IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

SANDRA CORTEZ : CIVIL ACTION

 :

v. :

 : 

TRANS UNION, LLC : NO. 05-cv-05684-JF

MEMORANDUM AND ORDER

Fullam, Sr. J. September 13, 2007

The Office of Foreign Assets Control, within the United

States Treasury Department, maintains a Specially Designated

Nationals (“SDN”) list of drug traffickers and terrorists. 

American businesses are required by the Patriot Act to take

reasonable measures to ensure that they are not doing business

with, or extending credit to, anyone on the SDN list. 

The defendant, Trans Union, LLC, a credit-reporting

agency, provides credit reports for a fee and, for an additional

fee, notifies its clients as to whether the person whose credit

is being investigated is named on the “SDN” list promulgated by

OFAC. 

Plaintiff, Sandra Cortez, a 60-odd-year-old resident of

Colorado, sought to buy a new automobile from the John Elway

Dealership in Colorado, and applied for financing at that

dealership. The auto dealer obtained a credit report from the

defendant, Trans Union, which included in its credit report an

“OFAC alert” which stated “INPUT NAME MATCHES NAME ON THE OFAC

DATABASE.” Actually, the name on the SDN list was “Sandra Cortes

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Quintero,” listed as residing in Cali, Columbia, and some 30 or

40 years younger than plaintiff. As a result of the

misinformation supplied in the credit report, plaintiff’s

acquisition of the motor vehicle was delayed for several hours,

and she allegedly suffered embarrassment and emotional distress. 

Plaintiff sought to have the erroneous information removed from

her credit report but the defendant did not take any corrective

action until at least 18 months later.

Plaintiff brought this action, asserting violations of

the Fair Credit Reporting Act (“FCRA”). A jury awarded her

compensatory damages in the sum of $50,000 and punitive damages

in the sum of $750,000. The defendant has filed motions for

judgment as a matter of law, or a new trial, or remittitur. 

Before trial, defendant sought a ruling to the effect

that the information the defendant provided to the auto agency

did not constitute a credit report or credit information within

the meaning of the Fair Credit Reporting Act. I rejected that

argument at trial, and adhere to that ruling now. The

information “INPUT NAME MATCHES NAME ON THE OFAC DATABASE”

appeared on a document headed “Credit Report.” The FCRA defines

“consumer report” as:

“Any written, oral or other communication of

any information by a consumer reporting

agency bearing on a consumer’s

creditworthiness, credit standing, credit

capacity, character, general reputation,

personal characteristics, or mode of living

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which is used or expected to be used or

collected in whole or in part for the purpose

of serving as a factor in establishing the

consumer’s eligibility for (A) credit or

insurance ...” 

15 U.S.C. § 1681(a)(d). In my view, there is no possible basis

for concluding that the report issued by the defendant was not

covered by the FCRA.

It may well be that the defendant could have escaped

liability if it merely reported that the plaintiff’s name was

(arguably) similar to a name on the OFAC list, but it seems

obvious that plaintiff’s name did not “match” a name on the list.

It is true that the defendant did not itself screen the

OFAC list, but contracted with another firm to do that chore. 

But in the course of obtaining the results of the purported

screening, defendant merely furnished the other firm with

plaintiff’s name, and furnished no information as to her

residence, address or date of birth. 

The jury properly found that, in furnishing the

erroneous information to the auto dealership, the defendant had

acted only negligently, not willfully. Thus, for the initial

violation, the defendant would have been liable only for economic

losses or statutory damages. But the jury also found that, after

the original error, the defendant committed three willful

violations, in connection with its responses or lack of responses

to plaintiff’s complaints about the error. On March 31, 2005,

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the day after her experience at the auto dealership, plaintiff

telephoned defendant’s customer service department about the

error, but was informed that no information about the OFAC

product was included in her report. Plaintiff then sent a

facsimile copy of the credit report furnished to the Elway

Dealership, but received no response. She sent a second letter

on April 6, 2005, to which defendant responded on April 18 “We

were unable to determine the nature of your request.” Plaintiff

wrote a third letter on April 24, to which defendant responded on

May 10 by again stating that there was no “alert” on plaintiff’s

report.

