No. 23-721

IN THE UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT

Khalilah Suluki, 

Plaintiff-Appellant, 

v. 

Credit One Bank, NA, 

Defendant-Appellee, 

Capital One Bank, NA, Comenity Capital 

Bank, 

 Defendants. 

On Appeal from the United States District Court

for the Southern District of New York

Hon. Sidney H. Stein, U.S. District Judge 

Case No. 21-cv-1156

Brief of Amici Curiae 

Consumer Financial Protection Bureau

and Federal Trade Commission 

in Support of Plaintiff-Appellant 

Anisha S. Dasgupta Seth Frotman

General Counsel General Counsel

Mariel Goetz Steven Y. Bressler

Acting Director of Litigation Deputy General Counsel

Bradley Dax Grossman Kristin Bateman

Attorney Assistant General Counsel

FEDERAL TRADE COMMISSION Ryan Cooper

600 Pennsylvania Avenue NW Senior Counsel

Washington, DC 20580 CONSUMER FINANCIAL PROTECTION 

(202) 326-2994 BUREAU 

bgrossman@ftc.gov 1700 G Street NW

 Washington, DC 20552

 (202) 702-7541

ryan.cooper@cfpb.gov

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TABLE OF CONTENTS

TABLE OF AUTHORITIES................................................................iii

INTEREST OF AMICI CURIAE.......................................................... 1

STATEMENT.....................................................................................3

A. Consumer Credit Reporting .....................................................3

B. The Fair Credit Reporting Act.................................................. 7

C. Facts........................................................................................9

D. Procedural History................................................................. 10

SUMMARY OF ARGUMENT............................................................ 12

ARGUMENT.................................................................................... 15

I. The FCRA requires a furnisher to conduct an investigation 

to determine whether disputed information can be verified........ 15

II. A furnisher must delete any information that cannot be 

verified....................................................................................... 21

III. The district court’s failure to recognize that Credit One was 

required to delete unverified information resulted in a 

flawed holding that Suluki could not show actual damages.........25

CONCLUSION .................................................................................29

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TABLE OF AUTHORITIES 

Cases Page(s)

Felts v. Wells Fargo Bank, N.A., 

893 F.3d 1305 (11th Cir. 2018)............................................................. 28

Galper v. JP Morgan Chase Bank, N.A., 

802 F.3d 437 (2d Cir. 2015)....................................................................7 

Hinkle v. Midland Credit Mgmt., Inc., 

827 F.3d 1295 (11th Cir. 2016).......................................................passim

Jackling v. HSBC Bank USA, N.A., 

No. 15-cv-6148, 2019 WL 162743 (W.D.N.Y Jan. 10, 2019)................... 26

Johnson v. MBNA America Bank, NA, 

357 F.3d 426 (4th Cir. 2004)...........................................................18, 27

Okocha v. HSBC USA, N.A., 

No. 08-cv-8650, 2010 WL 5122614 (S.D.N.Y. Dec. 14, 2010)................ 26

Spokeo, Inc. v. Robins, 

578 U.S. 330 (2016)................................................................................7 

Westra v. Credit Control of Pinellas, 

409 F.3d 825 (7th Cir. 2005)................................................................17

Statutes

15 U.S.C. § 1681 ...................................................................................... 1, 7 

15 U.S.C. § 1681a ....................................................................................... 4 

15 U.S.C. § 1681i...............................................................................passim

15 U.S.C. § 1681o ..................................................................................... 26

15 U.S.C. § 1681s-2 ...........................................................................passim

15 U.S.C. § 1681s.....................................................................................1, 2

Other Authorities

Black’s Law Dictionary (11th ed. 2019)......................................................16

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CFPB, Annual Report of Credit and Consumer Reporting Complaints 

(Jan. 2022)............................................................................................ 3 

CFPB, Annual Report of Credit and Consumer Reporting Complaints 

(Jan. 2023).....................................................................................4, 6, 7

CFPB, Consumer Response Annual Report (Mar. 2021)............................ 6 

CFPB, Consumer Response Annual Report (Mar. 2023)............................ 6 

CFPB, Key Dimensions and Processes in the U.S. Credit Reporting System 

(Dec. 2012)............................................................................................ 3 

Decision & Order, Suluki v. Credit One Bank, NA, 

No. 21-cv-1156 (S.D.N.Y)...............................................................passim

Def.’s Resp. to Pl.’s Statement of Undisputed Facts, Suluki v. Credit One 

Bank, NA, No. 21-cv-1156 (S.D.N.Y) ......................................................10

FTC, 40 years of Experience with the Fair Credit Reporting Act: An FTC 

Staff Report with Summary of Interpretations (July 2011).................. 24

FTC, Consumer Sentinel Network: Databook 2022 (Feb. 2023)................ 6 

FTC, Report to Congress Under Section 319 of the Fair and Accurate

Credit Transactions Act of 2003 (2015)..............................................4, 5

Liane Fiano, CFPB, Common errors people find on their credit report—and 

how to get them fixed (Feb. 5, 2019)...................................................... 5 

Michael Lerner, More Than One-Third of Consumers Found Errors in their 

Credit Reports, Investigation Finds, Washington Post (July 14, 2021)... 5 

S. Rep. No. 91-517 (1969)............................................................................7 

Syed Ejaz, Consumer Reports, A Broken System: How the Credit 

Reporting System Fails Consumers and What to Do About It (2021)..... 5 

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INTEREST OF AMICI CURIAE 

To ensure fair and accurate credit reporting, the Fair Credit 

Reporting Act (FCRA), 15 U.S.C. § 1681 et seq., imposes various 

requirements that consumer reporting agencies and the companies that 

provide those agencies information about consumers, known as furnishers, 

must follow. As relevant here, under Section 1681s-2(b) of the FCRA, when 

a consumer disputes the completeness or accuracy of information in her 

credit report with a consumer reporting agency and the agency forwards 

the dispute to the furnisher, the furnisher must conduct an investigation to 

determine whether the disputed information can be verified and cease 

reporting any information that cannot be verified. 

