United States District Court, N.D. Alabama, Southern Division
SHAUN J. YOUNGER, Plaintiff,
EXPERIAN INFORMATION SOLUTIONS, INC., Defendant.
G. CORNELIUS U.S. MAGISTRATE JUDGE
23, 2018, the court entered a final judgment in this case on
the jury's verdict in favor of the plaintiff, Shaun J.
Younger, and against the defendant, Experian Information
Solutions, Inc. (Doc. 122). Presently pending are: (1)
Experian's "Combined Renewed Motion for Judgment as
a Matter of Law, Motion to Alter or Amend the Judgment, and
Motion for New Trial" (Doc. 133); (2) Experian's
Motion for Credit on Judgment (Doc. 132); and (3)
Plaintiff's motion to alter or amend the final judgment
(Doc. 128). The motions are fully briefed and ripe for
adjudication. (Docs. 135, 138, 139, 142). As explained below:
(1) Experian's combined motion will be granted to the
extent it seeks remittitur but denied in all other respects;
(2) Experian's motion for credit on judgment will be
granted as to compensatory damages but denied as to punitive
damages; and (3) Plaintiff's motion to amend will be
denied as moot.
BACKGROUND AND PROCEDURAL HISTORY
matter arises under the Fair Credit Reporting Act, 15 U.S.C.
§ 1681, et seq. The parties unanimously
consented to magistrate judge jurisdiction pursuant to 28
U.S.C. § 636(c). (Doc. 16). The complaint named
Experian, Equifax Information Services, LLC, and Portfolio
Recovery Associates, LLC ("PRA"). (Doc. 1). PRA
entered into a pro tanto settlement with Plaintiff
prior to the dispositive motion deadline, and all claims
against it were dismissed. (Docs. 34, 35).
remaining parties subsequently filed cross-motions for
summary judgment. (Docs. 36, 38, 39). On September 22, 2017,
the court: (1) partially granted Plaintiff's motion for
summary judgment on the issues of Experian's duty and
breach under 15 U.S.C. § 1681i but denied the motion
regarding Plaintiff's damages and Experian's intent;
and (2) denied Experian's and Equifax's motions for
summary judgment. (Doc. 58). Experian moved for
reconsideration (Doc. 65), which the court denied on November
30, 2017 (Doc. 73). Prior to trial, Equifax entered into a
pro tanto settlement with Plaintiff, and the claims
against Equifax were dismissed. (Docs. 82, 83). This left
Experian as the sole defendant for trial.
claims against Experian arise from its failure to delete
inaccurate information from his credit report. The inaccurate
information concerned credit card debt which was sold to PRA.
PRA subsequently sued Plaintiff on the debt in Jefferson
County District Court. The small claims court dismissed the
case on January 12, 2015. On March 30, 2015, Plaintiff pulled
his Experian credit report; it listed both the original
credit card debt and the debt to PRA. That same day, with the
assistance of his lawyer, Plaintiff wrote a letter to
Experian identifying the misreported debt and attaching the
state court order dismissing the lawsuit concerning the
employs a suspicious mail policy ("SMP") in an
effort to ensure correspondence it receives concerning a
consumer was sent by the consumer rather than a third-party.
Experian determined Plaintiff's letter was suspicious
and, on April 15, 2015, sent Plaintiff a form
"suspicious mail notification letter"
("Suspicious Mail Letter"). The Suspicious Mail
Letter stated Experian would not investigate his dispute
because it had determined someone other than Plaintiff had
sent the letter. Included in the Suspicious Mail Letter was a
1-800 number (the "Dispute Hotline") Plaintiff
could call to report inaccurate credit information. Experian
had no further contact with Plaintiff until he filed this
lawsuit. On June 10, 2015, in the normal course of business,
Experian removed the contested debt from Plaintiff's
credit report. (See Doc. 58 at 2-3, 6).
matter proceeded to trial on Plaintiff's claims for
negligent and willful FCRA violations against Experian. At
the close of Plaintiff's case in chief, Experian moved
for judgment as a matter of law pursuant to Rule 50(a) of the
Federal Rules of Civil Procedure; the motion was
denied. (Doc. 130 at 36-39; see Doc. 115). After the
close of evidence, Experian renewed its motion, which the
court denied. (Doc. 130 at 75). The jury subsequently
returned a verdict for Plaintiff. The verdict reflects the
jury determined Experian's failure to reinvestigate
Plaintiff's dispute had caused Plaintiff harm, awarding
$5, 000 in actual damages. The jury further found
Experian's violation of the FCRA was willful, assessing
$3, 000, 000 in punitive damages. (Doc. 121). The instant
post-trial motions followed.
STANDARD OF REVIEW
combined motion seeks: (1) judgment as a matter of law under
Rule 50(b); (2) to alter or amend the judgment under Rule
59(e); and/or (3) a new trial under Rule 59(a)(1)(A). (Doc.
133). These grounds for relief may be asserted in a single,
combined motion. Fed.R.Civ.P. 50(b). The applicable standards
are recited in turn.
presented with a renewed motion for judgment as a matter of
law may: (1) allow judgment on the verdict; (2) order a new
trial; or (3) direct entry of judgment as a matter of law.
Fed.R.Civ.P. 50(b). A renewed motion for judgment as a matter
of law may raise grounds asserted in, or closely related to,
the issues raised in the original motion. McGinnis v. Am.
