IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

 

SHADEE ABUSAAB ) 

 ) 

 Plaintiff, ) 

 vs. ) 

 ) Civil Action No. 05-5094 

EQUIFAX INFORMATION SERVICES LLC, ) 

et al. ) 

 Defendants. ) 

 )

 

PLAINTIFF SHADEE ABUSAAB’S MEMORANDUM OF LAW IN SUPPORT OF HIS 

RESPONSE IN OPPOSITION TO DEFENDANT EQUIFAX INFORMATION 

SERVICES LLC’S MOTION FOR PARTIAL SUMMARY JUDGMENT

Plaintiff Shadee Abusaab, through counsel, respectfully submits this Memorandum of 

Law in opposition to Equifax Information Services LLC’s (“Equifax”) Motion for Partial 

Summary Judgment (“Motion”).1

 For the numerous reasons stated below, Equifax’s Motion 

should be denied and Plaintiff’s claims must proceed to a jury trial. 

I. INTRODUCTION

Shadee Abusaab filed this action against Equifax to recover for the damages that he 

suffered as a result of Equifax’s unlawful credit reporting practices. Equifax is one of the 

country’s three major consumer reporting agencies (“CRAs”).2

 Plaintiff’s Complaint asserts that 

Equifax violated the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. §§ 1681 et seq., as 

amended, both willfully and negligently, and presents several state law claims as well. As 

Equifax has only moved for partial summary judgment, and has not challenged Plaintiff’s claim 

that it negligently violated the FCRA or Plaintiff’s claim for actual damages, Plaintiff confines 

 

1

 Equifax is the only Defendant remaining in this action, as the other Defendant, Experian Information 

Solutions, Inc., has settled. 

2

 The term “consumer reporting agency” is the actual definitional term used in the FCRA. See 15 U.S.C. § 

1681a(f). CRAs are also colloquially referred to as “credit reporting agencies” or “credit bureaus.” Plaintiff uses 

these terms interchangeably in this memorandum.

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his memorandum to a discussion of the willfulness and preemption arguments that Equifax has 

raised.3 

This case arises from Equifax’s conduct in wrongfully reporting a $37,500 civil judgment 

(the “judgment”) from the Court of Common Pleas of Philadelphia County (“CCP”) on 

Plaintiff’s credit report despite having knowledge of its inaccuracy.4

 There is no dispute that the 

judgment should not have appeared on Plaintiff’s credit report after February 2005.5

 The 

horrendously derogatory judgment prevented Plaintiff from buying a home for his family in the 

summer of 2005, and not surprisingly, caused Plaintiff to suffer other significant economic and 

non-economic harm as well. 

However careless Equifax’s reporting of the judgment may have been initially, it is 

Equifax’s actions following Mr. Abusaab’s multiple disputes of the judgment that provide a solid 

evidentiary foundation for Plaintiff’s willfulness claim. The factual record demonstrates that on 

two separate occasions in June and July of 2005, Equifax falsely represented to Mr. Abusaab that 

in the process of investigating his disputes, it had “contacted” the “source” of the judgment, 

which it identified as the “Philadelphia County Court.” These statements were totally false. 

Equifax had never contacted anyone, much less the Philadelphia Court of Common Pleas, 

regarding Mr. Abusaab’s dispute. Nor were Equifax’s misstatements innocent, as discovery has 

 

3

 As discussed infra, Equifax also moved on Plaintiff’s Pennsylvania Unfair Trade Practices and Consumer 

Protection Law claim. As Plaintiff withdraws that claim, Equifax’s argument as to that issue is moot. 

4

 Civil judgments against a consumer may be reported on the consumer’s credit report for up to ten years. 

See 15 U.S.C. § 1681c(a)(2). Credit reports generally do not report judgments that a consumer has won. 

5

 The judgment relates to a personal injury action that arose from a motor vehicle accident in which Mr. 

Abusaab was rear-ended. Initially, for some reason, the judgment was reported against Mr. Abusaab, but it was 

vacated upon an appeal. Following an arbitration, a judgment was entered in Mr. Abusaab’s favor. Equifax does 

not dispute that the judgment should not have reported at all on Mr. Abusaab’s report after it was appealed in 

February 2005. Equifax reported the judgment as one against Mr. Abusaab from January 2005 through December 

2005, when it was finally corrected as a result of this litigation. 

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revealed that Equifax never contacts a court regarding a consumer’s dispute of a public record. 

Equifax’s deliberate misrepresentations to Mr. Abusaab concerning what it did to investigate his 

disputes and its concealment of its actual activities alone present genuine issues of material fact 

that Equifax willfully violated the FCRA according to any application of our Circuit’s welldefined standard for FCRA willfulness claims. 

