REVISED, APRIL 9, 2001

UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 99-60429

TERRY COUSIN,

Plaintiff-Appellee,

VERSUS

TRANS UNION CORPORATION,

Defendant-Appellant.

Appeal from the United States District Court For the Northern District of Mississippi March 21, 2001

Before GARWOOD, DeMOSS, and PARKER, Circuit Judges.

DeMOSS, Circuit Judge:

Defendant-Appellant Trans Union Corporation (“Trans Union”)

appeals, after a jury trial, a final judgment awarding Plaintiff-

Appellee Terry Cousin (“Cousin”) $50,000 in compensatory damages

and $4,470,000 in punitive damages for violating the Fair Credit Reporting Act (“FCRA”),

-1681u,1 and for defaming

Cousin with malice. Because no reasonable jury could have found

that Trans Union acted willfully or with malice and because there

was insufficient evidence of actual damages, we vacate the district

court’s judgment and render in favor of Trans Union.

I. BACKGROUND

Cousin lives in Clarksdale, Mississippi, with his wife and two

teenage daughters, and has worked at the Mississippi Department of

Health for 19 years. He has apparently maintained a flawless

credit history except for certain items resulting from the

fraudulent acts of others posing as Cousin.

In 1984, Cousin’s brother Richie misappropriated Cousin’s

personal identifying information, i.e., his name and social

security number, to obtain automobile loans from two different

lenders, NBC Bank of Mississippi (“NBC”) and City Finance of

Okolona (“City Finance”). When Richie failed to pay, the

delinquencies were negatively noted on Cousin’s file with Trans

Union, a consumer reporting agency as defined by the FCRA.

In 1993, Richie again pretended to be Cousin and applied for

credit to purchase an automobile in Aberdeen, Mississippi, a place

where Cousin has never lived. To purchase the automobile, Richie

gave a down payment check that later bounced. The dealer contacted

1 The FCRA is one of seven independent subchapters of the Consumer Credit Protection Act,

-1693r.

2 Cousin, who explained that his brother was an impostor.

Nevertheless, General Motors Acceptance Corporation (“GMAC”), the

apparent lender on that automobile loan, forwarded negative

information about Cousin to Trans Union.

On December 6, 1993, Trans Union sent a consumer report to

Cousin containing the adverse information about the GMAC account or

tradeline. The consumer report also contained negative information

about the NBC account and another account with American General and

listed a fraudulent Aberdeen address. Cousin immediately informed

GMAC of the error, and on December 10, 1993, Cousin filled out

Trans Union’s Investigation Request Form (“IRF”) and requested

Trans Union to delete all the fraudulent information. On January

11, 1994, Trans Union responded by sending Cousin a partially

corrected consumer report. The GMAC account and the Aberdeen

address were deleted, but the consumer report still contained the

NBC and American General accounts. Attached to the consumer report

was a green postcard that said:

In response to your recent request, we have reinvestigated disputed information contained on your credit file. The enclosed file reflects the results of our investigation. Some information which was disputed may have been changed or deleted due to the creditor’s failure to adequately respond to our verification requests. If the creditor satisfactorily verifies this information in the future, it may be reinstated to the credit file. In the event Trans Union reinstates information to your report as a result of credit grantor verification, you will be notified in writing and you will receive an updated copy of your Trans Union report reflecting the reinstatement.

3 In May 1994, however, Cousin sued Trans Union for its continued

reporting of the NBC and American General accounts.2 That lawsuit

was settled in January 1995, and Trans Union agreed to suppress all

the adverse information about NBC and American General.

To suppress the improperly adverse information, Trans Union

implemented a procedure called cloaking. Normally, when

information reported to Trans Union is found to be inaccurate after

reinvestigation pursuant to § 1681i, it is deleted. But unless the

credit grantor involved also deletes the information from its

monthly computer tape submission,3 the information will be re-

reported into the consumer’s Trans Union file. To avert such

errors, Trans Union designed a procedure called cloaking. The

cloak is a flag in Trans Union’s computer system associated with

the subject account. The cloaking flag prevents the deleted

information from reappearing in a consumer’s file even if the

credit grantor fails to remove the inaccurate information from its

magnetic tapes and resubmits the information. The cloaking flag

remains in effect until the credit grantor has deleted the

inaccurate information from its tape submissions for twelve

consecutive months. At that point, Trans Union believes that the

2 Cousin also sued Jerry Enis Motors and Equifax, Inc. (“Equifax”), another major consumer reporting agency, for failing to reinvestigate and delete information about the GMAC account. 3 Credit grantors regularly send to Trans Union magnetic tape data that updates the credit history of their consumers. The update is usually monthly.

4 credit grantor has deleted the information permanently, and the

cloaking flag expires automatically.

On February 6, 1995, three weeks after settling the first

lawsuit, Trans Union sent a consumer report to Cousin, which still

contained the fraudulent NBC and American General accounts and the

Aberdeen address. Furthermore, that consumer report for the first

time listed a fraudulent BellSouth Mobility (“BellSouth”) account.

Richie had apparently opened an account in Cousin’s name with

BellSouth for cellular phone service in mid-1994.

On February 17, 1995, Cousin completed another IRF, again

contesting the NBC and American General accounts and the Aberdeen

address. In addition, he challenged for the first time the

BellSouth account. On February 28, 1995, Trans Union forwarded

another consumer report to Cousin, but it still retained all of the

false information. After further communication between Cousin’s

lawyers and Trans Union, a clean consumer report was furnished to

Cousin on March 9, 1995. Moreover, the BellSouth account was

cloaked as of that date.4

On November 15, 1996, Cousin went to Heafner Motors

(“Heafner”) to buy a vehicle. After reaching agreement on price

and other details, Cousin sought credit to purchase the vehicle.

