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. e du/thir dc ir c uit_1996/8UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 96-5030

JAMES R. PHILBIN, JR.

v.

TRANS UNION CORPORATION; TRW CREDENTIA LS

JAMES PHILBIN, JR.,

Appellant

On Appeal from the United States District Court for the District of New Jersey (D.C. No. 93-cv-02360)

Argued October 28, 1996

BEFORE: SCIRICA and COWEN, Circuit Jud ges and FEIKENS, District Judge*

(Filed December 6, 1996)

Daniel J. de Luca, Esq. (argued)
510 White Horse Pike Audobon, NJ 08106

COUNSEL FOR APPELLANT James R. Philbin, Jr.

Mark E. Kogan, Esq. (argued) Marion, Satzberg, Trichon & Kogan
1735 Market Street 3000 Mellon Bank Building Philadelphia, PA 19103

COUNSEL FOR APPELLEE Trans Union Corporation

*Honorable John Feikens, United States District Jud ge for the Eastern District of Michigan, sitting by designati on. Dorothy A. Kowal, Esq. (argued)
Stoldt & Horan401 Hackensack Avenue

Hackensack, NJ 07601

COUNSEL FOR APPELLEE TRW Credentials

OPINION

COWEN, Circuit Judge.

Plaintiff James R. Philbin, Jr. appeals two or ders of the district court, the first dated November 29, 1994, and the second and final order dated December 8, 1995, granting su mmary judgment in favor of the defendants. This appeal raises iss ues regarding the elements of a cause of action pursuant to § 607 (b) of the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 168 1e(b), and the nature of plaintiff's burden in demonstrating a pri ma facie case pursuant to such a cause of action, questions we ha ve not yet had occasion to address. For the reasons that follow, the judgment of the district court is affirmed in part, reversed in part, and remanded for further proceedings.

I. At some unspecified point in time, defendant T rans Union Corp. ("TUC"), a credit reporting service, prepared a credit report regarding Philbin that erroneously stated he was subject to a tax lien in the amount of approximately $9500. Apparently, TUC had him confused with his father, James R. Phil bin, Sr.
Plaintiff states in an affidavit that he has never been delinquent on any financial obligation. App. at 8. That statement has never been shown to be false, nor has it ever been denied by defendants. Philbin first notified TUC o f the error in April of 1990. TUC corrected the error and added a notation to the credit report reading: "Do not confuse with fat her James
Philbin Sr different address different social secur ity number." App. at 14. Defendant TRW Credentials, Inc. ("TRW") had al so apparently prepared a false credit report on Philbin, although there is no
evidence of what inaccuracies it contained. In the spring of 1990, Philbin's attorney wrote a letter to TRW dema nding that it correct its report. Philbin apparently did not hav e any further complaints with TRW until approximately two-and-a-h alf years
later. In July of 1990, Philbin applied for and was d enied credit at Macy's department store. The reasons given were that his "credit profile shows delinquent past or present cr edit obligations with others" and "insufficient favorabl e credit experience." App. at 15. Macy's relied in whole o r in part on the TUC report. Philbin requested and received a c opy of his credit report from TUC, which he concedes was wholl y accurate.In February of 1992, Philbin applied for and w as denied a

$1500 loan by Household International Company. The decision was based in whole or in part on information received f rom TUC, but Household gave no reasons for its decision. That April, Philbin filed a complaint against TUC with the New Jersey D epartment of Law and Public Safety. That agency forwarded Philb in's complaint to the Federal Trade Commission ("FTC"). Two month s later, Philbin was denied a loan of approximately $10,000 from Bayview Marina based in whole or in part on information rec eived from TUC. The reason given was "insufficient credit fil e." App. at
25. That November, Philbin was denied credit from four different credit granting agencies. Philbin's application fo r a credit card from Circuit City electronics store was denied by the First North American National Bank, based in whole or in part on information received from TUC. The reasons given f or the denial were "number of other recent credit inquiries" and "high utilization of bankcard credit lines." App. at 31. He applied for a credit card from Sears department store and w as denied credit based in whole or in part on information rec eived from both TUC and TRW. The reasons given were "unfavora ble credit history," "number of credit bureau inquiries," and "number of open accounts." App. at 27. He was denied a Best Products credit card from Bank One based in whole or in part on information received from TUC. The reasons given w ere "sufficient pay history not established," and "limi ted credit experience." App. at 28. Finally, Philbin was den ied a credit card by Citibank based in whole or in part on infor mation received from TRW. The reason given was that "a de linquent credit obligation[] was recorded on [the] credit bu reau report." App. at 44. Fearing that these successive denials of credi t were due to inaccuracies in his credit reports, Philbin request ed a copy of his report from both TUC and TRW. TRW promptly sen t him a copy of his report, which Philbin concedes contained no inaccuracies, indicating no delinquencies and listing six open ac counts. Ten days after the request to TUC was made, TU C informed him that the address he had provided them did not match the address in their records and requested that he send them pr oof of residence. The address to which he wished the repo rt sent was the same address to which the 1990 report had been sent. However, other evidence in the record reflects that Philbin used two addresses. Philbin complied and, several weeks later, he received a copy of his TUC report. It erroneously stated that he had been released from a $9580 tax lien. Philbin s tates that he notified TUC about the error immediately. In May of 1993, after having filed the complai nt in the instant litigation, Philbin applied for a $5000 loa n from Nation's Credit, which informed him that it was inc lined to deny him the loan based in whole or in part on informati on received
from TUC and TRW. He obtained from Nation's Credit a copy of the TUC report. Like the report he received direct ly from TUC the previous year, it erroneously stated that he ha d been released from a $9580 tax lien. Philbin also obtai ned the TRWreport from Nation's Credit. That report, in addit ion to