The record also presents additional independent bases to support a jury finding that 

Equifax willfully violated the FCRA. In response to another of Mr. Abusaab’s disputes, Equifax 

informed Mr. Abusaab that it had conducted a reinvestigation (again listing the Philadelphia 

County Court as its source), but this time that it had “verified” the accuracy of the $37,500 

judgment against him with the courthouse. This was also untrue. What Equifax did was follow 

its usual policy and simply sent a one-page form to the public records vendor from whom it had 

originally obtained the judgment and “parrot” the same inaccurate information that it received 

back from the vendor on Plaintiff’s credit report. Additionally, while Plaintiff had actually 

provided Equifax with court records demonstrating its gross error (clearly showing that the 

judgment had been entered in his favor by this time), Equifax never even bothered to pass these 

pivotal documents along to the vendor because it never forwards such documents to an 

information furnisher as a matter of practice.6

 

These specific practices by Equifax -- deliberately misrepresenting its activities and 

systematically failing to investigate a consumer’s dispute and forward the relevant information 

he has provided to the information furnisher -- readily meet the “reckless disregard” standard for 

willfulness established by the Third Circuit in the seminal case of Cushman v. Trans Union 

 

6

 As part of its statutory duty in reinvestigating a consumer dispute, a CRA is required to forward “all 

relevant information” that it receives from the consumer to any entity (including public records vendors) that 

provided any item of information in dispute. See 15 U.S.C. § 1681i(a)(2)(A). As discussed, infra, this includes 

documents that the consumer sends with a dispute. 

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Corp., 115 F.3d 220, 227 (3d. Cir. 1997). In denying Equifax’s willfulness challenge, this Court 

will not be carving any new ground or expanding Cushman. Indeed, each time courts within this 

Circuit have examined similar practices by a CRA, they have held that such practices presented 

evidence from which a reasonable jury could reach a finding of willfulness.7

 This Court may 

also find Judge Brody’s reasoning in Lawrence v. Trans Union, LLC, 296 F. Supp. 2d 582 (E.D. 

Pa. 2003) instructive. Lawrence is an FCRA case involving a disputed judgment in which the 

court rejected virtually identical arguments concerning willfulness asserted by CRA Trans Union 

at summary judgment on the basis of similar systemic practices and facts.8 

In sum, Plaintiff presents solid evidence from which a jury could conclude that Equifax 

committed a willful violation of the FCRA. For this reason and the others discussed below, 

Plaintiff’s state law claims should survive summary judgment as well. As such, Equifax’s 

Motion should be denied in its entirety. 

 

7

 See, e.g., Crane v. Trans Union, LLC, 282 F. Supp. 2d 311 (E.D. Pa. 2003) (finding evidence of willfulness 

against a CRA where it failed to forward a consumer’s dispute documentation to the furnisher and had a policy of 

parroting information from furnisher in investigation) (Dalzell, J.); Evantash v. G.E. Capital Mortgage Servs., Inc., 

Civ. No. 02-1188, 2003 WL 22844198 (E.D. Pa. Nov. 25, 2003) (CRA summary judgment motion denied as to 

willfulness and punitive damages in FCRA case) (Davis, J.); Sheffer v. Experian Info. Solutions, Inc., Civ. No. 02-

7407, 2003 WL 21710573 (E.D. Pa. July 24, 2003) (CRA summary judgment motion denied as to willfulness and 

punitive damages in FCRA case) (Schiller, J.). 

8

 Courts from other federal districts have also permitted FCRA willfulness claims to proceed to trial as to this 

particular defendant. See Apodaca v. Discover Fin. Servs. et al, ___ F.Supp. 2d ___, Civ. No. 04-0717, 2006 WL 

538667 (D.N.M. Mar. 2, 2006) (denying Equifax’s motion for partial summary judgment and permitting consumer 

to proceed to trial with willfulness/punitive damages claim stemming from improper investigation procedures); 

Sampson v. Equifax Info. Servs. LLC, Civ. No. 204-187 (S.D. Ga. Aug. 29, 2005) (denying Equifax’s motion for 

summary judgment and permitting consumer to proceed to trial with willfulness/punitive damages claim stemming 

from Equifax’s improper investigation procedures). 

 

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II. COUNTER-STATEMENT OF FACTS

A. Equifax Ignores Plaintiff’s Repeated Attempts To Correct The Inaccurate 

Reporting Of The Judgment 

Following a car accident in front of Philadelphia City Hall -- where another car crashed 

into Plaintiff’s car from the rear -- it appears that Mr. Abusaab was sued in the Philadelphia 

CCP. (Plaintiff’s Dep. at 72-73, 75-76) (attached hereto as Exhibit A). Plaintiff never received 

notice of that action and knew nothing about it until he saw a $37,500 judgment reporting against 

him on his Equifax credit report in January 2005. (Plaintiff’s Dep. at 73, 75-76). Immediately, 

Plaintiff retained counsel and the judgment was appealed and vacated as of February 2005. 

(Plaintiff’s Dep. at 76-78); (see also CCP Notice of Appeal, presented for review January 7, 

2005, attached hereto as Exhibit B). He then won the case and the judgment was entered in his 

favor. (See Exhibit E, infra). 

Equifax’s Director of Consumer Customer Care Alicia Fluellen9conceded that following 

a Notice of Appeal a judgment should no longer be reporting against a consumer: “what should 

have happened was the very first time we received the Notice of Appeal, it should have been 

removed from the credit file. But that didn’t happen.” (Fluellen Dep. at 81; see also id. at 82, 

conceding Equifax’s reporting post-appeal was erroneous) (attached hereto as Exhibit C). 

Plaintiff testified at his deposition that he waited for the order vacating the judgment and 

contacted Equifax to ask that the judgment be removed from his credit file in February 2005. 