4 BellSouth also notified Trans Union via a Universal Data Form (“UDF”) on December 15, 1995, that the BellSouth account was subscription fraud.

5 The salesman filled out the paperwork and submitted it to the

credit manager Bill Harmon.

At trial, Harmon testified that Heafner does not lend any

credit.5 Instead, he stated that Heafner obtains consumer reports

on customers to select the best financing match among a group of

lenders. Heafner obtained a consumer report on Cousin from Trans

Union, which again included the old BellSouth account. The

consumer report listed the account as a “P and L write off” and

showed it to have a “N09" rating, the worst rating a consumer can

receive and which means “bad debt” or “charged off account.”

Heafner selected GMAC to provide financing for Cousin’s purchase

and sent his application, but not Trans Union’s consumer report, to

it.

Like Heafner, GMAC sought a consumer report and obtained one

from Equifax. The Equifax report also contained the BellSouth

account. GMAC denied in writing Cousin’s application for credit to

purchase the car from Heafner. GMAC based its denial on two items:

1) the Equifax report containing the BellSouth account and 2)

GMAC’s own internal record of the loss on the prior GMAC account,

which neither the Equifax or Trans Union reports listed.

Cousin called Heafner later in the afternoon of November 15,

1996, and was told that his application had not been approved. On

December 11, 1996, Cousin requested disclosure of his file from

5 The retail installment contract, however, would have listed Heafner as the seller/creditor.

6 Equifax. Before releasing the file to Cousin, Equifax deleted the

BellSouth account from the file, thus making Cousin unaware of the

BellSouth problem.

On January 13, 1997, Cousin requested a consumer report from

Trans Union. Upon receipt, he noticed that the report included the

false Aberdeen address and the BellSouth account.6 As a result,

Cousin sent to Trans Union another IRF on January 24, 1997,

notifying it that the entries were false.

In response to Cousin’s notice, Trans Union sent to Cousin

another consumer report, dated February 27, 1997. That report

deleted any reference to the BellSouth account, but it restated the

GMAC account that had previously been deleted in January 1994.

Apparently, GMAC had decided to re-report the old GMAC account

after it noted that the Equifax report did not list the GMAC

account. Moreover, GMAC had re-reported the old GMAC account,

using a different prefix number to designate the account. On March

4, 1997, Cousin notified Trans Union about the GMAC account.7

On March 28, 1997, Cousin sued Trans Union, alleging various

claims, including 1) negligent violation of the FCRA, 2) willful

violation of the FCRA, 3) defamation with malice, and 4) breach of

6 This was the first time that Cousin realized that the BellSouth account had been reinserted. Trans Union did not notify him before the information was reinserted. 7 As with the BellSouth account, Trans Union did not notify Cousin before reinsertion of the GMAC account.

7 contract.8 Notwithstanding this lawsuit challenging its handling

of the GMAC account, Trans Union sent to BellSouth a consumer

report displaying the GMAC account on April 9, 1997. Thereafter,

Trans Union attempted to recloak the GMAC account on April 21,

1997. It proved to be short-lived. The following day, Trans Union

pulled Cousin’s file off the automated system and manually examined

the file, penning certain comments on the file. Moreover, it

uncloaked the file. Later on May 12, 1997, Trans Union sent a

consumer report to GMAC with the GMAC tradeline still on the

report.

The jury trial commenced on May 11, 1998. Before submitting

the case to the jury, Trans Union moved for judgment as a matter of

law under Federal Rule of Civil Procedure 50. The district court

granted the motion with respect to the breach of contract claim,

but denied the rest of the motion. The jury returned a verdict of

$50,000 in compensatory damages and $4,470,0009 in punitive

damages.

On June 4, 1998, Trans Union again moved for judgment as a

8 Cousin also filed suits against several other defendants. On March 20, 1997, Cousin sued BellSouth, alleging that it “willfully and maliciously and in a secretive manner not reasonably discoverable by plaintiff published the false and libelous Bellsouth tradeline to Trans Union.” Furthermore, on April 7, 1997, Cousin commenced an action against GMAC for re-reporting the GMAC account. In addition, he filed suits against Equifax and Memphis Consumer Credit, an Equifax affiliate, for negligently reporting the inaccurate BellSouth account to GMAC on November 15, 1996. 9 This represented one percent of Trans Union’s net worth.

8 matter of law under Rule 50 and moved for a new trial under Rule

59. In the alternative, Trans Union also moved for a remittitur of

the compensatory and punitive damages awards or for a new trial

based upon the admission of irrelevant and prejudicial evidence and

argument regarding the Heafner automobile transaction. The

district court denied the motions and entered judgment. This

appeal ensued.

II. DISCUSSION

On appeal, Trans Union contends that it was entitled to

judgment as a matter of law with respect to Cousin’s claims for

negligent violation of the FCRA, willful violation of the FCRA, and

defamation with malice. In the alternative, Trans Union maintains

that it merits a remittitur of the compensatory and punitive

damages awards or a new trial. We review those issues in turn.

A. Standard of Review

“Judgment as a matter of law is proper on an issue if ‘there

is no legally sufficient evidentiary basis for a reasonable jury to

find for that party on that issue.’” Satcher v. Honda Motor Co.,

(5th Cir. 1995) (quoting Fed. R. Civ. P. 50(a)).

When reviewing the denial of a motion for judgment as a matter of

law, we will uphold a jury verdict unless the facts and inferences

point so strongly and so overwhelmingly in favor of one party that

reasonable men could not arrive at any verdict to the contrary.

