IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

GRACE LAWRENCE 

Plaintiff, 

v. 

TRANS UNION LLC 

CITY OF PHILADELPHIA 

Defendant. 

C.A. NO: 02-CV-4440 

 

TRANS UNION LLC’S MEMORANDUM OF LAW IN 

SUPPORT OF MOTION FOR SUMMARY JUDGMENT

 Trans Union LLC (“Trans Union”), by and through its undersigned attorneys, states as 

follows in support of its motion for summary judgment: 

I. INTRODUCTION 

 Plaintiff claims that Trans Union inaccurately reported and failed to properly 

reinvestigate a judgment which was reported in her file. Plaintiff’s claims arise largely from her 

distress over the alleged denial of a student loan for her daughter in 1997. That claim is entirely 

irrelevant and time barred under the FCRA’s two year limitations of actions provision. FCRA 

§1681p. 

 Plaintiff’s only other assertion of harm is the alleged denial of a credit card in 2001. 

However, plaintiff already had various credit cards, including a Chase card with $10,500.00 in 

available credit (and a zero balance). The application and alleged denial were non-events; 

Plaintiff could not even testify to the terms of the second Chase card she sought or why she 

needed the card. Further, Plaintiff had no explanation why she did not contact Trans Union 

between 1998 and 2001, even though she knew the judgment remained in her file. 

Case 2:02-cv-04440-AB Document 20-2 Filed 06/16/2003 Page 1 of 25
 Trans Union maintains reasonable procedures to maintain the accuracy of information

reported about consumers, including plaintiff. Since before 1994, Trans Union has used Superior 

Information Services, a reputable and reliable public record vendor in New Jersey, to compile 

and furnish judgments and liens. Trans Union audits Superior and conducts weekly tests of the 

information Superior furnishes to confirm its accuracy. Superior has been a reliable source of 

accurate public record information. Under the contract between Superior and Trans Union, 

Trans Union requires Superior to meet certain processing requirements when furnishing and 

reinvestigating public record information. In fact, Superior is required to physically go to the 

relevant courthouse to verify disputed information. 

 Plaintiff’s claims related to the judgment, if any, arose in 1997 and have been time-barred 

since 1999. Her effort to revive her claims in 2001 fail because no harm resulted from the

reporting or reinvestigation of the disputed judgment at that time. 

 A. Plaintiff’s Complaint. 

Plaintiff commenced this action on July 3, 2002 against Trans Union, a “consumer

reporting agency” as defined by the Fair Credit Reporting Act, 15 U.S.C. §1681 et seq. (the 

“FCRA”) and the City of Philadelphia. This action relates to Trans Union’s reporting and 

reinvestigation of a single item of information, a judgment filed in the Philadelphia Municipal 

Court. Complaint ¶8. 

Plaintiff alleges that Trans Union reported a judgment “that [does] not belong to the 

Plaintiff, or which misrepresent [sic] the payment history and/or status of accounts and/or 

tradelines that do not belong to the Plaintiff...” Complaint ¶¶8-9. Plaintiff also alleges she

disputed this information to Trans Union on several occasions, including February 2001, and that

Trans Union nevertheless continued to report that information. Complaint ¶¶11-15. 

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Case 2:02-cv-04440-AB Document 20-2 Filed 06/16/2003 Page 2 of 25
Plaintiff alleges that Trans Union willfully and negligently violated the FCRA. 

Complaint Count One. In particular, Plaintiff alleges that Trans Union violated FCRA '1681i

(the duty to reinvestigate disputes) and FCRA '1681e(b) (the duty to follow reasonable 

procedures to assure maximum possible accuracy). Complaint, Count One. Plaintiff also alleges 

a state law defamation claim against Trans Union. Complaint, Count Three. Plaintiff alleges 

Trans Union violated the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 

P.S. '201-1 et seq. (the “PA CPL”) Complaint, Count Five. Plaintiff also alleges common law 

negligence and invasion of privacy/false light. Complaint, Counts Six and Eight, respectively. 

Plaintiff dismissed the City of Philadelphia with prejudice on April 9, 2003. 

B. Plaintiff’s Allegations of Harm.

Plaintiff asserts claims for “actual, statutory, and punitive damages” for violations of the

FCRA. Plaintiff’s Pretrial, p.1. She claims “dignitary [sic] harm” as a result of “great 

humiliation and embarrassment from falsely being identified for a period of six years as an

individual with an unpaid judgment on her record.” Plaintiff’s Pretrial, p.3. Plaintiff connects 

her damages to a denial of a student loan with Sallie Mae in 1997, a denial of a credit card with

Chase in 2001, and higher interest rates on unidentified mortgages, car loans and credit cards.

Plaintiff’s Pretrial, p.3. However, Plaintiff has only identified “evidence” to support one credit 

denial which is not barred by the two-year statute of limitations, a credit card application to 

Chase in July 2001. 

Interestingly, even the Chase credit card was not denied. Plaintiff withdrew the

application prior to the date that notice of the denial was even sent. See Exhibit “A,” excerpt 

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from Chase computer records, p.1 “Decision: Withdrawn” (emphasis in original).1

 

Nevertheless, Plaintiff’s testimony on the subject makes clear that, despite Plaintiff’s conclusory 

allegations to the contrary, the Chase application was a non-event: 

2 Q. When you said that you had an 

3 embarrassing episode with Chase Bank, 

4 explain to me did you go and apply in 

5 person for Chase Bank?

6 A. No. 

7 Q. What were you applying for with 

8 Chase Bank?

9 A. Credit card. 

10 Q. Okay. What kind of credit card? 

11 A. Visa, Master Card. 

12 Q. Do you remember what the terms 

13 were on that?