(Plaintiff’s Dep. at 74-75). Plaintiff had started looking to purchase a home in the spring of 2005 

and knew that a recent $37,500 judgment against him would be a major obstacle, which in fact it 

was. (Plaintiff’s Dep. at 45-51). Equifax claims that it never received notice of that dispute. 

(Def. Mem. at 4-5). 

 

9

 Fluellen was produced for deposition by Equifax as a Rule 30(b)(6) corporate representative.

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It is uncontested that Equifax received three subsequent disputes from Plaintiff requesting 

that it cease reporting the $37,500 judgment against him on his file -- a June 8, 2005 letter, a July 

21, 2005 letter and an August 8, 2005 telephone call. (See Def. Mem. at 3-4). Importantly, with 

the June 8 letter Plaintiff himself sent Equifax a copy of the Notice of Appeal. (See id.; see also

Plaintiff’s 6-8-05 letter to Equifax and supporting documentation, attached hereto as Exhibit D). 

With his July 21 dispute letter Plaintiff also included a copy of the Report and Award of 

Arbitrators from the appeal (entered June 22, 2005), which stated on its face that “We find in 

favor of Defendant[] Shadee Abusaab.” (See id.; see also Plaintiff’s 7-21-05 letter to Equifax 

and supporting documentation, attached hereto as Exhibit E) (emphasis added). At no time did 

Equifax forward these court records to the public records vendor from whom it obtained 

information about the judgment. (See Fluellen Dep. at 28-29, 76, 85-94). 

Despite Plaintiff’s repeated disputes and his supporting court papers, Equifax continued 

to report the $37,500 judgment against Plaintiff through the time of this lawsuit, finally 

supplying Plaintiff with a corrected credit file in December 2005. (See Fluellen Dep. at 95, 115-

16; and also at 103-04). 

B. Equifax Falsely Informed Mr. Abusaab That It Had Contacted The 

Philadelphia County Court Concerning His Disputes When It Had Not 

In connection with Mr. Abusaab’s June and July 2005 written disputes concerning the 

judgment, Equifax wrote to Mr. Abusaab to explain the results of its investigation.10 (See

Investigation Results dated 6-24-05, attached hereto as Exhibit F); (See Investigation Results 

dated 7-29-05, attached hereto as Exhibit G). In its letters, Equifax advised Mr. Abusaab that its 

“investigation [was] completed” and that it had “contacted each source [of the disputed 

 

10 Equifax’s sending letters to Mr. Abusaab was not gratuitous. The FCRA requires that, following an 

investigation of a consumer dispute, a CRA must provide the consumer with written notice of the results of the 

investigation. 15 U.S.C. § 1681i(a)(6). 

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judgment] directly.” Id. (emphasis added). The letters listed the source it contacted as the 

“Philadelphia Cty Court, Broad & Market STS.” Id.

11 

However, at her deposition, after several evasive answers, Equifax’s corporate 

representative admitted that neither Equifax nor anyone acting on its behalf ever contacted the 

Philadelphia County Court: 

 

19 Q. Okay. So this is not true when it says on 

20 this letter that the Philadelphia City Court, Broad 

21 and Market Street in Philadelphia was contacted by 

22 Equifax in connection with this investigation? 

23 MR. PERLING: Objection to form. 

24 Misstates evidence. The best evidence is this 

25 exhibit, and it does not say what you just said 

 1 your question. 

 2 THE WITNESS: Yeah, it doesn't say that. 

 

 3 Q. (By Mr. Soumilas) What's the answer to 

 4 that question, ma'am? Was that court, the 

 5 Philadelphia County Court ever contacted by Equifax 

 6 or any of its vendors or anyone on its behalf in 

 7 connection with the investigation of this June 8th, 

 8 2005 dispute? 

 9 A. No. 

(See Fluellen Dep. at 70-71; see generally 65-71, 76-81). In fact, Equifax never contacted 

anyone regarding Mr. Abusaab’s June 8th dispute, including the public records vendor from 

whom it obtained the judgment in the first place, and did nothing to investigate Mr. Abusaab’s 

disputes besides look at Plaintiff’s dispute correspondence. (Id.); (see also Def. Mem. at 3-4). 

 

11 Specifically, both the June 24 and July 29 Equifax letters stated as follows under the “Notice to 

Consumers” section: “The name, address, and, if reasonably available, the telephone number of the furnisher(s) of 

the information contacted while processing your dispute is shown under the ‘Results of Your Investigation’ section 

of the cover letter and accompanies the copy of your revised credit file.” (See Exhibit F & G at pg. 2 of 8 on each 

letter) (emphasis added). The name and address provided in each instance was “Philadelphia Cty Court, Broad & 

Market STS, Philadelphia, PA 19107.” (See Exhibit F & G at pg. 1 of 8 on each letter). There was no telephone 

number provided. 

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 Equifax actions regarding the Mr. Abusaab’s July 2005 dispute were no different. Even 

though it informed Mr. Abusaab that it contacted the Philadelphia County Court, it did not 

contact anyone. (See Fluellen Dep. at 76-82); (see also Exhibit G); (see also Def. Mem. at 3-4). 

In “investigating” these two disputes Equifax did nothing besides misread Plaintiff’s supporting 

court papers (see Fluellen Dep. at 65-71, 80-81) and then falsely stated in standard letters that it 

had investigated the dispute by contacting the Philadelphia CCP. (See id. at 118-19); (see also

Def. Mem. at 3-4). 

