## 1997 D e c i sion s O p inion s of the U nit e d
S t a t e s C our t of Appe al s for the Thir d C ir c uit

6-9-1997 

# C u shm a n v . T r a ns U nion C or p

P r e c e de n t i al or N on-P r e c e de n t i al :

D ock e t 96-1553

F o l lo w thi s a nd a dd it ion al w ork s a t : h tt p://d i g it alc ommon s .l a w

. v i l l a no v a

. e du/thir dc ir c uit_1997

Thi s de c i sion i s br ou gh t t o y ou for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit a t V i l l a no v a
U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. I t h as be e n a c c e pt e d for inclusion in 1997 D e c i sion s b y a n a uthor i z e d a dmini s tr a t or of V i l l a no v a
U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. F or mor e infor m a t ion, p le as e c on t a ct Be n j a min

. C a rl s on@l a

w

. v i l l a no v a

. e du

. 

## R e c omme nde d C it a t ion

" C ushm a n v

. T r a n s U nion C or p " (1997). 1997 D e cisio n s

. P a pe r 124. h tt p://d i g it alc ommon s .l a

w

. v i l l a no v a

. e du/thir dc ir c uit_1997/124Filed 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 AppelleeOPINION OF THE COURT

COWEN, Circuit Judge

.

This appeal concerns, among other issues, the exten t of a consumer reporting agency's obligation, pursuant to section 611(a) of the Fair Credit Reporting Act ("F CRA"), 15 U.S.C. § 1681i(a) (1982), to conduct a reasonable reinvestigation of information on a consumer's cred it report alleged by the consumer to be inaccurate. We hold t hat the
district court erred to the extent that it conclude d as a matter of law that defendant Trans Union Corporatio n ("TUC") fulfilled its obligation under § 1681i(a). Therefore, we will reverse and remand the district court's gra nt of judgment as a matter of law on plaintiff-appellant Jennifer Cushman's claim for negligent noncompliance with th at
section.

We also hold that Cushman has produced sufficient evidence from which a reasonable jury could find th at she has proved the publication element of her defamatio n 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 co urt's grant of judgment as a matter of law on those claim s. Finally, we remand to the district court to determi ne 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 co llege in Vermont during the time period pertinent to this litigation. In the summer of 1993, an unknown perso n, possibly a member of her household in Philadelphia, applied under Cushman's name for credit cards from three credit grantors: American Express ("Amex"), Citiban k Visa ("Citibank"), and Chase Manhattan Bank ("Chase"). T he

2person provided the credit grantors with Cushman's social

security number, address, and other identifying information. Credit cards were issued to that perso n in Cushman's name, and that person accumulated balance s totaling approximately $2400 on the cards between J une of 1993 and April of 1994. All this occurred without Cushman's knowledge.

In August of 1994, an unidentified bill collector i nformed Cushman that TUC was publishing a consumer credit report indicating that she was delinquent on paymen ts to these three credit grantors. Cushman notified TUC t hat she had not applied for or used the three credit cards in question, and suggested that a third party had frau dulently 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, soci al 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 remai ned 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 p er hour and who are expected to perform ten investigations per hour.

There is no evidence that TUC took the necessary st eps to obtain access to pertinent documents from the cr edit grantors that would enable TUC to perform a handwri ting comparison. TUC did allow Cushman the opportunity t o complete a form requesting that a special handling statement be placed on her report, and that form re quired her signature. However, a TUC employee testified th at 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 verification s 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 se nt a

3second letter to TUC reiterating her disagreement w ith the

facts contained in the report and offering to sign affidavits for TUC to the effect that the delinquencies were n ot hers. TUC subsequently performed a reinvestigation identi cal to the first one but did nothing more. The credit repo rt was not changed. At no time did TUC provide Cushman wit h a description of its reinvestigation procedures.

Cushman brought this action in the district court alleging negligent and willful failure to reinvesti gate the disputed entries in violation of sections 611(a), 6 16, and 617 of the FCRA, 15 U.S.C. §§ 1681i(a), 1681n, 1681 o ; violations of the VFCRA, VT. STAT. ANN. tit. 9, §§ 2480a et

seq. ; and defamation. Subsequently, in April of 1995, T UC verified the information with Citibank, and placed the Citibank entry back onto Cushman's report. TUC noti fied Cushman of the reinsertion through her attorneys.

That September, Cushman for the first time disputed the delinquencies with the three credit grantors. A Cit ibank employee, comparing a handwriting sample provided b y Cushman with the credit card application, determine d that the card had been fraudulently obtained. The other two credit grantors came to a similar conclusion. TUC h as since deleted the entries from Cushman's report.

TUC subsequently moved for summary judgment pursuant to Fed. R. Civ. P. 56, raising several iss ues 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 di strict
court sua sponte granted TUC judgment as a matter of law pursuant to Fed. R. Civ. P. 50(a) on all claims. Cu shman timely appealed.

