a reasonable jury find that a consumer's credit report is misleading and therefore inaccurate under section sixty eighty one the be of the fair credit reporting act where the report contains an account that the furniture of the information instructed the reporting agency in this case experian to delete and where the agency knew the account was in active and verifiable and on authorized the second issue is whether reasonable conclude that the reporting agency created an unjustifiable high risk of harm to constitute willfulness under the fair credit reporting act where the agency admitted that it failed to follow the instruction of an out of business phone assure in this case delbert to the lead the account and failed to follow its own policies related to the deletion of verifiable and authorized information on the record before this court both questions should be answered in the affirmative the opinion of the lower court should be reversed and remanded let me start with the question of an accuracy there is no dispute the parties agree on what the standard is here i report is inaccurate if it contains information that is misleading and such a way that it can be expected to adversely affect credit decisions the central undisputed facts on the motion for summary judgment and these were cross motions for summary judgment plaintiff said move on this theory there are three of them you have a large record i'm going to try to refine it the three first delbert instructed experian to delete all of its accounts as of january be verifiable in other words if furniture goes out of business information is not verifiable experience and knowledge is that should not be recorded and did you have evidence in the record that  expectation is that if a report on shows of this line shows on the report that it is in fact verifiable and that the on the puter to creditor  still looks at this as money it wants as opposed to what was going on here i think what was in the record was first the defendant's admission that the reason they delete it is because it is misleading on verifiable information and then on the other side of whether it could impact a credit decision which perhaps gets to your honor's question sure what was in the record was that there was at least thirty inquiries into our clients record that at least one credit report was issued during the time that experian was instructed to delete this information and we had expert testimony that in fact the existence of this  record that experian acknowledges should have been deleted impacted how people making credit decisions would evaluate her credit and so i think the critical fact there in terms of their  admission and the reason that experience says you should you must delete this information it's corporate representative testified in language that really tracks the fair credit reporting act she said this is a page eleven thirty if furnishers go out of business we can't keep their data on file experian can't keep it on file because in the interest of the consumer experience can't verify it at that point and so the three these three points one d stopping all business with you experian confirmed in this e mail exchange seventeen away through seven hundred ten that one of the things that we are terminating is the reporting and of course for the to provide this maximum possible accuracy that the fair credit reporting at the man's that's that's in fact what they they had to do so experian responded in their briefs suggesting that your cause of action is really based upon their voluntary decision to eliminate all of these loans which related to the tribal loans etc so and that goes well back before january of two thousand and fifteen what you are arguing then has nothing to do with their voluntary decision to eliminate all of those loans your claim is in i want to ask you if this is exactly what you're arguing your claim is limited to delbert saying we're out of business eliminate all of our delete all of our loans and then twelve months go by before ms reyes is right is gone and sixteen months go by before all the rest of delbert loans so you are not arguing broader  about what experian did in regard to the loans generally you were just responding to what delbert did and their refusal or their their denial of were under such intense scrutiny and several states had imposed on both cash call and delbert the need to eliminate those loans that experian was in fact putting through requests to delete those loans was managing to do it in those instances and  the conduct we say it's more than dropping the ball as as your honor pointed out it's fifteen months of ball dropping where you're getting scores you're getting literally thousands of complaints from consumers that have a delbert trade line that was supposed to be experian was well aware of it the dense record you have is experienced continuously continuously fumbling the ball here to execute on this instruction is that i disputed that it was about one hundred twenty four thousand accounts that were finally deleted in april and may have twenty sixteen that is it is disputed it's unjust be undisputed undisputed yesterday but it there were seven that were just they were done afterwards or so that there may have been a tale but that is not obviously the central concept of this case here in terms of a few more that were deleted after that i'd like oh i'm sorry i have well maybe i should see other counsel because i'm a quite sure i understand how the mechanics of the please the court mayor fetter for experience i think probably i should start with the things that counsel says are undisputed but are not wholly disputed but flatly contrary to the record because that seems to be i mean there are legal arguments beyond that but the whole premise of this argument is wrong in a couple of ways one is the notion that delbert services provided by experian that's the stuff they're buying from experian they buy credit reports they buy information from experian experian is doesn't with experience reporting of someone's does that happen ok there but there are two parts of that ok i think it's very important to talk about the first part which is again counsel said that the defense admitted that the information is deleted because it was misleading and unverifiable again there is a record on how the decision came a balance to delete all of this stuff in fact it was not that it was a decision in fact before they went out of business not because anything was unreliable but because and i'm sorry i should give you the citations on that as well so here twenty six ninety four is what i'm looking for what the record shows is that they had all these lawsuits go to god against cash called delbert over these questions scott loans sort of one state at a time some of the states cash call was getting orders against them you've got to stop reporting the stuff from the states and they were going on a state by state basis ultimately experian decided that this process is you know fraught with difficulties of trying to take out state by state were ultimately going to do it across the board now again because anything is on verifiable but because you've got this that did you put any evidence in the record that any of the information after that