14 A. No. I believe they were pretty 

15 high, though. 

16 Q. Were you applying for a 

17 promotional interest rate? 

18 A. You know what, I don't know. 

19 Honestly I don't know. 

Deposition of Plaintiff, pp.57-58, attached hereto as Exhibit “B” (herein “Plaintiff Dep. ¶_”). In

addition, Plaintiff had at least $5,000 on a Universal credit card (Plaintiff Dep. p.28); a line of 

credit with First Union Bank (Plaintiff Dep. p.32), $4,400 in available credit on a card with 

Peoples Bank (Plaintiff Dep., p.95). Most importantly, Plaintiff had an existing Chase credit 

card with $10,500 in available credit. Exhibit “A,” p.11. Plaintiff identified no need for the card, 

or any benefit whatsoever that she was denied as a result of this application that she withdrew. 

 

1

 A Chase representative explained that on July 11, 2001, weeks before the August 2, 2001 “denial” letter

was sent to Plaintiff, Plaintiff withdrew the application. The deposition transcript is unavailable as of the time of

this writing. See Exhibit “A,” p.1, third entry from bottom.

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Case 2:02-cv-04440-AB Document 20-2 Filed 06/16/2003 Page 4 of 25
 C. History of Communications

Plaintiff asserts in that she disputed information to Trans Union on four occasions, 

August, November and December 1997, and February 2001. Plaintiff’s Pretrial, p.2. However, 

at deposition, Plaintiff could only establish three communications to Trans Union, August and 

December 1997, and February 2001. See e.g., Plaintiff Dep., pp.57-58. Nevertheless, there is 

no dispute over the fact that Trans Union received only one dispute communication from 

Plaintiff within the statute of limitations, in February 2001. 

On January 23, 1998, Trans Union disclosed to Plaintiff that the judgment was verified 

and would be listed on her file. The next communication between Plaintiff and Trans Union was 

three years and two days later, a request for a copy of her file on January 25, 2001. Plaintiff 

was prompted to request this file disclosure by the advice of her attorneys, Francis and Mailman: 

3 Q. If anything prompted you that you 

4 can remember to get P-9 in January of 2001?

5 A. I definitely requested it or 

6 could it have been another one of these 

7 credit inquiries. I don't know. This is 

8 one of the forms that my lawyer has. Is 

9 that right? I gave it to him.

10 MR. SOUMILAS: The question is 

11 whether you remember why you may have 

12 received a copy at that time. 

13 THE WITNESS: Because I believe 

14 you requested it and asked me to get one. 

15 MR. SOUMILAS: Let's go off the 

16 record. 

17 (At this time, a discussion was 

18 held off the record.) 

19 MR. SOUMILAS: I'm going to ask 

20 that any answer regarding any 

21 communications with counsel be stricken.2

 

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Case 2:02-cv-04440-AB Document 20-2 Filed 06/16/2003 Page 5 of 25
Plaintiff’s single dispute, submitted seventeen months prior to this suit, simply stated that 

she was “writing to dispute an item on her credit report...enclosed is a copy of the court 

disposition in question.” Exhibit “C.” Attached to that vague dispute was a copy of what was 

apparently a computer printout of a docket sheet from the Municipal Court. Id. This dispute 

made absolutely no reference to prior communications to Trans Union. 

Trans Union did not accept the screen print as proof the judgment was inaccurate. Trans 

Union receives 35,000 to 50,000 disputes per week. Deposition of Eileen Little, p.114, attached

hereto as Exhibit “D” (herein “Little Dep. ¶_”). The fact that some people attempt, through 

dishonest means, to have accurate, derogatory information removed from their files is simply 

indisputable. The screen print was not on letterhead, signed, or court-stamped. The purpose of 

the FCRA is to protect the rights of a consumer as well as the rights of the banking system and 

needs of commerce. See §1681, Findings and Purpose. Trans Union reasonably rejected the 

document because it lacked any semblance of authenticity. 

Instead, Trans Union contacted Superior, and asked Superior to verify the status of the 

disputed information. Little Dep. p.39. As William Stockdale, Senior Director of Customer

Information Services testified, Superior specializes in reporting public record information, it is 

its “core competency” as a business. Deposition of William Stockdale p.20, attached hereto as

Exhibit “E” (herein “Stockdale Dep. p._”). 

Superior is subject to rigorous standards. For example, it is required, by its obligations in 

its contract with Trans Union, to physically go to the Courthouse and verify the information: 

7 Q. Is it Superior's job to conduct 

8 the information?

9 A. It would be Superior's job to go 

 

6

2 After this testimony and Plaintiff’s counsel’s attempt to strike his own witness’s statement, Plaintiff could 

not recall when counsel was hired. However, the testimony quoted above speaks for itself. 

Case 2:02-cv-04440-AB Document 20-2 Filed 06/16/2003 Page 6 of 25
10 to the courthouse and verify the public 

11 record. 

12 Q. They're required to physically go 

13 to the courthouse and verify it? 

14 A. Yes. 

Stockdale Dep. p.53. 

Mr. Stockdale further explained the exhaustive and extensive procedures which Trans

Union follows to assure it employs a contractor to assure Trans Union reports public records 

with maximum possible accuracy. Based on Trans Union’s evaluations, no vendor performs

better than Superior. Stockdale Dep., p.37. 

Trans Union’s selection of Superior as its vendor was based on accuracy, not price. 

Stockdale Dep. pp.27-28. Superior is subject to several tests to assure accuracy, including 

“actual data comparisons” wherein Superior’s data is compared to actual court records for 

accuracy and gathering capabilities. Id. p.23. In fact, Superior was more expensive. Id. p.28. 