The Consumer Financial Protection Bureau (CFPB or Bureau) has 

exclusive rule-writing authority for most provisions of the FCRA. 15 U.S.C. 

§ 1681s(e). The Bureau interprets and, along with various other federal and 

state regulators, enforces the law’s requirements. Id. § 1681s(a)-(c). Those 

requirements include the provisions in Section 1681s-2(b) that require 

furnishers to investigate disputes submitted by consumers and to cease 

reporting any information that cannot be verified. 

The Federal Trade Commission (FTC) has been charged by Congress 

with protecting consumers from deceptive or unfair trade practices. Id. 

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§ 45(a). As part of that mission, the Commission has long played a key role 

in the implementation, enforcement, and interpretation of the FCRA. A 

violation of the FCRA “constitute[s] an unfair or deceptive act or practice in 

commerce, in violation of section 5(a) of the Federal Trade Commission 

Act.” Id. § 1681s(a)(1). And the FCRA grants the Commission “such 

procedural, investigative, and enforcement powers ... as though the 

applicable terms and conditions of the Federal Trade Commission Act were 

part of [the FCRA].” Id.

This case involves the scope of furnishers’ duties under the provisions

of the FCRA that allow consumers to dispute information on their credit 

reports that they believe is inaccurate or incomplete. Given their role in 

administering and enforcing the FCRA, amici have a substantial interest in 

clarifying the governing legal standards. Here, the district court granted 

summary judgment for the Defendant, Credit One Bank, NA, holding that 

the Plaintiff, Khalilah Suluki, was unable to prove that a reasonable 

investigation of her credit dispute would have shown that information in 

her credit report was inaccurate. But furnishers are also required to remove 

disputed credit information when it is unverifiable, and the district court 

lost sight of this key principle. Because the district court held Suluki to an 

improper burden, its ruling on this issue should be reversed. 

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STATEMENT 

A. Consumer Credit Reporting 

Consumer credit reporting plays an important role in the lives of 

American consumers. The consumer credit reporting ecosystem includes: 

(1) consumer reporting agencies,1 which compile reports on consumers and 

make them available to lenders, insurers, employers, landlords, and other

users, and (2) furnishers, which provide information about consumers to 

consumer reporting agencies. See CFPB, Annual Report of Credit and 

Consumer Reporting Complaints 5 (Jan. 2022) (2021 FCRA Report);

2 see 

generally CFPB, Key Dimensions and Processes in the U.S. Credit 

Reporting System (Dec. 2012)(providing an overview of how the consumer 

credit reporting ecosystem operates and the participants involved).

3 The 

three largest consumer reporting agencies are Equifax, Experian, and 

TransUnion. 2021 FCRA Report at 5. These companies maintain files on 

1 Consumer reporting agencies are sometimes referred to informally as 

credit reporting agencies. The terms are used interchangeably in this brief. 

2 Available at https://files.consumerfinance.gov/f/documents/

cfpb_fcra-611-e_report_2022-01.pdf.

3 Available at https://files.consumerfinance.gov/f/201212_cfpb_creditreporting-white-paper.pdf.

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over 200 million Americans. Id. More than 15,000 furnishers provide these 

companies information about consumers. Id. at 5–6. 

The reports compiled by consumer reporting agencies are used to 

make decisions that affect every facet of consumers’ lives. Lenders use 

credit reports, also referred to as consumer reports,

4 when determining 

whether to extend credit and on what terms. Id. at 5. Landlords use these 

reports when deciding whether to rent housing to prospective tenants. Id. 

And employers use these reports to determine whether a job applicant 

should be hired. Id. Given how important these decisions are to consumers, 

it is critical that the information contained in credit reports is correct and 

that consumers can identify and dispute any inaccuracies. 

However, credit reports frequently contain errors. By one estimate, 

one in five Americans has a verified error on at least one credit report. See 

FTC, Report to Congress Under Section 319 of the Fair and Accurate 

4 The term “credit report” is used throughout this brief to have the same 

meaning as the term “consumer report” as defined at 15 U.S.C. § 1681a(d). 

See CFPB, Annual Report of Credit and Consumer Reporting Complaints

7.n4 (Jan. 2023) (2022 FCRA Report),

https://files.consumerfinance.gov/f/documents/cfpb_fcra-611-

e_report_2023-01.pdf (explaining that the term “[c]redit report[]” is a 

“popular term” for “consumer report[]”). 

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Credit Transactions Act of 2003 i-ii (2015);

5 see also Liane Fiano, CFPB, 

Common errors people find on their credit report—and how to get them 

fixed (Feb. 5, 2019).6 Another study found that more than one-third of 

consumers were able to identify at least one error in their credit reports. 

