. The
harm to those consumers (or those in the future) could be greater
or lesser than that suffered by Plaintiff. Thus, the jury could have
reasonably considered Plaintiff as an example of the harm that
First Advantage is prepared to inflict on thousands of other
consumers. See, e.g., Miller, 2014 WL 2123560, at *5 (accepting
the argument that “the jury could have regarded [the plaintiff] as
an ‘examplar of the harm that [the defendant] is prepared to
inflict on many other consumers’”). First Advantage’s willful
FCRA violations thus evinced an indifference or reckless
disregard for the health or safety of others.
49
Similarly, the third factor weighs in Plaintiff’s favor. It
doesn’t matter, as First Advantage asserts, that Plaintiff was
able to secure alternative employment or that he was eventually
hired by Winn-Dixie months later. ECF No. 208, at 32. The focus
should not be on the long-term effect of First Advantage’s
violations; rather, it should be on Plaintiff’s vulnerability at the
time of those violations and shortly after them. Plaintiff had
little-to-no income when he applied for the Rent-A-Center and
Winn-Dixie positions. 23 Indeed, that is the case for most people
who are seeking employment; many are likely seeking
employment because they, in fact, are unemployed. Those that
are seeking employment and subject to criminal-background
checks are therefore almost certainly of limited means and are
exposed to the reckless indifference or ill will of a large
corporation. This case is even more compelling in that Plaintiff—
a thirty-five year old man—was of such limited means that he
still lived at home with his mother. Plaintiff was therefore,
without a doubt, financially vulnerable. See Goldsmith, 513 F.3d
Plaintiff testified that he also worked part-time at two different
funeral homes as a graphic designer to make ends meet. Tr. at 112–14. The
pay from those positions fluctuated from $200 to $700 per week and was
dependent on that week’s death rate. Tr. at 114.
23
50
at 1283 (holding that the Plaintiff was financially vulnerable
because he “had to borrow money” after being terminated).
The fourth factor strongly weighs in Plaintiff’s favor. Again,
First Advantage asserts that this “was an anomalous case” that
is “exceedingly rare.” ECF No. 208, at 32. 14,346 people may
argue otherwise. Tr. at 94; see also Gore, 517 U.S. at 576–77
(noting that, when considering the fourth factor, courts should
review whether defendant’s actions “formed part of a nationwide
pattern of tortious conduct”). That First Advantage allegedly “has
designed and implemented standard operating procedures” to
prevent these inaccuracies is also unpersuasive. ECF No. 208, at
32. First, this Court’s willfulness ruling suggests otherwise; the
jury reasonably concluded that First Advantage has done nothing
to ameliorate the risk faced by common-name consumers. First
Advantage, for example, had to strike a balance between
accuracy and profit. It arguably chose the latter—First
Advantage seems to have padded its wallet rather than providing
each adjudicator with access to a credit-reporting bureau like
Experian. And in doing so, First Advantage—a multi-million
dollar corporation—shifted its costs to defenseless, vulnerable
consumers. That is both shocking and disgraceful.
51
Second, even putting that aside, First Advantage’s .38%
inaccuracy rate is, quite frankly, unflattering. At risk of being
repetitive, this happened twice to the same person over the
course of thirteen months. Either Plaintiff is woefully unlucky, or
First Advantage is just not very good at conducting criminalbackground checks for common-name consumers. The latter is far
more likely. Unfortunately for First Advantage, close enough for
government work is not a valid defense.
The final factor is, at best, neutral. First Advantage is
correct that there is no evidence that it “acted out of intentional
malice, trickery, or deceit.” ECF No. 208, at 32. But its actions
weren’t a “mere accident”, State Farm, 538 U.S. at 419 (citing
Gore, 517 U.S. at 576–77), either, see supra pp. 16–25 (ruling that
First Advantage’s FCRA violation was willful). More importantly,
Congress explicitly allowed FCRA punitive-damage awards even
in the absence of intentional malice, trickery, or deceit. See
Soroka v. Homeowners Loan Corp., No. 8:05-cv-2029, 2006 WL
4031347, at *2 (M.D. Fla. June 12, 2006) (explaining that an
FCRA plaintiff doesn’t have to show “‘malice or evil motive’” to
warrant a punitive-damages award (quoting Bakker v.
McKinnon, 152 F.3d 1007, 1013 (8th Cir. 1998))). This factor
52
therefore has little persuasive value.
