United States District Court, N.D. California
SERGIO L. RAMIREZ, Plaintiff,
TRANS UNION, LLC, Defendant.
ORDER RE: TRANS UNION'S RENEWED MOTION FOR
JUDGMENT AS A MATTER OF LAW, OR IN THE ALTERNATIVE FOR A NEW
TRIAL, OR IN THE ALTERNATIVE FOR REMITTITUR, OR IN THE
ALTERNATIVE TO AMEND THE JUDGMENT RE: DKT. NO. 321
JACQUELINE SCOTT CORLEY UNITED STATES MAGISTRATE JUDGE.
Sergio Ramirez filed this class action alleging that
Defendant Trans Union violated the Fair Credit Reporting Act
(FCRA), 15 U.S.C. § 1681 et seq., through its OFAC Name
Screen Alert. The OFAC Name Screen Alert or OFAC Alert is a
service Trans Union provides to its customers which
identifies persons whose names match individuals (known as
Specially Designated Nationals or SDNs) on the United States
government's list of terrorists, drug traffickers, and
others with whom Americans are prohibited from doing
business. After a jury returned a verdict in Plaintiff's
favor and awarded statutory and punitive damages of more than
$60 million, Trans Union moved for judgment as matter of law,
or in the alternative, for new trial. (Dkt. No. 321.) Having
considered the briefs and having had the benefit of oral
argument on October 5, 2017, the Court DENIES Trans
Union's motion. The jury's verdict was supported by
substantial evidence and there is no basis to set aside the
award of statutory and punitive damages.
a weeklong trial, the jury reached a verdict in favor of
Plaintiff and the class and awarded over $60 million in
statutory and punitive damages. The jury found in
Plaintiff's favor on all three claims under the FCRA:
that over a six-month period in 2011 Trans Union violated
three FCRA requirements: (1) that credit reporting agencies
establish “reasonable procedures” to ensure the
“maximum possible accuracy” of information
provided about consumers under 15 U.S.C. § 1681e(b); (2)
that credit reporting agencies “clearly and
accurately” disclose “all information in the
consumers file at the time of [a] request” under §
1681g(a), and (3) that credit reporting agencies provide a
statement of consumer rights with each such disclosure under
§ 1681g(c). Plaintiff argued, and the jury apparently
agreed, that Trans Union's name-only matching protocol
was not a reasonable procedure designed to ensure the maximum
possible accuracy of consumer information, and that Trans
Union's disclosure of OFAC information to consumers
violated Section 1681g by failing to disclose OFAC
information to consumers simultaneously with their consumer
reports and by failing to provide a statement of consumer
rights with the separately furnished OFAC disclosure. The
jury also concluded that Trans Union's conduct was
Union challenges the jury's verdict on multiple grounds.
First, Trans Union contends that it is entitled to judgment
as a matter of law because the evidence does not support a
finding of a willful violation of any of the three FCRA
prongs at issue in this case. Next, Trans Union argues that
it is entitled to a new trial because Plaintiff's counsel
made improper and prejudicial arguments and statements during
trial. Finally, Trans Union insists that the statutory and
punitive damages verdicts must be set aside because they are
excessive and unconstitutional. None of these arguments is
Trans Union's Motion for Judgment as a Matter of
50(b) motion for judgment as a matter of law is appropriate
when the evidence permits only one reasonable conclusion, and
that conclusion is contrary to that of the jury. Martin
v. Cal. Dep't of Veterans Affairs, 560 F.3d 1042,
1046 (9th Cir. 2009). The court must view the evidence in the
light most favorable to the nonmoving party and draw all
reasonable inferences in that party's favor, EEOC v.
Go Daddy Software, Inc., 581 F.3d 951, 961 (9th Cir.
2009), and the court “may not make credibility
determinations or weigh the evidence.” Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150
(2000). A “jury's verdict must be upheld if it is
supported by substantial evidence, which is evidence adequate
to support the jury's conclusion, even if it is possible
to draw a contrary conclusion.” Pavao v.
Pagay, 307 F.3d 915, 918 (9th Cir. 2002).
as to the Section 1681(e)(b) reasonable procedures claim,
Trans Union maintains that there was no willful violation
because it did its best and the OF AC Name Screen Alert was
exactly that-a name-only match, which is what their customers
asked them to provide. The trial record includes substantial
evidence from which a jury could have reached a contrary
conclusion, including but not limited to the following:
• Trans Union used name-only matching logic,
disregarding middle names, dates of birth, social security
numbers, places of birth, and all other available identifying
information, to associate Ramirez and all other class members
with the OF AC list throughout the class period.
• Trans Union's name-only matching procedure for OF
AC information contrasted with its procedures for non-OFAC
credit reports; to associate information with a consumer on a
non-OFAC credit report Trans Union required additional
identifying information, such as address, date of birth, or
social security number.
• The two other credit reporting agencies (Experian and
DealerTrack) that screened Mr. Ramirez against the OF AC list
in February 2011 were able to accurately report that he was
not a match to the OF AC SDN List.
• Trans Union had repeated notice of problems with its
OF AC procedures between 2005 and 2011, including the
Cortez action, consumer inquiries, and
communications from the United States Department of Treasury.
