1997 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-9-1997

Cushman v. Trans Union Corp

Precedential or Non-Precedential:

Docket 96-1553

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Recommended Citation

"Cushman v. Trans Union Corp" (1997). 1997 Decisions. Paper 124.

http://digitalcommons.law.villanova.edu/thirdcircuit_1997/124
Filed June 9, 1997 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 96-1553 

JENNIFER CUSHMAN, 

Appellant 

v. 

TRANS UNION CORPORATION 

On Appeal from the United States District Court 

for the Eastern District of Pennsylvania 

(D.C. No. 95-cv-01743) 

Argued April 17, 1997 

BEFORE: SCIRICA, COWEN and NYGAARD Circuit Judges

(Filed June 9, 1997) 

Scott D. Godshall, Esq. 

Eric J. Rothschild, Esq. (argued) 

Pepper, Hamilton & Scheetz 

18th & Arch Streets 

3000 Two Logan Square 

Philadelphia, PA 19103-2799 

 Counsel for Appellant 

Mark E. Kogan, Esq. (argued) 

Marion, Satzberg, Trichon & Kogan 

1735 Market Street 

3000 Mellon Bank Building 

Philadelphia, PA 19103 

 Counsel for Appellee 
OPINION OF THE COURT 

COWEN, Circuit Judge. 

This appeal concerns, among other issues, the extent of 

a consumer reporting agency's obligation, pursuant to 

section 611(a) of the Fair Credit Reporting Act ("FCRA"), 15 

U.S.C. § 1681i(a) (1982), to conduct a reasonable 

reinvestigation of information on a consumer's credit report 

alleged by the consumer to be inaccurate. We hold that the 

district court erred to the extent that it concluded as a 

matter of law that defendant Trans Union Corporation 

("TUC") fulfilled its obligation under § 1681i(a). Therefore, 

we will reverse and remand the district court's grant of 

judgment as a matter of law on plaintiff-appellant Jennifer 

Cushman's claim for negligent noncompliance with that 

section. 

We also hold that Cushman has produced sufficient 

evidence from which a reasonable jury could find that she 

has proved the publication element of her defamation claim 

and her claims pursuant to the Vermont Fair Credit 

Reporting Act ("VFCRA"), VT. STAT. ANN. tit. 9, §§ 2480a et

seq. (1993). We will reverse and remand the district court's 

grant of judgment as a matter of law on those claims. 

Finally, we remand to the district court to determine 

whether Cushman has produced evidence sufficient to

justify an award of punitive damages and to avoid 

preemption of her defamation claim. 

I.

To the extent the facts are disputed, we view them in the 

light most favorable to Cushman. Cushman has a 

permanent residence in Pennsylvania but attended college 

in Vermont during the time period pertinent to this

litigation. In the summer of 1993, an unknown person, 

possibly a member of her household in Philadelphia,

applied under Cushman's name for credit cards from three 

credit grantors: American Express ("Amex"), Citibank Visa 

("Citibank"), and Chase Manhattan Bank ("Chase"). The 

 2 
person provided the credit grantors with Cushman's social 

security number, address, and other identifying 

information. Credit cards were issued to that person in 

Cushman's name, and that person accumulated balances 

totaling approximately $2400 on the cards between June of 

1993 and April of 1994. All this occurred without 

Cushman's knowledge. 

In August of 1994, an unidentified bill collector informed 

Cushman that TUC was publishing a consumer credit 

report indicating that she was delinquent on payments to 

these three credit grantors. Cushman notified TUC that she 

had not applied for or used the three credit cards in 

question, and suggested that a third party had fraudulently 

applied for and obtained the cards. In response, a TUC 

clerk called Amex and Chase to inquire whether the 

verifying information (such as Cushman's name, social 

security number, and address) in Amex's and Chase's

records matched the information in the TUC report. The 

TUC clerk also asked if Cushman had opened a fraud 

investigation with the credit grantors. Because the

information matched, and because Cushman had not 

opened a fraud investigation, the information remained in 

the TUC report. TUC was unable to contact Citibank so 

TUC deleted the Citibank entry from the report. TUC's 

investigations are performed by clerks paid $7.50 per hour 

and who are expected to perform ten investigations per 

hour. 

There is no evidence that TUC took the necessary steps 

to obtain access to pertinent documents from the credit 

grantors that would enable TUC to perform a handwriting 

comparison. TUC did allow Cushman the opportunity to 

complete a form requesting that a special handling 

statement be placed on her report, and that form required 

her signature. However, a TUC employee testified that the 

form would not have been used for a handwriting 

comparison had Cushman completed it. TUC advises 

consumers in Cushman's position to communicate with the 

credit grantors and complete signature verifications and 

affidavits of fraud with the credit grantors. 