Home Mortg. Servicing, Inc., 817 F.3d 1241, 1261 (11th
Cir. 2016). Judgment as a matter of law should be granted
only when "there is no legally sufficient evidentiary
basis for a reasonable jury to find for that party on that
issue." Commodores Entm't Corp. v. McClary,
879 F.3d 1114, 1130 (11th Cir. 2018). This review takes
account of all of the evidence presented at trial and draws
"all reasonable inference most favorable to the party
opposed to the motion." Simon v. Shearson Lehman
Bros., Inc., 895 F.2d 1304, 1310 (11th Cir. 1990).
district court may grant a new trial "for any reason for
which a new trial has heretofore been granted in actions at
law in federal court." Fed.R.Civ.P. 59(a)(1)(A). "A
judge should grant a motion for a new trial when the verdict
is against the clear weight of the evidence or will result in
a miscarriage of justice, even though there may be
substantial evidence which would prevent the direction of a
verdict." Lipphardt v. Durango Steakhouse of
Brandon, Inc., 267 F.3d 1183, 1186 (11th Cir. 2001)
(internal quotation marks omitted). Courts "should give
great deference to the jury's verdict and grant a new
trial sparingly." Hooks v. GEICO Gen. Ins. Co.,
Inc., No. 13-891, 2016 WL 5415134, at *1 (M.D. Fla.
Sept. 28, 2016).
decision whether to alter or amend a judgment pursuant to
Rule 59(e) is committed to the sound discretion of the
district judge." Mincey v. Head, 206 F.3d 1106,
1137 (11th Cir. 2000) (internal quotation marks omitted).
"The only grounds for granting a Rule 59 motion are
newly-discovered evidence or manifest errors of law or
fact." Arthur v. King, 500 F.3d 1335, 1343
(11th Cir. 2007) (alterations incorporated). "A Rule
59(e) motion cannot be used to relitigate old matters, raise
argument or present evidence that could have been raised
prior to the entry of judgment." Id.
opinion addresses Experian's combined post-trial motion
before turning to Experian's motion for credit on
judgment and Plaintiff's motion to alter or amend.
Experian's Combined Post-Trial Motion
combined motion seeks post-trial relief on the following
grounds: (1) Plaintiff's reference to an Assurance of
Voluntary Compliance; (2) Plaintiff's damages; (3) juror
confusion caused by the court's summary judgment ruling;
(4) the lack of evidence showing Experian acted willfully;
and (5) excessive punitive damages. These issues are
addressed in turn.
Reference to Assurance of Voluntary Compliance
contends it is due post-judgment relief because
Plaintiff's counsel referred to an "Assurance of
Voluntary Compliance" ("AVC") entered into by
attorneys general of thirty-one states and the three national
credit reporting agencies ("CRAs"), including
Experian. (Doc. 133 at 5-13). The AVC was not entered into
evidence, but when cross-examining Experian's corporate
representative, Plaintiff's counsel engaged in the
following line of questioning.
Q. And then pursuant to this policy, if they call in, you
process the dispute?
A. If the consumer calls in, confirms their identity, and
states that they are in fact the person who initiated the
dispute, yes, sir, we will.
Q. Well, I'm glad you mentioned the phone call again.
There's a couple of purposes in the phone call that you
told us about: to process the dispute, confirm ID; am I
right? But isn't another purpose of the phone call to
market to and sell items to the consumer?
A. No, sir.
Q. Has that ever been part of your practice that in a
post-dispute consumer phone call, Experian will try to sell
A. No, sir. Our dispute agents do not try to sell items.
Q. Not in a post-consumer dispute like this?
A. This is not post-consumer dispute, first of all.
Q. Post-dispute consumer phone call. Forgive my verbiage.
A. No, sir.
Q. Okay. Let me ask you this. Let's see here. Are you
aware that on --what's the date on this? May 14, 2015. So
a month after -- less than a month after y'all sent the
letter to Mr. Younger, Experian entered into an assurance of
compliance with 31 states including the State of Alabama in
which you agreed or it was found that you engaged in improper
disclosure or marketing practices relating to the sale of
direct-to-consumer products to consumers during credit report
dispute phone calls? Are you aware of that?
130 at 64-65). At that point, counsel for Experian asked to
see a copy of the AVC and discussed its terms with opposing
counsel in front of the jury. (Id. at 66). No
objections were lodged. Plaintiff's counsel continued
Q. All right. As a result of the findings of this multistate
committee, according to this document that your lawyer and
Experian signed -- or your lawyer's law firm, rather --
it says that y'all shall adopt a script for use in
post-dispute marketing phone calls to communicate to
consumers in a clear and comprehensible language when the
dispute portion ends and when the marketing products and
services begins. So I want to be very clear about this and
give you another chance. Are you telling this jury in light
of this that Experian's practice was not to try to market
and sell items to consumers during dispute phone calls?
A. During this phone number -- this dedicated phone line? No,
sir, I don't believe so.
Q. Not at all?
A. I can tell you that I have worked consumer disputes myself
for about 14 of the 16 years and, no, I never marketed any
products or anything like that on a consumer dispute phone
Q. Well, then, based on your own personal knowledge, is it
surprising to you that Experian agreed that they would enter
into this compliance order and change their business
practices to make it clear that they were marketing?
MS. REYNOLDS: Objection, Your Honor. Relevance.
THE COURT: Overruled.
Q. (BY MR. SEALS:) Go ahead.
A. Can you ask the question again?
Q. I'll do my best. Because it was a ...