II.

A.

As this Court recently wrote:

The FCRA was enacted in order to ensure that "consumer reporting agencies adopt reasonable

4procedures 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 consum er 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. T rans Union Credit Information Co. , 45 F.3d 1329, 1333 (9th Cir. 1995)) (citations omitted).

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

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 reinvestigat ion such
information is found to be inaccurate or can no lon ger 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 ne gligent noncompliance with any duty imposed by the FCRA and allow recovery for actual damages and attorneys' fe es and costs, as well as punitive damages in the case of w illful noncompliance." Philbin , 101 F.3d at 962.1

___________________________________________________ ______________

1. The Fair Credit Reporting Act has since been ame nded, effective September 30, 1997, by the Consumer Credit Reportin g Reform Act of 1996, Pub. Law 104-208, Div. A, Title II, §§ 2401 e t seq. , 110 Stat. 3009, ___-___. The amendments are not relevant to the iss ues raised in this appeal.

51.

As an initial matter, we reject the suggestion made by TUC that no cause of action lies pursuant to § 1681 i(a) on the ground that § 1681i(b) and (c) provide the excl usive remedy when a consumer disputes information that ha s 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 provi ding 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 Accep tance 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 obligation s prescribed by subsections (b) and (c) are triggered only after "the reinvestigation [pursuant to subsection (a)] d oes not resolve the dispute." 15 U.S.C. § 1681i(b). This pr esupposes that a reasonable reinvestigation has already been completed and the dispute nonetheless remains unres olved.
See Guimond , 45 F.3d at 1335. A consumer alleging that no reasonable reinvestigation has taken place has a se parate claim pursuant to § 1681i(a).

2.

We now turn to the questions of a consumer reportin g agency's obligations pursuant to § 1681i(a) and a p laintiff 's burden of proving a claim of negligent noncomplianc e 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 reporti ng

6agency is obliged only to confirm the accuracy of t he information with the original source of the informa tion. According to TUC, it is never required to go beyond the original source in ascertaining whether the informa tion is

accurate.

This position has been rejected by the United State s Courts of Appeals for the Fifth and Seventh Circuit s. 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 outstand ing judgment had been entered against the plaintiff. Tw o credit reporting agencies included the erroneous entry on their consumer reports regarding the plaintiff. See Henso n , 29 F.3d at 282-83. The plaintiff sued those credit rep orting agencies pursuant to both § 1681e(b) and § 1681i. S ee id. at 284, 286. Section 1681e(b) requires consumer report ing agencies "to follow `reasonable procedures to assur e maximum possible accuracy' of the information" cont ained in the credit report. Id. at 284 (quoting 15 U.S.C. § 1681e(b)).

The Seventh Circuit upheld the district court's dis missal of the § 1681e(b) claim. See id. at 285-86. However, the
court reversed the district court's dismissal of th e § 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 n ot 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).

7The 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 orig inally supplied information concerning the consumer, and r elied on those credit grantors to make the conclusive
determination of whether the information was accura te. See
id. at 293. Holding that this was insufficient, the co urt wrote: "In a reinvestigation of the accuracy of cre dit reports [pursuant to § 1681i(a)], a credit bureau must bear some responsibility for evaluating the accuracy of infor mation
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 r equires "that the `consumer reporting agency shall within a reasonable period of time reinvestigate' and `promp tly
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 T UC: "that where fraud has occurred, the consumer must r esolve 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 cour ts. We assume for the sake of argument, as the Seventh Circuit concluded, that the costs of requiring cons umer reporting agencies to go beyond the original source of information as an initial matter outweigh any poten tial benefits of such a requirement. Thus, we can assume that absent any indication that the information is inacc urate, the statute does not mandate such an investigation. However, as the Henson court explained, once a claimed inaccuracy is pinpointed, a consumer reporting agen cy conducting further investigation incurs only the co st of reinvestigating that one piece of disputed informat ion. In short, when one goes from the § 1681e(b) investigat ion to

8the § 1681i(a) re investigation, the likelihood that the costbenefit analysis will shift in favor of the consume r increases markedly. Judgment as a matter of law, even if appr opriate on a § 1681e(b) claim, thus may not be warranted on a § 1681i(a) claim.

We also agree with the cogent observation by the Fi fth Circuit that the plain language of the statute plac es 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 collect ion and dissemination of credit information, bear "grave responsibilities," 15 U.S.C. § 1681(a)(4), to ensur e the accuracy of that information. The "grave responsibi lit[y]" imposed by § 1681i(a) must consist of something mor e than merely parroting information received from other so urces. Therefore, a "reinvestigation" that merely shifts t he 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 repl icate the efforts it must undertake in order to comply with § 1681e(b). Such a reading would render the two sec tions largely duplicative of each other. We strive to avo id 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, I nc. , Nos. 96-7246, 314, 1997 WL 220320 (2d Cir. May 5, 1 997), compels that we affirm. TUC is mistaken. In Podell , after being notified by a consumer of a dispute, a consum er 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 consume r reporting agency pursuant to 15 U.S.C. § 1681e(b). That porti on of the opinion is
not relevant to our discussion.