9 See

Furthermore, we are bound to view the evidence and all

reasonable inferences in the light most favorable to the jury's

determination. See Denton v. Morgan,

, 1044 (quoting

Rideau v. Parkem Indus. Servs.,

(5th Cir. 1990)).

Although we might have reached a different conclusion if we had

been the trier of fact, we are not free to reweigh the evidence or

to reevaluate the credibility of witnesses. See

“We must not

substitute for the jury's reasonable factual inferences other

inferences that we may regard as more reasonable.”

B. Negligent Noncompliance with the FCRA

Section 1681o10 provides statutory authority for civil

liability for negligent noncompliance with the FCRA. Any person

who is negligent in failing to comply with a requirement of the

FCRA is liable for any actual damages sustained by the consumer.

15 U.S.C. § 1681o(a). Here, Cousin charged that Trans Union failed

to meet the requirements of § 1681e(b).11 Under that section,

10 That section provides in pertinent part: Any person who is negligent in failing to comply with any requirement imposed under this subchapter with respect to any consumer is liable to that consumer in an amount equal to the sum of– (1) any actual damages sustained by the consumer as a result of the failure; (2) in the case of any successful action to enforce any liability under this section, the costs of the action together with reasonable attorney’s fees as determined by the court. 15 U.S.C. § 1681o(a). 11 In his response brief, Cousin mentions a § 1681i claim. Under that section, a consumer reporting agency after reinvestigation

10 “[w]henever a consumer reporting agency prepares a consumer report,

it shall follow reasonable procedures to assure maximum possible

accuracy of the information concerning the individual about whom

the report relates.” 15 U.S.C. § 1681e(b).

In the present case, Trans Union concedes the inaccuracy of

its disclosures but maintains that some of those disclosures were

not consumer reports and, therefore, could not have formed the

basis of a § 1681e(b) claim. Moreover, it asserts that it followed

reasonable procedures as a matter of law. Finally, Trans Union

argues that the inaccurate information must have been published to

a third party and that Cousin must have suffered a credit denial to

establish a § 1681e(b) claim.12 We review each argument in turn.

First, Trans Union maintains that there was only one consumer

report in evidence, the November 15, 1996 report to Heafner. With

respect to the other disclosures of January and February 1997 to

Cousin himself, Trans Union submits that they were not consumer

must promptly delete from a consumer’s file inaccurate, incomplete, or unverifiable information that a consumer disputes. 15 U.S.C. § 1681i(a)(5)(A). Although Cousin’s complaint and the pre-trial order averred general claims of negligent and willful violations of the FCRA, neither specifically stated § 1681i nor did the jury instructions present a claim for violating § 1681i. Because the record does not establish that a § 1681i claim was ever presented to the jury, we focus solely on the claims seeking redress for noncompliance with § 1681e(b). 12 Trans Union seems to vacillate as to whether a credit denial is necessary for a § 1681e(b) claim. At the district court, Trans Union stated on one occasion that a credit denial may not be a prerequisite. But it then argued that without a denial, Cousin could not establish any causation between Trans Union’s alleged failure to comply with § 1681e(b) and Cousin’s supposed damages.

11 reports and, hence, could not have formed the basis for a claim

under § 1681e(b), which concerns the preparation of consumer

reports.13 Trans Union contends that, by definition, a consumer

report is a communication of information to a third party bearing

on a consumer’s eligibility for credit. Because the January and

February 1997 disclosures were only to Cousin, Trans Union asserts

that they cannot be consumer reports.

Trans Union further argues that the qualified immunity

afforded § 1681g disclosures to consumers pursuant to § 1681h(e)

necessarily distinguishes the January and February 1997 disclosures

from consumer reports like the one sent to Heafner. Section 1681g

pertains to the disclosure of information in a consumer’s file to

consumers who make a request to a consumer reporting agency. Under

§ 1681h(e), disclosures made pursuant to § 1681g may not be the

predicate for a consumer’s common law claims of defamation or

negligence against a consumer reporting agency unless the

disclosures contained information furnished with malice or willful

13 In its initial brief, Trans Union argues that the report sent to Heafner and the two disclosures in January and February were the only possible “consumer reports.” Interestingly, it speaks very little of its disclosures of Cousin’s file to BellSouth and to GMAC on April 9 and May 12, 1997, respectively. Only in the reply to Cousin’s brief, which clearly raises those two disclosures, does Trans Union address them. Although those two disclosures were transmitted after the filing of Cousin’s complaint, the pretrial order clearly included those publications, and Cousin presented evidence about them at trial. Consequently, those disclosures were a part of the trial record. See Fed. R. Civ. P. 16(e) (“[Pretrial] order shall control the subsequent course of the action unless modified by a subsequent order.”).

12 intent to injure the consumer. Moreover, § 1681h(e) excludes from

qualified immunity those actions commenced under §§ 1681n and

1681o. Trans Union suggests that the January and February 1997

disclosures to Cousin were not consumer reports because it is

illogical to make disclosures to consumers qualifiedly immune from

common law torts such as negligence but still allow them to be

characterized as consumer reports and, consequently, vulnerable to

attack under § 1681o as the purported by-product of negligent

noncompliance with § 1681e(b).

Although Trans Union’s argument that the January and February

disclosures were not consumer reports may be valid, especially in

light of § 1681h(e), we generally do not consider on appeal matters

not presented to the trial court. Webb v. Investacorp Inc.,

, 257 n.2 (5th Cir. 1996). Other than, 1) a general

statement by Trans Union in its answer denying Cousin’s

characterization of his communications with Trans Union and the

nature of those documents, and 2) an attempt to include a jury

instruction that no credit reports were disseminated in the instant

case and that all the reports admitted in evidence were file

disclosures, which attempt failed and which Trans Union did not

object to, Trans Union did not present any argument remotely

suggesting that the January and February 1997 disclosures, or any

other disclosures, were not consumer reports for purposes of a

§ 1681e(b) claim. Hence, we decline to address Trans Union’s

13 position that the January and February 1997 disclosures were not

consumer reports.