containing correct information regarding him, erron eously listed twelve open accounts, one currently delinquent acco unt, and four past delinquent accounts. This information apparen tly pertained to Philbin's father, not to him. On April 22, 1993, Philbin filed the instant s uit in the Superior Court of New Jersey, Camden County, chargi ng TUC and TRW
with violations of the FCRA. He claimed that as a result of the inaccurate reporting of his credit history and the subsequent denials of credit, he suffered "deep humiliation an d embarrassment . . . and will continue to suffer inj ury to his credit, reputation and financial standing." App. a t 3, 5. He
stated in an affidavit that he has suffered the hum iliation and embarrassment of not being able to purchase items n ecessary to his business without the help of his father. App. at 8. Finally, he stated that he "suffered economic injur y from the inability to establish credit so that [he] can purs ue investment opportunities in real property." App. at 8.
TUC and TRW removed the case to the district c ourt. They subsequently moved for summary judgment dismissing the complaint pursuant to Fed. R. Civ. P. 56 on the grounds that Philbin had not produced sufficient evidence to make out a prim a facie case of either willful or negligent noncompliance with § 1681e(b). On November 29, 1994, the district court granted TRW's motion for summary judgment; granted TUC's motion for summary judgment on the issue of willful noncompliance with § 1681e(b); and denied TUC's motion for summary judgment on the issue of n egligent noncompliance with § 1681e(b). In preparation for trial, the parties filed a Joint PreTrial Order, paragraph six of which stated: "None o f the letters
from the creditors . . . mentions a tax lien as a r eason for
denial of credit." TUC's Mem. of Law at 6. Based on this, TUC moved for reconsideration of the portion of its mot ion for summary judgment that had been denied. On reconsid eration, the district court held that, pursuant to the stipulati on contained in the Joint Pre-Trial Order, Philbin would not be able to produce any evidence that the denials of credit by the credit granting agencies were caused by the inaccurate ent ry on the TUC report. The district court concluded that he would therefore not be capable of sustaining his burden of proof on at least one element of his prima facie case. Accordingly, the district court vacated that portion of its November 29, 1994, orde r denying summary judgment to TUC, granted TUC's motion for s ummary judgment, and dismissed the complaint. This appeal followed.

II. The FCRA was enacted in order to ensure that " consumer reporting agencies adopt reasonable procedures for meeting the needs of commerce for consumer credit, personnel, i nsurance, and other information in a manner which is fair and equ itable to the consumer, with regard to the confidentiality, accur acy, relevancy, and proper utilization of such informati on." 15 U.S.C. § 1681(b). The FCRA was prompted by "congre ssional concern over abuses in the credit reporting industr y." Guimond v. Trans Union Credit Information Co., 45 F.3d 1329 , 1333 (9thCir. 1995); see also St. Paul Guardian Ins. Co. v. Johnson, 884

F.2d 881, 883 (5th Cir. 1989). In the FCRA, Congre ss has recognized the crucial role that consumer reporting agencies play in collecting and transmitting consumer credit info rmation, and
the detrimental effects inaccurate information can visit upon
both the individual consumer and the nation's econo my as a whole. See 15 U.S.C. § 1681(a)(1), (3). Title 15 U.S.C. § 1681e(b) provides: "Wheneve r a consumer reporting agency prepares a consumer report it shal l follow reasonable procedures to assure maximum possible ac curacy of the information concerning the individual about whom th e report relates." It is undisputed that TUC and TRW are "c onsumer reporting agenc[ies]" within the terms of 15 U.S.C. § 1681a(f), the credit reports they produced are "consumer repo rt[s]" within the meaning of § 1681a(d), and Philbin is a "consum er" for purposes of § 1681a(c). Sections 1681n and 1681o o f Title 15 respectively provide private rights of action for w illful and negligent noncompliance with any duty imposed by th e FCRA and allow recovery for actual damages and attorneys fee s and costs, as well as punitive damages in the case of willful noncompliance. See Casella v. Equifax Credit Information Servs., 5 6 F.3d 469, 473 (2d Cir. 1995), cert. denied, 116 S.Ct. 1452 (1 996); Guimond, 45 F.3d at 1332; Henson v. CSC Credit Servs., 29 F. 3d 280, 284 (7th Cir. 1994); Cahlin v. General Motors Acceptanc e Corp., 936 F.2d 1151, 1156 & n.4 (11th Cir. 1991).