Mr. Stockdale has performed an on-site inspection to assure Superior’s data gathering 

capabilities are credible. Id. pp.34-35. The data Superior provides is constantly statistically 

analyzed to assure that the volumes are consistent; a 5% deviation from the previous six 

transmissions causes Trans Union to inquire why a change in volume occurred. (That is, to 

determine the reasons that one week would have 5% more or less satisfactions or judgments than 

the previous six weeks.) Id. pp.37-41. In addition, if the number of consumer disputes relating 

to Superior increases, this will prompt an inquiry by Trans Union as to whether this is a result of 

inadequate data compilation. Id. pp.41-43. Mr. Stockdale was not aware of any other Trans 

Union lawsuit which arose out of Superior’s reporting of public record information. Id. p.67. 

Thus, based on Superior’s excellent history of reporting and procedures to maintain 

accuracy, Trans Union had no “notice” that Superior’s reporting or verification of the public 

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record at issue might be suspect. Furthermore, the dispute communication itself left no reason to

question Superior’s verification of the judgment in March 2001. Plaintiff’s dispute made no 

reference to prior communications. Exhibit “C.” Trans Union was unaware of Plaintiff’s 

previous disputes in February 2001 because Trans Union retains records of previous dispute 

history for at least 33 months (at least nine months more than the FCRA statute of limitations)

Little Dep. p.7. The records relating to Plaintiff’s previous disputes were purged from its system 

in or before November 2000 and unavailable. Id.

Ms. Little testified that there are instances in which, based upon previous disputes or 

other information provided by the consumer, Trans Union would request Superior provide it with 

actual copies of court documents. Little Dep. pp.32-33; 45. Whether this is necessary is

analyzed on a case-by-case basis. Id. Nothing about Plaintiff’s March 2001 dispute would have 

given rise to this need. Id.

As set forth below, consistent with the Third Circuit’s holding in Cushman v. Trans 

Union Corp., 115 F.3d 220 (3rd Cir. 1997), there is no genuine issue of fact because there is no 

evidence upon which a reasonable jury could determine that Trans Union’s reliance on Superior 

was negligent. Thus, Trans Union is entitled to summary judgment on Plaintiff’s reinvestigation

claim.

D. Punitive Damages and State Law Claims.

Plaintiff’s claim for punitive damages fails because she cannot present evidence that 

Trans Union willfully violated the FCRA. Given the undisputed facts relating to the extensive 

procedures Trans Union follows to select Superior, Trans Union did not willfully or recklessly 

rely on Superior to report the information at issue. There is no basis for a reasonable jury to 

make a willfulness finding. 

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Plaintiff did not identify any state law claims in her pretrial and therefore such claims are 

abandoned. Even if not, such claims are entirely meritless. Plaintiff’s defamation, invasion of 

privacy, and common-law negligence claims fail because she cannot meet the higher standard of

malice or willful intent to injure required to overcome Trans Union’s qualified immunity. 

Finally, Plaintiff claims under the PA CPL fail because such claims are preempted by the FCRA, 

or in the alternative, she has made absolutely no effort to identify how Trans Union violated the 

PA CPL. 

Accordingly, Trans Union is entitled to summary judgment on all of Plaintiff’s claims. 

II. ARGUMENT

A. The Standard for Summary Judgment

Federal Rule of Civil Procedure 56(c) provides that summary judgment is proper: 

If the pleadings, depositions, answers to interrogatories and 

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

there is no genuine issue as to any material fact and that the 

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

In Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the United States Supreme Court defined the 

standard for summary judgment set forth in Rule 56(c): 

...the plain language of Rule 56(c) mandates the entry of summary 

judgment, after adequate time for discovery and upon motion, 

against a party who fails to make a showing sufficient to establish

the existence of an element essential to the party’s case, and on 

which that party will bear the burden of proof at trial. 106 S. Ct. at

2552-53. 

As cogently explained in Celotex Corp., the absence of an issue of material fact can be 

demonstrated by an absence of evidence on such issue: 

[T]he burden on the moving party may be discharged by 

“showing” - that is, pointing out to the district court - that there is

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an absence of evidence to support the nonmoving party’s case. 106 

S. Ct. at 2554. 

As demonstrated below, there is no genuine issue of material fact. Plaintiff’s claims

relating to disputes and credit denials prior to July 3, 2000 are barred by the statute of 

limitations. Plaintiff suffered no cognizable harm as a result of Trans Union’s reporting of the

information within the statute of limitations. There is no evidence upon which a jury could find 

that Trans Union failed to reasonably reinvestigate Plaintiff’s dispute. Plaintiff cannot establish 

that Trans Union willfully violated the FCRA, nor can Plaintiff establish that Trans Union acted

with malice or willful intent to injure Plaintiff. Plaintiff’s PA CPL claims fail because they are

preempted by the FCRA, and because Plaintiff has utterly failed to identify a manner in which 

Trans Union violated the PA CPL. Accordingly, Trans Union is entitled to summary judgment

on all of Plaintiff’s claims. 

B. Plaintiff’s Claims Arising Prior to July 3, 2000 Are Barred by the Statute of 

 Limitations.

This action was commenced July 3, 2002. Two of Plaintiff’s three dispute 

communications are barred by the statute of limitations because they occurred more than two (2) 

years prior to the commencement of this action. §1681p. More importantly, the 1997 student 

loan application upon which Plaintiff rests her most significant distress and damages is plainly 

barred. See Andrews v. TRW, Inc., 122 S.Ct. 441, 534 U.S. 19, 151 L.Ed.2d 339 (2001); 

Houghton v. Insurance Crime Prevention Institute, 795 F.2d 322 (3rd Cir. 1986); Clark v. State 

Farm Fire & Casualty Ins. Co., 54 F.3d 669 (10th Cir. 1995); Rylewicz v. Beaton Servs., Ltd., 

888 F.2d 1175, 1181 (7th Cir.1989); Clay v. Equifax, Inc., 762 F.2d 952 (11th Cir. 1985). Trans 

Union raised the Affirmative Defense of the statute of limitations. Trans Union’s Answer, Ninth 

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Affirmative Defense. (Docket #4.) It is well settled that the FCRA limitations period runs from 

“the date on which the liability arises.” See §1681p and Houghton, supra. 