Trans Union’s second argument for reversing the district

court’s denial of its motion for judgment as a matter of law

concerns the reasonableness of its cloaking procedure. The

adequacy of the consumer reporting agency’s procedures is judged

according to what a reasonably prudent person would do under the

circumstances. Thompson v. San Antonio Retail Merchants Ass’n,

(5th Cir. 1982). In the majority of cases,

reasonableness is a question for the jury. Cahlin v. General

Motors Acceptance Corp.,

(11th Cir. 1991).

Trans Union, however, maintains that its procedure should be deemed

to be reasonable as a matter of law because, unlike other reported

cases that concerned a consumer reporting agency’s inadequate

response to a known problem, it had no way to know that its

cloaking system would fail. It argues that BellSouth and GMAC

should have notified it before re-reporting their erroneous

information about Cousin, and thus, it should not have been

penalized for something others failed to do.

We disagree. “Allowing inaccurate information back onto a

credit report after deleting it because it is inaccurate is

negligent.” Stevenson v. TRW Inc.,

(5th Cir.

1993). Creditors report all magnetic tape data without notice of

any kind. They do not highlight any particular data in their

14 magnetic tape submissions. Instead, it is incumbent on the

consumer reporting agency to permanently delete and cloak the

erroneous information. Trans Union knew about problems with re-

reporting as Trans Union’s own cloaking manual indicated that a

process had to be developed to ensure that inaccurate information

that was deleted did not keep reappearing. Trans Union offers no

reason why, as a matter of law, cloaking for only twelve months is

a reasonable procedure, especially when it could have easily

cloaked any adverse information permanently and when its own

witness conceded that in retrospect the twelve month cloaking

procedure may have been unreasonable.14 The fact that Experian,

another of Trans Union’s consumer reporting agency competitors, did

not have a problem with ensuring the non-reappearance of, at least,

the BellSouth account suggests the unreasonableness of Trans

Union’s procedure. Accordingly, Trans Union’s cloaking procedure

was not reasonable as a matter of law, and the issue of

reasonableness was properly before the jury to consider.

Trans Union’s final argument concerns whether the inaccurate

information must have been published to a third party and that

Cousin must have suffered a credit denial to establish a § 1681e(b)

claim. In essence, that argument involves two interrelated legal

elements--causation and injury--and charges that no injury flowed

from the disclosures of the inaccurate information because they

14 She partially retracted the statement later in the same deposition testimony that was admitted into the trial record.

15 were not publicized to a third party and that Cousin suffered no

injury because there was no credit denial. Referring to various

cases from this and other circuits, Trans Union insists that

publication and denial of credit are prerequisites to a § 1681e(b)

claim. See, e.g., Pinner v. Schmidt,

(5th Cir.

1986); Philbin v. Trans Union Corp.,

(3d Cir. 1996);

Casella v. Equifax Credit Info. Servs.,

(2d Cir. 1995);

Cahlin,

; Hauser v. Equifax, Inc.,

(8th

Cir. 1979). But see Guimond v. Trans Union Credit Info. Co.,

(9th Cir. 1995) (concluding that district court

erred in predicating liability under § 1681e(b) on the occurrence

of a credit denial or the transmission of a report to a third

party). Because the January and February 1997 disclosures were

sent to Cousin, rather than a third party, and because they did not

contribute to a credit denial, Trans Union contends that those

disclosures cannot support Cousin’s claim for negligent

noncompliance with § 1681e(b). As for the consumer report sent to

Heafner in November 1996, Trans Union maintains that there was no

evidence indicating that Heafner utilized the report to deny credit

to Cousin.

We need not address Trans Union’s specific arguments as to

whether publication and denial of credit are necessary to assert a

§ 1681e(b) claim because even assuming arguendo that denial of

credit and publication are not prerequisites for a § 1681e(b)

16 claim, we see insufficient evidence of actual damages to warrant

the jury’s award. As previously noted, § 1681o provides for actual

damages when there has been negligent noncompliance with the FCRA.

Here, the jury awarded $50,000 in compensatory damages and

$4,470,000 in punitive damages. Those compensatory damages

constituted the actual damages award and were apparently for

Cousin’s purported denial of credit by Heafner and for his

emotional distress.15 Trans Union contends that no compensatory

damages should have been awarded for Cousin’s failure to receive

credit for the purchase of a vehicle because the credit grantor did

not utilize a Trans Union credit report. It asserts that GMAC, not

Heafner, denied Cousin credit and that GMAC used a report from

Equifax and its own internal files. Additionally, Trans Union

argues that the evidence did not support an award for Cousin’s

emotional distress.

Having reviewed the record, we agree. There was no legally

sufficient evidence for a reasonable jury to find that a Trans

Union credit report was utilized to deny Cousin credit. Three

items purportedly supported the belief that Heafner denied Cousin

15 Actual damages may include damages for humiliation or mental distress even if the consumer has suffered no out-of-pocket losses, as well as damages for injury to reputation and creditworthiness. Fischl v. General Motors Acceptance Corp.,

(5th Cir. 1983). No evidence about other actual damages was in the record. Cousin’s attorneys did seek attorney’s fees and costs, but those related to the filing of the instant action and were sought post-verdict pursuant to the attorney’s fees provisions of the FCRA and the common law.

17 credit based on a Trans Union credit report. One, a letter from

GMAC read:

“We were recently informed by HEAFNER MOTORS, INC. that it was considering the credit sale or lease of an automobile or other product to you and asked whether we would be prepared to accept your obligation if the transaction was completed. We must regretfully inform you that we were not agreeable to handling the proposed transaction.”