• Despite all the problems and notwithstanding the
Cortez decision, Trans Union did not consider using
a vendor other than Accuity, or stopping the sale of OFAC
• Trans Union cannot identify a single instance in which
its OF AC Alert product identified someone actually on the OF
• For each person who contacted Trans Union to dispute
the OF AC information, Trans Union performed a manual review
and removed the OFAC Alert.
• Trans Union removed Mr. Ramirez's OF AC Alert when
it received a handwritten note from him saying “please
get me off the of ac list.”
Trans Union argues that Plaintiff failed to prove a willful
violation of either Section 1681g(a) and (c)(2). It maintains
that its disclosure attempted to comply with the Third
Circuit Court of Appeal's decision in Cortez v. Trans
Union, LLC, 617 F.3d 688 (3d Cir. 2010), and argues that
nothing in the statute requires all the required information
to be delivered simultaneously; to the contrary, the statute
suggests that only one disclosure of rights is required per
request. In any event, Trans Union argues they had no intent
to violate the FCRA. The trial evidence, however, fully
supports a contrary conclusion. For example, the evidence
supports the following findings:
• Ramirez requested a copy of his Trans Union file, and
received his file or “personal credit report”
which identified itself as the response to his request, and
contained no reference whatsoever to OFAC.
• The form of the “personal credit report”
was the same for all class members in 2011, and like the form
sent to Ms. Cortez in 2005, omitted OFAC information.
• Trans Union sent Mr. Ramirez and all other class
members a separate letter regarding the OFAC record that
“is considered a potential match” to the
consumer's name. The letter is not identified as a file
disclosure, and says that the requested personal credit
report “has been mailed to you separately.” The
letter also states that it is being provided as a
“courtesy, ” and does not inform the consumer
that the OFAC information can be disputed if inaccurate.
• Trans Union continued to disclose this information
separately because it concluded that it was technologically
infeasible to do it all at once, but it never sought outside
expert assistance with the issue and it was ultimately able
to solve the infeasibility issue six months later.
• Since it introduced the product in 2002, Trans Union
has had the capability to incorporate OFAC information into
the credit reports sold to customers.
• Trans Union did not begin to disclose OFAC information
to consumers in any manner until 2011, and never considered
stopping sales of OFAC alerts to third parties.
• Trans Union misrepresented the content of its separate
OFAC letter in a communication to the United States
Department of Treasury, falsely claiming that it instructed
consumers about their right to dispute OFAC information.
Union's motion for judgment as a matter of law is
therefore DENIED. Substantial evidence supports the
jury's conclusion that Trans Union willfully violated 15
U.S.C. §§ 1681e(b), 1681g(a), and 1681g(c).
Trans Union's Motion for New Trial
Rule 59, a court has the discretion to grant a new trial
“for any reason for which a new trial has heretofore
been granted in an action at law in federal court.”
Fed.R.Civ.P. 59(a)(1)(A). The grounds for a new trial
include: (1) a verdict that is contrary to the weight of the
evidence; (2) a verdict that is based on false or perjurious
evidence; or (3) to prevent a miscarriage of justice.
Molski v. M.J. Cable, Inc., 481 F.3d 724, 729 (9th
Cir. 2007) (quotation marks and citation omitted). Erroneous
evidentiary rulings and errors in jury instructions are also
grounds for a new trial. See Ruvalcaba v. City of Los
Angeles, 64 F.3d 1323, 1328 (9th Cir. 1995). A new trial
should be granted where, after “giv[ing] full respect
to the jury's findings, the judge on the entire evidence
is left with the definite and firm conviction that a mistake
has been committed” by the jury. Landes Constr. Co.
v. Royal Bank of Canada, 833 F.2d 1365, 1365 (9th Cir.
Union insists that it is entitled to a new trial because of
counsel's improper statements during closing argument and
improper questioning of witnesses regarding the
Trans Union maintains that Plaintiff's counsel's
references to unnamed executives sitting in tall buildings
was inflammatory as was other language regarding Trans
Union's failure to call a trial witness and a statement
suggesting that although only 25 percent of the class applied
for credit during the class period, the effect of Trans
Union's OFAC Alert on these individuals beyond the
six-month class period is unknown. Trans Union's
objections to these statements are unpersuasive. As an
initial matter, to the extent that Trans Union took exception
to Plaintiff's counsel's remarks, defense counsel
should have objected and sought appropriate relief from the
Court. See Bird v. Glacier Elec. Coop., Inc., 255
F.3d 1136, 1148 (9th Cir. 2001). In the absence of “a
contemporaneous objection or motion for a new trial before a
jury has rendered its verdict, ” a new trial is
warranted [only] where the integrity or fundamental fairness
of the proceedings in the trial court is called into serious
question.”Id. Further, in evaluating the
likelihood of prejudice from the comments, the court
considers “the totality of circumstances, including the
nature of the comments, their frequency, their possible
relevancy to the real issues before the jury, the manner in
which the parties and the court treated the comments, the
strength of the case, and the verdict itself.”
Hemmings, 285 F.3d at 1193. A new trial ...