See Syed Ejaz, Consumer Reports, A Broken System: How the Credit 

Reporting System Fails Consumers and What to Do About It 4 (2021);

7 see 

also Michael Lerner, More Than One-Third of Consumers Found Errors in 

Their Credit Reports, Investigation Finds, Wash. Post (July 14, 2021).8

Given this error rate, it is unsurprising that consumers frequently 

complain about the consumer credit reporting system. Last year, the CFPB 

received nearly one million consumer complaints related to credit 

5 Available at https://www.ftc.gov/system/files/

documents/reports/section-319-fair-accurate-credit-transactions-act2003-sixth-interim-final-report-federal-trade/150121factareport.pdf.

6 Available at https://www.consumerfinance.gov/aboutus/blog/common-errors-credit-report-and-how-get-them-fixed/.

7 Available at https://advocacy.consumerreports.org/wpcontent/uploads/2021/06/A-Broken-System-How-the-Credit-ReportingSystem-Fails-Consumers-and-What-to-Do-About-It.pdf.

8 Available at https://www.washingtonpost.com/business/2021/07/14/

more-than-one-third-consumers-found-errors-their-credit-reportsinvestigation-finds/. 

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reporting. See CFPB, Consumer Response Annual Report 11 (Mar. 2023).

9

The number of complaints the CFPB receives related to credit reporting is

also dramatically increasing. Complaints related to credit reporting have 

more than tripled in the last two years. Compare id. (showing about 1 

million complaints in 2022) with CFPB, Consumer Response Annual 

Report 9 (Mar. 2021) (showing about 300,000 complaints in 2020);

10 see 

also 2022 FCRA Report at 11-12 (noting that “consumer reporting 

complaint volume [has] increased substantially” and citing data);

11 FTC, 

Consumer Sentinel Network: Databook 2022 85 (Feb. 2023) (showing that 

consumer complaints related to “Credit Bureaus, Information Furnishers, 

and Report Users” more than doubled between 2020 and 2022).

12

Consumers routinely submit complaints related to the credit 

reporting system “when their attempts to correct inaccurate information go 

unanswered” or when they are “frustrated by a dispute process that has not 

9 Available at https://files.consumerfinance.gov/f/documents/

cfpb_2022-consumer-response-annual-report_2023-03.pdf.

10 Available at https://files.consumerfinance.gov/f/documents/

cfpb_2020-consumer-response-annual-report_03-2021.pdf.

11 Available at https://files.consumerfinance.gov/f/documents/

cfpb_fcra-611-e_report_2023-01.pdf.

12 Available at https://www.ftc.gov/system/files/ftc_gov/pdf/CSN-DataBook-2022.pdf. 

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worked for them.” 2022 FCRA Report at 35. For example, many complaints 

come from “[i]dentity theft victims” who “hav[e] to traverse a lengthy backand-forth process” to correct inaccurate information in their credit reports. 

Id. at 36. The CFPB’s analyses of these complaints indicate that many 

consumers “giv[e] up” before “their issues [are] resolved.” Id.

B. The Fair Credit Reporting Act 

“The FCRA seeks to ensure ‘fair and accurate credit reporting.’” 

Spokeo, Inc. v. Robins, 578 U.S. 330, 334 (2016) (quoting 15 U.S.C. 

§ 1681(a)(1)). It was enacted by Congress to “prevent consumers from being 

unjustly damaged because of inaccurate or arbitrary information in a credit 

report.” S. Rep. No. 91-517, at 1 (1969); see also Galper v. JP Morgan Chase 

Bank, N.A., 802 F.3d 437, 444 (2d Cir. 2015) (“The FCRA was enacted in 

1970 amidst concerns about the accuracy of information disseminated by 

credit reporting agencies.”).

To help prevent inaccurate credit reporting, the FCRA allows a 

consumer to dispute with any consumer reporting agency “the 

completeness or accuracy of any item of information contained in [their 

credit] file.” 15 U.S.C. § 1681i(a)(1)(A). After receiving notice of a dispute, 

the consumer reporting agency “shall, free of charge, conduct a reasonable 

reinvestigation to determine whether the disputed information is 

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inaccurate.” Id. As part of its reinvestigation, the consumer reporting 

agency is required to “provide notification of the dispute to any person who 

provided any item of information in dispute,” i.e., the furnisher. Id.

§ 1681i(a)(2)(A). 

When a furnisher receives notice of a dispute from a consumer 

reporting agency, it is required to “conduct an investigation with respect to 

the disputed information” and “report the results of the investigation to the 

consumer reporting agency.” Id. § 1681s-2(b)(1)(A), (C). The furnisher’s 

investigation must be “reasonable.” E.g., Hinkle v. Midland Credit Mgmt., 

Inc., 827 F.3d 1295, 1302 (11th Cir. 2016)(collecting cases). If the furnisher 

finds any information disputed by the consumer “to be inaccurate or 

incomplete” or if the information “cannot be verified,” the furnisher must,

“as appropriate, based on the results of the reinvestigation promptly” either 

“modify,” “delete,” or “permanently block the reporting of” that 

information. 15 U.S.C. § 1681s-2(b)(1)(E). Likewise, if, after the consumer 

reporting agency’s investigation, “an item of the information is found to be 

inaccurate or incomplete or cannot be verified,” the consumer reporting 

agency is required to “promptly delete thatitem of information from the file 

of the consumer, or modify that item of information, as appropriate, based 

on the results of the reinvestigation.” Id. § 1681i(a)(5)(A)(i).