Two, some testimony revealed that Heafner would have been noted as

the seller/creditor on the vehicle’s installment sales contract.

Three, additional testimony indicated that Heafner assigns loans to

other entities after the sale of a car. Although we are bound to

view the evidence and all reasonable inferences in the light most

favorable to the jury’s determination, we cannot find that a

reasonable jury would have inferred from the foregoing evidence

that Heafner denied Cousin credit based on a Trans Union credit

report, particularly when the unequivocal testimony from Heafner

was that it does not grant credit to customers.16 The thrust of the

16 The three items correspond to concerns with the Truth in Lending Act (“TILA”),

-1667f. That statute attempts to achieve the “informed use of credit results from an awareness of the cost thereof” by consumers by “mandating a meaningful disclosure of credit terms.”

(a). And it distinguishes between the responsibilities of creditors and assignees. See generally Riviere v. Banner Chevrolet, Inc.,

(5th Cir. 1999). Under the TILA, “[i]f an obligation is initially payable to one person, that person is the creditor even if the obligation by its terms is simultaneously assigned to another person.”

(quoting the staff interpretation to Regulation Z,

). The TILA recognizes that an automobile dealer and a bank may create an arrangement whereby the credit sale contracts are initially payable to the dealer but are immediately assignable to the bank.

In such cases, the dealer

18 evidence indicated that GMAC was the credit grantor and that it

denied Cousin’s application based on an internal credit report and

a report from Equifax, not Trans Union. As the denial of credit

was due to something other than Trans Union’s consumer report on

Cousin, we cannot justify the $50,000 compensatory damages award to

include damages arising from that credit denial.

Accordingly, the only possible actual damages related to

Cousin’s emotional distress. The evidence of that distress,

however, was very limited and legally insufficient. Cousin

testified that as a result of the November 15, 1996 credit denial,

he felt real frustrated and irritated because the BellSouth

information was being re-reported.17 At the time he felt emotional

distress, he did not know whether a Trans Union report had been

utilized by any of the parties. In light of the fact that the

credit denial occurred due to an Equifax report, Cousin’s emotional

distress from the denial of credit cannot be attributed to Trans

Union, and he cannot recover actual damages for that distress.

The only other testimony about emotional distress concerned

and purchaser execute the contract only after the bank approves the creditworthiness of the purchaser; yet, the dealer is deemed to be the only creditor in the transaction.

Heafner’s arrangement with GMAC correlates to the TILA model. 17 Cousin testified: A: On that day I felt real frustrated, real irritated to know that this information was continuing to be reported over and over again. I already told them that it was not me. I wanted to say that it was a feeling of like being in jail knowing that I – I mean, I didn’t do this. I’m not guilty, but I was continuing to be punished for it.

19 Cousin’s reaction to seeing his inaccurate Trans Union credit

reports of November 15, 1996, and January 17, 1997.18 Upon being

questioned about how he felt when he saw the November 15, 1996

credit report, Cousin testified:

A: Very upset, angry. And it just was that, you know, all things I had done, the company to not – they didn’t hear me. I had told them over and over again but they didn’t listen to me, you know. So that’s how I felt.

Q: You felt like nobody was listening?

A: Felt like nobody was listening.

As for the January 17, 1997 disclosure, Cousin stated:

A: I felt like, if you [k]now anything about a maze, it’s like being trapped inside of something that you can’t get out of.

In Carey v. Piphus,

(1978), the Supreme

Court required proof of actual injury for compensatory damages to

be awarded for mental or emotional distress in an action brought

under

. It concluded that a jury’s award for

emotional distress must be supported by evidence of genuine injury,

such as the evidence of the injured party’s conduct and the

observations of others.

. We extended Carey’s holding

and reasoning to other cases involving federal claims for emotional

harm in Patterson v. P.H.P. Healthcare Corp.,

(5th

18 No testimony related to the February 1997 disclosure to Cousin, the April 9, 1997 disclosure to BellSouth, or the May 12, 1997 disclosure to GMAC. Accordingly, no damages award may stand based on those arguably negligent acts.

20 Cir. 1996), a case concerning claims for racial discrimination and

retaliatory discharge. There, we recognized that to establish

intangible loss, Carey requires “a degree of specificity which may

include corroborating testimony or medical or psychological

evidence in support of the damage award.

. In

Patterson, we were confronted with the following evidence of

emotional distress by one of the plaintiffs.

[He] testified that he felt “frustrated” and “real bad” for being judged by the color of his skin. [He] explained that the work environment was “unbearable” and was “tearing [his] self-esteem down.” [He] also stated that it “hurt” and made him “angry” and “paranoid” to know that his supervisor referred to [him] as a “porch monkey” or a “nigger” and generally though that he was inferior to white employees.

. That plaintiff’s testimony was much more concrete than

Cousin’s; yet, we vacated the district court’s $40,000 emotional

distress award, finding that his testimony of mental distress was

insufficient.