Cushman was sent a copy of the updated report still

containing the Amex and Chase delinquencies. She sent a 

 3 
second letter to TUC reiterating her disagreement with the 

facts contained in the report and offering to sign affidavits 

for TUC to the effect that the delinquencies were not hers. 

TUC subsequently performed a reinvestigation identical to 

the first one but did nothing more. The credit report was 

not changed. At no time did TUC provide Cushman with a 

description of its reinvestigation procedures. 

Cushman brought this action in the district court 

alleging negligent and willful failure to reinvestigate the 

disputed entries in violation of sections 611(a), 616, and 

617 of the FCRA, 15 U.S.C. §§ 1681i(a), 1681n, 1681o; 

violations of the VFCRA, VT. STAT. ANN. tit. 9, §§ 2480a et

seq.; and defamation. Subsequently, in April of 1995, TUC 

verified the information with Citibank, and placed the 

Citibank entry back onto Cushman's report. TUC notified 

Cushman of the reinsertion through her attorneys. 

That September, Cushman for the first time disputed the 

delinquencies with the three credit grantors. A Citibank 

employee, comparing a handwriting sample provided by 

Cushman with the credit card application, determined that 

the card had been fraudulently obtained. The other two 

credit grantors came to a similar conclusion. TUC has since 

deleted the entries from Cushman's report. 

TUC subsequently moved for summary judgment 

pursuant to Fed. R. Civ. P. 56, raising several issues 

addressed by this appeal. The district court denied the 

motion. See Cushman v. Trans Union Corp., 920 F. Supp. 

80, 83-84 (E.D. Pa. 1996). However, at the close of

Cushman's presentation of her case at trial, the district 

court sua sponte granted TUC judgment as a matter of law 

pursuant to Fed. R. Civ. P. 50(a) on all claims. Cushman 

timely appealed. 

II.

A. 

As this Court recently wrote: 

The FCRA was enacted in order to ensure that 

"consumer reporting agencies adopt reasonable 

 4 
procedures for meeting the needs of commerce for 

consumer credit, personnel, insurance, and other 

information in a manner which is fair and equitable to 

the consumer, with regard to the confidentiality, 

accuracy, relevancy, and proper utilization of such

information." The FCRA was prompted by 

"congressional concern over abuses in the credit 

reporting industry." In the FCRA, Congress has 

recognized the crucial role that consumer reporting

agencies play in collecting and transmitting consumer 

credit information, and the detrimental effects 

inaccurate information can visit upon both the 

individual consumer and the nation's economy as a 

whole. 

Philbin v. Trans Union Corp., 101 F.3d 957, 962 (3d Cir. 

1996) (quoting 15 U.S.C. § 1681(b) and Guimond v. Trans

Union Credit Information Co., 45 F.3d 1329, 1333 (9th Cir. 

1995)) (citations omitted). 

Title 15 U.S.C. § 1681i(a) provides in relevant part: 

If the completeness or accuracy of any item of 

information contained in [her] file is disputed by a 

consumer, and such dispute is directly conveyed to the 

consumer reporting agency by the consumer, the 

consumer reporting agency shall within a reasonable

period of time reinvestigate and record the current

status of that information unless it has reasonable

grounds to believe that the dispute by the consumer is 

frivolous or irrelevant. If after such reinvestigation such 

information is found to be inaccurate or can no longer 

be verified, the consumer reporting agency shall 

promptly delete such information. 

"Sections 1681n and 1681o of Title 15 respectively 

provide private rights of action for willful and negligent 

noncompliance with any duty imposed by the FCRA and

allow recovery for actual damages and attorneys' fees and 

costs, as well as punitive damages in the case of willful 

noncompliance." Philbin, 101 F.3d at 962.1 

_________________________________________________________________ 

1. The Fair Credit Reporting Act has since been amended, effective 

September 30, 1997, by the Consumer Credit Reporting Reform Act of 

1996, Pub. Law 104-208, Div. A, Title II, §§ 2401 et seq., 110 Stat. 3009, 

___-___. The amendments are not relevant to the issues raised in this 

appeal. 

 5 
1.

As an initial matter, we reject the suggestion made by 

TUC that no cause of action lies pursuant to § 1681i(a) on 

the ground that § 1681i(b) and (c) provide the exclusive 

remedy when a consumer disputes information that has 

been placed on her credit report. Those subsections provide 

that in the event a dispute under subsection (a) is not 

resolved, "the consumer may file a brief statement setting 

forth the nature of the dispute," 15 U.S.C. § 1681i(b), and 

the statement or a summary must be included in the 

consumer's credit report. See 15 U.S.C. § 1681i(c). 