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C. Facts

Plaintiff Khalilah Suluki contends that her mother opened multiple 

credit card accounts in her name without her knowledge or permission.

Decision & Order at 1, ECF No. 85, Suluki v. Credit One Bank, NA, No. 21-

cv-1156 (S.D.N.Y) (Order). She discovered these purportedly fraudulent 

accounts when, after she was denied a lease on an apartment, she requested 

her credit file from the three major consumer reporting agencies. Id. at 2, 

4-5. Suluki then repeatedly disputed the accounts with those agencies, 

which forwarded her disputes to the banks that issued the disputed credit 

card accounts.Id. Those banks include Defendant Credit One Bank, NA. Id. 

at 1. 

In addition to disputing the Credit One credit card account through the 

consumer reporting agencies, Suluki also called Credit One and conveyed 

“that her mother had opened the account in her name without permission.”

Id. at 4. She later submitted an affidavit to Credit One “affirming that she 

had never applied for the credit card and identify[ing] her mother as the 

person who did so without her consent or knowledge.” Id. (quotation 

omitted). Indeed, Suluki’s mother called Credit One and confirmed that she 

had opened the account but claimed that she did so with her daughter’s 

cooperation and permission. Id. at 4. 

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Credit One then investigated this dispute over whether Suluki’s mother

had Suluki’s permission to open the credit card account. It confirmed that 

the name and address in its files matched the name and address Suluki 

provided with her dispute. Id. at 5. It also checked a public database to 

confirm that the address and telephone number used to open the account 

were linked to the name under which the account was opened. Id. Credit 

One then reported back to the consumer reporting agencies that it had 

verified that Suluki was the accountholder who owed the credit card debt. 

See Def.’s Resp. to Pl.’s Statement of Undisputed Facts, ECF No. 71, Suluki 

v. Credit One Bank, NA, No. 21-cv-1156 (S.D.N.Y). 

D. Procedural History

Suluki brought suit alleging that Credit One violated Section 

1681s-2(b)(1) by failing to conduct a reasonable investigation into her 

dispute and failing to modify, delete, or permanently block any information 

that it found to be inaccurate or incomplete or that it could not verify.

The parties filed cross-motions for summary judgment. Suluki sought 

summary judgment that Credit One’s report that she was liable for the 

disputed credit card account was not accurate; that Credit One’s 

investigations into her disputes were unreasonable; and that Credit One 

failed to properly report the results of its investigations back to the 

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consumer reporting agencies. See Order at 6. Credit One sought summary 

judgment that its investigations were reasonable and, even if they were not, 

no reasonable investigation would have concluded that Suluki was not the 

accountholder. See id. at 10. 

The court held that the issue of whether Credit One’s reporting was 

accurate could not be resolved at summary judgment. It explained that, 

while the evidence consistently points to Suluki’s mother having opened the 

credit card account in Suluki’s name, whether she did so “without Suluki’s 

blessing ... is a question of fact in genuine dispute.” Id. at 7. The court also 

held that the issue of whether Credit One’s investigation was reasonable 

could not be resolved at summary judgment. See id. at 10 (“There remains a 

factual dispute about the adequacy of the steps taken by Credit One to 

investigate Suluki’s claims.”). Nonetheless, the court granted summary 

judgment to Credit One on the basis that Suluki could not show she 

sustained any damages. See id. at 10-14. 

The court determined Suluki was not entitled to actual damages 

because any damages Suluki suffered from the account appearing on her 

credit report were not caused by Credit One’s allegedly unreasonable 

investigation. Id. at 11. According to the court, that was because no 

reasonable investigation would have revealed that the account resulted 

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from identity theft, and thus Credit One would not have had to correct the 

reported information even if it had conducted a reasonable investigation.

See id. (“[E]ven if the inaccuracy of the reporting led to damages to 

[Suluki], if there is no genuine issue of material fact as to whether a 

reasonable investigation would have revealed that [Credit One] reported 

inaccurate information, then there is no causal connection between the 

unreasonableness of [Credit One]’s investigation and the inaccuracy that 

caused [Suluki] damages.” (quotation omitted)). 

Assessing the evidence, the court concluded that “[t]here is no 

alternative investigation that would have allowed Credit One to determine 

that Suluki did not give her mother permission to open the account,” and 

thus there was no causal relationship between any shortcomings in the 

investigation and any damages incurred. Id. at 12. The court also found that 

Suluki was not entitled to statutory or punitive damages because, in its 

view, she had not proffered any evidence that Credit One violated the law 

knowingly or recklessly. See id. at 13-14.

Suluki then filed this appeal. 

SUMMARY OF ARGUMENT

The district court’s ruling that Suluki could not prove actual damages 

was mistaken and should be reversed. The court failed to consider the 

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possibility that Credit One had not verified Suluki’s debt and thus should 

have removed it from her credit report. If Suluki had made that showing at 

trial, she well could have been entitled to damages. But the district court’s 

summary judgment ruling wrongly denied her that opportunity. 