 §1681p provides: 

§1681p. Jurisdiction of Courts; Limitation of Actions 

An action to enforce any liability created under this subchapter 

may be brought in any appropriate United States district court 

without regard to the amount in controversy, or in any other court 

of competent jurisdiction, within two years from the date on which 

the liability arises, except that where a defendant has materially 

and willfully misrepresented any information required under this

subchapter to be disclosed to an individual and the information so 

misrepresented is material to the establishment of the defendant's 

liability to that individual under this subchapter, the action may be

brought at any time within two years after discovery by the 

individual of the misrepresentation. 

There is no “tolling” or “discovery rule” applicable to the FCRA. In Andrews, supra, 

the Supreme Court expressly rejected the notion that the limitation period for such claims ought 

to be tolled pending “discovery” cogently stating: 

The FCRA does not govern an area of the law that cries out for 

application of a discovery rule, nor is the statute “silent on the 

issue” of when the statute of limitations begins to run. [quoted 

language of §1681p omitted] We conclude that the text and

structure of §1681p evince Congress' intent to preclude judicial 

implication of a discovery rule. 122 S.Ct. at 447 

 

There is also no “issue” relating to Plaintiff’s “discovery” of the claim. Plaintiff disputed

credit information to Trans Union in August 1997, and Trans Union notified her that the 

information was deleted, reinserted in November 1997; Trans Union timely Plaintiff of the 

reinsertion. In response to Plaintiff’s December 1997 dispute, Trans Union again deleted the 

judgment from Plaintiff’s file on January 20, 1998, and notified Plaintiff the judgment was 

reinserted on January 23, 1998. Plaintiff was aware, four and one half years before 

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Case 2:02-cv-04440-AB Document 20-2 Filed 06/16/2003 Page 11 of 25
commencing suit, that the judgment was verified and remained on her file. Plaintiff conceded at 

deposition that she was aware of Trans Union’s reporting: 

5 Q. Do you recall whether there was a 

6 time that Trans Union told you that the 

7 information was off of your file and then 

8 didn't tell you that the information was 

9 put back on your file? 

10 A. I believe every time that I 

11 submitted a request to have this removed, 

12 they did send me a letter saying they would 

13 investigate and they got back to me and 

14 said that they did and the information was 

15 confirmed as being correct. That's what I 

16 remember. 

Lawrence Dep. p.19. 

Plaintiff asserts in her pretrial, for the first time, that Trans Union misidentified the 

identity of the source of the public record information on her file. Pretrial, p.3. This new claim, 

asserted for the first time at the pretrial, should be barred because it was untimely raised. 

Nevertheless, it is entirely without merit. 

In December 1997 and January 1998, Trans Union reinserted the judgment and, each

time, informed Plaintiff that the Municipal Court was the source of the information. This was an 

accurate statement. Pursuant to '1681i (discussed infra), the consumer reporting agency is 

obliged to reinvestigate the dispute with the “original source” of the information. See 16 CFR 

Part 600, '611(2) (emphasis supplied). FCRA compliance requires that the consumer reporting 

agency go back to the original source of the information, not the vendor’s records. As Mr. 

Stockdale made clear, Trans Union’s contract expressly required Superior to physically go to the 

courthouse to re-verify the information. Stockdale Dep., p.53. Thus, Trans Union identified the 

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original source of the information; it certainly did not willfully conceal or misrepresent any 

information. 

Moreover, the identity of the public records vendor was not “material to the 

establishment of the defendant's liability to that individual...” §1681p. Thus, no tolling applies 

and Plaintiff’s FCRA claims pre-dating July 3, 2000 are time-barred. 

Plaintiff’s state law defamation and invasion of privacy claims, to the extent not 

preempted, are barred by a one-year statute of limitations. 42 PA.C.S. 5523. Plaintiff’s 

negligence claims are barred by a two-year statute of limitations. 42 PA.C.S. 5524(7). 

Plaintiff’s PA CPL claims are also barred by a two-year statute of limitations. David Jeffrey Ltd. 

v. Lucente 7 Pa. D. & C.4th 558 7 Pa. D. & C.4th 558; (PA Mont. Com Pl. 1990); see also 

Cramer v. Inter-County Hospitalization Plan, Inc., 46 Pa. D. & C.3d 288 (PA Lanc. Com Pl. 

1986): 

No specific statute of limitations is provided in the [PA CPL], but, 

as cited earlier, the statute is intended to prevent fraud, 

Commonwealth v. Monumental, supra, and, therefore, the 

appropriate statute of limitations is the one for fraud generally, 42 

Pa.C.S. § 5524, pursuant to which the limitations period is two 

years. Fickinger v. C.I. Planning Corp., 556 F. Supp. 434 (E.D., 

Pa. 1982). This period begins to run once the fraud is discovered, 

Rothman v. Fillette, 503 Pa. 259, 469 A.2d 543 (1983). 

Plaintiff “discovered” the information was on her file approximately five years prior to 

the commencement of this action. Under even the most liberal discovery rule, Plaintiff’s claims

prior to July 3, 2000 are time-barred. 