A. The parties agree that a case of negligent non compliance with § 1681e(b) consists of four elements: (1) inac curate information was included in a consumer's credit rep ort; (2) the inaccuracy was due to defendant's failure to followreasonable procedures to assure maximum possible accuracy; (3) the consumer suffered injury; and (4) the consumer's injury was caused by the inclusion of the inaccurate entry. See Morris v. C redit Bureau of Cincinnati, Inc., 563 F. Supp. 962, 967 (S.D. Oh io 1983); Bryant v. TRW, Inc., 487 F. Supp. 1234, 1238 (E.D. Mich. 1980), aff'd, 689 F.2d 72 (6th Cir. 1982). Defendants do not dispute they both produced at least one report that contain ed inaccurate information about Philbin. Nor do they contest tha t Philbin's emotional distress damages are cognizable. See Gui mond, 45 F.3d at 1333; Stevenson v. TRW Inc., 987 F.2d 288, 296 ( 5th Cir. 1993); Millstone v. O'Hanlon Reports, Inc., 528 F.2 d 829, 834-35 (8th Cir. 1976). Moreover, TUC apparently concedes that Philbin has satisfied his burden on summary judgment of pro ducing facts from which a reasonable jury could infer that it di d not follow reasonable procedures. As other courts have held, "[a]llowing inaccurate information back onto a credit report af ter deleting it because it is inaccurate is negligent." Stevens on, 987 F.2d at 293; see also Morris, 563 F. Supp. at 968. As their main contention, both defendants urge that Philbin has failed to produce sufficient evidence from whic h a reasonable
trier of fact could conclude that the inaccuracies in the reports were the cause of Philbin's damages. TRW additiona lly contends that Philbin has failed to produce any evidence tha t it failed to follow reasonable procedures. We address these con tentions inreverse order.

1.
Reasonable Procedures Reasonable procedures are those that "`a reaso nably prudent person would [undertake] under the circumstances.'" Stewart v. Credit Bureau, Inc., 734 F.2d 47, 51 (D.C. Cir. 198 4) (per curiam) (quoting Bryant v. TRW, Inc., 689 F.2d 72, 78 (6th Cir. 1982)) (alteration added). "Judging the reasonable ness of a[ credit reporting] agency's procedures involves weig hing the potential harm from inaccuracy against the burden o f safeguarding against such inaccuracy." Id. TRW urges that Philbin must come forward with affirmative proof that it failed to use reasonable procedures t o assure maximum accuracy and that he has failed to do so. It cites a number of cases for the proposition that the FCRA " does not make reporting agencies strictly liable for all inaccura cies" that appear on a consumer report it prepares. Cahlin, 9 36 F.2d at 1156; see also Stewart, 734 F.2d at 51; Bryant, 689 F.2d at 78; Thompson v. San Antonio Retail Merchants Ass'n, 682 F.2d 509, 513 (5th Cir. 1982) (per curiam); Equifax, Inc. v. Fede ral Trade Commission, 678 F.2d 1047, 1049 (11th Cir. 1982); H auser v. Equifax, Inc., 602 F.2d 811, 814 (8th Cir. 1979); N eptune v. Trans Union Corp., 1993 WL 505601, at *2 (E.D. Pa. Dec. 8, 1993), aff'd, 27 F.3d 558 (3d Cir. 1994); Hussain v. Carte ret Sav. Bank, F.A., 704 F. Supp. 567, 569 (D.N.J. 1989). TRW accurately states that consumer reporting agencies are liable only when inaccuracies are the result of the ir failure to follow reasonable procedures. However, this statem ent gives little guidance as to the nature of the plaintiff's burden of proof on the "reasonable procedures" issue on a mot ion for summary judgment. We must determine the nature and quantum of proof, if any, beyond the mere fact of an inaccurac y, that a plaintiff must provide in order for a reasonable tr ier of fact to conclude that reasonable procedures were not follow ed. We are guided in this endeavor by those courts of appeals that have addressed this question. We note, howeve r, that there is a divergence among the approaches those courts h ave taken. In Stewart, 734 F.2d at 51 n.5, the Court of Appeals f or the District of Columbia Circuit noted that although it was unaware of any cases "directly addressing who has the burde n of proving reasonableness of procedures, courts have generally assumed that burden falls on the plaintiff" (citing Hauser, 602 F.2d at 814- 15; Morris, 563 F. Supp. at 968; Alexander v. Moore & Assocs., Inc., 553 F. Supp. 948, 954 (D. Haw. 1982)). Accor dingly, it
held that a plaintiff cannot rest on a sh owing of a mere inaccuracy, shifting to th e defendant the burden of proof on the reas onableness of procedures for ensuring accurac y: There is no indication that Congress mea nt to so shift the nominal plaintiff's burden of proof as to requisite components of a claim based on a statutory violation. Thus, we conclude that a plaintiff must minimally pres ent someevidence from which a trier of fact can infer