Under Section 1681s-2(b) of the FCRA, when a furnisher receives a 

consumer dispute forwarded by a consumer reporting agency, the furnisher 

must conduct an investigation to determine whether the disputed 

information can be verified. If the evidence available to the furnisher is 

inconclusive—i.e., if the investigation is unable to determine whether the 

disputed information is accurate or not—then the FCRA does not allow a 

furnisher to report back to the consumer reporting agency that its 

investigation verified the accuracy of that information. Even if no 

reasonable investigation could have conclusively determined that the 

information was false, the fact remains that the information has not been 

verified and must be handled accordingly.

In particular, Section 1681s-2(b)(1)(E) provides that when disputed 

information “is found to be inaccurate or incomplete or cannot be verified,”

the furnisher must, “as appropriate,” delete, modify, or permanently cease 

reporting the disputed information. The appropriate response is the one 

that will ensure that the furnisher does not continue to report any of the 

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information that the consumer has disputed unless that information is 

verifiably accurate. Thus, any information that cannot be verified should be 

deleted from the data that the furnisher submits to consumer reporting 

agencies. That approach is consistent with the statutory scheme and 

longstanding agency guidance. 

The district court failed to recognize that a furnisher is required to 

delete any unverifiable information, which led to a flawed holding that 

Suluki cannot show that she sustained any damages attributable to Credit 

One’s handling of her dispute. If Credit One did not have sufficient evidence 

to show that the disputed information was true yet reported that its 

investigation verified the accuracy of the disputed information and 

continued to report that information, then Suluki could have sustained

damages as a result of its improper continued reporting of the disputed 

information. This Court should therefore reverse the district court’s 

conclusion that, as a matter of law, Suluki could not prevail on her Section

1681s-2(b) claim because no reasonable investigation could have uncovered 

evidence showing that the disputed information was inaccurate.

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ARGUMENT

I. The FCRA requires a furnisher to conduct an investigation 

to determine whether disputed information can be verified. 

The FCRA specifies several actions that a furnisher must take after 

being notified of a dispute by a consumer reporting agency. Namely, the 

furnisher must “conduct an investigation with respect to the disputed 

information,” including by “review[ing] all relevant information” that the 

consumer reporting agency passed along. 15 U.S.C. § 1681s-2(b)(1)(A), (B). 

Then the furnisher must “report the results of the investigation to the 

consumer reporting agency.” Id. § 1681s-2(b)(1)(C). And if the furnisher’s 

investigation determines that the disputed information is “inaccurate or 

incomplete or cannot be verified,” the furnisher must, “as appropriate,

based on the results of the reinvestigation” either “modify” the disputed 

information, “delete” the disputed information, or “permanently block the 

reporting of” the disputed information. Id. § 1681s-2(b)(1)(E).

Under this statutory framework, a furnisher must conduct an 

investigation to determine whether the information disputed by the 

consumer can be verified. When a furnisher investigates a consumer

dispute, there are three possible outcomes: first, the furnisher could 

“verif[y]” the accuracy of the of the disputed information; second, it could 

determine that the disputed information is “inaccurate or incomplete”; or, 

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third, it could determine that the information “cannot be verified.” Id.; see

also Hinkle, 827 F.3d at 1302 (“Section 1681s-2(b) contemplates three 

potential ending points to reinvestigation: verification of accuracy, a 

determination of inaccuracy or incompleteness, or a determination that the 

information ‘cannot be verified.’” (quoting 15 U.S.C. § 1681s-2(b)(1)(E))). 

The first possible outcome (verification of the disputed information) 

requires the furnisher to affirmatively establish the accuracy of the 

information it reported about the consumer. In other words, to properly 

report information as “verified,” the furnisher must have “sufficient 

evidence to support the conclusion that the information was true.” Id. at 

1303. If the furnisher does not already have such evidence, it must “seek 

out and obtain” it before reporting that the information is “verified.” Id. at 

1303; see also Black’s Law Dictionary (11th ed. 2019) (defining “verify” as 

“[t]o prove to be true; to confirm or establish the truth or truthfulness of; to 

authenticate”). For example, when a consumer disputes that she owes a 

debt, the furnisher may review “account-level documentation,” Hinkle, 827 

F.3d at 1304-05, “such as applications, agreements, billing statements, 

promissory notes, notices, correspondence, payment checks, payment 

histories, or other evidence of indebtedness,” to determine whether the 

consumer agreed to pay the debt, id. at 1298 (quotation omitted). What a 

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furnisher must do to verify the accuracy of disputed information “will be 

more or less intensive depending on what evidence the furnisher already 

possesses.” Id. at 1303. Ultimately, whether a furnisher’s investigation 

sufficiently established the truth of the disputed information “is a factual 

question” that “will normally be reserved for trial.” Id. (citing Westra v. 

Credit Control of Pinellas, 409 F.3d 825, 827 (7th Cir. 2005)). 

The second possible outcome of an investigation is that the furnisher 

may determine that the disputed information is “inaccurate or incomplete.” 

See 15 U.S.C. § 1681s-2(b)(1)(E). In that instance, the furnisher must 

correct the reported information to make it accurate. See id.