Because Cousin presented no more than what was

offered in Patterson, we likewise vacate the award for emotional

distress in the present case for insufficient evidence of actual

damages.19

19 Although in vacating the emotional distress award in Patterson we remanded the case to the district court with instructions for the district court to award nominal damages, “[n]ominal damages to vindicate a technical right cannot be recovered unless actual loss has occurred.” Hyde v. Hibernia Nat’l Bank,

(5th Cir. 1988) (mentioning general rule about nominal damages in context of FCRA); Restatement (Second) of Torts § 907 cmt. a (1979) (“If actual damage is necessary to the cause of action, as in negligence, nominal damages are not awarded.”); W. Page Keeton et

21 C. Willful Noncompliance with the FCRA

Section 1681n20 provides the statutory authority for civil

liability for willful noncompliance with the FCRA. As with his

negligent noncompliance claim, Cousin’s willful noncompliance claim

pertains to Trans Union’s failure to meet the requirements of

§ 1681e(b). Under the willful noncompliance statute, a consumer

may obtain punitive damages. See 15 U.S.C. § 1681n(a)(2). Here,

the jury awarded $4,470,000 in punitive damages.

al., Prosser and Keeton on Torts § 30, at 165 (5th ed. 1984). Here, in this negligent noncompliance action, there was insufficient evidence of actual loss. Therefore, we need not award any nominal damages, and we make no determination as to whether Cousin has satisfied all the purported elements of a negligent noncompliance with § 1681e(b) claim to warrant nominal damages. It is true that Cousin maintained a willful noncompliance claim and a claim for defamation with malice for which nominal damages could possibly be awarded, but both fail for other reasons. See infra Parts C & D. 20 That section provides in pertinent part: Any person who willfully fails to comply with any requirement imposed under this subchapter with respect to any consumer is liable to that consumer in an amount equal to the sum of– (1)(A) any actual damages sustained by the consumer as a result of the failure or damages of not less than $100 and not more than $1,000; or (B) . . . (2) such amount of punitive damages as the court may allow; and (3) in the case of any successful action to enforce any liability under this section, the costs of the action together with reasonable attorney’s fees as determined by the court. 15 U.S.C. § 1681n(a).

22 “Malice or evil motive need not be established for a punitive

damages award, but the violation must have been willful.” Fischl

v. General Motors Acceptance Corp.,

(5th Cir.

1983). In Pinner, we noted that “willful” is a word of many

meanings and that its construction is often influenced by its

context. See Pinner,

. In concluding that the

consumer reporting agency in that case did not commit a willful

violation, we remarked that there was no evidence suggesting that

the agency “knowingly and intentionally committed an act in

conscious disregard for the rights of others.” Id.; see also

Philbin,

; Stevenson,

. Generally,

courts have allowed a willful noncompliance claim to proceed where

a defendant’s conduct involves willful misrepresentations or

concealments. See Pinner,

. In those cases, a

consumer reporting agency has typically misrepresented or concealed

some or all of a credit report from a consumer. See

(discussing Millstone v. O’Hanlon Reports, Inc.,

(8th

Cir. 1976)); see also Stevenson,

.

In its initial brief, Trans Union asserts two bases for

rejecting Cousin’s § 1681n claim. First, it argues that Cousin’s

§ 1681n claim depended heavily on allegations that Trans Union

willfully reinserted the GMAC tradeline into Cousin’s consumer

report in early 1997 and that judicial estoppel should have barred

that claim from being asserted. Second, Trans Union maintains that

23 Cousin failed to present sufficient evidence of willfulness,

comparing the instant situation to various other decisions

involving far more egregious facts that were held insufficient to

state a claim under § 1681n.

We need not address the first of Trans Union’s arguments as

Cousin essentially concedes in his response brief that Trans Union

did not willfully dredge up the GMAC tradeline and reinsert it into

Cousin’s consumer report. Notwithstanding this apparent

concession, Cousin challenges Trans Union’s second argument that he

failed to present sufficient evidence of willfulness. Cousin

points to several facts, which apparently were brought forth at

trial, to establish that Trans Union’s actions constituted willful

noncompliance. First, Cousin refers to the re-reporting of the

BellSouth account in the November 15, 1996 report to Heafner

despite the prior cloaking and the December 1995 notice from

BellSouth to Trans Union confirming that the BellSouth information

was subscription fraud. Second, Cousin argues that Trans Union

knew about the problems of re-reporting but failed to do anything

about it. He maintains that the company failed to adequately

assess whether a twelve-month cloaking system would work. Third,

Cousin complains of Trans Union’s transmittal to BellSouth on April

9, 1997, a report including the fraudulent GMAC tradeline.

Finally, Cousin raises the uncloaking of his consumer report on

April 22, 1997, after the report had been cloaked on April 21, and

24 its transmission to GMAC.21 In its reply to Cousin’s brief, Trans

Union attempts to address Cousin’s counter-arguments.22

At trial, Cousin introduced evidence that the BellSouth

tradeline was fraudulent and that Trans Union had cloaked the

account in March 1995. Additional evidence indicated that in

December 1995, BellSouth had submitted to Trans Union a UDF stating

that the BellSouth account was probably subscription fraud. Eleven

21 Cousin also avers that Trans Union made misrepresentations to him when it sent a green postcard during the first Trans Union lawsuit in 1995, telling him that if the inaccurate information was ever reinstated after reverification, Trans Union would notify him. That allegation does not raise a § 1681n claim for violating § 1681e(b). As noted in Pinner, the misrepresentations that might give rise to a willfulness claim normally concern misrepresentations of the consumer’s own report and concealment of that report from the consumer. See Pinner,

. 22 Normally, “[a]n appellant abandons all issues not raised and argued in its initial brief on appeal.” Cinel v. Connick,

(5th Cir. 1994). But see Piney Woods Country Life School v. Shell Oil Co.,

(5th Cir. 1990) (recognizing procedural bar about raising issues in initial brief, but still addressing as an exercise of discretion some issues newly raised in reply brief). Although Trans Union’s initial brief did not directly address some of the specific acts that may have formed the basis of the jury’s § 1681n verdict and that Cousin discusses in his response brief, we believe that Trans Union’s appeal questioning the evidentiary sufficiency of the willfulness claim sufficiently raised the issue of Trans Unions’ willful conduct for us to consider all the arguments. Indeed, Cousin’s brief raising all the purported willful acts is a tacit acknowledgment that the general issue of willful conduct was presented in Trans Union’s brief. Furthermore, unlike the more contemptible situation where an appellant raises a completely new issue in its reply brief, disadvantaging the appellee, and for which the procedural bar concerning initial briefs was properly developed and utilized, we see no real new issue in the reply brief, but rather responsive arguments to the appellee’s own contentions, and, therefore, little or no prejudice. With that in mind, we review the sufficiency of the willfulness claim.