that the consumer reporting age ncy failed to follow reasonable procedures in preparing a credit report.

Id. at 51 (footnote omitted) (emphasis ad ded). However, the court went on to hold that, in or der to satisfy this "minimal[]" burden, "a plaintiff need not intr oduce direct evidence of unreasonableness of procedures: In cer tain instances, inaccurate credit reports by themselves can fairly be read as evidencing unreasonable procedures, and . . . in such instances plaintiff's failure to present direct evi dence will not be fatal to his claim." Id. at 51-52 (emphasis add ed). While the Stewart court did not definitively spell out wh at those "certain instances" were, it did give some guidance . For example, it cited with approval Bryant, 487 F. Supp . at 1242, in
which the court concluded that inconsistencies betw een two different reports concerning the plaintiff "imposed a duty on the reporting agency to verify the information in those reports." Stewart, 734 F.2d at 52. The court also approvingl y cited Morris, 563 F. Supp. at 968, in which the court lik ewise found "the existence of . . . two similar files [on plain tiff] to be a sufficient indicium of unreasonable procedures to s atisfy the plaintiffs' `burden.'" Stewart, 734 F.2d at 52. T he D.C. Circuit concluded: "Certainly . . . inconsistencie s between two files or reports involving less fundamental inaccur acies [than a falsely reported wage earner plan] can provide suff icient grounds for inferring that an agency acted negligently in f ailing to verify information." Id. In an even broader holding, the Court of Appea ls for the Ninth Circuit recently wrote: In order to make out a prima fa cie violation under § 1681e(b), a consumer mu st present evidence tending to show that a credit reporting agency prepared a rep ort containing
inaccurate information. The FC RA does not impose strict liability, howeve r -- an agency can escape liability if it esta blishes that an inaccurate report was genera ted despite the agency's following reasonab le procedures.

Guimond, 45 F.3d at 1333 (emphasis added) (citation and footnote omitted); see also id. at 1334 ("Guimond has made o ut a prima facie case under § 1681e(b) by showing that there w ere inaccuracies in her credit report."). Similarly, t he Court of Appeals for the Eleventh Circuit wrote: In order to make out a prima fa cie violation of [§ 1681e(b)], the Act implic itly requires that a consumer must present ev idence tending to show that a credit reporting agency prepared a report containing "i naccurate" information. . . . The Act, ho wever, does not make reporting agencies str ictly liable for all inaccuracies. The agen cy can escapeliability if it establishes tha t an

inaccurate report was generated by following reasonable procedures, which wi ll be a jury question in the overwhelming ma jority of cases. Thus, prior to sending a [§ 1681e(b)] claim to the jury, a credit rep orting agency can usually prevail only if a c ourt finds, as a matter of law, that a credit report was
"accurate."

Cahlin, 936 F.2d at 1156 (emphasis added) (footnotes omitted). The language from Guimond and Cahlin may be in terpreted in two different ways. A broader reading is that, onc e a plaintiff demonstrates inaccuracies in a credit report, the b urden shifts to the defendant to prove as an affirmative defense the presence of reasonable procedures. But see Stewart, 734 F.2 d at 51 n.5 (citing 15 U.S.C. §§ 1681d(c) and 1681m(c) for the proposition that Congress "`knew how' to shift the burden of pr oof from plaintiff to defendant by explicitly doing so"). A somewhat narrower, and more plausible, readi ng is that a plaintiff may present his case to the jury on the i ssue of reasonable procedures merely by showing an inaccura cy in the consumer report and nothing more, but the burden do es not shift to the defendant. Rather, a jury may, but need not , infer from the inaccuracy that the defendant failed to follow reasonable procedures. This position imposes a less stringent burden on the plaintiff than does the position taken in Stewart, which requires some unspecified quantum of evidence beyond a mere inaccuracy, such as the existence of a second report, inconsist ent with the first, in order for a plaintiff to survive summary judgment. On the other hand, it does not entirely relieve the pl aintiff of his burden of proving to the jury a lack of reasonable procedures and instead impose on the defendant an affirmative obli gation to prove that reasonable procedures were in place. This "middle position" is akin to the common l aw rule of resipsa loquitur, which permits but does not require the ju ry to infer negligence from certain predicate facts. See Restatement (Second) of Torts § 328 D (1965). The ju stification for importing
such a rule into the FCRA conte xt would be that, as in
the traditional res ipsa situation, the inaccuracy has been caused by an instrumentality under the ex clusive control of the
defendant.
Such a defendant is in a far be tter position to prove
that reasonable procedures were foll owed than a plaintiff is to prove the opposite. Pursuant to either reading of Guimond and Cahlin,