Finally, the third possible outcome is that the disputed information 

“cannot be verified.” Id. Importantly, a furnisher’s inability to conclusively 

determine that the disputed information is inaccurate does not mean that 

the furnisher is permitted to report back to the consumer reporting agency 

that its investigation verified the accuracy of that information. Instead, if 

the evidence available to the furnisher is insufficient to establish the truth 

or falsity of the disputed information, then, under the statutory framework, 

the furnisher must report that its investigation concluded that the disputed 

information “cannot be verified.” Id. A furnisher could conclude that 

disputed information cannot be verified “if [it] determine[s] that the 

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evidence necessary to verify [the] disputed information either does not exist 

or is too burdensome to acquire.” Hinkle, 827 F.3d at 1303. Reporting 

information as unverified does not mean that the investigation conclusively 

determined that the disputed information is false. It simply means that the 

furnisher was unable to confirm that the disputed information was true.

When a furnisher is unable to determine whether the disputed 

information is true, the FCRA does not allow it to report back to the 

consumer reporting agency that its investigation verified the accuracy of 

that information. That basic principle is illustrated by two court of appeals 

decisions. First, in Johnson v. MBNA America Bank, NA, 357 F.3d 426 (4th 

Cir. 2004), a consumer disputed whether she was liable for an outstanding 

credit card balance on an account opened by her husband. She claimed she 

was only an authorized user on the account, not a co-obligor. In conducting 

its investigation, the issuing bank looked at information that showed, for 

example, that “the name and address” provided by the consumer with her 

dispute “were the same as the name and address” in its files, and that the 

consumer’s name was listed on billing statements. Johnson, 357 F.3d at 

431. But, the court explained, “this evidence is equally consistent with” the 

consumer’s claim that she was only an authorized user. Id. The fact that 

“the original account application was no longer in [the bank]’s possession,” 

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and therefore the bank could not conclusively determine whether the 

consumer was a co-obligor on the account, did not change the court’s 

calculus. Id. at 432. Given the bank’s inability to adduce evidence 

establishing that the consumer owed the account, it should “have at least 

informed the credit reporting agencies that [it] could not conclusively verify 

that [the consumer] was a co-obligor.” Id. 

Second, in Hinkle, a consumer disputed whether she owed a balance 

on a T-Mobile account, claiming the account in question was not hers. The 

furnisher, a third-party debt buyer, “confirm[ed] that the identifying 

information possessed by the CRAs was the same as the identifying 

information contained in its internal data files” but obtained no “accountlevel documentation” or any other information that would suggest that the 

debt belonged to that particular consumer. 827 F.3d at 1305. The Eleventh 

Circuit held that a jury could find that this investigation was insufficient to 

verify the debt.In particular, the court held that “[a] jury could find that the 

documentation [the furnisher] reviewed was insufficient to prove that the ... 

accounts belonged to [the consumer] and that [the furnisher] therefore had 

a duty to report the accounts as ‘cannot be verified.’” Id. (quoting 15 U.S.C. 

§ 1681s-2(b)(1)(E)). 

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Likewise, here, whether Credit One violated Section 1681s-2(b) in 

reporting the disputed account as “verified” “will turn on whether [Credit 

One] acquired sufficient evidence to support the conclusion that” Suluki’s 

mother opened the account in Suluki’s name with her permission and 

therefore Suluki was liable for the credit card debt. Hinkle, 827 F.3d at 

1303. If Credit One did not acquire sufficient evidence to support that 

conclusion, then Credit One should have reported that it could not verify 

the account.

Any other approach would turn the statute on its head. Section 

1681s-2(b) places the burden squarely on the furnisher to “conduct an 

investigation” and to determine whether the accuracy of the disputed 

information “can[] be verified.” If a furnisher could report that disputed 

information was “verified” so long as the available evidence is inconclusive, 

that would “shift the burden” to the consumer to prove that the information 

is inaccurate—something consumers may often not be in a position to do. 

Hinkle, 827 F.3d at 1306. For instance, consumers who claim to be the 

victims of identity theft or mistaken identity would be forced to prove a 

negative, i.e., that they did not open a particular account. “[N]othing in the 

FCRA” supports that outcome. Id. And that outcome would make little 

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sense given that “the furnisher is in a far better position than the alleged 

debtor to confirm the actual owner of the account.” Id. 

Nor are furnishers unduly burdened by the requirement to have 

sufficient evidence before they can report disputed information as 

“verified.” If the evidence on hand is insufficient to confirm that the 

disputed information is accurate, the furnisher can seek additional 

evidence. But it need not dig further if there is no additional evidence the 

furnisher could get or if getting it would be unduly burdensome. Id. at 

1303. In that circumstance, it can satisfy its FCRA obligations by reporting

that the disputed information “cannot be verified” and appropriately 

updating its reporting. 

II. A furnisher must delete any information that cannot be 

verified. 

When a furnisher is unable to verify the disputed information, the 

appropriate response will be to delete the unverifiable information from the 

data that the furnisher reports to consumer reporting agencies. Section 

1681s-2(b)(1)(E) states that “if an item of information disputed by a 

consumer is found to be inaccurate or incomplete or cannot be verified,” 

the furnisher must, “as appropriate, based on the results of the 

reinvestigation” either “modify that item of information,” “delete that item 

of information,” or “permanently block the reporting of that item of 

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information.” The “appropriate” response is the one that will ensure that 

the furnisher does not continue to report the disputed information unless it 

is verifiably accurate and “may vary depending on the nature of the 

disputed information.” Hinkle, 827 F.3d at 1304. So, for example, if a 

furnisher is unable to verify that a consumer missed a payment, then it may 

be appropriate for the furnisher to delete any mentions of the missed 

payment while continuing to report other information about the account. 