C. Plaintiff Cannot Establish a §1681e(b) Claim. 

The elements of an FCRA claim are well established. 

(1) inaccurate information was included in a consumer's credit 

report; (2) the inaccuracy was due to defendant's failure to follow 

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reasonable procedures to assure maximum possible accuracy; (3) 

the consumer suffered injury; and (4) the consumer's injury was 

caused by the inclusion of the inaccurate entry.

Philbin v. Trans Union Corp., 101 F.3d 957, 963 (3rd Cir. 1996) (emphasis supplied). See also 

Crabill v. Trans Union, LLC, 259 F.3d 662, 664 (7th Cir. 2002); Whelan v. Trans Union Credit 

Reporting Agency, 862 F. Supp. 824, 829 (E.D. NY 1994); Cahlin v. General Motors 

Acceptance Corp., 936 F.2d 1151, 1160-1161 (11th Cir. 1991); Morris v. Credit Bureau of 

Cincinnati, Inc., 563 F. Supp. 962, 967 (S.D. Ohio 1983); Bryant v. TRW, Inc., 487 F. Supp. 

1234, 1238 (E.D. Mich. 1980), aff'd, 689 F.2d 72 (6th Cir. 1982). 

The only credit “denial” which is not time barred is the 2001 Chase application for an 

additional credit card. However, Plaintiff withdrew the application weeks before she was 

notified of the denial. Exhibit “A.” In any event, as set forth above, Plaintiff had thousands of

dollars in available credit ($10,500from Chase alone) and identified no benefit she lost as a result 

of this “denial.” Plaintiff Dep., pp. 28, 32, 95. 

Plaintiff’s unfounded claims that unidentified third parties declined her credit or offered 

her less favorable terms should not be considered. In Philbin, supra, the plaintiff produced 

evidence of a denial for credit at Macy’s, but only claimed, without documentation, that he was 

denied a loan by Household Bank. The Third Circuit held that plaintiff’s hearsay statements of 

an alleged denial, told to him by an unidentified Household representative, could not be

considered at summary judgment because such “hearsay statement[s] by...unknown 

individual[s] [are] not capable of being admissible at trial... and could not be considered on a 

motion for summary judgment. Philbin, 101 F.3d at 961, FN1 (citing Petruzzi’s IGA 

Supermarkets v. Darlington Delaware Co., 998 F.2d 1224 (3rd Cir.) cert den. 510 U.S. 994, 114 

S.Ct. 554, 126 L.Ed.2d. 455 (1993) (internal quotations omitted). See also King v. City of 

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Philadelphia, 3rd Cir. No 02-2845, 2003 U.S. App. LEXIS 6290 (April 1, 2003) (deposition 

testimony relating to statements of unidentified declarants not capable of creating genuine issue 

of fact under Rule 56(e)); Blackburn v. United Parcel Serv., 179 F.3d 81, 95 (3rd Cir. 1999), “a 

hearsay statement that is not capable of being admissible at trial should not be considered on a 

summary judgment motion." Citing Philbin supra.) Therefore, because there is no evidence 

Plaintiff was denied a credit card, or paid more for a mortgage or automobile loan, Trans Union 

is entitled to summary judgment on Plaintiff’s unspecified claims of harm connected to these 

transactions.

Significantly, Plaintiff conceded that, within the relevant statute of limitations, she 

suffered the least: 

17 Q. We discussed previously between 

18 January of '98 and January of 2001. So, 

19 now I'm asking that question from between 

20 January of 2001 and when the judgment was 

21 taken off of your file. 

22 MR. SOUMILAS: Which for the 

23 record was some time after the lawsuit. I 

24 think initially you had bracketed the time

 70

1 as P-11 through the commencement of the 

2 lawsuit. The last two years roughly. 

3 THE WITNESS: I suppose the last 

4 two years were probably the least of my 

5 upsets. But as I mentioned, any time I 

6 would go to apply for any kind of credit, I 

7 was always -- it's in the back of my mind. 

8 It's a worry. A worry that I don't need. 

9 If you want to say a slander against my

10 name. Prior to the last year or so there 

11 was a lot of upsetment with it because it 

12 involved my daughter and our family and her 

13 education. 

14 BY MR. CREECH: 

15 Q. That was the student loan in '97, 

16 right? 

15

Case 2:02-cv-04440-AB Document 20-2 Filed 06/16/2003 Page 15 of 25
17 A. Yes. We were down to the wire 

18 with time and we really had to -- it caused 

19 a lot of upsetment in my family. It was 

20 her and myself and, you know, nobody there 

21 to help us out. And then we have this and 

22 it was just a lot of stress and aggravation 

23 to us. 

Plaintiff Dep. pp.69-70 (emphasis supplied). Plaintiff’s claims which pre-date July 2000, 

particularly the student loan in 1997, are all time-barred for the purposes of this action. 

Moreover, “worry” “in the back of [her] mind” cannot support an FCRA claim. As the 

Second Circuit held in Casella v. Equifax Credit Info. Servs., 56 F.3d 469, 475 (2nd Cir. 1995) 

fear that inaccurate information might have been disseminated is too speculative as a matter of 

law to be cognizable: 

Casella presented no evidence that during the period in which 

Equifax and Trans Union carried the inaccurate [credit] entry, 

either of them provided appellant's credit report to any third party. 

No rational trier of fact could infer from this record that any

potential creditor or other person in appellant's community learned

of any harmful information from appellees. Casella's argument

boils down to the bare contention that he is entitled to damages

for pain and suffering simply because he knew of an inaccurate 

and potentially damaging item in his credit report. We are 

unaware of any case extending FCRA damages that far.... and 

we decline to reach that result here. Casella 56 F.3d at 475 

(citations omitted, emphasis supplied). 