With respect to Plaintiff’s August 2005 dispute, Equifax sent Plaintiff a similar type of 

letter with its purported “investigation” results. (See Investigation Results dated 8-13-05, 

attached hereto as Exhibit H). That letter also informed Plaintiff that Equifax had contacted the 

Philadelphia County Court “directly.” (Id. at pgs. 1 and 2 of 8). Again, this was not true: 

25 Q. And then it says, NDR courier will pick 

 1 up, Philadelphia, Pennsylvania 19107. Was there ever 

 2 any communication concerning this dispute by Equifax 

 3 directly to any court in Philadelphia? 

 4 A. Not that I can tell here by looking at the 

 5 documents, no. 

(Fluellen Dep. at 88). While this time Equifax actually contacted its public records vendor that 

supplied the judgment to it in connection with the August 2005 dispute, Equifax does not know 

whether the vendor ever contacted the Philadelphia CCP. (Fluellen Dep. at 37, 106-07, 121). 

In discovery, Plaintiff learned the true reality behind where and how Equifax obtains it 

public records information and what it really did in terms of responding to Mr. Abusaab’s 

disputes. Equifax does not obtain its public records data from the Philadelphia CCP; it obtains it 

from an independent vendor. (Fluellen Dep. at 86). Likewise, in the instances when it actually 

contacts anyone in reference to a consumer’s dispute, it only contacts the vendor, never the court. 

(See Fluellen Dep. at 31-34, 69-71, 88); (see also id. at 98) (“we will stipulate that NDR is the 

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company that provided the information to Equifax from the courthouse”). Yet Equifax, as a 

matter of routine practice, represents to consumers such as Mr. Abusaab that it has contacted the 

court directly, and conceals from consumers the true source of the information that it is reporting 

about them and the actions it takes in response to a dispute, even though it is required to fully 

disclose this information to consumers by law. (See generally Fluellen Dep. at 31-34; 82-99). 

Equifax’s letters to consumers misinform them that the entity that is supplying the judgment 

information is really the courthouse, and that Equifax had “contacted” the courthouse “directly” 

in order to verify the records when a consumer contacts it about a dispute. (See generally

Fluellen Dep. at 31-34, 82-99, 118-19); (see also Exhibits F, G and H). 

C. Equifax’s “Parroting” Practices Under The Circumstances Of This Case 

Further Demonstrate Its Reckless Disregard For Consumer Rights 

When Equifax actually looks into a consumer dispute concerning a judgment by doing 

anything other than looking at its own records and the consumer’s correspondence, it generally 

contacts the credit furnisher who provided it with the disputed credit information in the first 

instance. (Fluellen Dep. at 34-37, and generally at 26-37). Then Equifax reports on the 

consumer file what its credit furnisher (in this case, a public records vendor) tells it to report, 

without conducting any independent investigation or doing anything further besides parroting the 

word of its credit finisher. (Fluellen Dep. at 34-37, 94). 

Importantly, Equifax does not forward any letter or supporting documentation that a 

consumer submits with his or her dispute to the credit furnisher that is supplying the disputed 

information to Equifax in the first instance. (Arnold Dep. pp. 71-72)12; (see generally Fluellen 

Dep. at 29, 76). Thus a consumer’s supporting documentation (such as the Notice of Appeal and 

 

12 A true and correct copy of the pages from Corliss Arnold’s deposition testimony of May 26, 2004, that are 

cited herein are attached hereto as Exhibit I. Ms. Arnold is Director of Consumer Services and oversees Equifax’s 

consumer dispute department along with Alicia Fluellen. (Arnold Dep. at 6-7, 14). 

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the Report and Award of Arbitrators that Plaintiff sent to Equifax) remains archived with 

Equifax but are not forwarded on to the furnisher as a matter of course. (Id.). 

Despite depriving its credit furnishers of this type of vital information and supporting 

documentation, Equifax limits its “investigation” to a one-page form called a “CDV” (or 

“ACDV” when the form is automated or in electronic format) communication with the furnisher 

and does nothing further. (See Fluellen Dep. in Sheffer at 85-86, 97-99, 105);13 (See Arnold Dep. 

at 97-104). Thus, when a furnisher such as a public records vendor responds to a CDV form 

simply by checking the “verified” as accurate box, Equifax will do nothing other than publicize 

on the consumer’s credit report the information that the furnisher states. (Id). Ms. Fluellen’s 

deposition testimony concerning Equifax’s parroting procedures, cited above, is the very basis 

that led Judge Schiller in Sheffer to allow a willfulness claim and punitive damages to be 

presented to the jury against Equifax in that case. See Sheffer v. Experian Info. Solutions, Inc., 

Civ. No. 02-7407, 2003 WL 21710573 at * 3 (E.D. Pa. July 24, 2003) (citing Ms. Fluellen’s 

deposition testimony). 