once aplaintiff has demonstrated inac curacies in the report,

a defendant could prevail on summ ary judgment only if it

were to produce evidence that demonstra tes as a matter of law
that the procedures it followed were rea sonable. See, e.g., Henson, 29 F.3d at 285 ("[A]s a matter of law, a credit reporting agency is
not liable under the FCRA for r eporting inaccurate
information obtained from a court's Judgmen t Docket, absent prior
notice from
the consumer that the informati on may be inaccurate."). Having discussed these thr ee possibilities (that a plaintiff must produce some evidence beyo nd a mere inaccuracy in
order to
demonstrate the failure to foll ow reasonable procedures; that the jury may infer the failure to f ollow reasonable procedures from the mere fact of an inaccuracy; or that upon demonstrating an inaccuracy, the burden shifts t o the defendant to prove that reasonable procedures were foll owed), we find it unnecessary to decide among them. Pursuant to either reading of
Guimond and Cahlin, plaintiff has produced sufficient evidence to
survive summary judgment on the issue o f reasonable procedures merely by demonstrating that there were i naccuracies in the TRW report. Moreover, even under the rule e nunciated in Stewart, plaintiff has produced sufficient evidenc e from which a
reasonable trier of
fact could infer that TRW did n ot follow reasonable procedures. The court there stated that "[i ]n certain instances,
inaccurate credit reports by themselves ca n fairly be read as evidencing unreasonable procedures." Stew art, 734 F.2d at 52.

As one specific example of such an ins tance, the court posited that
where there exist two or more i nconsistent reports,
and theinconsistency relates to inaccu rate information

contained in at least one of the reports, a jur y could reasonably
conclude that
the defendant failed to follow reasonable procedures. Here, TRW issued two repor ts that were
inconsistent with each other. Unquestionably, on e was inaccurate. The
inconsistencies related to the inaccurate information.

Pursuant to Stewart, and a fortiori purs uant to either of the two readings of Guimond and Cahlin, these fa cts alone are
sufficient to allow a jury to infer that TRW did no t follow reasonable procedures.
2.
Causation
Both TUC and TRW contend t hat there is no
evidence that the inaccuracy of the credit report s, even if the result
of unreasonable procedures, caused Philbin's injuries.
Given the
existence of one accurate and o ne inaccurate report prepared by each agency, they claim that th ere is no evidence from
which a
reasonable trier of fact could infer both (1) that the
credit granting agencies utilized the inaccurate as opposed
to the accurate versions; and (2) even assuming that the
inaccurate versions were used, that the in accurate entries were
the cause of
the denial of credit. The district court agreed with defendants and granted summary judgment on this basis, holding that a "plaintiff must establish that `the denial was not caused by factors
other than the alleged inaccurate entry.'" Philbin v. Trans Union Corp., No. 93-cv-2360 (JBS), at 13 (D.N.J. Dec. 8, 1995) ("Philbin II") (quoting Neptune, 1993 WL 50560 1 at *2)); Philbin v.
Trans Union Corp., No. 93-cv-2360 (JBS), at 11 (D.N.J. Nov. 29, 1994) ("Philbin I") (quoting Neptune, 1993 WL 505601 at *2)); see alsoEvans v. Credit Bureau, 904 F. Supp. 123, 126 (W.D.N.Y. 1995);Pendleton v. Trans Union System s Corp., 76 F.R.D. 192,