Defendant’s customer service manager testified at trial

that it was defendant’s policy not to investigate OFAC disputes. 

Through the auto dealership in question, plaintiff again obtained

a credit report on June 3, 2005; the OFAC alert was still on her

report. In attempting to lease an apartment in June 2006,

plaintiff found it necessary to again explain that, although her

credit report included an OFAC alert, she was not the same person

named on the SDN list. (She succeeded in leasing the apartment.) 

Finally, late in 2006, the defendant advised plaintiff’s counsel

that the disputed information had been “blocked” from appearing

on future credit reports.

I have no difficulty in concluding that defendant’s

motion for judgment as a matter of law should be denied, and that

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there is no basis for granting a new trial, except with respect

to the alleged excessiveness of the jury’s verdict. On that

subject, I conclude that the jury’s compensatory damage award of

$50,000 was exceedingly generous, but not so excessive as to

warrant judicial interference. With respect to punitive damages,

however, I conclude that the jury’s award of $750,000 exceeded

permissible limits. The jury undoubtedly became incensed at the

defendant’s seeming insensitivity to the harm it was causing

plaintiff, and its reluctance to take corrective measures. The

jury may also have been unduly influenced by the defendant’s

balance sheet, which reflected a net worth of close to a billion

dollars.

On balance, I conclude that an award of punitive

damages would exceed the maximum permissible limit if it were to

exceed double the amount of the compensatory award. In short, I

conclude that a compensatory award of $50,000 and a punitive

award of $100,000 constitute the maximum which this record would

support. Accordingly, the defendant’s motion for a new trial

will be granted unless, within 30 days, plaintiff’s accepts a

reduction in the award to a total of $150,000. An Order to that

effect follows.

Plaintiff has filed an application for counsel fees in

the sum of $179,734, plus costs in the sum of $20,209.76,

together with post-judgment interest. These amounts, too, seem

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excessive. For example, it is alleged that plaintiff’s counsel

spent 32.4 hours in drafting proposed jury instructions, and 53.8

hours for the pending fee application. In addition, there is a

claim for 29.2 hours devoted to various state-law claims, all of

which were withdrawn before trial.

The hourly rates claimed are in excess of the current

Philadelphia CLS Schedule. Plaintiff claims more than $7,000 for

expert witness fees, whereas the expert’s testimony was of little

or no consequence and there is no basis for reimbursement in

excess of the standard per diem witness fee; and the alleged

expenses for travel and lodging are undocumented.

I note, further, that most of counsel’s written workproduct was unduly lengthy, and characterized by repeated ad

hominem attacks on the defendant and defense counsel. All in

all, I conclude that an award of $125,000 in counsel fees and

$7,000 in costs would be appropriate. An Order follows.

Case 2:05-cv-05684-JF Document 69 Filed 09/13/07 Page 6 of 7
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

SANDRA CORTEZ : CIVIL ACTION

 :

v. :

 : 

TRANS UNION, LLC : NO. 05-cv-05684-JF

ORDER

AND NOW, this 13 day of September 2007, IT IS th

ORDERED:

1. Defendant’s motion for judgment as a matter of law

is DENIED.

2. Defendant’s motion for a new trial as to liability

is DENIED.

3. Defendant’s motion for a new trial is GRANTED

with respect to damages, unless, within 30 days, plaintiff

accepts a remittitur, limiting the award to $50,000 compensatory

damages and $100,000 punitive damages, for a total award of

$150,000.

4. Plaintiff’s motion for an award of counsel fees

and expenses is GRANTED in part. Plaintiff is awarded $125,000

in counsel fees plus $7,000 in expenses, on condition that

plaintiff accepts the remittitur herein ordered. If the

remittitur is not accepted, final action on plaintiff’s

application for counsel fees and expenses will be deferred

pending final outcome of this litigation.

BY THE COURT:

/s/ John P. Fullam 

John P. Fullam, Sr. J.

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