Plaintiff’s pretrial asserts she was “defamed” by Trans Union’s publication to virtually 

every credit grantor which saw her consumer report. Plaintiff’s Pretrial, p.3. This claim is also 

without merit because the disclosure of the information must be connected to harm to give rise to

a negligent FCRA claim. In Obabueki v. Choicepoint, Inc., 236 F.Supp.2d 278 (S.D. NY 2002) 

aff’d 319 F.3d 87 (2nd Cir. 2003), a jury awarded $450,000 in compensatory damages in favor of 

a consumer who was denied employment by IBM, which received a Choicepoint consumer 

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report. The Court vacated the jury award because, although Choicepoint disclosed inaccurate 

information as a result of its failure to follow reasonable procedures, it did not cause the plaintiff 

to lose the employment opportunity: 

[T]he FCRA is not a strict liability statute; Choicepoint's violation 

of the statute does not relieve plaintiff of his burden to establish 

that those violations were the proximate cause of plaintiff's injury.

As the Second Circuit held in Casella [supra], a court may 

properly reject a plaintiff's claims "due to a lack of causation 

between the harm alleged" and a defendant's "violations of the 

FCRA." Casella, supra, 56 F.3d at 474-75. As discussed above, 

plaintiff in this action has failed to show that his loss of the

employment opportunity at IBM was proximately caused by either

Choicepoint's provision of the initial incorrect report or by 

Choicepoint's failure to obtain proper certification from IBM. 

Accordingly, Choicepoint's motion for judgment as a matter of law

is granted. 236 F.Supp.2d at 285. 

The Second Circuit affirmed. 319 F.3d 87 (2nd Cir. 2003). This is entirely consistent with the 

Third Circuit’s holding in Philbin, where the Court of Appeals expressly noted that: 

We hasten to add that the burden of proving causation remains

with the plaintiff at all times and never shifts to the defendant. 

101 F.3d at 970. 

Accordingly, Trans Union is entitled to summary judgment because she cannot 

demonstrate that Trans Union caused her harm. 

D. Plaintiff Cannot Establish a §1681i Claim

 1. Plaintiff Cannot Demonstrate Harm In Connection With Her 

 February 2001 Dispute 

In the context of §1681e(b), causation and harm are essential elements of a claim for a 

negligent violation. See Philbin and Crabill, supra. The same holds true for §1681i claims. This

is so because a claim negligent violations of the FCRA is based upon §1681o, which provides 

recovery solely for “any actual damages sustained by the consumer as a result of the [negligent]

17

Case 2:02-cv-04440-AB Document 20-2 Filed 06/16/2003 Page 17 of 25
failure [to comply with the FCRA.]” §1681o(a)(1). No statutory damages are allowed for 

negligent violations, and attorneys fees under §1681o(a)(2) are only allowable if damages are 

recovered. See Crabill, supra; Nagle v. Experian Information Solutions, Inc., 297 F.3d 1305 

(11th Cir. 2002). 

Here, after she consulted counsel, Plaintiff sent a single letter of dispute. Plaintiff has 

failed to articulate any harm beyond the “worry” “in the back of [her] mind” which clearly 

exceeds the bounds of causation with respect to a §1681e(b) claim. See Casella and Obabueki, 

supra. In fact, Plaintiff did not even recall receiving the results of the reinvestigation. Plaintiff 

Dep. p.64. Accordingly, because Plaintiff has failed to identify any cognizable harm, Trans

Union is entitled to summary judgment on Plaintiff’s negligent §1681i claim.

2. There Is an Absence of Evidence that Trans Union Failed To 

 Reasonably Reinvestigate Plaintiff’s Dispute. 

 In Cushman supra, the court of appeals held that a consumer reporting agency “may be

required, in certain circumstances ... to go beyond the original source.” 115 F.3d at 227 

(emphasis supplied). Two factors which determine whether the agency has such duty are: 1) 

notice of unreliability of the original source, and 2) the cost of verifying the accuracy of the 

source versus the possible harm to the consumer. Id. 

Here, Trans Union’s reliance on Superior cannot be deemed unreasonable. Trans Union 

was without notice that its vendor was unreliable. It routinely subjects Superior’s information 

and procedures to compliance reviews. (See, e.g. Stockdale Dep., 23, 27-28, 34-35, 37-41.) 

Trans Union had no notice that the information was previously disputed or verified in the past, 

either by Plaintiff or in its own existing records. Ms. Little testified that with such notice, Trans

18

Case 2:02-cv-04440-AB Document 20-2 Filed 06/16/2003 Page 18 of 25
Union may have had reason to question Superior’s verification. Little Dep. p.45. Based on 

Plaintiff’s single 2001 dispute, there was no reason to do so. 

Trans Union is entitled to summary judgment because Plaintiff cannot present any

evidence upon which a reasonable jury could find that Trans Union’s reliance upon Superior was 

unreasonable. Because the FCRA is not a strict liability statute, there must be some evidence by 

which a trier of fact could find that Trans Union’s reinvestigation procedures were unreasonable. 

For example, In Dalton v. Capital Associated Industries, Inc., 257 F.3d.409, 415 (4th Cir. 2001), 

the Fourth Circuit held that a vendor’s reliance upon the “informal legal opinion” of a clerk, and 

the agency’s failure to require more rigorous standards by the vendor, was evidence of a possible 

failure to follow reasonable procedures. Here, no such circumstances exist. 