But “when a furnisher is unable to verify the identity of an alleged debtor,” 

there is no way for the furnisher to continue reporting the disputed debt in 

a manner that is verifiably accurate. Accordingly, “the appropriate 

response” is to delete it entirely from the information that is furnished. Id.

That is because the framework set forth in Section 1681s-2(b) “is 

designed not only to exclude false information from credit reports, but also 

to prevent the reporting of unverifiable information.” Id. at 1304. Any 

interpretation of a furnisher’s obligations under Section 1681s-2(b)(1)(E) 

that allows the furnisher to continue reporting unverifiable information 

would effectively rewrite that section to state only that a furnisher must 

delete, modify, or cease reporting information that is inaccurate or 

incomplete. And that would nullify the section’s express requirement that a 

furnisher take action when information “cannot be verified.” See id. at 1304 

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& n.9 (holding that allowing a furnisher to continue reporting information 

about a debt where the debtor’s identity cannot be verified would “render 

meaningless the ‘cannot be verified option’ in § 1681s-2(b)(1)(E)”).

This approach is also consistent with the statute read holistically, as

other provisions in the FCRA indicate that the appropriate response when

disputed information cannot be verified is to delete that information. In 

particular, Section 1681i outlines consumer reporting agencies’ 

responsibilities in responding to consumers’ disputes and, like 

Section 1681s-2(b), provides that when a disputed “item of the information 

is found to be inaccurate or incomplete or cannot be verified,” the 

consumer reporting agency must “delete” or “modify” it “as appropriate, 

based on the results of the reinvestigation.” 15 U.S.C. § 1681i(a)(5)(A).

Section 1681i goes on to provide that, “[f]ollowing any deletion of 

information which is found to be inaccurate or whose accuracy can no 

longer be verified,” the consumer reporting agency must in some 

circumstances notify certain people who previously received a report with 

the now-deleted information. That provision thus contemplates that when 

information “can no longer be verified,” the proper response is to “delet[e]” 

it. See Hinkle, 827 F.3d at 1304 (citing the “parallel structure of ... 1681i” as 

Case 23-721, Document 74, 10/02/2023, 3576437, Page27 of 35
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evidence that section 1681s-2(b) should be read to require furnishers to 

delete any unverifiable information). 

Finally, this approach is also consistent with longstanding guidance

proffered by staff of the FTC. A report that FTC staff published in 2011 to 

summarize interpretations they had developed over decades of 

administering the FCRA specifies that, under Section 1681s-2(b), “[u]nless 

the furnisher is able to confirm the disputed item of information, it must 

cease reporting it.” FTC, 40 years of Experience with the Fair Credit 

Reporting Act: An FTC Staff Report with Summary of Interpretations 96 

(July 2011).

13

In sum, when a consumer reporting agency forwards a consumer’s 

dispute to the furnisher that provided the disputed information, the 

furnisher is required to conduct a reasonable investigation. If the disputed

information cannot be verified, the furnisher must delete the disputed 

information from the data that it furnishes to consumer reporting agencies. 

Here, the district court’s analysis entirely disregarded a furnisher’s 

obligation to delete unverifiable information. It assumed that if the 

13 Available at https://www.ftc.gov/sites/default/files/documents/

reports/40-years-experience-fair-credit-reporting-act-ftc-staff-reportsummary-interpretations/110720fcrareport.pdf.

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furnisher was unable to conclusively determine that the disputed 

information was inaccurate or incomplete, then it was appropriate for the 

furnisher to report that its investigation verified the disputed information 

and for the furnisher to continue reporting the unverifiable information.

See Order at 12. But that is not what the statute says. If the disputed 

information cannot be verified, the furnisher must delete that information. 

And, here, as set forth below, the district court’s failure to recognize that 

aspect of a furnisher’s obligations under the FCRA led it to erroneously 

hold that any problems with how Credit One responded to her dispute 

could not have caused Suluki any compensable damages. 

III. The district court’s failure to recognize that Credit One was 

required to delete unverified information resulted in a 

flawed holding that Suluki could not show actual damages. 

The district court erred in holding that Suluki cannot show that any 

deficiencies in how Credit One responded to her dispute caused her actual 

damages. If the information uncovered in Credit One’s investigation was 

insufficient to verify that Suluki was the account holder who owed the 

outstanding credit card debt, then the FCRA required Credit One to delete 

that debt from its reporting. And, if, as Suluki alleges, Credit One’s failure 

to cease reporting the unverified debt led to her being denied credit, then 

she may have suffered actual damages for which Credit One would be liable. 

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See 15 U.S.C. § 1681o (holding that a creditor is liable for “any actual 

damages sustained by the consumer” as a result of any “negligent” violation 

of the FCRA). 

The district court concluded that there is “a factual dispute about the 

adequacy of the steps taken by Credit One to investigate Suluki’s claims.”