Subsections (b) and (c) have not been read as providing 

the exclusive remedy for a consumer in Cushman's 

position. See Henson v. CSC Credit Servs., 29 F.3d 280, 

286 (7th Cir. 1994); Cahlin v. General Motors Acceptance

Corp., 936 F.2d 1151, 1160 (11th Cir. 1991); Pinner v.

Schmidt, 805 F.2d 1258, 1261-62 (5th Cir. 1986); see also

Guimond, 45 F.3d at 1335 (dictum); cf. Thompson v. San

Antonio Retail Merchants Assoc., 682 F.2d 509, 514-15 (5th 

Cir. 1982) (consumer need not pursue remedies under

§ 1681i before suing under § 1681e). The obligations 

prescribed by subsections (b) and (c) are triggered only after 

"the reinvestigation [pursuant to subsection (a)] does not 

resolve the dispute." 15 U.S.C. § 1681i(b). This presupposes 

that a reasonable reinvestigation has already been 

completed and the dispute nonetheless remains unresolved. 

See Guimond, 45 F.3d at 1335. A consumer alleging that no 

reasonable reinvestigation has taken place has a separate 

claim pursuant to § 1681i(a). 

2.

We now turn to the questions of a consumer reporting 

agency's obligations pursuant to § 1681i(a) and a plaintiff 's 

burden of proving a claim of negligent noncompliance with 

that section. TUC contends that § 1681i(a) did not impose 

on it an obligation to do any more than perform the

reinvestigation it performed in this case. That is, TUC 

believes that when a consumer informs a consumer 

reporting agency that information contained in her 

consumer report is inaccurate, the consumer reporting 

 6 
agency is obliged only to confirm the accuracy of the 

information with the original source of the information. 

According to TUC, it is never required to go beyond the 

original source in ascertaining whether the information is 

accurate. 

This position has been rejected by the United States 

Courts of Appeals for the Fifth and Seventh Circuits. See

Henson, 29 F.3d at 286-87; Stevenson v. TRW Inc., 987 

F.2d 288, 293 (5th Cir. 1993). In Henson, a state court 

judgment docket erroneously stated that an outstanding 

judgment had been entered against the plaintiff. Two credit 

reporting agencies included the erroneous entry on their 

consumer reports regarding the plaintiff. See Henson, 29 

F.3d at 282-83. The plaintiff sued those credit reporting 

agencies pursuant to both § 1681e(b) and § 1681i. See id. at 

284, 286. Section 1681e(b) requires consumer reporting 

agencies "to follow `reasonable procedures to assure 

maximum possible accuracy' of the information" contained 

in the credit report. Id. at 284 (quoting 15 U.S.C. 

§ 1681e(b)). 

The Seventh Circuit upheld the district court's dismissal 

of the § 1681e(b) claim. See id. at 285-86. However, the 

court reversed the district court's dismissal of the § 1681i 

claim, distinguishing between the duties imposed by the 

two sections of the statute. It stated: 

A credit reporting agency that has been notified of

potentially inaccurate information in a consumer's 

credit report is in a very different position than one 

who has no such notice. . . . [A] credit reporting agency 

may initially rely on public court documents, because 

to require otherwise would be burdensome and 

inefficient. However, such exclusive reliance may not be

justified once the credit reporting agency receives notice

that the consumer disputes information contained in his

credit report. When a credit reporting agency receives 

such notice, it can target its resources in a more 

efficient manner and conduct a more thorough 

investigation. 

Id. at 286-87 (emphasis added). 

 7 
The Fifth Circuit came to a similar conclusion in 

Stevenson, 987 F.2d at 293. In that case, similar to the 

situation here, the consumer's son had fraudulently

obtained accounts in the consumer's name. See id. at 291. 

Other inaccurate information appeared on the credit report 

as well. See id. The credit reporting agency sent written 

forms to the credit granting agencies that had originally 

supplied information concerning the consumer, and relied 

on those credit grantors to make the conclusive 

determination of whether the information was accurate. See

id. at 293. Holding that this was insufficient, the court 

wrote: "In a reinvestigation of the accuracy of credit reports 

[pursuant to § 1681i(a)], a credit bureau must bear some 

responsibility for evaluating the accuracy of information 

obtained from subscribers." Id. (citing Swoager v. Credit

Bureau of Greater St. Petersburg, 608 F. Supp. 972, 976 

(M.D. Fla. 1985)). 