195 (E.D. Pa. 1977) ("[A] consumer who wa s denied credit must
show that the denial was caused by inaccurate entries . . . rather than by correct adverse entries or any other factors."). Although the district cour t did not say so explicitly, it appears that it concluded that Philbin could not show
that the
inaccurate information was the "but for" cause of his injury,
because he could not show that the harm would not have
occurred absent the inaccurate entry. W hile we agree with the
district court that a FCRA plaintiff mus t prove causation by a preponderance of the evidence, we disagree that
Philbin has failed to produce sufficient fa cts from which a reasonable jury
could find that defendants' all eged negligence caused
his injuries. A comparison of the record here with the
facts of the cases relied upon by the distri ct court and defendants
bears this

out. In Neptune, that court did indeed find that plaintiff had
not established "that the denia l [of credit] was not caused by factors other than the alleged inaccurate entry."
1993 WL 505601 at *2. However, it noted: It is undisputed that at the ti me plaintiff
claims he was denied credit bas ed on TUC's
violations of the Fair Credit R eporting Act, he was in default on an obligat ion to re-pay a student loan, he was in defau lt on an obligation to re-pay a commerci al loan from ITT Financial Services, he was failing to comply with a court order requi ring him to pay child support, and he had v irtually no
income and no assets.

Id. The court in addition noted how unus ual it was for a plaintiff to contend that he had been denied credit due to an inaccurate credit report while at the same time app lying for and receiving leave to proceed in forma pauperis. See id. at *1-2. Thus, the court's statement regarding the plaintiff 's burden visà-vis the causation issue must be read in light of the fact that there were indisputably numerous additional reasons plaintiffcould have been denied credit.

Similarly, in Evans, 904 F. Supp. at 126, the defendant introduced affidavit testimony from an employee of the credit granting agency that plaintiff had been denied a lo an because he had filed for bankruptcy within two years prior to the loan application. The presence of undisputed, correct, adverse information on the credit report, along with the un rebutted testimony of one responsible for the credit-grantin g decision, arguably supports the conclusion that no reasonable jury could conclude that the presence of inaccurate entries on the reports made a difference as to the decision whether to gra nt or deny
credit. In Cahlin, 936 F.2d at 1156, 1161, the Elevent h Circuit upheld a grant of summary judgment to the defendant only after all of the credit grantor's records had been subpoe naed and there was no indication that an adverse credit report pre pared by the defendant had ever been used in making the credit d ecision, much less any indication that such a report had been a c ausal factor in the decision. See also Wood v. Holiday Inns, In c., 508 F.2d 167, 172 (5th Cir. 1975). In contrast with these cases, the facts of the instant case more closely resemble those in Lendino v. Trans Uni on Credit Information Co., 970 F.2d 1110, 1111-12 (2d Cir. 19 92), in which
adverse outdated information was included on one of three credit reports concerning the plaintiff prepared by the de fendant, in violation of 15 U.S.C. § 1681c. The other two repo rts contained "no delinquent credit accounts or any other adverse information." Id. at 1112. The plaintiff was denied credit by Bl oomingdale's department store after its credit department review ed one or more of the three reports, but it is unclear which of th e reports it had seen. See id. at 1112-13. Although the only r eport that indicated it had been accessed by Bloomingdale's wa s one of the valid versions, the plaintiff testified that an emp loyee of the defendant told him that Bloomingdale's had obtained all three reports. See id. at 1112. The district court gran ted summary judgment to the defendant based on the conclusion t hat there was no evidence that the credit grantor had seen the in valid version of the report. See id. at 1111-12. The Second Circuit reversed, holding that a re asonable jury could indeed infer that Bloomingdale's had seen the invalid report and denied plaintiff credit based on that re port, because "[t]here is, at least on the present record, no oth er evidence which reasonably demonstrates why Bloomingdale's re jected Lendino's credit application." Id. at 1113. At or al argument, counsel for TUC was unable persuasively to distingu ish Lendinofrom the
instant case. Here, the district court originally held that because the accurate report prepared by TUC appeared to contain no delinquent accounts, and because Philbin stated in his affidav it that he has never been delinquent on an account (which statemen t is not disputed by defendants), Philbin could convince a j ury, "by process of elimination," Philbin I at 19, that the credit granting agencies must have both used the inaccurat e report and considered the inaccurate information on that repor t in reachingtheir decisions to deny credit. On reconsideration , however, in