 

13 A true and correct copy of the pages from Alicia Fluellen’s deposition testimony in Sheffer v. Experian 

Info. Solutions, Inc., Civ. No. 02-7407, that are cited herein are attached hereto as Exhibit J. Sheffer was an FCRA 

case where Ms. Fluellen testified about Equifax’s investigative procedures (hereinafter cited as “Fluellen Dep. in 

Sheffer”). Ms. Fluellen’s testimony in Sheffer about Equifax’s investigative procedures and policies is also cited 

herein because it is clearly relevant to this action. Since the present Equifax attorneys defended the Sheffer

deposition, and thus had a full and fair opportunity to develop Ms. Fluellen’s testimony, and since the deposition 

testimony concerns substantially similar issues as those in the present case, the testimony is appropriate for purposes 

of this motion as it would be at trial. See Fed. R. Civ. P. 32(a); Fed. R. Evid. 801(d)(2)(D); Crane v. Trans Union, 

LLC, 282 F. Supp. 2d 311, 316 n.6 (E.D. Pa. 2003) (relying on deposition of same corporate representative of 

consumer reporting agency given in another FCRA case); Copeland v. Potroleum Transit Co., 32 F.R.D. 445, 447 

(E.D.S.C. 1963) (deposition taken for use in another case could be used in instant case where substantially same 

issues were involved and defendant had adequate opportunity to cross-examine deponent with same motive and 

interest); see also Gros v. City of Grand Prairie, 181 F.3d 613, 619 (5th Cir. 1999) (relying on deposition testimony 

taken in another case to vacate summary judgment); Donahey v. Wellman, 687 F. Supp. 195, 196-97 (W.D. Pa. 

1988) (relying on deposition taken in parallel case to grant summary judgment); see generally Aileen Mills Co. v. 

Ojay Mills, Inc., 192 F. Supp 131 (S.D.N.Y. 1960) (deposition taken in prior action by other plaintiffs against same 

defendants was part of record where submitted to district court upon motion to quash); Tobacco & Allied Stocks v. 

Transamerica Corp., 18 F.R.D. 355 (D. Del. 1955) (all depositions, exhibits and pleadings from analogous litigation 

offered by party, over objection of opponent, were accepted and considered admissible). 

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In this case, Ms. Fluellen confirmed that Equifax’s investigation policies are still the 

same and that Equifax verified the accuracy of the $37,500 judgment in August 2005 simply 

because its public records vender so stated, and for no other reason. (See Fluellen Dep. 8, 93-

94). Indeed, when Equifax actually bothered to contact its public record vendor (National Data 

Retrieval, now ChoicePoint) concerning Mr. Abusaab’s dispute in August 2005, Equifax 

“verified” that the judgment was accurate as one against Mr. Abusaab simply because that is 

what furnisher National Data Retrieval stated in its CDV form response. Equifax so verified the 

accuracy of the judgment for no other reasons and despite the clear proof to the contrary that 

Plaintiff had already supplied to Equifax in June and July 2005 in the form of CCP records. 

(See Fluellen Dep. 94, see generally 29-36); (see also National Data Retrieval CDV with 

response date 8/29/05, attached hereto as Exhibit K). 

III. APPLICABLE STANDARD

 Pursuant to Federal Rule of Civil Procedure 56(c), a motion for summary judgment will 

only be granted: 

 if the pleadings, depositions, answers to interrogatories, and 

admissions on file, together with the affidavits, if any, show 

that there is no genuine issue of material fact and that the 

moving party is entitled to a judgment as a matter of law. 

Fed. R. Civ. P. 56(c). In other words, summary judgment may only be granted if the movant 

shows, by admissible evidence, that there exists no genuine issue of material fact that would 

permit a reasonable jury to find for the nonmoving party. Wetzel v. Tucker, 139 F.3d 380, 383 

n.2 (3d Cir. 1998); Miller v. Indiana Hosp., 843 F.2d 139, 143 (3d Cir.), cert. denied, 488 U.S. 

870 (1988). 

 The party opposing the motion for summary judgment is entitled to have his/her 

allegations taken as true, to receive the benefit of the doubt when his/her assertions conflict with 

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those of the movant and to have inferences from the underlying facts drawn in his/her favor. Big 

Apple, BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1362-63 (3d Cir. 1992), cert. 

denied, 507 U.S. 912 (1993). In analyzing the moving party’s burden under Rule 56(c), the 

Third Circuit has stated that “[i]f there is any evidence in the record, from any source, from 

which a reasonable inference in the respondent’s favor may be drawn, the moving party simply 

cannot obtain a summary judgment, no matter how many affidavits are filed (citations omitted) . 

. . . The ‘burden’ then is insurmountable.” In re Japanese Electronic Prods. Antitrust Litig., 723 

F.2d 238, 258 (3d Cir. 1983), reversed on other grounds, 475 U.S. 574 (1986); see also Boyle v. 

County of Allegheny, Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998). 

 A court may not, at the summary judgment stage, weigh evidence or make credibility 

decisions. These tasks are left to the factfinder. Petruzzi’s IGA Supermarkets, Inc. v. DarlingDelaware Co., Inc., 998 F.2d 1224, 1230 (3d Cir.), cert. denied, 510 U.S. 994 (1993). To raise a 

genuine issue of material fact, the respondent need not match, item for item each piece of 

evidence proffered by the movant. Big Apple, BMW, Inc., 974 F.2d at 1362-63. As the Third 

Circuit has explained: 

 In practical terms, if the opponent has exceeded the “mere 

scintilla” threshold and has offered a genuine issue of 

material fact, then the court cannot credit the movant’s 

version of events against the opponent, even if the quality 

of the movant’s evidence far outweighs that of its 

opponent. It thus remains the province of the factfinder to 

ascertain the believability and weight of the evidence. 