The court reasoned that such a result was the only one 

consistent with the language of § 1681i(a), which requires 

"that the `consumer reporting agency shall within a 

reasonable period of time reinvestigate' and `promptly 

delete' inaccurate or unverifiable information." Id. (quoting 

15 U.S.C. § 1681i(a)) (emphasis in Stevenson). The court 

expressly rejected the same argument made here by TUC: 

"that where fraud has occurred, the consumer must resolve 

the problem with the creditor." Id. Rather, "[t]he statute 

places the burden of investigation squarely on" the

consumer reporting agency. Id.

We agree with the conclusions reached by these courts. 

We assume for the sake of argument, as the Seventh 

Circuit concluded, that the costs of requiring consumer 

reporting agencies to go beyond the original source of 

information as an initial matter outweigh any potential 

benefits of such a requirement. Thus, we can assume that 

absent any indication that the information is inaccurate, 

the statute does not mandate such an investigation.

However, as the Henson court explained, once a claimed 

inaccuracy is pinpointed, a consumer reporting agency 

conducting further investigation incurs only the cost of 

reinvestigating that one piece of disputed information. In 

short, when one goes from the § 1681e(b) investigation to 

 8 
the § 1681i(a) reinvestigation, the likelihood that the costbenefit analysis will shift in favor of the consumer increases 

markedly. Judgment as a matter of law, even if appropriate 

on a § 1681e(b) claim, thus may not be warranted on a 

§ 1681i(a) claim. 

We also agree with the cogent observation by the Fifth 

Circuit that the plain language of the statute places the 

burden of reinvestigation on the consumer reporting

agency. See Stevenson, 987 F.2d at 293. The FCRA evinces 

Congress's intent that consumer reporting agencies, having 

the opportunity to reap profits through the collection and 

dissemination of credit information, bear "grave 

responsibilities," 15 U.S.C. § 1681(a)(4), to ensure the 

accuracy of that information. The "grave responsibilit[y]" 

imposed by § 1681i(a) must consist of something more than 

merely parroting information received from other sources. 

Therefore, a "reinvestigation" that merely shifts the burden 

back to the consumer and the credit grantor cannot fulfill 

the obligations contemplated by the statute. 

In addition to these observations, we note that TUC's 

reading of § 1681i(a) would require it only to replicate the 

efforts it must undertake in order to comply with 

§ 1681e(b). Such a reading would render the two sections 

largely duplicative of each other. We strive to avoid a result 

that would render statutory language superfluous, 

meaningless, or irrelevant. See Sekula v. F.D.I.C., 39 F.3d 

448, 454 n.14 (3d Cir. 1994); Pennsylvania Dept. of Public

Welfare v. United States Dept. of Health and Human Servs., 

928 F.2d 1378, 1385 (3d Cir. 1991). 

TUC contends that Podell v. Citicorp Diners Club, Inc., 

Nos. 96-7246, 314, 1997 WL 220320 (2d Cir. May 5, 1997), 

compels that we affirm. TUC is mistaken. In Podell, after 

being notified by a consumer of a dispute, a consumer 

reporting agency had performed the same sort of 

perfunctory reinvestigation that TUC performed here. See

id. at *3. As here, the consumer sued the consumer 

reporting agency pursuant to 15 U.S.C. § 1681i. See id.2 

_________________________________________________________________ 

2. Podell also concerned a claim against a different consumer reporting 

agency pursuant to 15 U.S.C. § 1681e(b). That portion of the opinion is 

not relevant to our discussion. 

 9 
However, the consumer in Podell did not contend that the 

extent of the reinvestigation was unreasonably narrow, as 

Cushman argues here. Rather, the consumer's position in 

that case was that the consumer reporting agency never 

sent him an updated credit report or any other notice that 

a reinvestigation had been performed. See id. Therefore, he 

argued, he never had an opportunity to place a statement 

of dispute in his file pursuant to § 1681i(b) and (c). See id.

As the consumer in Podell never took issue with the 

reasonableness of the scope of the consumer reporting 

agency's reinvestigation, the Court of Appeals for the 

Second Circuit had no occasion to address this issue. 

We hold that in order to fulfill its obligation under 

§ 1681i(a) "a credit reporting agency may be required, in 

certain circumstances, to verify the accuracy of its initial 

source of information." Henson, 29 F.3d at 287. We further 

hold that "[w]hether the credit reporting agency has a duty 

to go beyond the original source will depend" on a number 

of factors. Id. One of these is "whether the consumer has 

alerted the reporting agency to the possibility that the 

source may be unreliable or the reporting agency itself 

knows or should know that the source is unreliable." Id. A 

second factor is "the cost of verifying the accuracy of the 

source versus the possible harm inaccurately reported 

information may cause the consumer." Id. Whatever 

considerations exist, it is for "the trier of fact [to] weigh 

the[se] factors in deciding whether [the defendant] violated 

the provisions of section 1681i." Id.