As a result, four of the State Farm reprehensibility
guideposts weigh in Plaintiff’s favor, and the fifth is neutral. That
is strong evidence that First Advantage’s conduct was sufficiently
reprehensible to support the punitive-damage award. See State
Farm, 538 U.S. at 419. Additionally, although State Farm does
not require this Court to consider it, another piece of evidence
sheds light on the degree of reprehensibility. Plaintiff suggested a
$1,080,000 to $3,300,000 range for the punitive-damage award in
his closing argument. Tr. at 564. In fact, he first suggested the
low-end of that range, stating that it was “appropriate” to make
First Advantage “change their ways.” Tr. at 563. Moreover,
Plaintiff stressed that the $3,300,000 figure was the “high end” of
possible punitive damages. Tr. at 564. Nonetheless, the jury
awarded Plaintiff the largest possible award that was suggested.
Impliedly, the jury felt that First Advantage’s conduct was
reprehensible; this Court can find no evidence to justify setting
that finding aside.
B
The second guidepost considers the ratio of actual harm
suffered by the plaintiff (as measured by the amount of
53
compensatory damages) to the punitive-damage award. State
Farm, 538 U.S. at 424. Punitive damages must be “‘both
reasonable and proportionate to the amount of harm to the
plaintiff and to the general damages recovered.’” Bogle v.
McClure, 332 F.3d 1347, 1362 (11th Cir. 2003) (quoting State
Farm, 538 U.S. at 426). The proper inquiry therefore “is ‘whether
there is a reasonable relationship between the punitive damages
award and the harm likely to result from the defendant’s conduct
as well as the harm that actually has occurred.’” Gore, 517 U.S.
at 581 (quoting TXO Prod. Corp., 509 U.S. at 460) (emphasis in
original).
Although the ratio of punitive to compensatory damages is
important, Sepulveda, 432 F. App’x at 866 (citing State Farm,
538 U.S. at 425), the Supreme Court has opted not to announce a
bright-line rule regarding the tolerable ratio. Thus, while “few
awards exceeding a single-digit ratio between punitive and
compensatory damages, to a significant degree, will satisfy due
process,” State Farm, 538 U.S. at 425, “low awards of
compensatory damages may properly support a higher ratio than
high compensatory awards if, for example, a particularly
egregious act has resulted in only a small amount of economic
54
damages.” Gore, 517 U.S. at 582. A multi-digit multiplier is
particularly appropriate when there is “a substantial need for
deterrence” or where the defendant’s conduct “was exceedingly
reprehensible.” Goldsmith, 513 F.3d at 1284; see also Daugherty,
2016 WL 6656750, at *4 (upholding a 408:1 punitive-damages
award ratio in an FCRA case because it “‘serve[d] as a
meaningful deterrent’ to [the defendant’s] reprehensible conduct
(quotation omitted)).
The 13.2:1 ratio of punitive to compensatory damages in
this case is not unconstitutionally excessive. Punitive damages
are designed to deter. See U.S. EEOC v. W&O, Inc., 213 F.3d 600,
614 (11th Cir. 2000) (citing Gore, 517 U.S. at 584). But a strict
application of the State Farm single-digit multiplier formula
would not adequately deter First Advantage’s misconduct.
Indeed, “sometimes a ‘bigger award is needed to attract the . . .
attention of a large corporation’ in order to promote deterrence
effectively.” Kemp v. Am. Tel. & Tel. Co., 393 F.3d 1354, 1364
(11th Cir. 2004) (quoting Johansen, 170 F.3d at 1338). That is
particularly so when the defendant is “a large and extremely
wealthy . . . corporation.” Johansen, 170 F.3d at 1338.
First Advantage may say that it “deeply regret[s] the fact
55
that . . . the background reports [it] prepared on Mr. Williams
contained information which was mismatched to him on
somebody named Ricky Williams.” Tr. at 572. But this Court is
quite concerned that First Advantage has not gone so far to even
hint that it plans to change its procedures to address this type of
problem. It thus appears that First Advantage made a business
decision to shift the burden to more than 14,000 innocent
consumers to ensure the quick turnaround and low price that
earned it a large market share. What is so pernicious is that First
Advantage will continue shifting that burden—and, by extension,
strip thousands of qualified low-wage, hourly employees of job
opportunities—so long as it makes good business sense to do so.