In re Unisys Savings Plan Litigation, 74 F.3d 420, 433 n. 10 (3d Cir. 1996) (citing Big Apple, 

BMW). If there are gaps in the pertinent materials submitted by the movant, without explanation, 

that justifies denial of the motion. O’Donnell v. United States, 891 F.2d 1079, 1082 (3d Cir. 

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1989). In the case at bar, there exist genuine issues of material fact, and Equifax is not entitled 

to judgment as a matter of law. Summary judgment is therefore inappropriate. 

 IV. ARGUMENT

 Through documents and deposition testimony, Plaintiff clearly has demonstrated that 

genuine issues of material fact exist as to whether a reasonable jury could find that Equifax’s 

conduct willfully violated the FCRA, and Equifax is not entitled to judgment as a matter of law. 

Accordingly, Equifax’s Motion must be denied. 

 A. There Are Genuine Issues of Material Fact That Equifax’s Policies And 

Practices Led To Willful Violations Of The FCRA 

Equifax argues that it is entitled to summary judgment as to Plaintiffs’ FCRA section 

1681n claim allegedly because no reasonable jury could find that it acted willfully in violation of 

the FCRA. (See Def. Mem. at 9). 

In order to show “willfulness” under the FCRA (which would justify punitive damages 

among other things), a plaintiff need not show malice, but only that the credit reporting agency 

“knowingly and intentionally committed an act in conscious disregard for the rights of others.” 

See Cushman v. Trans Union Corp., 115 F. 3d 220, 227 (3d. Cir. 1997). Although the terms 

“willful” or “willfully” are not defined in the FCRA, case law has held that neither malice nor 

evil motive need be established for a finding of a willful violation. See Stevenson v. TRW, Inc., 

987 F.2d 288, 294 (5th Cir.1993) (citing Fischl v. General Motors Acceptance Corp., 708 F.2d 

143, 151 (5th Cir.1983)). Many courts have noted that willful under the Act is demonstrated by 

a showing of “knowingly and intentionally committed an act in conscious disregard for the rights 

of others.” See id. at 293 (citing Pinner v. Schmidt, 805 F.2d 1258, 1263 (5th Cir.1986), cert. 

denied, 483 U.S. 1022 (1987)); Cushman, 115 F. 3d at 227; see also Reynolds v. Hartford Fin. 

Servs. Group, 435 F.3d 1081, 1097-99 (9th Cir. 2006) (discussing meaning of “willfully” with 

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CRA and relying on Cushman). Such conscious disregard may be found when a credit reporting 

agency adopts a policy either knowing it to be in “contravention of the rights possessed by 

consumers under the FCRA or in reckless disregard for whether the policy contravenes those 

rights.” Cushman, 115 F. 3d at 227; see also Reynolds, 435 F.3d at 1097-99. 

Multiple cases within this District, examining the willfulness standard within the precise 

context of a CRA’s duty to investigate consumer duties, have repeatedly found that a CRA 

shows a reckless disregard for a consumer’s rights when it fails to forward “all relevant 

information,” including documentation that a consumer sends to the CRA in support of his or her 

dispute, to the furnisher supplying the credit data, as specifically required 15 U.S.C. § 

1681i(a)(2)(A). Lawrence v. Trans Union, LLC, Civ., 296 F.Supp. 2d. 582, 590, 2003 WL 

22992081 at *5 (E.D. Pa. Dec. 11, 2003); Crane v. Trans Union, LLC, 282 F. Supp. 2d 311, 321 

(E.D. Pa. 2003). 

Moreover, multiple cases within this District have held that a consumer may show a 

willful violation under the FCRA if the CRA has a policy or practice of merely parroting the 

responses of credit furnishers, rather than conducting an independent investigation as required by 

15 U.S.C. § 1681i. See Lawrence, Civ. 296 F.Supp. 2d. 582, 590, 2003 WL 22992081 at * 5; 

Evantash v. G.E. Capital Mortgage Servs., Inc., Civ. No. 02-1188, 2003 WL 22844198 * 8 (E.D. 

Pa. Nov. 25, 2003); Crane, 282 F. Supp. 2d at 321; Sheffer v. Experian Info. Solutions, Inc., Civ. 

No. 02-7407, 2003 WL 21710573 at * 3 (E.D. Pa. July 24, 2003) (all claims, including punitive 

damages, to go to jury in FCRA case against Equifax and other defendants). 

 Cases from other federal courts have also held that consumers may proceed to trial with 

their FCRA section 1681n willful claims based upon conduct -- by Equifax -- similar to what 

courts within the Third Circuit have found could constitute a willful violation of the law. See

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Apodaca v. Discover Fin. Servs. et al., ___ F.Supp. 2d ___, Civ. No. 04-0717, 2006 WL 538667 

(D.N.M. Mar. 2, 2006) (denying Equifax’s motion for partial summary judgment and permitting 

consumer to proceed to trial with willfulness/punitive damages claim stemming from improper 

investigation procedures); Sampson v. Equifax Info. Servs. LLC, Civ. No. 204-187 (S.D. Ga. 