Order at 10. But the court nonetheless granted summary judgment to 

Credit One on the basis that Suluki could prevail only if she could establish

actual damages that were “attributable to [Credit One]’s unreasonable 

investigation.” Id. at 11 (quoting Okocha v. HSBC USA, N.A., No. 08-cv8650, 2010 WL 5122614, at *5 (S.D.N.Y. Dec. 14, 2010)). And, the district 

court reasoned, to show that actual damages are attributable to the 

allegedly unreasonable investigation, Suluki would have to show that “a 

reasonable investigation would have revealed that [Credit One] reported 

inaccurate information.” Id. (quoting Jackling v. HSBC Bank USA, N.A., 

No. 15-cv-6148, 2019 WL 162743, at *5 (W.D.N.Y Jan. 10, 2019)). Because, 

in the district court’s view, “no alternative investigation ... would have

allowed Credit One to determine that Suluki did not give her mother 

permission to open the account,” the district court concluded that Suluki 

could not, as a matter of law, show she suffered any damages attributable

to deficiencies in Credit One’s investigation. Id. at 12. 

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This analysis is mistaken. If the furnisher does not have sufficient 

evidence to confirm that disputed information is accurate, it must report

back to the consumer reporting agency that forwarded the dispute that the 

information could not “be verified” and delete it from the data it furnishes 

to consumer reporting agencies. 15 U.S.C. § 1681s-2(b)(1)(C), (E); see also 

supra Sections I-II. And, at that point, the consumer reporting agency 

would have to delete that unverified information from the consumer’s file. 

See 15 U.S.C. § 1681i(a)(5)(A); see also Hinkle, 827 F.3d at 1304 (“[W]hen a 

[consumer reporting agency] receives notice that an account is unverifiable, 

it must ‘promptly delete that item of information from the file of the 

consumer.’” (quoting 15 U.S.C. § 1681i(a)(5)(A))). 

If a consumer can show that the continued inclusion of unverified 

information on her consumer report (that is, information that should have 

been deleted) caused her harm, she has established actual damages 

attributable to the furnisher’s failure to fulfill its obligations under Section 

1681s-2(b). See Johnson, 357 F.3d at 432 (rejecting the argument that the 

consumer “failed to establish that [the furnisher]’s allegedly inadequate 

investigation was the proximate cause of her damages because there were 

no other records [the furnisher] could have examined that would have 

changed the results of its investigation,” given that the furnisher should 

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28

“have at least informed the credit reporting agencies that [it] could not 

conclusively verify” the debt). For that reason, the district court erred in 

holding that Suluki cannot, as a matter of law, show that she sustained 

actual damages attributable to Credit One’s alleged violations. 

The district court cited a variety of authorities in support of its view 

that an FCRA plaintiff cannot prove damages without showing that a 

reasonable investigation would have conclusively determined that the 

disputed information was inaccurate. See Order at 10-11. But none of those 

cases considered or addressed what a furnisher would have to do if, after 

performing the required investigation, it could not verify the account. Thus, 

to the extent they suggest that a consumer cannot recover unless she can

show that a reasonable investigation would have uncovered that the 

disputed information was inaccurate, they are unpersuasive. And, indeed, 

one of the cases the district court relied on, Felts v. Wells Fargo Bank, N.A., 

893 F.3d 1305 (11th Cir. 2018), expressly reaffirms a key principle advanced 

by the government amici here: “When a furnisher ... report[s] that the 

disputed information has been verified as accurate, the question of whether 

the furnisher behaved reasonably will turn on whether the furnisher 

acquired sufficient evidence to support the conclusion that the information 

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was true.” Felts, 893 F.3d at 1312 (quotation omitted). That is the core 

question this case presents. 

CONCLUSION

For these reasons, this Court should reverse the district court’s

conclusion that Credit One was entitled to summary judgment on Suluki’s 

§ 1681s-2(b) claim because no reasonable investigation could have 

uncovered evidence showing that the disputed information was inaccurate.

September 28, 2023 Respectfully submitted,

/s/ Ryan Cooper

Seth Frotman

General Counsel

Steven Y. Bressler 

Deputy General Counsel

Kristin Bateman 

Assistant General Counsel

Ryan Cooper 

Senior Counsel

CONSUMER FINANCIAL PROTECTION 

BUREAU

1700 G Street NW

Washington, DC 20552

(202) 702-7541

ryan.cooper@cfpb.gov

/s/ Bradley Dax Grossman

Anisha S. Dasgupta

General Counsel

Mariel Goetz

Acting Director of Litigation

Case 23-721, Document 74, 10/02/2023, 3576437, Page33 of 35
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Bradley Dax Grossman 

Attorney

FEDERAL TRADE COMMISSION

600 Pennsylvania Avenue NW

Washington, DC 20580 

(202) 326-2994

bgrossman@ftc.gov

Case 23-721, Document 74, 10/02/2023, 3576437, Page34 of 35
CERTIFICATE OF COMPLIANCE

I hereby certify that this brief complies with Federal Rules of 

Appellate Procedure 32(a)(5) and (6) because it has been prepared in 14-

point Georgia, a proportionally spaced font. 

I further certify that this brief complies with the type-volume 

limitation of Federal Rule of Appellate Procedure 29(a)(5) and Local Rule 

29.1(c) because it contains 5,768 words, excluding the portions exempted 

by Federal Rule of Appellate Procedure 32(f). 

September 28, 2023 /s/ Ryan Cooper 

Ryan Cooper

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