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

extent of the reinvestigation was unreasonably narr ow, as Cushman argues here. Rather, the consumer's positio n in that case was that the consumer reporting agency ne ver sent him an updated credit report or any other noti ce that a reinvestigation had been performed. See id. Therefore, he argued, he never had an opportunity to place a stat ement 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 reporti ng agency's reinvestigation, the Court of Appeals for the
Second Circuit had no occasion to address this issu e.

We hold that in order to fulfill its obligation und er § 1681i(a) "a credit reporting agency may be requir ed, in certain circumstances, to verify the accuracy of it s initial
source of information." Henson , 29 F.3d at 287. We further hold that "[w]hether the credit reporting agency ha s 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 tha t the source may be unreliable or the reporting agency it self
knows or should know that the source is unreliable. " Id. A second factor is "the cost of verifying the accurac y of the source versus the possible harm inaccurately report ed 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 T UC's motion for summary judgment and relied on Henson in doing so, stating:

The scope of the agency's duty to reinvestigate dep ends 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 agen cy possesses. . . . Once the credit reporting agency receives . . . notice [from the consumer that the c redit report is inaccurate] it may be required to conduct a more thorough investigation, one that requires it t o make inquiries beyond the original source of the
information. . . .

10. . . [T]he decisive inquiry is whether Trans Unio n

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, wi thout further
elaboration:

I have entertained the evidence in this case to thi s 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 i n 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 wa s not materially different from the evidence produced at trial. Most importantly, there was evidence produced at tr ial concerning the inaccuracy of the information, Cushm an's notification to TUC of the inaccuracy and the under lying 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 o f 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 fraudule ntly, and then confronted with the credit grantors' reite ration of the inaccurate information, TUC should have known t hat 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 unre asonable under § 1681i(a) for consumer reporting agency to r ely solely on manager for information); cf. Bryant v. T RW, Inc.

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

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

that seventy-five cents per investigation was too l ittle 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 s o, it erred. Therefore, the judgment of the district court grant ing judgment as a matter of law on Cushman's claim for negligent noncompliance with § 1681i(a) will be rev ersed
and remanded.

3.

Cushman also claims that she is entitled to punitiv e 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 commit ted 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 `w illful misrepresentations or concealments' have committed a willful violation and are subject to punitive damag es under § 1681n." Stevenson , 987 F.2d at 294 (quoting Pinner , 805 F.2d at 1263). Other courts have allowed punitive d amages in cases involving concealments or misrepresentatio ns without necessarily limiting the availability of pu nitive 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 ho lding
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 misrepresenta tions. If Cushman can prove, as she argues, that TUC adopt ed its reinvestigation policy either knowing that policy t o be in contravention of the rights possessed by consumers pursuant to the FCRA or in reckless disregard of wh ether the policy contravened those rights, she may be awa rded punitive damages.

12The district court concluded that Cushman had not m ade

out a case even of negligent noncompliance with § 1 681i(a).
It therefore did not consider whether she had shown TUC's alleged noncompliance to be willful. Because the di strict court is more intimately familiar with the record i n this matter, it is better situated than we to determine whether Cushman has produced sufficient evidence for a reas onable jury to find willfulness on the part of TUC pursuan t to the
standards we have set forth above. Therefore we wil l
remand to the district court for such a determinati on.

B.

Cushman also claims that TUC has violated the VFCRA

. Vermont Statutes Annotated Title 9, § 2480d is simi lar 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 disput e, the agency shall reinvestigate free of charge and recor d the current status of the disputed information on or be fore 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 sha ll promptly delete such information from the consumer' s file. . . .

(f) If any information is deleted after a reinvesti gation under subsection (a) of this section, the informati on 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 informatio n is complete and accurate. . . . Upon such reinvestigat ion and statement by the furnisher, the credit reportin g 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 determin e 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 suffi cient to bestow on her the protections of the VFCRA. Vermont Statutes Annotated Title 9, section 2480a(1) define s "consumer" as "a natural person residing in this st ate." Thus, we must determine, pursuant to Vermont law, whether Cushman "resid[ed]" in that state for purpo ses of
the statute. We have stated that "the term `residen t' has no precise meaning. Rather, its definition varies with each statutory usage." Government of Virgin Islands ex r el. 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 ha ve rendered a technical definition of residency for th ese purposes as it has for state income tax purposes. S ee VT. STAT. ANN. tit. 32, § 5811(11)(A). Alternatively, i t 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-supporte d institutions of higher learning. See VT. STAT. ANN. tit.16, §§ 2282, 2282a.