In this case, the district court initially denied TUC's 

motion for summary judgment and relied on Henson in 

doing so, stating: 

The scope of the agency's duty to reinvestigate depends 

upon (1) the cost of verifying the accuracy of the source 

versus the potential harm to the consumer; and (2) the 

extent of the information the credit reporting agency 

possesses. . . . Once the credit reporting agency 

receives . . . notice [from the consumer that the credit 

report is inaccurate] it may be required to conduct a 

more thorough investigation, one that requires it to 

make inquiries beyond the original source of the 

information. . . . 

 10 
 . . . [T]he decisive inquiry is whether Trans Union 

could have determined that the accounts were opened

fraudulently if it had reasonably investigated the 

matter. 

Cushman, 920 F. Supp. at 83 (citing Henson, 29 F.3d at 

286-87). 

This was in accord with our holding today. However, after 

the close of plaintiff 's case the court stated, without further 

elaboration: 

I have entertained the evidence in this case to this 

point, and I tell you I am not persuaded that the 

plaintiff has met [her] burden to this Court in any

claim that is before it at this juncture. 

 Based on that, I'm going to grant a 50(a) motion in 

favor of the defendant. 

App. at 256-57. As far as we can tell, the evidence before 

the court on defendant's summary judgment motion was 

not materially different from the evidence produced at trial. 

Most importantly, there was evidence produced at trial 

concerning the inaccuracy of the information, Cushman's 

notification to TUC of the inaccuracy and the underlying 

fraud, the nature of TUC's reinvestigation and the costs 

incurred by it in performing that reinvestigation, and the 

damages suffered by Cushman. 

A reasonable jury weighing this evidence in light of the 

factors identified in Henson and endorsed by us today 

could have rendered a verdict for Cushman. The jury could 

have concluded that after TUC was alerted to the 

accusation that the accounts were obtained fraudulently, 

and then confronted with the credit grantors' reiteration of 

the inaccurate information, TUC should have known that 

the credit grantors were "unreliable" to the extent that they 

had not been informed of the fraud. See Henson, 29 F.3d at 

286; see also Pinner, 805 F.2d at 1262 (where consumer 

informed consumer reporting agency of his personal 

dispute with manager of credit grantor, it was unreasonable 

under § 1681i(a) for consumer reporting agency to rely 

solely on manager for information); cf. Bryant v. TRW, Inc., 

689 F.2d 72, 79 (6th Cir. 1982) (similar efforts insufficient 

 11 
under § 1681e(b)). Similarly, the jury could have concluded 

that seventy-five cents per investigation was too little to 

spend when weighed against Cushman's damages. See

Henson, 29 F.3d at 287. It was for "the trier of fact [to] 

weigh the[se] factors." Id. (emphasis added). The district 

court arrogated that role to itself, and in doing so, it erred. 

Therefore, the judgment of the district court granting 

judgment as a matter of law on Cushman's claim for 

negligent noncompliance with § 1681i(a) will be reversed 

and remanded. 

3.

Cushman also claims that she is entitled to punitive 

damages pursuant to 15 U.S.C. § 1681n because TUC's

alleged noncompliance with § 1681i(a) was willful. "To show 

willful noncompliance with the FCRA, [Cushman] must

show that [TUC] `knowingly and intentionally committed an 

act in conscious disregard for the rights of others,' but need 

not show `malice or evil motive.' " Philbin, 101 F.3d at 970 

(quoting Pinner, 805 F.2d at 1263). The Fifth Circuit has 

held that "[o]nly defendants who have engaged in `willful 

misrepresentations or concealments' have committed a 

willful violation and are subject to punitive damages under 

§ 1681n." Stevenson, 987 F.2d at 294 (quoting Pinner, 805 

F.2d at 1263). Other courts have allowed punitive damages 

in cases involving concealments or misrepresentations 

without necessarily limiting the availability of punitive 

damages to such cases. See, e.g., Millstone v. O'Hanlon

Reports, Inc., 528 F.2d 829, 834 (8th Cir. 1976); Collins v.

Retail Credit Co., 410 F. Supp. 924, 931-32 (E.D. Mich. 

1976). 

Although we decline to adopt the Fifth Circuit's holding 

in Stevenson, we conclude that to justify an award of 

punitive damages, a defendant's actions must be on the 

same order as willful concealments or misrepresentations. 