point was verifiable from dahlberg no well that's why i said i don't think that that the record reflects it either delbert right but ok you understand that what i think it's important to point out then france is it is your deleting it because otherwise you're not following reasonable procedures to assure the that but part of the hesitation act in deleting it was that actually they were concerned it would hurt they did a study that it would actually hurt more consumers than it would help to delete it because you you couldn't a reasonable jury find that was inaccurate or misleading no your honor i don't think so so let me address first your question about how it happened that it didn't get deleted and mean there were three hundred fifty six thousand accounts or more or more or less there were hundreds of thousands of accounts this was this one employee's responsibility and nobody at the  on on that ok i do hope you'll give me at least after that at least a minute to explain why no reasonable jury could find this to be misleading under the ninth circuit standard because obviously that's a key issue here but going on that it waits and i think the ninth circuit standard is that either and so first of all it wasn't misleading at all because if you look at what was reported i mean again the in the plenty on the record including their experts saying it is quite common for a loan that is transferred or or purchased to have part of the history of port and not other parts lenders are used to that here when you look at what was reported it says right at the bottom of it purchased room haskell if you look at its seven hundred fifty eight of the record it's this trade line that showed the accurate delbert data said to purchase from cast call and so that anyone looking at that knows that and there was prior history that's not that's not there on the report now it doesn't mean that they know what the prior history was and sometimes things that aren't reported for some consumers will help them for others it will hurt them but it has to be misleading to them and seeing something where they know that there is more historical data that they don't have is not in any way misleading although one of their arguments is that because this is being listed  it means both that the furniture wants it reported and that on when it shows delinquent it's capable of being brought current and they argue neither of those things is possible and just with regard to those two things it's misleading and and your honor on that that is first of all pure assertions of counsel in papers there is nothing in the record indicating the truth of either aspect of that nor is there anything indicating that either as to ms reyes or more generally there's nothing indicating that she couldn't have paid it off again the record shows that how george how how could she paid it off was out of business well because the record shows that the george in the of the georgia litigation delbert continued to be part of that litigation and it indicates that the loans were still they still trying to collect on the loans they were not making any more loans it's not record doesn't say exactly what they meant by out of business but what we do see is they were still trying to collect loans but the other thing is that the notion that and there is absolutely nothing in there other than assertions of counsel to support the idea that a lender is going to care that in theory this planet who chose not to pay because she thought the loans were illegal actually would have wanted to or that the lender looks at the charge off differently based on active or inactive is just it's pure  was reckless behavior by a credit reporting agency but in these circumstances isn't there i don't think that's a question that can be decided as a matter of law well now the  you know a low level employee entering the wrong data codes and now should that be allowed to happen in the sense of does that suggest that you need more procedures you have s safeguards or supervision or something like that but what what you're describing there even that is negligence there isn't for reckless failure to supervise you would at least need something indicating that at higher levels of the company that there is some awareness of some issue to be addressed so you don't think recklessness can be proven when you have three hundred fifty thousand accounts one employee fails to do something over a course of fifteen or sixteen months and that there are no procedures in place to figure that out that there's no evidence from which a jury can conclude that judgment here and it's the assessment obviously is impacted that you have to you have to consider the evidence in the light most favorable to them moving party in this particular case when you're requesting summary judgment that's obviously  your opposing party and in the light most favorable to that party don't you think that a jury could actually interpret this fifteen months and all of these loans when in representation spy delbert that they're going to close down these accounts don't you think that that's enough at least to get to a jury actually i mean i don't to be picky that i don't think there are representations by main issue here is the f here a doesn't create a cause of action for reporting accurate information that we're all because you're only reporting the last eight months of accurate information and the proceeding twelve months a gun when there is no evidence in the record of that any lender would be  think your honor just three quick points first is if you go back and read again this very limited section of the record seventeen await with a request comes in three seventeen ten it's an ambiguous that one data reporting is among the things that experience is asking i'm sorry that is asking experience to stop second and misty tim's response she acknowledges data reporting in the code for data reporting is among those things that will be deleted and that on this last exchange absolutely in the record there is a confirmation on january twenty first twenty fifteen in this exchange where miss genome says this request has been completed they absolutely told the furniture that the information had been deleted and yet fifteen months later still not so we do think the record is clear secondly with respect to the quality of this information remember the statute requires maximum  experian tells people like miss reyes in their credit report that delinquent accounts are the type that experian thinks lenders are likely to consider negative rand when considering credit that that's what they claim is the reason they reported it because it could affect credit decisions absolutely and so when the furnace or says stop do not report delete and experience says we understand we need to delete doesn't unverifiable and then tells the furniture we have deleted it and yet it remains on one hundred twenty five thousand people's reports there is absolutely a misleading representation there that experience knows is likely to impact credit recklessness here it can be that a single employee that that they can isolate a single employee put that employee in a box and have no oversight and escape potential willfulness claim all of these claims based on the record should