14Because 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 "li ving in a particular locality" but not necessarily with the i ntent to make that locality "a fixed and permanent home." BL ACK'S LAW DICTIONARY 1308-09 (6th ed. 1990); see also Wol insky v.
Bradford Nat'l Bank , 34 B.R. 702, 704 (D. Vt. 1983) (pursuant to Vermont law, " `[d]omicile' . . . mean s living in a locality with the intent to make it a fixed and p ermanent home, while `residence' simply requires bodily pres ence 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. AN N. tit. 47, § 2713).3 On the other hand, residency implies some thing more than "merely transitory in nature," such as th e happenstance of passing through a state on one's wa y to
some other destination. BLACK'S LAW DICTIONARY at 1 309 (defining "resident"); see also Guessefeldt v. McGr ath , 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 me re 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) (19 95), in order to determine whether the petitioner could bring a p aternity 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," sati sfied 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 Verm ont law between residence and domicile." Wolinsky v. Bradford Nat'l Bank , 34 B.R. 702, 704 n.1 (D. Vt. 1983).

15further 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 s ufficed to confer resident status upon her. See id. at 545. Thus, to be a resident of a locale, one need intend to live the re not permanently nor indefinitely, but only "for a measu rable 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 per iod 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 pursuan t 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 leas t 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 ev idence that, at the time of TUC's alleged violation of the VFCRA, (1) Cushman had already lived in Vermont for over a yea r, and (2) she intended to remain in Vermont at least unti l she graduated from the University and perhaps indefinit ely. Thus, there was sufficient evidence from which a reasonable jury could conclude that Cushman was "residing" in Vermont during the relevant time peri od, pursuant to the ordinary legal meaning of that term . A jury could therefore conclude that Cushman may invoke th e 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 sta tute, 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 principl es, to assert personal jurisdiction over TUC.

162.

Cushman claims that TUC violated VT. S TAT. ANN. ti t. 9, § 2480d(f), by not "promptly notify[ing]" her of th e reinsertion of the Citibank entry. A TUC employee t estified that it did notify her through her attorneys, see App. at 223-24, and Cushman has pointed to no contrary evid ence in the record. Cushman claims that this notificatio n occurred only during discovery in this litigation a nd therefore was not sufficiently "prompt[ ]" to satis fy § 2480d(f). The record does not indicate when the notification was made to Cushman's attorneys. Accor dingly,
we cannot conclude as a matter of law that TUC fulf illed 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 w hether the notification was sufficiently prompt pursuant t o § 2480d(f).

3.

Cushman also claims that TUC violated VT. STAT. ANN . tit. 9, § 2480d(g)(5), by not providing her with a descr iption of its reinvestigation procedures. There is evidence t hat TUC did fail in this regard. See App. at 224-26. Therefore Cushman's claim pursuant to that section of the VFC RA 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 dism issed on the additional ground that Cushman proved no damages st emming from the alleged violation of that statute. TUC points to a "concession" by
Cushman's counsel in the district court that Cushma n has not "pointed to any damage evidence specifically [with regard] t o" the Vermont statute. App. at 260. As we read this, however, it appears that counsel merely stated that any damages caused by the allege d 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.

17C.

1.

The district court dismissed Cushman's defamation c laim on the ground that she had not produced any evidenc e 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. Th is 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 o f proof." However, because neither the parties nor the distri ct court addressed this issue, we will assume without decidi ng that the requirements for the two showings are identical . We have explained above that we will remand to the dis trict
court for a determination of whether Cushman has produced evidence sufficient to justify a finding o f 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 evide nce of "malice or willful intent to injure" sufficient to avoid preemption of her defamation claim pursuant to § 16 81h(e).

2.

The district court granted TUC judgment as a matter of
law on Cushman's defamation claim on the alternativ e 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 cla im is governed by the laws of Vermont or any other jurisdiction. In the a bsence of such a contention, we apply the laws of the forum state. S ee Publicker Indus., Inc. v. Roman Ceramics Corp. , 652 F.2d 340, 343 n.6 (3d Cir. 1981).

18CONS. STAT. ANN. § 8343(a)(2) (1982); U.S. Healthca re, 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 p erson defamed. See Flaxman v. Burnett , 574 A.2d 1061, 1066 (Pa. Super. 1990).

A TUC employee testified that the allegedly defamat ory information was published to Chase and Citibank. Se e 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 hi m as well. See id. at 149. A reasonable jury could conclude that Cushman has satisfied the publication element of he r defamation cause of action.7 Thus, this was not a p roper 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 th is 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 defam ation claim.

19