If Cushman can prove, as she argues, that TUC 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, she may be awarded 

punitive damages. 

 12 
The district court concluded that Cushman had not made 

out a case even of negligent noncompliance with § 1681i(a). 

It therefore did not consider whether she had shown TUC's 

alleged noncompliance to be willful. Because the district 

court is more intimately familiar with the record in this 

matter, it is better situated than we to determine whether 

Cushman has produced sufficient evidence for a reasonable 

jury to find willfulness on the part of TUC pursuant to the 

standards we have set forth above. Therefore we will 

remand to the district court for such a determination. 

B. 

Cushman also claims that TUC has violated the VFCRA. 

Vermont Statutes Annotated Title 9, § 2480d is similar to 

15 U.S.C. § 1681i, providing, in pertinent part: 

(a) If the completeness or accuracy of any item of 

information contained in the consumer's file is 

disputed by the consumer and the consumer notifies 

the credit reporting agency directly of such dispute, the 

agency shall reinvestigate free of charge and record the 

current status of the disputed information on or before 

30 business days after the date the agency receives

notice from the consumer. 

. . . . 

(e) If, after a reinvestigation under subsection (a) of 

this section of any information disputed by the 

consumer, the information is found to be inaccurate or 

cannot be verified, the credit reporting agency shall 

promptly delete such information from the consumer's 

file. . . . 

(f) If any information is deleted after a reinvestigation 

under subsection (a) of this section, the information 

may not be reinserted in the consumer's file after 

deletion unless the person who furnishes the 

information reinvestigates and states in writing or by 

electronic record to the agency that the information is 

complete and accurate. . . . Upon such reinvestigation 

and statement by the furnisher, the credit reporting 

agency shall promptly notify the consumer of any 

reinsertion. 

 13 
(g) A credit reporting agency shall provide written

notice of the results of any reinvestigation under this 

subsection [which] shall include: 

. . . . 

(5) a description of the procedure used to determine 

the accuracy and completeness of the information, 

including the name, business address, and, if 

available, the telephone number of any person 

contacted in connection with such information . . . . 

1. 

As a threshold matter, we must determine whether 

Cushman's relation to the state of Vermont is sufficient to 

bestow on her the protections of the VFCRA. Vermont

Statutes Annotated Title 9, section 2480a(1) defines 

"consumer" as "a natural person residing in this state." 

Thus, we must determine, pursuant to Vermont law, 

whether Cushman "resid[ed]" in that state for purposes of 

the statute. We have stated that "the term `resident' has no 

precise meaning. Rather, its definition varies with each 

statutory usage." Government of Virgin Islands ex rel. Bodin

v. Brathwaite, 459 F.2d 543, 544 (3d Cir. 1972) (citations 

omitted); see also Willenbrock v. Rogers, 255 F.2d 236, 237 

(3d Cir. 1958); United States v. Stabler, 169 F.2d 995, 998 

(3d Cir. 1948). Unfortunately, the word "residing" is not 

defined in the VFCRA and we have uncovered no cases

addressing what constitutes residency for purposes of the 

VFCRA. 

It is perhaps telling that the Vermont legislature left the 

word "residing" undefined in the VFCRA. It could have 

rendered a technical definition of residency for these 

purposes as it has for state income tax purposes. See VT. 

STAT. ANN. tit. 32, § 5811(11)(A). Alternatively, it could have 

issued guidelines for the use of a state agency or the courts 

to establish their own definition of residency for these 

purposes, as it has for purposes of determining who is 

entitled to lowered tuition rates at state-supported 

institutions of higher learning. See VT. STAT. ANN. tit.16, 

§§ 2282, 2282a. 

 14 
Because it did neither of these things, we conclude that 

the Vermont legislature intended "residing" in VT. STAT. ANN. 

tit. 9, § 2480a(1) to have its common legal meaning. In 

ordinary legal parlance, residency merely means "living in a 

particular locality" but not necessarily with the intent to 

make that locality "a fixed and permanent home." BLACK'S 

LAW DICTIONARY 1308-09 (6th ed. 1990); see also Wolinsky v.

Bradford Nat'l Bank, 34 B.R. 702, 704 (D. Vt. 1983) 

(pursuant to Vermont law, " `[d]omicile' . . . means living in 

a locality with the intent to make it a fixed and permanent 

home, while `residence' simply requires bodily presence as 

an inhabitant in a given place") (citation omitted); Piche v.

Department of Taxes, 565 A.2d 1283, 1285 (Vt. 1989) 

(residence is something less than domicile); Walker v.