Aug. 29, 2005) (denying Equifax’s motion for summary judgment and permitting consumer to 

proceed to trial with willfulness/punitive damages claim stemming from Equifax’s improper 

investigation procedures). 

Here, Plaintiff has demonstrated Equifax’s “reckless disregard” for consumer rights in 

several ways. 

First, Equifax failed in its duty to conduct an independent investigation by merely 

parroting its public records vendor’s response to its CDV in August 2005 and doing nothing 

further. The testimony of Equifax’s corporate representative Alicia Fluellen has already been the 

basis for one decision within this District allowing punitive damages against Equifax to proceed 

to the jury. See Sheffer v. Experian Info. Solutions, Inc., Civ. No. 02-7407, 2003 WL 21710573 

at * 3 (E.D. Pa. July 24, 2003) (citing Ms. Fluellen’s deposition testimony and allowing 

willfulness claim/punitive damages to be presented to the jury due to Equifax’s practice and 

policy of parroting furnisher responses despite consumer disputes). The same testimony, cited 

herein, is equally applicable to this case as it pertains to Equifax’s general policies and practices. 

(See Fluellen Dep. in Sheffer pp. 85-86, 97-99, 105). 

In this case Ms. Fluellen corroborated that testimony and confirmed that Equifax has not 

changed its parroting practices. (See Fluellen Dep. 4, 36-37, 93-94). Indeed, in August 2005 

Equifax conducted no independent investigation whatsoever, despite having received ample 

notice from Plaintiff by that time, including actual court records, that the $37,500 judgment 

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should not be reporting against him. Equifax simply parroted the CDV response of its furnisher -

- that the judgment should continue to report against Plaintiff, and for only that reason “verified” 

the judgment’s accuracy. That is the essence of parroting. Accordingly, as in Sheffer, the issue 

of willfulness must go to the jury. See also Lawrence v. Trans Union, LLC, Civ., 296 F.Supp. 

2d. 582, 590, 2003 WL 22992081 at *5 (E.D. Pa. Dec. 11, 2003) (practice or policy of parroting 

can be willful violation under FCRA); Crane v. Trans Union, LLC, 282 F. Supp. 2d 311, 321 

(E.D. Pa. 2003) (same). 

 Second, Equifax repeatedly misrepresented to Plaintiff in its letters that it had 

“contacted” the Philadelphia CCP at Broad and Market Streets “directly” in processing his 

disputes. (See Exhibit F, G, H). These communications concealed the truth from Plaintiff 

regarding what Equifax did in its purported “investigation” into Plaintiff’s disputes and also 

concealed who the true source of Equifax’s credit data was with respect to judgments (i.e., the 

public records vendor as opposed to the CCP).14 The FCRA requires CRAs to identify to 

consumers the true source of where they are getting credit information. See 15 U.S.C. § 

1681i(a)(6). Equifax misrepresented that to Plaintiff and did so with standard letters that 

demonstrate its practice of doing so with these type of disputes. (See generally Fluellen dep. at 

31-34; 69-71). 

 Equifax’s Ms. Fluellen testified that as a matter of course Equifax does not identify to 

consumers the true identity of who furnishes public records data to Equifax, as it did not to 

Plaintiff in this case. (See Fluellen Dep. at 31-34, 86-87, 98). Nor were Equifax’s letters 

isolated mistakes, or mere human error. Sheffer v. Experian Info. Solutions, Inc., Civ. No. 02-

 

14 Although fraud or misrepresentation is not a requirement of an FCRA willfulness claim, under the 

“reckless disregard” standard discussed above conduct that is “on the same order as willful concealments or 

misrepresentations” would “justify” an award of punitive damages. See Cushman, 115 F. 3d at 227 (citing although 

declining to adopt holding of Stevenson v. TRW Inc., 987 F.2d 288 (5th Cir. 1993)) (emphasis added). 

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7407, 2003 WL 21710573 at * 3 (willful claim permitted to go to jury where Equifax’s conduct 

was “not the result of mere human error . . . [that] was promptly cured”) (citing Boris v. 

Choicepoint Servs., 249 F. Supp.2d 851, 862 (W.D. Ky. 2003)). A reasonable jury could find 

that Equifax’s practice of telling consumers that it “contacted” the Philadelphia CCP at Broad 

and Market Streets “directly,” when in fact it had not, as well as its failure to make sure that the 

true court records concerning the judgment were actually reviewed as part of its investigation, 

show a “reckless disregard” for consumer rights. 

Finally, Equifax’s repeated and systematic failures to stop reporting the judgment as one 

against Plaintiff after February 2005 is unfathomable when Plaintiff put Equifax on written and 

oral notice so many times, and when Equifax is supposed to update judgment information with 

current data almost on a daily basis. (See Fluellen Dep. at 23 and also generally at 14-15, 17-

21). 

 These facts establish that Equifax knowingly and regularly disregards the FCRA’s 

requirements. Thus, Plaintiff may be permitted to proceed with his willfulness claim to trial.

 B. Plaintiff’s Common Law Claims Are Not Preempted 

Equifax contends that Plaintiff should not be permitted to proceed to trial with his 

common law claims of defamation, negligence and invasion of privacy/false light. (See Def. 