25 months later, the BellSouth tradeline reappeared in Cousin’s file.

Testimony indicated that BellSouth may have re-reported the adverse

tradeline information to Trans Union between April 1996 and August

1996. The prior lawsuit, the cloaking of the BellSouth account,

and BellSouth’s own UDF transmittal may have put Trans Union on

notice about the falsity of the BellSouth account with respect to

Cousin; nevertheless, we cannot conclude that such evidence is

legally sufficient to establish that Trans Union willfully violated

§ 1681e(b). In Philbin, the Third Circuit found no willful

violation despite the reappearance of inaccurate information that

had previously been deleted and which the consumer had again

notified the consumer reporting agency about when that information

reappeared. See id.; see also Casella,

(failing to

delete inaccurate information notwithstanding notification to

consumer reporting agency did not rise to the level of conscious

disregard or deliberate and purposeful action necessary to make out

a willful noncompliance claim). The present situation is no more

egregious than in Philbin or Casella. The fact that Trans Union

may have had experience with Cousin’s BellSouth tradeline and that

BellSouth had submitted a UDF to Trans Union about subscription

fraud does not necessarily translate into knowingly and

intentionally committing an act in conscious disregard of Cousin’s

rights. BellSouth itself appears to have reinserted the

information, and several months had elapsed from the time of the

26 UDF and/or the initial cloaking to the reinsertion of the BellSouth

tradeline into Cousin’s file. Finally, Trans Union did not conceal

Cousin’s consumer reports or misrepresent them. That in and of

itself suggests that Trans Union did not commit a willful violation

of § 1681e(b). Stevenson,

(“Only defendants who

engaged in ‘willful misrepresentations or concealments’ have

committed a willful violation and are subject to punitive damages

under § 1681n.”).

Similarly, we find Cousin’s argument with respect to Trans

Union’s failure to implement a better cloaking system unavailing.

The system was not perfect, but it was effective for a few months,

and Trans Union never attempted to mislead Cousin with respect to

his consumer report or his rights. We may fault the failure to

implement a full-proof cloaking procedure as unreasonable, but we

cannot say that it was willful.

As for Trans Union’s disclosure of Cousin’s consumer reports

to BellSouth in April 1997 and to GMAC in May 1997, we first note

the evidence at trial and the parties’ admissions. When on January

17, 1997, after having been denied credit to purchase a car from

Heafner, Cousin received a Trans Union report, the report included

the false Aberdeen address and the BellSouth tradeline. Cousin

immediately notified Trans Union that those entries were false, and

Trans Union deleted them. At that time, however, GMAC submitted to

Trans Union, as much of the evidence indicates and as Cousin now

27 apparently concedes, the old GMAC tradeline that had previously

been deleted from Cousin’s report. But GMAC utilized a different

prefix code to identify the tradeline rather than the old one.

Cousin notified Trans Union about the fraudulent nature of the GMAC

tradeline on March 4, 1997. That tradeline was later released in

a consumer report to BellSouth on April 9, 1997. On April 21,

1997, the record reveals that Cousin’s file was cloaked. That

cloak was short-lived as it was uncloaked the next day.

Thereafter, on May 12, 1997, Cousin’s consumer report with the

fraudulent GMAC tradeline was transmitted to GMAC.

Although the consumer reports to BellSouth and to GMAC

contained inaccurate information about the GMAC tradeline, we do

not believe that those or any other acts amount to legally

sufficient evidence for a reasonable jury to find for Cousin on his

§ 1681n claim for violation of § 1681e(b). The GMAC tradeline had

a new prefix code and, in essence, was not the same as before. We

cannot deem as a willful violation Trans Union’s inability to

distinguish two tradelines that on their face were different.

Thus, Trans Union’s failure to quickly delete the GMAC tradeline

and its decision to release a consumer report with that information

while it reinvestigated the tradeline cannot be deemed a willful

violation of § 1681e(b). See 15 U.S.C. § 1681i (providing

reinvestigation procedure in case of disputed accuracy).

Cousin makes much of the fact that Trans Union cloaked his

28 file on April 21 with notations stating “ID FRAUD” and “derogs” and

then uncloaked the file the next day. He argues that the

uncloaking demonstrates willfulness because the evidence showed

that only a Trans Union supervisor could have manually uncloaked

his file. Thus, Cousin believes that Trans Union must have

intended for the GMAC tradeline to be in his file. Even if a Trans

Union supervisor had uncloaked Cousin’s file, we conclude that such

an act did not constitute a willful violation of § 1681e(b). As

the testimony indicated, cloaking is a process whereby Trans Union

precludes future submissions of inaccurate tradeline information

from being entered into a consumer’s file. Cloaking does not

concern the actual deletion of any inaccurate information. Hence,

when Trans Union determined to uncloak Cousin’s file, it did not

actually do anything substantively to his file. Rather, Trans

Union allowed the status quo to stand while it reinvestigated the

fraudulent nature of the GMAC tradeline. Consequently, we see no

willful violation of § 1681e(b) under the evidence presented to the

jury.23

D. Defamation With Malice

Cousin’s last claim is a common law action for defamation with

malice. Under § 1681h(e), consumer reporting agencies are

generally qualifiedly immune from state law claims for defamation

23 In making this ruling, we again make no determination as to whether publication and denial of credit are prerequisites for a claim predicated on § 1681e(b).