In these types of cases, the State Farm single-digital
multiplier formula provides First Advantage a perverse incentive
to persist in its burden-shifting strategy. Of course, a single-digit
multiplier may be appropriate in cases involving high-wage
employees like doctors, lawyers, or federal judges. That is
because both the compensatory-damages award and the punitivedamages award would be much higher. But the opposite is true in
cases involving low-wage, hourly employees. Say, for example, a
prospective low-wage, hourly employee loses their position due to
56
an erroneous criminal-background report and suffers $5,000 in
lost wages. Under the State Farm approach, a $20,000 punitivedamage award would be “close to the line of constitutional
impropriety.” State Farm, 538 U.S. at 425 (citing Haslip, 499 U.S.
at 23–24). But pruning damages in such a fashion would
effectively endorse First Advantage’s morally untenable business
decision. While the $3.3 million punitive-damages award in this
case may not make the company newsletter and only amounts to
1% of the $336 million that First Advantage paid to acquire Lexis
Nexis, tr. at 563, it should, at a minimum, “attract the attention
of whomever is in charge of the corporation’s daily decisions . . . .”
Johansen, 170 F.3d at 1338.
Moreover, when compared to other punitive-damage
awards, this is not the type of “breathtaking” award that courts
have repeatedly struck down. See, e.g., State Farm, 538 U.S. at
428–29 (striking down a 145:1 punitive-damages award ratio);
Gore, 517 U.S. at 582–83 (disapproving of a 500:1 punitivedamages award ratio). It is much closer to the single-digit
multiplier formula announced in State Farm, and pales in
comparison to other awards that have been approved by the
57
Eleventh Circuit. 24 Kemp, 393 F.3d at 1365 (reducing a punitivedamage award from 8,692:1 to 2,173:1); Johansen, 170 F.3d at
1339 (upholding a 100:1 punitive-damage award ratio).
Accordingly, the punitive-damage ratio is within constitutional
bounds.
The State Farm guideposts paint a clear picture. The jury’s
punitive-damage award in this case is not unconstitutionally
excessive. As a result, this Court will not set it aside.
V
In the alternative, First Advantage moves for a new trial.
“A party may include an alternative request for a new trial under
Rule 59 in its Motion for Judgment as a Matter of Law.” Home
Design Servs., Inc. v. Turner Heritage Homes, Inc., 101 F. Supp.
First Advantage argues that other FCRA punitive-damage awards
in this circuit involved worse conduct but resulted in a much lower punitiveto-compensatory ratio and, in support, cites Brim v. Midland Credit Mgmt.,
Inc., 795 F. Supp. 2d 1255 (N.D. Ala. 2011). ECF No. 208, at 34. But that case
did not necessarily involve worse conduct. There, the defendant “stood by its
faulty system for years, insisting its procedures are reasonable, in the face of
obvious evidence otherwise.” Brim, 795 F. Supp. 2d at 1263. That is the case
here too. Indeed, over 14,000 consumers have suffered similar injuries due to
First Advantage’s embarrassingly deficient practices and procedures.
Moreover, as explained above, this Court isn’t the first to hold that First
Advantage’s policies and procedures violate the FCRA and, unless it changes
those, this Court certainly won’t be the last. Consequently, the jury
apparently believed that a higher punitive-damage award was necessary to
sufficiently “deter similar acts in the future,” and the jury “use[d] reason in
setting the amount.” Tr. at 538. That award was rational and should not be
disturbed.
24
58
3d 1201, 1215 (N.D. Fla. Mar. 31, 2015) (Rogers, J.). Courts may
grant a new trial “for any reason for which a new trial has
heretofore been granted in an action at law in federal court,” Fed.
R. Civ. P. 59(a), including on grounds that “‘the verdict is against
the clear weight of the evidence or will result in a miscarriage of
justice . . . .’” Lipphardt, 267 F.3d at 1186 (quoting Hewitt v. B.F.
Goodrich Co., 732 F.2d 1554, 1556 (11th Cir. 1984)). In
determining whether a new trial is warranted, the trial court
must “independently weigh[] the evidence” favoring the jury’s
verdict against the evidence in favor of the moving party.
Williams v. City of Valdosta, 689 F.2d 964, 973 (11th Cir. 1982)
(citing Rabun v. Kimberly–Clark Corp., 678 F.2d 1053, 1060 (11th
Cir. 1982)). The decision to grant a new trial is solely within the
trial court’s discretion. Montgomery v. Noga, 168 F.3d 1282, 1295
(11th Cir. 1999) (citations omitted).
As required under Rule 59, this Court has independently
weighed the evidence and finds that the jury’s conclusion that
First Advantage willfully and negligently violated the FCRA, see
supra pp. 16–30, and that the compensatory-damages award, see
supra pp. 30–43, and the punitive-damages award, see supra pp.
43–58, are not against the clear weight of evidence. First
59
Advantage’s request for a new trial is thus due to be denied.
Accordingly,
IT IS ORDERED:
Defendant’s Motion for Judgment as a Matter of Law or
New Trial, ECF No. 207, is DENIED.
SO ORDERED on March 2, 2017.
s/Mark E. Walker
United States District Judge
60
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?