In Obabueki v. IBM Corp., 145 F. Supp. 2d 371 (S.D. NY 2001), Choicepoint, a 

consumer reporting agency defendant, moved for summary judgment on Plaintiff’s §1681e(b)

(reasonable procedures) and §1681k (public record information for employment purposes). The 

Court denied summary judgment because the consumer presented several factors by which a

reasonable jury could find that Choicepoint’s procedures were unreasonable, including, inter

alia, always selecting the lowest cost supplier; assumed accuracy of the supplier’s information 

(no audits or evaluations); an “implied” duty to report accurate information (not an express 

requirement); and no training of outside vendors. Id. at 397-398. 

Instantly, Trans Union has presented extensive evidence that Superior’s qualifications, 

experience and past performance were of the highest quality in the industry. Stockdale Dep., 

p.37. Plaintiff has not presented, and cannot present, any evidence upon which a jury could find 

that Trans Union’s reliance on Superior was unreasonable. Therefore, Trans Union is entitled to 

summary judgment on Plaintiff’s §1681i claim.

19

Case 2:02-cv-04440-AB Document 20-2 Filed 06/16/2003 Page 19 of 25
E. Plaintiff Cannot Present Evidence Sufficient to Sustain Her Punitive 

 Damages Claims. 

Trans Union is unquestionably entitled to report public record information and to obtain 

such information from an independent contractor. See, e.g. Dalton, supra. Trans Union hired a 

vendor which was contractually obligated to physically go to the courthouse to re-verify all

disputed information. Superior also satisfied Trans Union’s accuracy inspections. 

Plaintiff has presented no evidence to support her claim of a willful violation of the 

FCRA. As such, Plaintiff cannot recover punitive damages.3

 Trans Union responded to every 

dispute communication and disclosed the original source of the information. There was no 

misrepresentation or concealment. 

In order to recover punitive damages, a consumer must demonstrate that the consumer 

reporting agency willfully violated the FCRA. '1681n. As stated in Cushman, supra: 

To show willful noncompliance with the FCRA, [the consumer] 

must show that [the consumer reporting agency] 'knowingly and 

intentionally committed an act in conscious disregard for the rights

of others...' 115 F.3d at 226 (citing Philbin v. Trans Union Corp., 

101 F.3d 957, 970 (3rd Cir. 1996.) 

The Cushman Court further held that: 

to justify an award of punitive damages, a defendant's actions must 

be on the same order as willful concealments or 

misrepresentations. If [the consumer] can prove... that [the 

defendant] adopted its reinvestigation policy either knowing that 

policy to be in contravention of the rights possessed by consumers

pursuant to the FCRA or in reckless disregard of whether the 

policy contravened those rights, [he or] she may be awarded 

punitive damages. 

 

20

3 Plaintiff’s assertion that Superior did not physically go to the courthouse to reverify the disputed judgment 

is unsubstantiated and cannot rescue the claim from summary judgment. There is nothing greater than a

“metaphysical doubt” to support this assertion. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.

574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). 

Case 2:02-cv-04440-AB Document 20-2 Filed 06/16/2003 Page 20 of 25
21

 Virtually every court of appeals has required evidence of a willful concealment or 

misrepresentation to establish FCRA punitive damages. See Cousin v. Trans Union Corp., 246 

F.3d 359 (5th Cir. 2001) cert den.122 S.Ct. 346, 151 L.Ed.2d 261; Casella, supra; Stevenson v. 

TRW, Inc., 987 F.2d 288 (5th Cir.1993); Dalton, supra. 

 In Philbin, supra, the Plaintiff, James R. Philbin, Jr., had a tax lien on his consumer 

report which actually belonged to Plaintiff=s father, James R. Philbin, Sr. 101 F.3d at 960. The 

plaintiff notified the defendant of the error several times, and the defendant failed to correct it. 

101 F.3d at 970. At one point in time, the information was corrected, but reappeared, and when 

the plaintiff notified the defendant of this, the defendant failed to correct the error. Id. The 

Court, reviewing these facts, held that “[t]his, however, falls short of evidence of a willful 

violation.” Id. 

 Here, Plaintiff=s claims are far weaker than the facts in Philbin. Trans Union responded 

to Plaintiff’s single dispute in 2001 and informed Plaintiff of the results of the reinvestigation. 

The 1997 communications are time-barred. Even if they were considered, nothing about Trans 

Union’s actions in the handling the disputes in 1997 can be construed to be on the same order as 

willful concealments or misrepresentations in violation of Plaintiff=s FCRA rights. Plaintiff 

conceded Trans Union reinvestigated each disputed and informed her that the judgment was 

verified, nothing was concealed. 

 Accordingly, Plaintiff cannot sustain a claim for punitive damages under the FCRA. 

F. Plaintiff=s Common Law Negligence and Invasion of 

Privacy/False Light Claims Fail Because He Cannot Overcome 

Trans Union’s FCRA Qualified Immunity. 

 Trans Union is entitled to a qualified immunity under the FCRA, '1681h(e), which states 

in pertinent part: 

Case 2:02-cv-04440-AB Document 20-2 Filed 06/16/2003 Page 21 of 25
22

(e) Limitation of liability. Except as provided in sections 616 and 

617 [''1681n and 1681o], no consumer may bring any action or 

proceeding in the nature of defamation, invasion of privacy, or 

negligence with respect to the reporting of information against any 

consumer reporting agency... except as to false information 

furnished with malice or willful intent to injure such consumer. 