Mem. at 7). The entire and exclusive basis for Equifax’s preemption argument is that it did not 

“willfully” violate the FCRA.15 For the same reasons that Plaintiff may show willfulness and 

thus proceed to trial with his FCRA section 1681n claim, discussed above, Equifax’s preemption 

argument fails.16 

 

15 Equifax does not challenge the merits of Plaintiffs’ common law claims; it only argues that Mr. Abusaab 

cannot show willfulness and that his claims are “preempted.” 

16 Unlike other federal statutes that preempt the field, the FCRA has no such broad preemption language. The 

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Further, the limitations to common law liability set forth at FCRA section 1681h(e), on 

which Equifax relies, impose a “willfulness” threshold only for actions stemming from 

disclosures to the consumer, but not all FCRA actions. As one court recently explained: 

Section 1681h(e) suggests not that Congress has limited actions 

brought in all areas regulated by the FCRA but that defendants will 

have qualified immunity from actions based on information 

disclosed pursuant to certain provisions of the FCRA. Webb v. Bob 

Smith Chevrolet, Inc., 2005 WL 2065237 at *5 (W.D.Ky. Aug. 24, 

2005). In McAnly v. Middleton & Reutlinger, P.S.C., 77 F.Supp.2d 

810, 814-15 (W.D.Ky.1999), the district court explained that, 

‘section 1681h(e) is not actually a preemption provision. Rather, it 

is a quid pro quo grant of protection for statutorily required 

disclosures. Since various parts of the federal statute require 

consumer reporting agencies and information users to disclose 

information to consumers under certain circumstances, this section 

guarantees that the agencies or users cannot be sued for those 

required disclosures [under FCRA sections 1681g, 1681h and 

1681m] under state tort law. It makes sense that acts required to be 

done by the FCRA are immunized from state tort liability.’ 

Poore v. Sterling Testing Sys., Inc., 410 F.Supp. 2d 557, 573 (E.D. Ky. 2006). 

 Here, Plaintiff’s common law claims are based on information provided by Equifax to 

third parties, such as a prospective mortgage lender and other existing and potential creditors. It 

is not based on the disclosures to consumers required under sections 1681g, 1681h and section 

1681m. Nor is it based on information disclosed by a user of a consumer report. Accordingly, 

Plaintiff’s state law claims are not prohibited under section 1681h(e). 

 FCRA simply imposes a higher scienter standard for certain state common law claims, such as negligence, 

defamation and invasion of privacy under some circumstances. See 15 U.S.C. § 1681h(e). If a plaintiff can proffer 

evidence creating a genuine issue of fact as to whether the defendant’s conduct was willful under the FCRA, the 

common law claims are appropriate and not preempted. At least four decisions within the Eastern District of 

Pennsylvania, including decisions against Equifax, have held that a plaintiff in an FCRA case may proceed to trial 

with his/her common law claims for negligence, defamation and invasion of privacy/false light, so long as those 

claims are premised upon willful conduct pursuant to FCRA section 1681h(e). See Lawrence v. Trans Union, LLC, 

296 F.Supp. 2d. 582, 590-591, 2003 WL 22992081 at * 5-6 (E.D. Pa. Dec. 11, 2003) (Brody, J.); Crane v. Trans 

Union, LLC, 282 F. Supp. 2d 311, 321-22 (E.D. Pa. 2003) (Dalzell, J.); Sheffer v. Experian Info. Solutions, Inc., 249 

F. Supp.2d 560, 563 (E.D. Pa. 2003) (Schiller, J.); Sheffer v. Experian Info. Solutions, Inc., Civ. No. 02-7407, 2003 

WL 21710573 at *3 (E.D. Pa. July 24, 2003) (same) (Schiller, J.). 

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C. Plaintiff Withdraws His Claim Under The Pennsylvania Unfair Trade 

 Practices and Consumer Protection Law 

Equifax finally contends that Plaintiff should not be permitted to proceed to trial with his 

claim under the Pennsylvania Unfair Trade Practices and Consumer Protection Law (“CPL”). 

(See Def. Mem. at 8). Equifax inaccurately claims that there is “no cause of action under the 

CPL.” (Id.). Although at least two federal courts within this District have held that a consumerplaintiff may bring a Pennsylvania CPL claim along with an FCRA claim alleging that a CRA 

reported inaccurate credit information about him or her,17 Plaintiff hereby withdraws this 

statutory claim. Accordingly, that issue is moot for purposes of this Motion. 

V. CONCLUSION

 For the reasons stated above, this Court should deny Equifax’s Motion for Summary 

Judgment. 

 Respectfully submitted,

FRANCIS & MAILMAN, P.C. 

BY: ____________________________ 

JAMES A. FRANCIS, ESQUIRE 

MARK D. MAILMAN, ESQUIRE 

JOHN SOUMILAS, ESQUIRE 

Land Title Building, 19th Floor 

100 South Broad Street 

Philadelphia, PA 19110 

(215) 735-8600 

Dated: March 29, 2006 

 

 

17 See Lawrence v. Trans Union, LLC, 296 F. Supp. 2d 582, 591-92 (E.D. Pa. 2003); Crane v. Trans Union, 

LLC, 282 F. Supp.2d 311, 322 (E.D. Pa. 2003). 

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