Walker, 200 A.2d 267, 269 (Vt. 1964) (same). But cf.

Bonneau v. Russell, 85 A.2d 569, 570 (Vt. 1952) (equating 

residency and domicile for purposes of VT. STAT. ANN. tit. 47, 

§ 2713).3 On the other hand, residency implies something 

more than "merely transitory in nature," such as the 

happenstance of passing through a state on one's way to 

some other destination. BLACK'S LAW DICTIONARY at 1309 

(defining "resident"); see also Guessefeldt v. McGrath, 342 

U.S. 308, 312, 72 S.Ct. 338, 341 (1951) (residence, for 

purposes of Trading with the Enemy Act of 1917, 50 U.S.C. 

App. § 2(a) (1990), "implies something more than mere 

physical presence and something less than domicile"). 

Brathwaite is instructive in this regard. In that case, we 

were charged with the task of interpreting the word

"resident" in V.I. CODE ANN . tit. 16, § 291(a) (1995), in order 

to determine whether the petitioner could bring a paternity 

proceeding under that section. As in this case, we had little 

guidance in that endeavor. We noted that "residence may 

be taken to indicate merely one's momentary factual place 

of abode." Brathwaite, 459 F.2d at 544. We held that 

physical presence in a locality "coupled with [an] intent to 

remain there for a measurable period of time," satisfied the 

statute's requirement of residency. Id. at 544-45. We 

_________________________________________________________________ 

3. Bonneau v. Russell, 85 A.2d 569, 570 (Vt. 1952), has been criticized 

for "fail[ing] to recognize the distinction in Vermont law between 

residence and domicile." Wolinsky v. Bradford Nat'l Bank, 34 B.R. 702, 

704 n.1 (D. Vt. 1983). 

 15 
further concluded that the four-month period during which 

the petitioner had continuously lived in the Virgin Islands 

prior to the conclusion of the trial in that case sufficed to 

confer resident status upon her. See id. at 545. Thus, to be 

a resident of a locale, one need intend to live there not 

permanently nor indefinitely, but only "for a measurable 

period of time." Id. Moreover, presence for a period as short 

as four months will suffice. See also Stabler, 169 F.2d at 

998 (defendant's "presence in New Jersey over a period of 

weeks . . . was sufficient to give him a residence in New 

Jersey" for purposes of 8 U.S.C. § 738(b) (repealed 1952), 

relating to revocation of naturalization). 

The record reflects that during the period that TUC

allegedly failed to fulfill its obligations pursuant to the 

VFCRA (roughly from the autumn of 1994 through the 

spring of 1995), Cushman was in her senior year at the 

University of Vermont in Burlington. See App. at 147-56. It 

appears that she had been living in Vermont at least since 

the summer of 1993, except for "a brief few days at the end 

of the summer." Id. at 148. Moreover, she still lived in 

Vermont at the time of trial, in the spring of 1996. See id.

at 147. The jury could reasonably infer from the evidence 

that, at the time of TUC's alleged violation of the VFCRA, (1) 

Cushman had already lived in Vermont for over a year, and 

(2) she intended to remain in Vermont at least until she 

graduated from the University and perhaps indefinitely. 

Thus, there was sufficient evidence from which a 

reasonable jury could conclude that Cushman was 

"residing" in Vermont during the relevant time period, 

pursuant to the ordinary legal meaning of that term. A jury 

could therefore conclude that Cushman may invoke the 

protections of the VFCRA.4 

_________________________________________________________________ 

4. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174 (1985), 

and International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154 

(1945), cited by TUC, are inapposite. The question raised is whether 

Cushman may invoke the protections of a Vermont statute, regardless of 

where the action is brought. This issue is entirely separate and distinct 

from the question whether a state or federal court located in Vermont 

would be able, consistent with due process principles, to assert personal 

jurisdiction over TUC. 

 16 
2.

Cushman claims that TUC violated VT. S TAT. ANN. tit. 9, 

§ 2480d(f), by not "promptly notify[ing]" her of the 

reinsertion of the Citibank entry. A TUC employee testified 

that it did notify her through her attorneys, see App. at 

223-24, and Cushman has pointed to no contrary evidence 

in the record. Cushman claims that this notification 

occurred only during discovery in this litigation and 

therefore was not sufficiently "prompt[ ]" to satisfy 

§ 2480d(f). The record does not indicate when the 

notification was made to Cushman's attorneys. Accordingly, 

we cannot conclude as a matter of law that TUC fulfilled its 

obligations pursuant to that section. The district court's 

grant of judgment as a matter of law on this claim will be 

reversed and remanded for a jury determination of whether 

the notification was sufficiently prompt pursuant to 

§ 2480d(f). 