light of the stipulation in the Joint Pre-Trial Ord er that none of the rejection letters specifically cites the err oneous information, the district court reversed itself and granted summary judgment to TUC. With respect to TRW, the report Philbin receiv ed in November of 1992, contemporaneously with the denials of cred it from Sears and Citibank, was concededly correct. The inaccura te TRW report, which he received from a credit granting agency, wa s received six
months later. The district court concluded that Ph ilbin's
contention that Sears and Citibank used the inaccur ate report rather than the accurate one was sheer speculation, and therefore granted summary judgment to TRW. As a preliminary matter, we must acknowledge t hat we are at a loss to explain the consequence ascribed by the d istrict court to the stipulation in the Joint Pre-Trial Order tha t none of the rejection letters specifically cites the inaccurate information. At the time of its initial determination, discovery was complete and Philbin had failed to submit any deposition or affidavit testimony of those individuals who had made the dec isions to deny him credit. Thus, both initially and on reconsider ation, the rejection letters (which omit to state that the err oneous entry was the cause of the denial of credit), the fact th at the accurate reports contained no adverse information, Philbin's statement that he had never been delinquent on an a ccount, and the "process of elimination" argument to be drawn f rom this evidence were all that Philbin could have presented to a jury. Yet these were deemed sufficient initially as again st TUC and
insufficient on reconsideration. More fundamentally, the district court erred b y assuming that Philbin could satisfy his burden only by intro ducing direct evidence that consideration of the inaccurate entry was crucial to the decision to deny credit. While Philbin's ca se might have been stronger had he deposed or taken affidavits of those responsible for the decision, such evidence is not essential to make out a prima facie case pursuant to § 1681e(b). We deem it sufficient that, as with most other tort actions, a FCRA plaintiff produce evidence from which a reasonable trier of fact could infer that the inaccurate entry was a "substa ntial factor" that brought about the denial of credit. Restateme nt (Second) of Torts § 431(a); Keeton et al., Prosser and Keeton o n Torts § 41, at 266-68 (5th ed. 1984) [hereinafter Prosser & Keeton ]. Philbin has
met that burden in this instance as to each of the six credit denials encompassed by his complaint. Because the accurate reports apparently contai ned no adverse information and because it is undisputed that Philb in has never been delinquent on a credit obligation, when Sears denied him credit because of an "unfavorable credit history," App. at 27, a reasonable jury certainly could infer that Sears wa s referring to
the inaccurate adverse information contained in the inaccurate reports. See Lendino, 970 F.2d at 1113. Household International gave no reason for the denial of credit. Again, however, given the absence of corre ct, adverse information concerning Philbin, a trier of fact cou ld reasonablyinfer, by necessary implication, that the inaccurat e adverse

information must have played a substantial role in its decision to deny credit. Finally, three credit grantors -- Bayview Mari na, Bank One, and First North American Bank -- gave reasons for d enying credit that appear to be innocuous. These include: "insu fficient credit file," "sufficient pay history not establish ed," "limited credit experience," "number of other recent credit inquiries," and "high utilization of bankcard credit lines." App. at 25, 28, 31. While these present a closer question, we conc lude that a trier of fact could reasonably infer that the inacc urate adverse information included on the inaccurate credit repor t was an additional, unstated reason for the credit denials. Moreover, as to Bank One, which stated that it denied credit bec ause of Philbin's lack of credit history, one could infer t hat this lack of a credit history was itself due, at least in par t, to his inability to get credit because of the inaccurate r eports. Philbin's case against TRW is somewhat more at tenuated than his case against TUC, given that the inaccurate rep ort surfaced some six months after the denial of credit by Sears and Citibank. However, we find that evidence of the existence of two inconsistent reports within six months of each othe r allows a reasonable trier of fact to infer that the two repo rts existed simultaneously in November of 1992, at the time of the denials of credit. This, taken along with the fact that the a ccurate report apparently contained no information adverse to Phil bin and the undisputed fact that he has never been delinquent o n any credit obligation, would allow a reasonable trier of fact to infer both that Citibank and Sears saw the inaccurate TRW repo rt and that
the inaccurate information was a substantial factor in bringing about the denial of credit. See Lendino, 970 F.2d at 1113. This is especially true given that the reasons supplied by Sears for the denial included "unfavorable credit history," a nd the reason supplied by Citibank was "a delinquent credit oblig ation[] was recorded on [the] credit bureau report." App. at 2 7, 44. We note also that the district court's languag e might be understood as imposing a burden on a FCRA plaintiff of proving
that the inaccurate information was the sole cause of the denial of credit. We reject such a view as inconsistent w ith traditional notions of tort law and the reality of human decision-making. While a plaintiff must prove that the inaccurate entry was "a substantial factor in bring ing about" the denial of credit, Restatement (Second) of Torts § 4 31(a), he need not eliminate the possibility that "correct adverse ent ries or any other factors," Pendleton, 76 F.R.D. at 195, also e ntered into the decision to deny credit. See Cahlin, 936 F.2d at 1161 (plaintiff "bears the burden of proving that [defen dant's] credit report was a causal factor in the denial of" credit ) (emphasis added); Stewart, 734 F.2d at 54 ("[A] trier of fact could reasonably conclude that [defendant] denied [plaint iff] membership at least in part because of the adverse credit report, and summary judgment was inappropriate.") (emphasis added); seealso Prosser & Keeton § 41, at 268 ("If the defendant's conduct was a substantial factor in causing the plaintiff's inj ury, itfollows that he will not be absolved from liability merely

