right we will now hear the case of richard alexander williams versus first advantage background services  issue safeco insurance such a high bar for the finding of willfulness under the fair credit reporting act the standard the operative standard is reckless disregard the two components of that are an unjustifiable high risk of harm the second component is it's either known or obvious that it should be no we don't believe the evidence viewed in the light most favorable to the plaintiff satisfies that part first advantage fully recognizes its rights and more importantly its obligations under the fair credit reporting act we believe our procedures and our track record our performance record make that crystal clear with respect to procedures defendant's exhibit twelve lays out the entire protocol i'd like to highlight two components of that one is the enhanced identification procedure for common names situations this is not a case where a consumer reporting agency recognized that common names present some complications or complexities and ignored it first advantage recognizes those complexities and complications procedures agreed judge someone dropped the ball that's what the record shows that's what first advantage admitted to trial but there's a big leap to taking that and converting it into you willfully disregarded the law you knew that you were violating the law well maybe we would maybe we would spot you on the first one on the for the first instance where there's a problem but then when it was noun that richard williams was not a felon ricky williams then once again there was nothing put in the file or some light and that the next person that that that was going to happen and then once again the ball got dropped now a second time that what point do we find you to be reckless under these circumstances except f actually with respect to that the adjudicator net case actually when an extra step to review actual court files so it was even worse right well even i mean obviously this guy was in applying for a job and he was sitting in jail all right well that they were confirming certain records the adjudicator didn't evaluate certain information but again your honor that's dropping the ball and not willfully let regarding let me ask you about it so matthew o'connor is wh conscious decision not to use experian in these cases and he said that's right that's correct it was a conscious decision not to use experian how is that not willful well he they didn't use the address history part but they wind out to validate the remainder of the information that the criminal records report was suggesting and under the policy the intent would be to develop a third identifier to the extent one is available and can be located but the supervisor can waive that again the there's no evidence in the record as to exactly what happened but there's no evidence in the record that anyone said i can be hard but to put the jury decided that it was reckless you know but for the second one your honor if if the adjudicator didn't happen to look at certain information fets negligence i'll concede that for purposes of this argument but something more has to be required than simply not following what the procedure said should be done what if you don't follow it ten times well is that reckless you might be getting there depending on the circumstances but the other critical part of the undisputed record to stipulate and record is the performance record of first advantage the highest level of disputes is point four percent that didn't do mr williams much good it was of course your honor mr williams we regret it of course but the problem though with that analysis though is i mean what i would be interested in not just the total error right but if you wanted to have a more precise era calculation it would be how many cases of lee had with common names and once you get that group how many cases with common names did we attribute a felony to one of these bugs and how many times was that wrong that would be a more interesting statistic agreed iran or in fact the point for dispute rate percentage that stipulated really probably is an overstatement of quote errors because that is simply dispute and the revise i'm sorry the revised report rate of point four so ninety nine point six percent of the time no reports are revised but there's no evidence on that point for a revised reports there's no evidence of the actual reason why the report was revised there's no evidence that it was revised because of some action or in action taken by first advantage no evidence of that there's no evidence to your question judge carnes about how many of those were actual common name problems there's not a single case other than mr williams and again i'm not minimizing mr williams of course he was hurt here  in terms of losing job opportunities but we have to look at the overall context and there's no evidence that there's been any other common name problem like mr williams and sir only there is no evidence that the reasons  think there must have been but there's no evidence of that it's the plaintiff spurn especially when we're talking about something as significant as willful disregard and will excuse me reckless disregard and w the plaintiff should have presented evidence that that point for a revised report rape happened to common name situations happen for the same reasons that affected mr williams happened because of some inadequacy about cross blocking vs case blocking something happened because of address history there's not a single case in the record where failing to look at and address history somehow contributed or caused a mismatch to the ultimate prospective employer the numbers there the numbers powerful point four zero revised report rate ninety nine point six percent of the time a criminal background report stays exactly as it is and with respect to the point four there's multiple multiple potential reasons having nothing to do with first advantage we're talking about criminal information i don't we don't know the accuracy of what's coming from the courthouses the accuracy of what's coming from you knew in this case i mean i don't blame you for want to talk about statistics but you knew in this case that your report to the first employer had caused mr williams problems that you know whatever time it took to to work that out he he doesn't get hired for them for run us and or whatever and then it happens again i mean you they're on notice let me just correct you just so the record is clear it didn't happen again a mismatch happened for mr williams but the criminal record that was the problem in the rent to send to report was taken out and was not  also you come up with another one