 

(See Thornton v. Equifax, Inc., 619 F.2d 700, 703 (8th Cir.1980), cert. denied, 449 U.S. 835 

(1980); Bloom v. I.C. Systems, Inc., 972 F.2d 1067, 1069 (2nd Cir. 1992); Cousin v. Trans Union 

Corp., 246 F.3d 359, 375-376 (5th Cir. 2001). As set forth in Thornton, supra, 

Section 1681h(e) is recognized as providing qualified immunity for 

consumer reporting agencies with an exception from such qualified 

immunity being made for actions pursuant to sections 1681n and 

1681o.... Such an exception was not meant to lessen the 

standard necessary to overcome this qualified immunity in 

defamation actions. (emphasis in original) (Bold supplied) 619 

F.2d at 703 

 A plaintiff who cannot prove willfulness to establish a §1681n willfulness claim cannot 

meet the higher burden under §1681h(e) to bring a state law cause of action for claims in the 

nature of defamation, invasion of privacy, or negligence. Thus, Trans Union is entitled to 

summary judgment on Plaintiff's claims of defamation, negligence and invasion of privacy/false 

light. 

G. Plaintiff=s Pennsylvania Unfair Trade Practices and Consumer 

Protection Law Claims Fail Because Such Claims Are 

Preempted by the FCRA. 

 Plaintiff has utterly failed, in her pretrial or elsewhere, to allege any act or omission by 

Trans Union which would constitute an “unfair trade practice” as defined by 73 P.S. §201-2(4). 

The only alleged basis for this claim is an erroneous citation to §1681s, which is for 

administrative enforcement of the FCRA. Plaintiff asserts that '1681s provides that a violation 

Case 2:02-cv-04440-AB Document 20-2 Filed 06/16/2003 Page 22 of 25
23

of the FCRA constitutes a violation of PA CPL. Complaint &58. This is simply not so. 

'1681s(a)(1) states, in pertinent part: 

For the purpose of the exercise by the Federal Trade Commission 

of its functions and powers under the Federal Trade Commission 

Act, a violation of any requirement or prohibition imposed under 

this subchapter shall constitute an unfair or deceptive act or 

practice in commerce in violation of section 5(a) of the Federal 

Trade Commission Act [15 U.S.C. 45(a)] and shall be subject to 

enforcement by the Federal Trade Commission under section 5(b) 

thereof [15 U.S.C. 45(b)] with respect to any consumer reporting 

agency or person subject to enforcement by the Federal Trade 

Commission pursuant to this subsection, irrespective of whether 

that person is engaged in commerce or meets any other 

jurisdictional tests in the Federal Trade Commission Act. 

(emphasis supplied.) 

 The language of that provision does not create a state law claim or other private right of 

action. As '1681s provides, the broad enforcement provisions of the Federal Trade Commission 

Act are reserved exclusively for the FTC. There is absolutely no mention of the PA CPL, any 

state consumer protection law, or any private cause of action. For example, the FCRA reserves 

injunctive relief to actions brought by the FTC or States; consumers do not have a right to such 

relief. See Washington v. CSC Credit Services,. Inc., 199 F.3d 263, 268-269 (5th Cir. 2000). The 

FCRA specifically creates a narrower private cause of action for consumers which is limited to 

the recovery of damages. ''1681n and o. 

 In the alternative, in Jaramillo v. Experian Info. Solutions, Inc., 155 F.Supp.2d 356, 362 

(E.D. PA 2001) recon. granted on other grounds, 2001 U.S. Dist. Lexis 10221, the Court held 

that PA CPL claims against a furnisher of information are barred by '1681t(b)(1)(F) which 

regulates the responsibilities of furnishers of information. The same holds true for Plaintiff’s 

'1681i claims. 

Case 2:02-cv-04440-AB Document 20-2 Filed 06/16/2003 Page 23 of 25
24

FCRA '1681t(b)(1)(B) and (E) state that “no requirement or prohibition may be imposed under 

the laws of any state... with respect to any subject matter regulated under...”: 

(B) section 1681i of this title, relating to the time by which a 

consumer reporting agency must take any action, including the 

provision of notification to a consumer or other person, in any 

procedure related to the disputed accuracy of information in a 

consumer's file, except that this subparagraph shall not apply to 

any State law in effect on September 30, 1996; 

(E) section 1681c of this title, relating to information contained 

in consumer reports, except that this subparagraph shall not apply 

to any State law in effect on September 30, 1996; (Emphasis 

supplied). 

 Accordingly, Plaintiff=s claims relating to the reinvestigation, the contents of consumer 

reports, and the contents of disclosures provided to Plaintiff are preempted by the FCRA. 

 This is a case of first impression; no court has ruled whether the PA CPL applies to 

consumer reporting agencies. Using the Federal Trade Commission Act and Lanham Act as a 

guide (see Commonwealth of Pennsylvania by Creamer v. Monumental Properties, Inc., 329 

A.2d 812, 818-819 (PA Com. 1974)), the remedies of the FCRA are limited to consumers under 

§1681n and §1681o. Accordingly, a violation of the FCRA does not constitute a violation of the 

PA CPL. 

 Therefore, Trans Union is entitled to summary judgment on Plaintiff=s PA CPL claims. 

Case 2:02-cv-04440-AB Document 20-2 Filed 06/16/2003 Page 24 of 25
25

III. CONCLUSION

 For all the above reasons and authorities, Defendant Trans Union LLC respectfully 

moves this Court to enter summary judgment in its favor, and to dismiss Plaintiff=s claims with 

prejudice. 

Respectfully Submitted, 

 

_______________________________ 

 BRUCE S. LUCKMAN (38636) 

TIMOTHY P. CREECH (81728) 

SATZBERG, TRICHON, 

 KOGAN & WERTHEIMER, P.C. 

1818 Market St., 30th Floor 

Philadelphia, PA 19103 

(215) 575-7600; Fax: (215) 575-7688 

bluckman@mstkw.com

tcreech@mstkw.com

Attorneys for Defendant, 

Trans Union LLC 

DATED: June 16, 2003 

Case 2:02-cv-04440-AB Document 20-2 Filed 06/16/2003 Page 25 of 25