because other causes have contributed to the result . . . ."). Forcing a plaintiff affirmatively to rule out other explanations for the credit denial ignores the fact that decisions to deny credit will frequently have more than one cause. For example, in some instances the inaccura te entry and another factor may each, considered separately, be insufficient
to have caused the denial of credit but when taken together are sufficient. Each may then be considered a substant ial factor in bringing about the denial of credit and therefore a cause of plaintiff's injury. See Prosser & Keeton § 41, at 266-67 & n.25. Courts have recognized that where a decision-m aking process implicates a wide range of considerations, all of w hich factor into the ultimate decision, it is inappropriate to saddle a plaintiff with the burden of proving that one of th ose factors was the cause of the decision. See, e.g., Price Wa terhouse v. Hopkins, 490 U.S. 228, 241, 244, 109 S.Ct. 1775, 17 85, 1787 (1989) (plurality opinion) (finding that "Title VII [of the Civil Rights Act of 1964] meant to condemn even those dec isions based on a mixture of legitimate and illegitimate conside rations," and concluding that Title VII plaintiff must show illeg itimate consideration "played a motivating part in an emplo yment decision"); Village of Arlington Heights v. Metropo litan Housing Development Corp., 429 U.S. 252, 265-66, 97 S.Ct. 5 55, 563 (1977) (plaintiff claiming equal protection violation need not "prove that the challenged action rested solely on raciall y discriminatory purposes" but only that such a purpo se was "a motivating factor in the decision"). Indeed, where multiple factors exist, any inquiry into the cause of a deci sion would be a meaningless endeavor. See Price Waterhouse, 490 U.S. at 247, 109 S.Ct. at 1788-89 (plurality opinion). We hasten to add that the burden of proving ca usation remains with the plaintiff at all times and never s hifts to the
defendant. We conclude however that even on this s parse record,
a reasonable trier of fact could infer that the ina ccurate entries were a substantial factor in bringing about Philbin's injuries. Accordingly, Philbin has produced eviden ce sufficient to satisfy his burden of proving a prima facie case of negligent noncompliance with 15 U.S.C. § 1681e(b) as to each defendant.

B. By contrast, we agree with the district court that Philbin has not produced sufficient evidence of willful non compliance with § 1681e(b) to survive summary judgment. To sh ow willful noncompliance with the FCRA, Philbin must show that defendants "knowingly and intentionally committed an act in co nscious disregard for the rights of others," but need not s how "malice or evil motive." Pinner v. Schmidt, 805 F.2d 1258, 12 63 (5th Cir. 1986), cert. denied, 483 U.S. 1022, 107 S.Ct. 3267 (1987); seealso Casella, 56 F.3d at 476.
Philbin claims that TUC is liable for a willfu l violation
because he notified it of the error several times a nd TUC failed to correct it. However, after the first notificati on, in 1990, TUC did remove the erroneous information for a peri od of time. Moreover, he contends that his filing of a complain t with the FTCgave TUC notice a second time, but there is no evid ence that TUC

had notice of the complaint. There appears to be o ne instance -- in November of 1992 -- when he notified TUC that, d espite the earlier correction, the error re-appeared, and TUC failed to correct it. This, however, falls short of evidence of a willful
violation.
Philbin also claims that TUC's refusal to send him a copy of his credit report in November of 1992 evidences a w illful violation. However, it appears that TUC merely des ired to verify his address. Moreover, the record reflects that Ph ilbin had two mailing addresses, and so TUC's concern appears to be bona fide. After receiving verification of his address, TUC ev entually sent him a copy of the report. Its actions do not rise to the level of a "willful misrepresentation[] or concealment[]" that justifies finding a willful violation. Pinner, 805 F.2d at 1263; cf. Millstone, 528 F.2d at 834. Philbin's case against TRW for a willful viola tion is even
weaker. He claims that after the 1990 letter and t he 1992 filing with the FTC, TRW had notice of the inaccuracies an d nonetheless circulated the inaccurate report. However, there i s no evidence that the alleged errors that precipitated the 1990 letter are the same as those that appeared on the 1993 report. Mo reover, the 1990 letter is so far removed temporally from the 1 993 report that it would strain the concept of notice to concl ude that the former provided notice of errors in the latter. Fu rther, Philbin's FTC filing concerned his problems only wi th TUC, not TRW. There is, therefore, no evidence of willful b ehavior on the part of TRW.

III. The order of the district court, dated Novembe r 29, 1994, granting summary judgment to both defendants as to the claims for willful noncompliance with § 1681e(b) will be affir med. The orders dated November 29, 1994, and December 8, 199 5, granting summary judgment to defendants as to the claims for negligent noncompliance with § 1681e(b) will be reversed. Th e matter is remanded to the district court for further proceedi ngs consistent with this opinion. Costs taxed against appellees.