that belonged to him i mean how is that not happening well it it it shows that we're trying to be sensitive but maybe not perfect but i mean the idea is we're our procedures reasonable and place at the time we think based on the content of the procedure and the statistics it was nothing else telling us how to understand how you can talk about these perceived what was what was the procedure with respect to common name situations the procedure was in defendant's exhibit twelve additional attempts must be made to obtain a third identifier you put it in one of the same took and you've got your  executive testifying people weren't allowed to check experience well know that they were and there's no evidence that in mr williams this case anybody was prohibited or limited to seeking address history information the idea that had we looked at address history something would have happened differently not necessarily address history when he was in jail i mean at this time yes no question but at that time we're talking about  two thousand and four conviction that appeared at that time not a conviction that was occurring at the time the report was generated it was a two thousand and four conviction that we appeared on the wind dixie report it was a different conviction that appeared on lot of money maybe it is a check your honor if i could do reputational injury because it goes directly to punitive damages and for this reason it's an important appeal issue because of the consequences if the evidence does not support reputational harm if the evidence does not support reputational harm then the compensatory damages must be vacated and it didn't ask for a jury and you didn't you didn't you agree to the verdict on that didn't require  the and reputational harm so if any one of those elements is not supported under your court under your precedent the entire verdict goes out even if we didn't object to the verdict form the objection was not just for the sake of argument that the two hundred fifty thousand dollar compensatory stands what should the multiplier be was thirteen point two as i understand what what would you recommend to be the appropriate multiplier and why well i think it has to get down to single digits i think it actually should be remanded for a new trial on punitive damages because right now that award is too excessive but judge the critical point is the entire punitive damages award goes was using to defend it is six to one we think a one to one ratio would be at the top limit of this at the top because of the substantial amount of compensatory damages the two hundred fifty thousand reflects a punit element that's what state farm talked about so the idea of going beyond even a one to one ratio is seems to us to be indefensible under state farm is there any evidence of where the two fifty came from  the the evidence is the backpay amount was calculated at approximately seventy seven thousand your honor the remainder of the two fifty i do not believe the record reflects any kind of determination or calculation as to that amount the motional injury was very vague inter action save a very generalized in terms of loss of appetite and difficulty sleeping that was the extent of the non back pay and don't obviously don't know what the jury said for reputational injury though our position is no evidence supports reputational injury in fact the evidence supports it didn't happen he got a job with the levy county sheriff's office after the first report so a law enforcement agency was obviously not finding anything with mr williams his reputation that would negatively affect his ability to do the job and play have testified that his reputation and his father's contributed to that and secondly he got the win dixie job the very end that he that received the report so there's just no reputational injury thank you runners thank you as i am when he talks about the error rate that's not given to that which is complicated because our minds on this reputational could you just said quite quickly your opponent seems to me he has a decent argument that there was very little evidence for reputation damage and he argues if that's that we have to remand this whole case for the redetermined compensatory damages and he cites an eleventh circuit case saying it's not required that he request a verdict form segregated out the particular types of damages what do you say to that argument there was this the fair credit reporting act is all about reputation if you look at the definition of it but what about his argument that there if there's a flaw in that verdict for if you had three types of damages in the jury wasn't asked to allocate a monetary amount each type and it turns out one falls the reputational part is kind of weak but what do we do with that well that that's a huge thing because in their judgment for a matter law they said that the jury awarded seven eight thousand for last pay which is what i argue they should award and one hundred seventy thousand change for emotional distress they tribune none of it to reputational damage is so they're speaking inconsistently but you have to you have to go back to what the fair credit it's not to not answering my questions on general law question what do we do with that do you disagree with him that we have to send it back on reputational damages but if you were to do something about the reputational damage it is i'm going answer your question then i'd like to supplement it then you could certainly remit the damage is going by their own motion for judgment as a matter of law in which they tributed the jury verdict to lost wages and emotional distress only that's had pages nine in one thousand of their  their motion and there was nothing they thought was attributed to reputational damages i don't think in these be remitted but let me tell you why there was fish in evidence reputational damage is within the meaning of the fair credit reporting if you follow counsel of first advantages theory then every time you want to prove reputational damages you have to bring in a parade of people to say why are richard williams is a criminal that goes against what permissible purpose so a consumer reporting agency be it a background reporting agency or credit reporting agency they can put in the papers they can only submitted to the employer or the lend er what have you were the landlord at task and or for the report and only for a specific purpose so under the under first advantages theory you would never have reputational damages under the fair credit reporting act yet that's what the whole report the whole fair credit remap the whole thing that's certainly a major facet if you look at the definition of a consumer report in the act