3.

Cushman also claims that TUC violated VT. STAT. ANN. tit. 

9, § 2480d(g)(5), by not providing her with a description of 

its reinvestigation procedures. There is evidence that TUC 

did fail in this regard. See App. at 224-26. Therefore 

Cushman's claim pursuant to that section of the VFCRA 

must stand, as must her claims under those portions of the 

VFCRA that merely duplicate the FCRA.5 

_________________________________________________________________ 

5. TUC contends that the VFCRA claim should be dismissed on the 

additional ground that Cushman proved no damages stemming from the 

alleged violation of that statute. TUC points to a "concession" by 

Cushman's counsel in the district court that Cushman has not "pointed 

to any damage evidence specifically [with regard] to" the Vermont 

statute. App. at 260. As we read this, however, it appears that counsel 

merely stated that any damages caused by the alleged violations of the 

VFCRA were identical to those caused by the alleged violations of the 

FCRA. Thus, TUC's contention that Cushman conceded away any claim 

that she was damaged by a violation of the VFCRA is meritless. 

 17 
C. 

1.

The district court dismissed Cushman's defamation claim 

on the ground that she had not produced any evidence of 

malice and because the FCRA preempts state law 

defamation claims except where the plaintiff proves "malice 

or willful intent to injure" her. 15 U.S.C. § 1681h(e); see

Bloom v. I.C. Sys., Inc., 972 F.2d 1067, 1069 (9th Cir. 

1992); Thornton v. Equifax, Inc., 619 F.2d 700, 703 (8th Cir. 

1980). The parties have assumed that a showing of "malice 

or willful intent to injure" pursuant to § 1681h(e) is 

identical to proof of willfulness under § 1681n. This is 

contrary to the holding of the United States Court of 

Appeals for the Eighth Circuit in Thornton, 619 F.2d at 706, 

that § 1681h(e) establishes a "higher requirement of proof." 

However, because neither the parties nor the district court 

addressed this issue, we will assume without deciding that 

the requirements for the two showings are identical. We 

have explained above that we will remand to the district 

court for a determination of whether Cushman has 

produced evidence sufficient to justify a finding of 

willfulness on the part of TUC pursuant to § 1681n. See

Part II.A.3 supra. We must likewise remand for a 

determination of whether Cushman has produced evidence 

of "malice or willful intent to injure" sufficient to avoid 

preemption of her defamation claim pursuant to § 1681h(e). 

2.

The district court granted TUC judgment as a matter of 

law on Cushman's defamation claim on the alternative 

ground that she had not produced any evidence of 

publication. In order to prove defamation pursuant to 

Pennsylvania law,6 Cushman must prove, inter alia, 

publication of the defamatory matter by TUC. See 42 PA. 

_________________________________________________________________ 

6. Neither party has argued that the defamation claim is governed by the 

laws of Vermont or any other jurisdiction. In the absence of such a 

contention, we apply the laws of the forum state. See Publicker Indus.,

Inc. v. Roman Ceramics Corp., 652 F.2d 340, 343 n.6 (3d Cir. 1981). 

 18 
CONS. STAT. ANN. § 8343(a)(2) (1982); U.S. Healthcare, Inc. v.

Blue Cross of Greater Philadelphia, 898 F.2d 914, 923 (3d 

Cir. 1990); Ertel v. Patriot-News Co., 674 A.2d 1038, 1043 

(Pa.), cert. denied, ___ U.S. #6D6D 6D#, 117 S.Ct. 512 (1996). 

Publication consists of the communication of the 

information to at least one person other than the person 

defamed. See Flaxman v. Burnett, 574 A.2d 1061, 1066 (Pa. 

Super. 1990). 

A TUC employee testified that the allegedly defamatory 

information was published to Chase and Citibank. See App. 

at 222, 338-39. Moreover, Cushman testified that an

unidentified bill collector initially informed her of the 

allegedly defamatory information, from which a jury could 

infer that the information had been published to him as 

well. See id. at 149. A reasonable jury could conclude that 

Cushman has satisfied the publication element of her 

defamation cause of action.7 Thus, this was not a proper 

basis upon which to grant TUC judgment as a matter of law 

on the defamation claim. 

III.

The judgment of the district court will be reversed and 

remanded for further proceedings consistent with this 

opinion. 

A True Copy: 

Teste: 

Clerk of the United States Court of Appeals

for the Third Circuit

_________________________________________________________________ 

7. We express no opinion as to whether Cushman has set forth evidence 

sufficient to prove the other elements of her defamation claim. 

 19