29 unless they involve malice or willful intent to injure. Both Trans

Union and Cousin agree that courts have determined that malice

under this statutory scheme is congruent with the common law

standard. See Thornton v. Equifax,

(8th Cir.

1980). Thus, to establish defamation with malice in the present

case, one must establish that the defendant when he published the

words--(1) either knew they were false, or (2) published them in

reckless disregard of whether they were true or not. See Gulf

Publishing Co. v. Lee,

(Miss. 1983) (citing

Reaves v. Foster,

(Miss. 1967)).

In the instant case, there were three disclosures to outside

parties: 1) the report to Heafner Motors with the BellSouth

tradeline and the fraudulent Aberdeen address on November 15, 1996;

2) the report to BellSouth with the GMAC tradeline on April 9,

1997; and 3) the report to GMAC with the GMAC tradeline on May 12,

1997. None of those disclosures amounted to defamation with

malice.

As previously indicated, after learning of the fraudulent

nature of the BellSouth tradeline, Trans Union had cloaked the

BellSouth tradeline in March 1995. Pursuant to that procedure,

that information was not reported in Cousin’s file for at least a

year and was not publicized to another party until November 1996.

Only after BellSouth had apparently begun re-reporting that

tradeline did it get back into Cousin’s file. The lack of

30 permanence with the cloaking procedure may evidence the weakness

and unreasonableness of the procedure, but no malice can be derived

from it.

Likewise, we see no legally sufficient evidentiary basis for

concluding that Trans Union defamed with malice when it transmitted

the GMAC tradeline to BellSouth and to GMAC itself. GMAC had re-

reported the tradeline, utilizing a different prefix code.

Although in March 1997 Cousin had notified Trans Union about the

fraudulent nature of that tradeline, we cannot say that Trans Union

knew that the tradeline was false when the evidence revealed that

the tradeline had been re-reported with a different prefix code and

that Trans Union was reinvestigating that tradeline. Trans Union’s

subsequent actions do not suggest a reckless disregard for the

truth. It promptly corrected any errors and fully disclosed its

reports to Cousin. Therefore, we find that there was legally

insufficient evidence to support Cousin’s defamation with malice

claim.24

24 We also note that in Thornton, the Eighth Circuit held that the standard of proof required for a claim under the exception to the qualified immunity provision of § 1681h(e) is greater than that for a willful violation claim under § 1681n. Thornton,

. Assuming that were the case, we would have to find against the defamation with malice claim in light of our previous determination that there was no legally sufficient evidence to support a willfulness violation under § 1681n.

31 III. CONCLUSION

For the foregoing reasons, we vacate the district court’s

judgment and render that Cousin taken nothing with respect to his

claims.25 Each party is to bear their respective costs on appeal.

ENDRECORD

25 In light of our ruling, we do not address Trans Union’s argument, in the alternative, regarding remittitur or a new trial.

32 ROBERT M. PARKER, Circuit Judge, dissenting:

Because the evidence, taken in the light most favorable to the

jury verdict, supports that verdict, I respectfully dissent. “Our

assigned role is neither to re-try the case de novo nor to supplant

the jury verdict so long as it is supported by substantial

evidence.” Pinner v. Schmidt,

(5th Cir. 1986).

I agree that with the majority that Trans Union’s cloaking

procedure cannot be held reasonable as a matter of law and that the

issue of reasonableness was properly submitted to the jury.

However, I would hold that the evidence of actual damages was

sufficient to warrant the jury’s award of $50,000. Actual damages

may include out-of-pocket losses, damages for injury to reputation

and creditworthiness and for humiliation or mental distress. See

Fischl v. General Motors Acceptance Corp.,

(5th

Cir. 1983). Cousin and his attorney, over a four-and-one-half year

period, repeatedly advised Trans Union that specific derogatory

credit information in its files was inaccurate. Cousin commenced

two successive federal lawsuits in an effort to obtain Trans

Union’s compliance with the Fair Credit Reporting Act (“FCRA”),

-1681u. Moreover, Cousin testified concerning his

mental and emotional pain arising from the ongoing struggle. The

jury’s conclusion that Cousin suffered actual financial and

emotional damages was entirely reasonable in light of the evidence

33 presented at trial.

Further, I conclude that the evidence supports the jury’s

punitive damage award of one percent of Trans Union’s net worth.

Cousin presented evidence of Trans Union’s willful noncompliance

with 15 U.S.C. § 1681e(b)’s requirement that a credit reporting

agency shall follow reasonable procedures to assure maximum

possible accuracy of credit information. Again, the majority does

not find as a matter of law that Trans Union complied with the

reasonableness requirement of FCRA. Rather, it reverses the jury

verdict on the basis that the evidence was insufficient for the

jury to conclude that its noncompliance was willful. I disagree.

At the heart of our inquiry lies Trans Union’s policy of limiting

its cloaking of erroneous information to one year. The evidence

was more than sufficient for a jury to conclude that Trans Union

was aware that one-year cloaking limit was inadequate, and that it

could have addressed the problem by implementing permanent cloaking

procedures. Further, Trans Union knew, after years of repeated

complaints and a prior lawsuit, that Cousin’s file had been the

target of “ID FRAUD,” yet the majority holds that a reasonable

juror could not conclude that the decision to uncloak the file and

release a consumer report while it reinvestigated yet another

complaint was a willful violation of its duty to behave reasonably.

In short, both Trans Union’s general cloaking policy and its

specific handling of Cousin’s file support the jury’s finding of

willful noncompliance.

34 Based on the foregoing, I would affirm the verdict for Cousin

in toto.

35