it talks about reports having  character and so forth here they say matter of ports saying richard williams is a criminal first time saying that he was charged with the sale of cocaine and there was a bench war burglary and battery on a pregnant woman he submitted that they submitted that to folks who mattered most to mr williams perhaps after his family at that moment in his life that folks use trying to get a job if that's damage through reputation with those people i don't know what is the jury found that that caused you not to get the job the case they said in a brief this stewart case had to do with asked you gave specific numbers for lost wages a specific number for a motional distress related to the first incident run a center and you gave an amount for emotional damages related to the wind dixie error so i mean you didn't have to ask for reputational damages did you i mean you're at a mean it the jury just ok we're we're we think this is the right amount based on lost wages and emotional distress alone that's ok under the under the statute it is correct your honor and it was not a feature of my argument we didn't bring in a parade of people and we don't have over to counter medications more so that was clearly the feature of the case not the reputational damages but nevertheless we think it's there is no reason the judge did not clearly  two off because two things happened to him that there's nothing in the record suggest anything like this is ever happened before so management wouldn't have been on notice to say we need to correct our procedures or people are following our procedures what's your response to that argument well if that's accurate you're owner then we have special procedures for common names you know obviously you recognize that when you're dealing with common names there's a greater else's public records in the background that's the only kind of the judgment let us discover their overall error rate so i have no idea what their dispute rate there could be all kinds of other errors so i need t he hundreds of examples of just just a little click district court would not allow you to discover their overall dispy that's correct your honor as if that wasn't that was invited by them they objected to you doing that does have salumi in fact they only wanted us to discover the raid in florida where they only provided we had to move to compel to get the net so that anyone do about it necessarily want to off because they didn't want you to find out any other information that would suggest it was anything else well two richard and ricky's born on the same day so then they knew that they knew that because they had a special procedure they recognise a recess but the fair credit reporting act says you have to you can't just put a procedure in the manual you have to follow the procedure whenever you prepare a background report and they didn't do that and it's more than just intentional and it was more than just conscious lee in this these two particular circumstances they purposely limited the amount of people that could use the address history procedure who cause they limited the life the amount of people that they got a license for from experian and interesting lee when there was a dispute they did go ahead and get an address history after the second  know it has value in the procedures but they just wrote it down they don't follow it and fourteen thousand people of with errors we know if you me use a smidgen of common sense the logical inference is that a lot of reprehensible because it was an intentional act in some ways it's less reprehensible because they didn't do it to fourteen thousand folks they did it to three or four folks and in that case they said in the eleventh circuit said hey when you have these kinds of physical symptoms of motion the stress that qualifies under the first  ability here we're talking about a young man who used to prod to make him living for oh most two years but we're not going to get the piano to compensatory takes care of his individual situation my understanding is punitive as something separate which is we look at what has to be reprehensible conduct and it's an effort to punish and send a message to the company regardless of this particular individual thirteen to ones pretty high for a case where there's at  a situation a few months ago with general electric where they laid off twelve thousand people and it was made the headlines on every news channel well here you have fourteen thousand people nationwide over a five year period at are either delayed or denied employment it's not a livelihood and it affects not only those fourteen thousand people but if any of those folks had families it affects their families and affects your ability to buy food grows it is your ability to to medicine their ability if you don't have medicine you know have health and safety so it effects a broad range do we have the authority to reduce the amount to a particular amount that that we're satisfied with or would it be mandatory that we have to send it back for reconsideration by the district court on the attorneys fees in the ratio but it is part of compensation and i i think that they should be considered at least in part i see my time is up i thank you for your time and we ask of course i don't recall the exact discovery record your honor but nothing would prevent mr williams from asking district court at least let us take discovery to see if there's other problems like those that affected mr williams but in terms of a trial record and that's all we've got to look at that you understand we can't hold it against him that he didn't prove the particular fact if your side successfully prevented him from learning that he had the company people on the witness stand he could have asked them all kinds of questions about common name problems that existed in the past and how come you didn't act on him he didn't do that with respect to attorneys he is judge kearns the fair credit reporting act makes clear attorneys fees are recoverable but they not part of compensatory damages two entirely different provisions in the statute you can't include attorney's fees as part of compensatory damages especially in this case it has no amount has even been set for attorney fees so how can anyone consider the amount of attorney's fees to determine the appropriate ratio and no one has were persuaded by your argument that the ratio should be closer to one to one let's say can we decide that here  willfulness our view is i don't see how this finding of willfulness can be squared granted it's a six circuit but it's decision smith but more importantly s our arguments for the day we will be in recess until nine o'clock tomorrow morning